Lucero Xochihua-Jaimes v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCERO XOCHIHUA-JAIMES, No. 18-71460
Petitioner,
Agency No.
v. A206-105-249
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 4, 2020
San Francisco, California
Filed June 26, 2020
Before: EUGENE E. SILER, * KIM MCLANE
WARDLAW, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 XOCHIHUA-JAIMES V. BARR
SUMMARY **
Immigration
Granting a petition for review of the Board of
Immigration Appeals’ denial of deferral of removal under
the Convention Against Torture, and remanding, the panel
held that the evidence compelled the conclusion that
petitioner would more likely than not be tortured, with the
consent or acquiescence of a public official, if returned to
Mexico.
The panel held that the Board misapplied Ninth Circuit
precedents regarding acquiescence of a public official and
the possibility of safe relocation, and relied on factual
findings that are directly contradicted by the record, in
concluding that petitioner failed to meet her burden to
establish that she would more likely than not be tortured.
Specifically, the panel held that the Board erred by relying
on national efforts to combat drug cartels in concluding that
petitioner failed to establish acquiescence. Considering
petitioner’s testimony regarding multiple instances of
acquiescence in the past involving her personal
circumstances, and extensive country conditions evidence
documenting the widespread problem of public official
acquiescence in crimes by Los Zetas cartel generally, the
panel held that the record compelled the conclusion that
petitioner established the requisite level of acquiescence by
public officials. The panel also held that the evidence
compelled the conclusion that petitioner could not safely
relocate within Mexico to avoid future torture, where there
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
XOCHIHUA-JAIMES V. BARR 3
was no affirmative evidence that there is a general or specific
area within Mexico where petitioner could safely relocate,
and the evidence indicated that Los Zetas operate, and that
LGBTQ individuals are at heightened risk, throughout much
of Mexico.
The panel held that the evidence compelled the
conclusion that it is more likely than not that Los Zetas will
target petitioner for murder or other torture if she is removed
to Mexico, and remanded for the Board to grant deferral of
removal.
COUNSEL
Max Carter-Oberstone (argued) and Brian Goldman, Orrick
Herrington & Sutcliffe LLP, San Francisco, California, for
Petitioner.
Rebecca Hoffberg Phillips (argued) and Jessica D. Strokus,
Trial Attorneys; Anthony C. Payne, Assistant Director;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
4 XOCHIHUA-JAIMES V. BARR
OPINION
M. SMITH, Circuit Judge:
Lucero Xochihua-Jaimes, a native and citizen of Mexico,
petitions for review of the BIA’s denial of her Convention
Against Torture (CAT) claim. Petitioner has lived in the
United States for almost twenty years, since she fled Mexico
as a teenager after being raped multiple times and being
ejected from her parents’ home because she is a lesbian.
Petitioner eventually became involved in an abusive
relationship with Luna, a man connected to Los Zetas, one
of Mexico’s major drug cartels. After Petitioner reported
Luna for raping her twelve-year-old daughter in 2013, and
Luna went to prison as a result, Luna’s family began a
campaign of threatening Petitioner that if she ever returned
to Mexico, Petitioner and her daughter would be killed. The
Immigration Judge (IJ) found that Petitioner did not carry
her CAT burden, and the Board of Immigration Appeals
(BIA) affirmed. We grant the petition, and hold that
Petitioner is entitled to deferral of removal pursuant to CAT.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Petitioner grew up in Veracruz, Mexico, where she lived
with her parents and two siblings. 1 At seven or eight years
old, her grandfather and later her cousin began raping her.
Her parents did not protect her. After Petitioner came out as
1
The IJ found Petitioner credible, and the BIA did not disturb this
finding. Thus, “we accept the facts given by [the petitioner] and all
reasonable inferences to be drawn from them as true.” Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1075 n.1 (9th Cir. 2015) (quoting
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1054 n.2 (9th Cir. 2006)).
XOCHIHUA-JAIMES V. BARR 5
a lesbian, her parents told her that the sexual abuse was
happening so she could “learn to be a woman.”
In 2001, as a teenager, Petitioner was raped by a
schoolteacher and became pregnant with her first child, a
daughter we will refer to as I.X. When Petitioner reported
the rape to her parents, her parents did not believe her
because she had a girlfriend. Soon afterward her father
kicked her out of the house. Petitioner fled to the United
States and entered without admission or parole.
In 2003, Petitioner met Clemente Leonardo Arias Luna,
a Mexican citizen and U.S. lawful permanent resident, in
North Carolina. Luna offered, and Petitioner agreed, to enter
a “pretend” relationship, in order for Petitioner to regain her
parents’ approval by appearing to be heterosexual. In 2004,
Luna began beating and raping Petitioner. Petitioner would
ultimately have five children by him. According to
Petitioner, Luna and “all his family” were then, and are still,
members of Los Zetas.
Also in 2004, Luna’s nephew Chavelo attempted to
sexually assault Petitioner. Petitioner reported the assault to
the police in North Carolina, who arrested Chavelo.
However, when it became evident that Petitioner would be
called to testify against Chavelo, Luna moved her to
Arizona. Luna used abuse, rape, and taking Petitioner’s
children away in order to force Petitioner to stay with him,
despite her attempts to escape from him. Petitioner also
stayed because her relationship with Luna was the only way
to keep her parents talking to her—as she said, “they are the
only family I have.”
In 2005, Petitioner was apprehended by immigration
authorities, and agreed to voluntarily return to Mexico.
Petitioner’s parents refused to take her in, so Petitioner went
6 XOCHIHUA-JAIMES V. BARR
to stay with a cousin of Luna’s in Baja California, whom
Petitioner described as one of Los Zetas’ “major heads of the
drugs over there.” When she arrived, this cousin “beat [her]
up very bad,” pointed a gun at her head, and told her if she
ever left Luna he would kill her. Petitioner testified that
onlookers “were all just laughing,” and that “the police
would drive by, but they wouldn’t give me any help. They
were just laughing at me.”
Petitioner stayed in Baja California for one month while
she “wait[ed] for the bruises to go away” and had a surgery
for an ectopic pregnancy. Petitioner then re-entered the
United States without admission or parole. She lived in a
mobile home in Arizona with Luna and her children. She
eventually began working cleaning jobs outside the home.
Luna continued to abuse her. Petitioner called the police to
report Luna multiple times, but she received no help from
them.
In 2010, Petitioner became aware that Luna had bribed
Mexican officials to put the mother of some of his other
children, Isabelle Moreno, in jail. Moreno had reported
Luna and his family for threatening her and taking her
children, and Luna was able to pay off Mexican police to put
Moreno in jail instead of him. Petitioner learned about this
incident because Luna made Petitioner help take care of
Moreno’s children during her incarceration.
Petitioner managed to leave her relationship with Luna
in 2012, on the condition that she would allow him to see
their children. Although Luna provided no financial support,
he agreed to babysit when Petitioner was at work.
In 2013, Luna sexually molested I.X., then twelve years
old, while Petitioner was working a night shift. Petitioner
filed a police report but the police did not immediately
XOCHIHUA-JAIMES V. BARR 7
apprehend Luna because he had fled to California. Luna
returned to Petitioner’s home a few months later, where he
broke down the door, hit Petitioner, and tried to take the
children. Petitioner’s neighbor called the police but Luna
fled again. In March 2014, Luna returned, and a neighbor
witnessed Luna sexually molesting I.X. The neighbor called
the police, who successfully apprehended Luna. Luna is
currently serving a 37-year sentence for sexual conduct with,
and molestation of, a child. 2
At some point after Luna’s arrest, police came to
Petitioner’s home while she was working and a babysitter
was watching her children. The babysitter hid because she
was afraid of talking to the police due to her immigration
status. The police concluded that the children were
unsupervised. As a result, Arizona Child Protective Services
took Petitioner’s children. Petitioner has been trying to
regain custody ever since.
After Luna was imprisoned, two of Luna’s adult children
(a son and a daughter from another relationship, both
members of Los Zetas, who live in California) went to
Petitioner’s home. They put a gun to Petitioner’s back,
threw her to the floor, and threatened that Petitioner “would
pay because their dad was in jail.” They threatened that if
Petitioner ever returned to Mexico, she and I.X. “would be
dead.” Petitioner believes they would have taken her
children if they had been present at the time. Petitioner
received numerous threats thereafter, accompanied by
actions such as breaking the windows of her house, cutting
the brake fluid lines of her truck, and puncturing her tires.
The threats continued to reach her even after she changed her
2
We hereby GRANT Petitioner’s motion for judicial notice of
Luna’s conviction record.
8 XOCHIHUA-JAIMES V. BARR
telephone number, and would only worsen when she
reported incidents to the police. The threats came from
several members of Luna’s family, including the same son
and daughter who had previously gone to Petitioner’s house,
as well as Chavelo, Luna’s nephew, who tried to sexually
assault Petitioner in North Carolina, and who is now in
Mexico again after being deported. In light of these threats,
Petitioner believes that Luna’s Zetas relatives in Mexico
would torture and murder both her and I.X. if she were
removed.
In 2015, Petitioner met a lawyer who “guarantee[d]” to
get her custody of her children again for a $2000 fee.
Petitioner’s co-worker, Yvette, offered to lend Petitioner the
money if Petitioner helped Yvette pick up Yvette’s family
members. Petitioner agreed and drove behind Yvette to “the
middle of nowhere,” where three armed strangers entered
Petitioner’s vehicle and yelled at her to drive fast. Petitioner
refused, driving so slowly that she got pulled over by police.
The strangers fled before police could apprehend them.
Petitioner cooperated fully, and the police found nothing in
Petitioner’s vehicle. However, police arrested Yvette and
found six backpacks full of marijuana in Yvette’s vehicle.
Petitioner claims she had not known she was agreeing to help
pick up drugs, and that she would not have agreed to help
Yvette if she had known. Petitioner fought her case for
11 months before the prosecutor and public defender
convinced Petitioner to sign a plea deal for a 2-year sentence
for possession of marijuana for sale. The judge sentenced
Petitioner to 1.5 years.
When her prison sentence was completed, Petitioner was
charged with removal. She petitioned for withholding of
removal and CAT protection. Petitioner fears that Los Zetas
will find and torture her anywhere in Mexico. She thinks
XOCHIHUA-JAIMES V. BARR 9
they will easily find her because of her unique surname.
Petitioner believes Los Zetas previously tried to kidnap her
brother and sister who still live in Veracruz. Petitioner has
received numerous threats from various members of Luna’s
family who are also Zetas. Petitioner believes that Los Zetas
are able to control Mexican police and that the Mexican
police therefore will not protect her from Luna, Luna’s
family, or Los Zetas.
II. IJ Decision
On consideration of whether Petitioner was eligible for
deferral of removal under CAT, 3 the IJ first found that
Petitioner’s past harms in Mexico did not amount to torture.
The IJ found that neither the sexual abuse Petitioner suffered
in Mexico as a child or teenager, nor the mental suffering she
experienced as a result of her parents’ reaction to her sexual
orientation, constituted torture.
The IJ then found that, even assuming Petitioner’s past
harm did amount to torture, Petitioner failed to establish that
she would more likely than not be tortured if removed to
3
The IJ concluded that Petitioner was not eligible for withholding
of removal because her conviction for possession of marijuana for sale
qualified as a “particularly serious crime.” The IJ determined that A.R.S.
§ 13-3405(A)(2), which makes it a crime to “knowingly possess
marijuana for sale,” was a categorical match for a felony under the
federal Controlled Substances Act, 21 U.S.C. §§ 841(a)(1), (b)(1)(D).
The IJ also determined that the offense was an aggravated felony “drug
trafficking crime.” See INA § 101(a)(43)(B). Applying Matter of Y-L-,
23 I. & N. Dec. 270, 276–77 (A.G. 2002)—which holds that a drug
trafficking crime is a particularly serious crime except under
“extraordinary and compelling circumstances,” which must include that
only a “very small quantity” of drugs was involved—the IJ concluded
that Petitioner’s conviction was a particularly serious crime. The validity
of this determination is not before us.
10 XOCHIHUA-JAIMES V. BARR
Mexico. The IJ acknowledged Petitioner’s evidence of
mistreatment of LGBTQ individuals and of cartel violence
generally, but stated that country reports “do not necessarily
show that a particular person would be in danger of being
subjected to torture upon his or her return to that country.
Instead, specific grounds must exist to indicate that the
applicant will be personally at risk of torture.”
The IJ concluded that Petitioner had not demonstrated
that she would be “personally at risk of torture.” The IJ
reasoned that no one in Mexico besides Petitioner’s family
knows about her sexual orientation. The IJ also reasoned
that Petitioner’s testimony about Luna and his family’s
connection to Los Zetas was “speculative,” and “it [was]
unclear how she knows this still to be true.” Although
acknowledging Petitioner’s testimony that the cousin of
Luna’s who harmed her in 2005 was then connected to Los
Zetas, the IJ faulted Petitioner for “fail[ing] to provide
specific testimony or evidence of any current connections
between [Luna’s] family and the Zetas.”
The IJ additionally concluded, “[b]ased on the evidence
of record,” that Petitioner “could reasonably avoid the harm
she fears by relocating to another part of Mexico.” The IJ
reasoned that Petitioner was at risk only in Baja and
Veracruz, and that Zetas members other than Luna’s family
would be unlikely to recognize Petitioner elsewhere. The IJ
“accord[ed] little weight to the applicant’s unsubstantiated
opinion that the Zetas cartel is present throughout all of
Mexico and would identify her based on the ‘peculiarity’ of
her last name.” The IJ found that Los Zetas operate only
“within the state of Veracruz and surrounding areas.” The
IJ then reasoned that, “Mexico is a large country with
millions of inhabitants. It seems unlikely that there is
XOCHIHUA-JAIMES V. BARR 11
nowhere in Mexico that the applicant could live without
being harmed.” The IJ concluded that:
[T]he applicant need not attempt to live in
every single Mexican state to demonstrate the
impossibility of relocation, because that
would not be feasible. However, having
never attempted to move in Mexico, but
merely speculating that [Luna] has
connections throughout the entire country,
does not provide sufficient evidence to
determine that relocation is impossible in the
applicant’s case.
Finally, the IJ concluded that, “even if the applicant
could establish that it is more likely than not that she would
be tortured in Mexico, . . . there is no basis for concluding
the Mexican government and its officials would participate
in torturing the applicant either actively or by willful
blindness.” The IJ reasoned that, “[d]espite its evident
problems, the Mexican government does not, as an entity,
practice, condone, or willfully acquiesce in torture. . . .
Admittedly, there have been a number of incidents of alleged
torture by members of law enforcement; however, the
Mexican government has demonstrated its commitment to
eradicating such behaviors.”
III. BIA Decision
The BIA affirmed the IJ’s alternative holding 4 that “even
if the applicant’s past mistreatment amounted to torture, she
4
The BIA did not affirm the IJ’s finding that Petitioner failed to
establish past torture. The BIA acknowledged that Petitioner testified to
“traumatic past events” and that “[r]ape can constitute torture . . . [as it]
12 XOCHIHUA-JAIMES V. BARR
did not establish that she will more likely than not be tortured
if returned to Mexico.” 5
The BIA concluded that Petitioner had provided
insufficient evidence “to establish that she would more likely
than not be targeted by any criminal element or any other
person in Mexico.” The BIA affirmed the IJ’s findings that
no one outside of Petitioner’s immediate family knows about
her sexual orientation, that Petitioner’s family would not
torture her, that Petitioner’s testimony about Luna’s
connections to Los Zetas was “speculative,” and that the
country conditions evidence did not show that Petitioner
would be personally at risk.
The BIA affirmed the IJ’s determination that Petitioner
could reasonably relocate to avoid the harm she fears. The
BIA affirmed the IJ’s findings that Petitioner’s opinion that
Los Zetas are present throughout Mexico was
“unsubstantiated,” that Petitioner had not had interactions
with Los Zetas apart from Luna’s family members, and that
Los Zetas operate “within the state of Veracruz and
surrounding areas.” The BIA held that “[t]he applicant’s
speculation that [Luna] has country-wide connections in
Mexico, coupled with the lack of any attempt to relocate,
does not provide adequate evidence to conclude that
relocation is not a reasonable option.” The BIA also found
that country conditions evidence did not establish that
is a form of aggression constituting an egregious violation of humanity.”
Avendano-Hernandez, 800 F.3d at 1079.
5
The BIA noted that Petitioner waived any challenge to the IJ’s
finding that she was ineligible for withholding of removal given her
conviction for a particularly serious crime.
XOCHIHUA-JAIMES V. BARR 13
Petitioner was more likely than not to be tortured in all areas
of Mexico simply as an LGBTQ individual.
The BIA affirmed the IJ’s determination that Petitioner
failed to establish consent or acquiescence by a public
official. The BIA stated that “[t]he fact that there are corrupt
police officials does not mean that the government consents
or acquiesces in the torture of its citizens.” The BIA
approved the IJ’s reasoning that “the Mexican government
is aggressively combating corruption, drug cartels, and
violence against members of the LGBT” community. The
BIA rejected Petitioner’s argument that the 2005 incident
demonstrated acquiescence by public officials where the
police drove by and laughed, because “[t]his incident, which
is not described with much detail, is insufficient . . . in light
of . . . more recent country conditions evidence.” 6
JURISDICTION AND STANDARD OF REVIEW
We review for substantial evidence the factual findings
underlying the BIA’s determination that an applicant is not
eligible for CAT protection. Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1078 (9th Cir. 2015). “In order for this court
to reverse the BIA with respect to a finding of fact, the
evidence must compel a different conclusion from the one
reached by the BIA.” Zheng v. Holder, 644 F.3d 829, 835
(9th Cir. 2011). “[W]e review de novo both purely legal
questions and mixed questions of law and fact.” Cordoba v.
Holder, 726 F.3d 1106, 1113 (9th Cir. 2013) (quoting
6
The BIA also rejected Petitioner’s due process challenge. Because
we conclude herein that Petitioner has proven her CAT claim, we do not
reach her due process claim.
14 XOCHIHUA-JAIMES V. BARR
Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir.
2012)).
ANALYSIS
Substantial evidence does not support the BIA’s
determination that Petitioner failed to meet her burden of
proof under CAT that she would more likely than not be
tortured, with the consent or acquiescence of a public
official, if returned to Mexico. The BIA reached its
determination by misapplying our precedents regarding
acquiescence of a public official and regarding the
possibility of safe relocation, as well as by making or
affirming factual findings that are directly contradicted by
the record. Contrary to the BIA’s determination, we hold
that the existing record compels the conclusion that
Petitioner has met her burden under CAT.
To be eligible for relief under CAT, an applicant bears
the burden of establishing that she will more likely than not
be tortured with the consent or acquiescence of a public
official if removed to her native country. Avendano-
Hernandez, 800 F.3d at 1078–79. “Torture is an extreme
form of cruel and inhuman treatment and does not include
lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R.
§ 1208.18(a)(2). The threat of imminent death, whether
directed at the applicant or someone the applicant knows,
may constitute torture. See id. §§ 1208.18(a)(4)(iii)–(iv).
Rape and sexual assault may constitute torture, and
“certainly rise[] to the level of torture for CAT purposes”
when inflicted due to the victim’s sexual orientation.
Avendano-Hernandez, 800 F.3d at 1079.
In evaluating a CAT claim, “the IJ must consider all
relevant evidence; no one factor is determinative.”
XOCHIHUA-JAIMES V. BARR 15
Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015)
(en banc). Relevant evidence includes:
(i) Evidence of past torture inflicted upon the
applicant;
(ii) Evidence that the applicant could relocate
to a part of the country of removal where he
or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass
violations of human rights within the country
of removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
8 C.F.R. § 1208.16(c)(3). “CAT claims must be considered
in terms of the aggregate risk of torture from all sources, and
not as separate, divisible CAT claims.” Quijada-Aguilar v.
Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015).
I. Acquiescence of a Public Official
“Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her
legal responsibility to intervene to prevent such activity.”
8 C.F.R. § 1208.18(a)(7). “Government acquiescence does
not require actual knowledge or willful acceptance of
torture; awareness and willful blindness will suffice.”
Aguilar-Ramos v. Holder, 594 F.3d 701, 705–06 (9th Cir.
2010). However, “a general ineffectiveness on the
government’s part to investigate and prevent crime will not
suffice to show acquiescence.” Andrade-Garcia v. Lynch,
828 F.3d 829, 836 (9th Cir. 2016).
16 XOCHIHUA-JAIMES V. BARR
In Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013), we
considered an asylum and CAT case specifically involving
Los Zetas in Mexico. Regarding the relationship between
public officials and Los Zetas, we said:
Significant evidence in the record calls into
doubt the Mexican government’s ability to
control Los Zetas. The available country
conditions evidence demonstrates that
violent crime traceable to drug cartels
remains high despite the Mexican
government’s efforts to quell it. ...
Furthermore, notwithstanding the superior
efforts of the Mexican government at the
national level, corruption at the state and
local levels “continue[s] to be a problem.”
Many police officers are “involved in
kidnapping, extortion, or providing
protection for, or acting directly on behalf of,
organized crime and drug traffickers,” which
leads to the “continued reluctance of many
victims to file complaints.” . . . [C]orruption
is also rampant among prison guards, and
[Zetas] prisoners can and do break out of
prison with the guards’ help.
Id. at 506–07 (citations omitted) (quoting U.S. Dep’t of
State, 2008 Human Rights Report: Mexico (2009)). As to
acquiescence for CAT purposes, we said:
Importantly, an applicant for CAT relief need
not show that the entire foreign government
would consent to or acquiesce in his
torture. . . . Voluminous evidence in the
record explains that corruption of public
XOCHIHUA-JAIMES V. BARR 17
officials in Mexico remains a problem,
particularly at the state and local levels of
government, with police officers and prison
guards frequently working directly on behalf
of drug cartels. . . . “[I]t is not contrary to the
purpose of the CAT . . . to hold Mexico
responsible for the acts of its officials,
including low-level ones, even when those
officials act in contravention of the nation’s
will.”
Id. at 509–10 (quoting Ramirez-Peyro v. Holder, 574 F.3d
893, 901 (8th Cir. 2009)).
In Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir.
2017), a case involving another drug cartel in Mexico, we
further clarified the standard we applied in Madrigal. See
id. at 354, 363. The BIA had reasoned that “the danger [the
petitioner] faced from the drug cartel and corrupt police did
not establish government involvement because Mexican
law, and national policy to root out the corruption,
established the absence of official acquiescence.” Id. at 363.
In other words, the BIA reasoned that acquiescence by
“rogue” public officials is not enough. See id. We rejected
BIA’s “rogue official” exception as inconsistent with
Madrigal. Id. To the contrary, a rogue public official is still
a “public official” under CAT.
We emphasized this point again in Bringas-Rodriguez v.
Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), a case
involving a Mexican applicant who was physically and
sexually abused by family members and a neighbor during
his childhood and teenage years because of his perceived
sexual orientation. See id. at 1056. Applying the related
asylum standard that asks whether a government is “unable
18 XOCHIHUA-JAIMES V. BARR
or unwilling to control” a persecutor, we stressed that high-
level government efforts, however important and laudable,
do not necessarily reflect low-level government actors on the
ground. See id. at 1072. We specifically recognized the
difficulties that the national Mexican government has had in
controlling violence against LGBTQ individuals and in
controlling drug cartels, in part because state and local
officials are among the perpetrators and are involved with
the cartels. See id. (citing Avendano-Hernandez, 800 F.3d
at 1081; Madrigal, 716 F.3d at 507); id. at 1074–75.
Although the BIA cited Barajas-Romeros in its decision
here, its interpretation of the facts still suffered from the
same mistake we identified in Madrigal, Barajas-Romeros,
and Bringas-Rodriguez. Both the IJ and the BIA relied on
national efforts to combat drug cartels and the corruption of
public officials in order to find that “the government” would
not acquiesce in any torture Petitioner might suffer. Yet the
record compels the conclusion that the corruption of public
officials remains a problem, including specifically with
regard to Los Zetas. 7 The BIA even admitted that “there are
corrupt officials.”
7
There is extensive record evidence that many public officials
acquiesce in, if not actively further, the unlawful actions of Los Zetas,
and that Los Zetas commit torture:
The 2016 State Department report states that “from 2009 to 2012,
the Zetas transnational criminal organization, allegedly in collusion with
police, carried out mass disappearances.” The report also states that
“police, particularly at the state and local level, were involved in
kidnapping, extortion, and providing protection for, or acting directly on
behalf of, organized crime and drug traffickers.”
A 2017 Dallas Morning News article stated that, “The internal
fracturing of Mexico’s once mighty criminal groups, including the Zetas,
XOCHIHUA-JAIMES V. BARR 19
In addition to the extensive country conditions evidence
indicating the prevalence of acquiescence by public officials
in the torture committed by Los Zetas generally, Petitioner
testified that she was personally beaten severely and
threatened with death at gunpoint by a member of Los Zetas,
while Mexican police officers looked on and did not nothing
but laugh. This testimony, which the IJ found credible,
establishes the acquiescence of public officials in a past
instance of torture. Cf. Bringas-Rodriguez, 850 F.3d at 1074
(Mexican police laughed at petitioner’s gay friend who
reported sexual abuse). 8 The BIA erred in concluding that
Petitioner’s testimony about this incident was insufficient in
have led to soaring violence here [in Nuevo Laredo] and across the
country . . . [V]iolence has been fueled by fractures within the long-
dominant Zetas, now split into two warring gangs . . . . Widespread
corruption within Mexican government and security forces, and
impunity, is also spreading the lawlessness.”
A 2017 Independent article reported that Los Zetas murdered a
woman whose daughter was kidnapped and murdered by Los Zetas five
years prior. The woman had provided police with information that
allowed them to capture her daughter’s killers, and had founded a
support group for parents of missing children.
A 2012 LA Times article reported that Los Zetas use particularly
horrific methods. The article reported on Los Zetas mutilating 49 people
and piling their bodies—with heads, hands, and feet missing—by the
side of the road leading to the U.S. border. The article stated that “[t]he
Zetas were built with deserters from the Mexican army’s elite airborne
special forces and then augmented by hardened commandos from
Guatemala’s Kaibiles, a notorious military unit trained by US advisors.”
8
Even if we credit Respondent’s argument that Petitioner’s
testimony was ambiguous as to whether the police officers participated
in the laughter of other onlookers, Petitioner’s testimony is not
ambiguous as to the most relevant point: Mexican police officers
observed Petitioner being assaulted and threatened at gunpoint and did
nothing to help her. See Avendano-Hernandez, 800 F.3d at 1079 n.2.
20 XOCHIHUA-JAIMES V. BARR
light of more recent country conditions evidence. As
explained above, the country conditions evidence shows that
corruption of government officials, especially of the police
with regard to drug cartels, and specifically with regard to
Los Zetas, remains a major problem in Mexico. The country
conditions evidence certainly does not indicate that low-
level government corruption has been so rectified as to
render insufficient Petitioner’s testimony regarding
acquiescence by specific police officers in Petitioner’s
specific circumstances.
Furthermore, Petitioner testified, and the IJ credited her
testimony, that Luna was able to bribe Mexican officials in
2010 to put the mother of some of his other children in jail
after that mother reported Luna or his family for threatening
her and taking her children. This testimony further
establishes that there are Mexican officials willing to aid the
unlawful behavior of Luna, Luna’s relatives, and other Zetas
members. This inference is not diminished by the fact that,
as the IJ noted, Petitioner does not know if the mother is still
in jail.
In summary, the record compels the conclusion that
Petitioner has established the requisite level of acquiescence
by public officials to satisfy that aspect of her CAT claim.
She testified to multiple instances of such acquiescence in
the past involving her personal circumstances, and presented
extensive country conditions evidence documenting the
widespread problem of public official acquiescence in Zetas
crimes generally.
II. Evidence that the Applicant Could Safely Relocate
Among its assessment of “all evidence relevant to the
possibility of future torture,” the IJ must consider
“[e]vidence that the applicant could relocate to a part of the
XOCHIHUA-JAIMES V. BARR 21
country of removal where he or she is not likely to be
tortured.” 8 C.F.R. § 1208.16(c)(3)(ii) (emphasis added).
The regulation “does not place a burden on an applicant to
demonstrate that relocation within the proposed country of
removal is impossible.” Maldonado, 786 F.3d at 1164
(overruling prior cases suggesting otherwise). Nor,
however, “do the regulations shift the burden to the
government[,] because they state that the applicant carries
the overall burden of proof.” Id. Instead, the IJ must simply
“consider all relevant evidence; no one factor is
determinative.” Id.
Although the BIA cited Maldonado here, and neither the
IJ nor the BIA expressly stated that the burden was on
Petitioner to prove impossibility of relocation, their analyses
strongly indicate that they applied this reasoning anyway.
The BIA concluded that the IJ “found an absence of
evidence indicating that the applicant could not relocate”
(emphases added). The IJ stated that “Mexico is a large
country” and “[i]t seems unlikely that there is nowhere in
Mexico that the applicant could live without being harmed.”
Neither the IJ nor the BIA cited any affirmative “[e]vidence
that [Petitioner] could relocate to a part of [Mexico] where
. . . she is not likely to be tortured.” 8 C.F.R.
§ 1208.16(c)(3)(ii); cf. Singh v. Whitaker, 914 F.3d 654, 661
(9th Cir. 2019) (under related relocation inquiry in asylum
context, the BIA must conduct an “individualized analysis”
to determine whether “there are one or more general or
specific areas within the petitioner’s country of origin where
he has no well-founded fear of persecution and where it is
reasonable to relocate”); Barajas-Romeros, 846 F.3d at 364
(noting that the State Department country report did not
“identify a safe place for individuals who have become
targets of drug cartels and the police”).
22 XOCHIHUA-JAIMES V. BARR
Moreover, contrary to the IJ’s and BIA’s findings,
extensive record evidence shows that Los Zetas operate in
many parts of Mexico, including states far away from
“Veracruz and surrounding areas.” The 2016 State
Department Report and other articles in the record cite
torture, kidnappings, and murders by Los Zetas in numerous
states throughout Mexico. Petitioner testified that Luna’s
family is in Baja California and that these family members
include prominent Zetas members. 9 We recognized in
Madrigal that Los Zetas had beheaded Petitioner’s fellow
soldiers in Jalisco who were involved in arresting Zetas
members, then tracked down Petitioner to a remote village
in which he was hiding. 716 F.3d at 502. Neither the IJ nor
the BIA cited any evidence that there are states in Mexico
where Los Zetas are unable to operate.
Even if Los Zetas did not find her, Petitioner is at
heightened risk throughout Mexico on account of her sexual
orientation. Extensive record evidence demonstrates that
LGBTQ individuals are at risk throughout Mexico. See also
Bringas-Rodriguez, 850 F.3d at 1072 (Mexico has actually
experienced “an increase in violence against gay, lesbian,
and transgender individuals during the years in which greater
legal protections have been extended to these
communities.”) (quoting Avendano-Hernadez, 800 F.3d
at 1081). We have rejected reasoning such as the IJ
employed here, that an applicant can be deemed able to
safely relocate based on hiding her fundamental identity.
See, e.g., Edu v. Holder, 624 F.3d 1137, 1146 (9th Cir. 2010)
(rejecting BIA’s conception that CAT protection requires
9
Neither the IJ nor the BIA provided a cogent reason for concluding
that Petitioner’s testimony regarding Luna’s Zetas connections was
merely “speculative,” especially considering that she was in a
relationship with Luna for nearly a decade.
XOCHIHUA-JAIMES V. BARR 23
alien to give up practice of political beliefs in order to avoid
torture); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093
(9th Cir. 2000) (recognizing that sexual orientation is “so
fundamental to one’s identity that a person should not be
required to abandon” it), overruled on other grounds by
Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en
banc), vacated by 547 U.S. 183 (2006). Although in some
circumstances the generalized risk due to Petitioner’s
LGBTQ identity may not meet the more-likely-than-not
standard on its own, it weighs against a conclusion that there
is “evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be
tortured.” 8 C.F.R. § 1208.16(c)(3)(ii). Moreover, “CAT
claims must be considered in terms of the aggregate risk of
torture from all sources.” Quijada-Aguilar, 799 F.3d
at 1308.
In summary, we conclude that the lack of affirmative
evidence that there is a general or specific area within
Mexico where Petitioner can safely relocate, the evidence
that Los Zetas operate throughout much of Mexico, and the
evidence that LGBTQ individuals are at heightened risk
throughout Mexico, together compel a conclusion contrary
to the BIA’s. Although not determinative on its own, see
Maldonado, 786 F.3d at 1164, the evidence relating to the
possibility of relocation weighs in favor of granting
Petitioner relief.
III. Future Torture
The ultimate inquiry in evaluating whether an applicant
is entitled to CAT relief is whether, upon consideration of all
relevant evidence relevant, the applicant has met her burden
to establish that it is more likely than not that she will suffer
future torture if removed to the proposed country of removal.
8 C.F.R. §§ 1208.16(c)(2)–(3).
24 XOCHIHUA-JAIMES V. BARR
“‘[P]ast torture is ordinarily the principal factor on which
we rely when an applicant who has been previously tortured
seeks relief under the Convention’ because, absent changed
circumstances, ‘if an individual has been tortured and has
escaped to another country, it is likely that [s]he will be
tortured again if returned to the site of h[er] prior suffering.’”
Avendano-Hernandez, 800 F.3d at 1080 (quoting Nuru v.
Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005)). The rapes
Petitioner suffered as a child and teenager, and her parents’
reactions to those rapes (either telling Petitioner she
deserved it, not believing her, or ejecting her from the
house), demonstrate some likelihood that Petitioner is at risk
of future torture, particularly in the form of sexual abuse,
based on her gender and sexual orientation. See Avendano-
Hernandez, 800 F.3d at 1079; cf. Bringas-Rodriguez,
850 F.3d at 1076 n.18 (recognizing that a presumption of
future harm arises where harm can be expected on account
of the same reason, such as sexual orientation). Likewise,
the 2005 beating and death threat Petitioner suffered from a
prominent Zetas member and cousin of Luna’s demonstrates
some likelihood that she would again suffer severe assault or
indeed, as she has now left Luna, death, if that cousin or his
Zetas associates were to find her in Mexico.
Furthermore, Petitioner’s credible testimony that the
conditions in Mexico remain the same compels the
conclusion that it is more likely than not that Los Zetas will
target Petitioner for murder or other torture if she is removed
to Mexico. Petitioner testified that she received death threats
from Luna’s Zetas relatives and was subject to repeated
intimidation tactics for reporting the rape of her daughter and
then for reporting the threats themselves. Petitioner testified
that the individuals threatening her include Chavelo, Luna’s
nephew who tried to sexually assault Petitioner in 2004, who
is currently living in Mexico after being deported and
XOCHIHUA-JAIMES V. BARR 25
working with Luna’s uncles and cousins in Mexico.
Petitioner also testified that Los Zetas tried to kidnap her
siblings who are still in Veracruz.
As discussed above, the record also includes extensive
evidence that LGBTQ individuals are subject to a heightened
risk of torture throughout Mexico.
Considering all relevant evidence, we conclude that the
record compels the conclusion that petitioner has met her
burden of proof to establish that it is more likely than not that
she will suffer future torture if removed to her native
country.
CONCLUSION
We grant the petition and remand for the agency to grant
deferral of removal pursuant to CAT because the record
compels the conclusion that Petitioner will more likely than
not be tortured if she is removed to Mexico. See Haile v.
Holder, 658 F.3d 1122, 1133 (9th Cir. 2011) (“Because the
evidence Haile presents compels but one conclusion and is
unrebutted, there is no reason to remand in this case—we
hold that Haile is entitled to deferral of removal under the
CAT.”).
PETITION GRANTED.