Felipe Ramirez-Valdes v. Eric H. Holder Jr ( 2013 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              JUL 09 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FELIPE RAMIREZ-VALDES,                           No. 08-72494
    Petitioner,                        Agency No. A098-950-721
    v.
    MEMORANDUM*
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted February 7, 2013
    Pasadena, California
    Submission Withdrawn March 13, 2013
    Resubmitted July 5, 2013
    Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
    Felipe Ramirez-Valdes, a native and citizen of Mexico, petitions for review
    of a decision of the Board of Immigration Appeals (“BIA”) denying him asylum,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    withholding of removal, and Convention Against Torture (“CAT”) relief. We
    remand for the BIA to consider intervening authority in the first instance.
    Ramirez-Valdes, a former member of the Mexican Special Forces, claims
    that he has a well-founded fear of persecution for three reasons: his membership of
    a social group of military defectors; his apprehension that the Los Zetas gang will
    recruit and harm him; and his status as a whistleblower. The BIA found Ramirez-
    Valdes ineligible for relief. It denied his asylum application as time-barred and
    denied his claims to withholding of removal and CAT relief on the merits.
    We affirm the BIA’s denial of Ramirez-Valdes’s asylum claim on the
    ground that it was untimely. Asylum applicants must file their application within
    one year of entry into the United States. 
    8 U.S.C. § 1158
    (a)(2)(B). However, that
    deadline can be equitably tolled if the applicant shows “extraordinary
    circumstances relating to the delay in filing an application within the period
    specified.” 
    Id.
     § 1158(a)(2)(D). Even assuming that this court has jurisdiction to
    hear Ramirez-Valdes’s claim that his depression is grounds for equitably tolling
    the filing deadline, substantial evidence supports the BIA’s determination that his
    depression was not sufficiently severe to excuse his failure to timely file an asylum
    application.
    2
    Ramirez-Valdes is eligible for withholding of removal if he can
    “demonstrate that it is more likely than not that he would be subject to persecution
    on one of the specified grounds.” Al-Harbi v. INS, 
    242 F.3d 882
    , 888 (9th Cir.
    2001) (internal quotation marks omitted). To be eligible for CAT relief, he must
    show that it is more likely than not that he will be tortured upon removal to a given
    country. Kamalthas v. INS, 
    251 F.3d 1279
    , 1283 (9th Cir. 2001). This court
    recently issued two opinions that bear on Ramirez-Valdes’s claims for withholding
    of removal and CAT relief: Henriquez-Rivas v. Holder, 
    707 F.3d 1081
     (9th Cir.
    2013), and Tapia-Madrigal v. Holder, No. 10-73700 (9th Cir. May 15, 2013).
    Ramirez-Valdes first claims that he has a well-founded fear of persecution
    based on his membership in the social group of military deserters. He bases this
    claim on harassment and death threats he incurred while in the military. The BIA
    never considered whether this group could qualify as a social group. It instead
    concluded that the incidents Ramirez-Valdes experienced in the military were not
    evidence of persecution “on account of” any protected ground; rather, they were
    the result of “personal animosity or vendetta.”
    In Henriquez-Rivas, an en banc panel of this court clarified this circuit’s test
    for what “constitute[s] a particular social group.” 707 F.3d at 1083. Further, both
    Henriquez-Rivas and Tapia Madrigal make clear that the BIA errs when it assumes
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    that an act based on personal animosity could not also be on account of a protected
    ground. “[I]f a retributory motive exists alongside a protected motive, an applicant
    need show only that a protected ground is ‘one central reason’ for his persecution.”
    Tapia Madrigal, slip op. at 12 (quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(i)); see also
    Henriquez-Rivas, 707 F.3d at 1088, 1092.
    We remand for the BIA to reconsider Ramirez-Valdes’s withholding of
    removal and CAT claims based on his fear of persecution as a military deserter.
    The BIA should consider whether “former military [members] who deserted”
    qualifies as a particular social group under the test set forth in Henriquez-Rivas,
    and whether Ramirez-Valdes has shown that his membership in that group would
    be “one central reason” for any persecution he might experience. Id. While
    “[m]istreatment suffered while an applicant was an active military member does
    not by itself” provide a basis for relief, Tapia Madrigal, slip op. at 8, Ramirez-
    Valdes can rely on that evidence in order to demonstrate his “individualized risk of
    experiencing similar mistreatment” in the future, Hoxha v. Ashcroft, 
    319 F.3d 1179
    , 1184 (9th Cir. 2003); see also Chanco v. INS, 
    82 F.3d 298
    , 302-03 (9th Cir.
    1996) (considering evidence of persecution while applicant was a current military
    member to support claim based on status as a former military member).
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    Second, Ramirez-Valdes claims a well-founded fear of persecution on
    account of his membership in the social group of “former military . . . who are
    target[s] for guerrilla groups like the ZETAS because of their former military
    training.” He bases this claim on visits by unidentified persons to his family home.
    The BIA never decided whether Ramirez-Valdes put forward a valid particular
    social group. Instead, it denied Ramirez-Valdes’s claim for two reasons: (1)
    recruitment by Los Zetas cannot constitute persecution under INS v.
    Elias-Zacarias, 
    502 U.S. 478
    , 483 (1992), and (2) Ramirez-Valdes had not
    established that the persons seeking to meet with him were members of the Los
    Zetas gang.
    Ramirez-Valdes’s case is not controlled by Elias-Zacarias, 
    502 U.S. at 483
    ,
    for two reasons. First, Elias-Zacarias held that guerrilla recruitment did not
    qualify as persecution on account of a political opinion. It did not speak to
    whether guerrilla recruitment could constitute persecution on account of a
    membership in a particular social group – an entirely separate ground for
    withholding of removal. Second, Ramirez-Valdes is not just an average member of
    society, but is a former member of the military and the special forces – a particular
    social group the BIA has previously recognized. See Matter of Acosta, 
    19 I. & N. Dec. 211
    , 232-34 (BIA 1985), overruled in part on other grounds by INS v.
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    Cardoza-Fonseca, 
    480 U.S. 421
     (1987). Forcible recruitment into a guerrilla
    group can be persecution if on account of a protected ground. See Pedro-Mateo v.
    INS, 
    224 F.3d 1147
    , 1150 (9th Cir. 2000).
    As to the identity of the persecutors, Tapia Madrigal clarified how the
    agency should address such an issue. The court in Tapia Madrigal emphasized
    that Tapia Madrigal could satisfy his “burden with circumstantial evidence” about
    the identity of his persecutors. Slip op. at 10. The court noted that “[b]ecause
    [Tapia Madrigal’s] explanation for the post-military events is plausible and
    supported by circumstantial evidence, it must be credited in the absence of an
    explanation that is at least as plausible.” 
    Id.
     The court remanded “for the BIA to
    determine whether other plausible explanations for the post-military incidents exist
    and, if so, whether Tapia Madrigal has met his burden to establish that Los Zetas
    are likely responsible.” 
    Id.
     It also remanded Tapia Madrigal’s CAT claim for the
    BIA to determine whether “public officials at the state and local level in Mexico
    would acquiesce in any torture Tapia Madrigal is likely to suffer.” Slip op. at 20.
    Ramirez-Valdes has submitted for the record circumstantial evidence that
    members of Los Zetas have visited him, as well as corroborating evidence that
    former special forces officers are particularly vulnerable to Los Zetas recruitment.
    He has also provided evidence that Los Zetas commanders have been arrested in
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    his home state, and evidence that individuals who refuse to join the Los Zetas may
    be seriously harmed or killed. He has declared that he will refuse to join Los Zetas
    if asked. Following Tapia Madrigal, we remand Ramirez-Valdes’s withholding of
    removal and CAT claims based on persecution by Los Zetas. On remand, the BIA
    should consider whether Ramirez-Valdes has defined a “particular social group”
    under Henriquez-Rivas, and whether he has established that there is no other
    explanation “at least as plausible” as his explanation that Los Zetas are seeking
    him. As regards his CAT claim, the BIA should consider whether public officials
    at the state and local level would acquiesce in any possible torture.
    Third, Ramirez-Valdes claims that he is eligible for withholding of removal
    and CAT relief based on his status as a whistleblower. See Grava v. INS, 
    205 F.3d 1177
    , 1181 (9th Cir. 2000) (holding that whistleblowing “may constitute political
    activity sufficient to form the basis of persecution on account of political
    opinion”). Ramirez-Valdes claimed eligibility for relief based on “his imputed
    political opinion” before the BIA, but the BIA never addressed this claim. On
    remand, the BIA should address this claim in the first instance.
    Finally, we note that an “IJ should consider the cumulative impact of all of
    the hardships to which [petitioner] has been subjected in determining whether []he
    was persecuted, or whether []he has a well-founded fear of persecution upon h[is]
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    return.” Zhang v. Gonzales, 
    408 F.3d 1239
    , 1249 (9th Cir. 2005). Withholding of
    removal is mandatory if the petitioner establishes that his “life or freedom would
    be threatened” in the country to which he would be removed on account of one of
    the five protected grounds. 
    8 U.S.C. § 1231
    (b)(3)(A); Boer-Sedano v. Gonzales,
    
    418 F.3d 1082
    , 1092 (9th Cir. 2005). Even if the BIA finds that Ramirez-Valdes’s
    bases for relief do not individually support withholding of removal, it should also
    consider whether the cumulative impact of these threats together compels such a
    result.
    Because the BIA has not yet considered Ramirez-Valdes’s arguments in
    light of Henriquez-Rivas and Tapia-Madrigal, we remand this case so that the BIA
    may consider the effects of those decisions in the first instance. See INS v.
    Ventura, 
    537 U.S. 12
    , 16 (2002) (per curiam).
    GRANTED and REMANDED.
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