Rosales Justo v. Sessions , 895 F.3d 154 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1457
JAVIER ROSALES JUSTO,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Talia Barrales, with whom Law Offices of Talia Barrales was
on brief, for petitioner.
Rebekah Nahas, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Briena L. Strippoli, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.
July 16, 2018
LIPEZ, Circuit Judge. Petitioner Javier Rosales Justo
("Rosales"), a citizen of Mexico, claims that the Board of
Immigration Appeals ("BIA") erred when it reversed an immigration
judge's order granting him asylum. The immigration judge ("IJ")
concluded that Rosales met his burden of proving he was entitled
to asylum based, inter alia, on a finding that the police in Mexico
would be unable to protect him from members of organized crime who
had murdered his son and continued to target him and the rest of
his nuclear family. The BIA rejected that finding, concluding
that it was clearly erroneous.
We agree with Rosales that the BIA's conclusion that the
IJ's finding was clearly erroneous is unfounded because the BIA
committed several errors in its review of the IJ's decision. Most
importantly, the BIA failed to examine separately the evidence of
the government's willingness to protect Rosales from persecution
and the evidence of its ability to do so. Instead, the Board cited
evidence only of the willingness of local authorities to promptly
investigate the murder of Rosales's son as support for its
conclusion that the IJ's finding of inability was clearly
erroneous. Because of the BIA's flawed analysis of the IJ's
decision, we grant Rosales's petition and remand the case to the
BIA for reconsideration of Rosales's eligibility for asylum.
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I.
A. Factual Background
Rosales applied for admission to the United States
immediately upon arriving with his wife and children at the border
crossing in San Ysidro, California on May 9, 2016. He was
detained, transferred to a correctional facility in Plymouth,
Massachusetts, and subsequently served with a notice to appear
charging him with removability because he lacked a valid entry
document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rosales conceded
removability, but requested asylum pursuant to section 208 of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1158, and
cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3). A
hearing before an IJ was held on October 21, 2016. Rosales and
his wife both testified at the hearing, and Rosales also submitted
extensive documentary evidence, including declarations from
himself and his family members, reports from the U.S. Department
of State and international non-governmental organizations
regarding country conditions in Mexico, and documents and reports
from the police investigation into his son's murder. In reaching
his decision, the IJ considered "[a]ll admitted evidence . . . in
its entirety, regardless of whether [it was] specifically
mentioned" in the decision.
Finding the testimony of Rosales and his wife credible,
the IJ found the following facts. Rosales is a 39-year-old police
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officer from Acapulco, a city in the state of Guerrero. The tragic
events that precipitated his move to the United States began on
January 24, 2016. That afternoon, his wife, Vincenta, and son,
Tomas, were working at the store that the family ran to supplement
Rosales's income as a police officer. Two strangers walked into
the store and demanded that the family pay "rent" to them. When
Vincenta asked, "what rent?," they told her that the family must
pay 2,000 pesos every two weeks. Vincenta responded that her
family could not afford to pay that amount because the store was
too small to generate enough money. One of the men became upset
with her and stated that if she did not pay, her family would face
the consequences.
Following this threatening encounter, Rosales and his
wife decided to close the store. Although they did not know the
identity of the men who had come to the store, they believed they
were members of organized crime. However, Vincenta testified that
she did not report the threat to police because she thought it
would "blow over."1 After a week, Vincenta decided to reopen the
store because the family needed the income.
On the evening of February 4, Vincenta heard gunshots
while she was working at the store. Earlier, her daughter had
1 Although the IJ mentioned only Vincenta's testimony on this
point, Rosales testified that Vincenta did not report the extortion
attempt because "she was scared."
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told her that Tomas had stopped at home after school to change
clothes and then left to go help a friend paint nearby. After
hearing the gunshots, Vincenta went to look for Tomas and could
not find him.2 She called Rosales at work to tell him that Tomas
was missing, and they went to the police station and the ministry
of police to see if Tomas had been detained by the police in either
place. Not finding him and fearing the worst, Rosales also checked
the morgue to no avail.
The next day, having still not found Tomas, Rosales was
informed by friends that a body had been found on the side of a
nearby highway, and Rosales and Vincenta went there. After
speaking with the federal police who were at the scene and being
shown a photo of the body, they identified the victim as Tomas.
He had been shot five times, and there was evidence that he was
tortured before his death. A forensic team was called to examine
the body, and the police took statements from Rosales and his wife
and opened a criminal investigation. Rosales also hired a lawyer
to conduct a separate investigation into the murder.
Fearing for his family's safety following Tomas's death,
Rosales moved with Vincenta and their two daughters to Pueblo
2 Although not specifically mentioned by the IJ, Vincenta
testified that the shooting occurred in the area where Tomas was
painting. When she went to that area after the shooting stopped,
someone told her that a person who looked like Tomas had been taken
away by unknown people in a truck.
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Viejo, a town several hours from Acapulco where Rosales has
extended family. Approximately eleven days after the murder, their
neighbors from Acapulco reported to Rosales that they had seen
suspicious cars near Rosales's old house and several unknown men
with guns "from organized crime" had asked a neighbor whether
Rosales and his family still lived there. Two months later, in
April, several unknown men came to their neighborhood in Pueblo
Viejo and asked for the location of the Rosales family. Rosales
did not report these incidents to the police because he was afraid
members of organized crime would find him and kill him. Fearing
that he and his family were at risk of being murdered if they
stayed in Mexico, Rosales decided to move with Vincenta and his
daughters to the United States in May 2016.
Because he had been detained until the day of the
hearing, Rosales had not recently spoken to the police in Acapulco
about the status of the investigation into his son's murder. He
was therefore unable to say for certain at the hearing that no one
had been arrested for the murder. Similarly, although Rosales
believed that his extended family in Pueblo Viejo had not been
contacted or harmed by organized crime in the time that he was
living in the United States, "he was not sure" due to the limited
contact he had with his extended family during his detention.
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B. The IJ's Decision
Based on the above factual findings, the IJ concluded
that Rosales had a well-founded fear of future persecution because
of his membership in his nuclear family.3 In particular, the IJ
found that the credible testimony of Rosales and his wife
established that individuals "presumably associated with organized
crime[] wanted to extort money from [Rosales]" and that "the minute
[Rosales]'s wife refused, or did not pay the demand," they targeted
his family for "a retaliatory hit, not just because the money was
not paid, but because at this juncture, the unknown assailants
wanted to inflict the consequences that they promised." Thus, the
IJ found that Tomas's murder was "directed at [Rosales]'s nuclear
family because of the failure to pay the rent."
Further, the IJ noted that "armed men" who "were not
members of the Mexican police" were "patrolling [Rosales]'s home
in Acapulco, and specifically asked about [Rosales]'s and his
family's whereabouts," and that "other unknown individuals were
looking for [Rosales] and his family in Pueblo Viejo." The IJ
3
Family membership "can be a sufficiently permanent and
distinct characteristic to serve as the linchpin for a protected
social group within the purview of asylum laws," so long as the
applicant's "family membership itself brings about" the feared
persecution. Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir. 2008).
The finding by the IJ that there was a sufficient nexus between
the persecution suffered by Rosales and his membership in his
nuclear family was not challenged by the government on appeal to
the BIA.
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concluded that "[t]his tracking and directing and looking for
[Rosales]'s family, combined with the initial threats," provided
an objective basis for Rosales's fear that he would be targeted by
organized crime if he returned to Mexico.
In addition to the testimony of Rosales and his wife,
the IJ relied on the Department of State report on country
conditions in Mexico to support the conclusion that someone in
Rosales's "particularized situation would fear harm in Mexico."
The IJ noted both the report's general statements that "[o]rganized
criminal groups killed, kidnapped, and intimidated citizens,
migrants, journalists, and human rights defenders" throughout
Mexico, and its specific descriptions of crime in Rosales's home
state of Guerrero, including the kidnapping of a journalist and
the disappearances and murders of students, and the general
"impunity of organized crime and drug traffickers in Guerrero."4
After finding that Rosales reasonably feared persecution
if he returned to Mexico, the IJ concluded that Rosales had met
4The IJ also found that Rosales had proved by a preponderance
of the evidence that he would be unable to avoid persecution by
relocating within Mexico. See 8 C.F.R. § 1208.13(b)(1)(i)(B)
(permitting the IJ to deny an asylum application where "[t]he
applicant could avoid future persecution by relocating to another
part of the applicant's country of nationality"). The IJ relied
on the evidence that members of organized crime looked for Rosales
in Pueblo Viejo, as well as country reports stating that organized
crime is a problem throughout Mexico and that Mexico has "a
significant problem with internally displaced persons" due to
organized crime-related violence. The conclusion that Rosales
could not relocate within Mexico is not at issue in this appeal.
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his burden of proving a government nexus for that persecution by
showing that the government was unable or unwilling to control the
members of organized crime who had threatened to harm him and his
family. The IJ recognized that "police took an immediate and
active interest in the respondent's son's murder," noting that
Rosales observed seven officers and a forensic team at the scene
where Tomas's body was recovered, the police took statements from
Rosales and his wife, and an autopsy was performed. However, the
IJ ultimately concluded that these investigative steps showed only
that the police were "willing to take on organized crime," not
that "the government is able to protect its citizens from organized
crime."
To determine whether the government was able to protect
Rosales from organized crime, the IJ, "[l]ooking at the specific
facts of this record," found that the country condition reports
submitted by Rosales demonstrated that there was corruption among
police in Guerrero, and that they were unable to control organized
crime. In particular, the IJ referred to a report written by the
International Crisis Group (ICG), stating that "violence remains
an intense problem in states such as Guerrero, which, in 2014, had
the highest homicide rate, where bloodshed is rising." Moreover,
the report stated that, "[d]espite deployment of more federal
police," the homicide rate in Guerrero had risen by more than 20
percent in the first half of 2015. Indeed, it noted that "some 94
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percent of all crimes go unreported" in Guerrero, implying both
that the real homicide numbers may be higher and that citizens of
Guerrero lack faith in the ability of police to bring criminals to
justice. Quoting the article, the IJ emphasized that "[i]mpunity,
even for homicide, is the norm."
Additionally, the IJ pointed to the Department of State
country condition report, which described "numerous reports of
government corruption throughout [2015]." Specifically, "there
were reports that police, particularly at the state and local
level, were involved in kidnapping, extortion, and providing
protection for or directly acting on behalf of organized crime and
drug traffickers." The IJ concluded that, "[u]nder these country
conditions, as articulated in this specific case, I do find that
while the Mexican government made some efforts to investigate the
crime, such action does not show that the government is going to
be able to protect the respondent." The IJ therefore granted
Rosales's application for asylum.
C. The BIA's Decision
The government appealed, and the BIA reversed. The Board
deemed clearly erroneous the IJ's finding that the government of
Mexico was "unable or unwilling" to protect Rosales. Unlike the
IJ, however, the BIA did not separately assess the Mexican
government's ability to protect Rosales after it discussed the
evidence of the government's willingness to investigate his son's
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murder. Listing the steps the police had taken to investigate the
murder, the BIA observed that Rosales had not reported to the
police the extortion attempts before the murder or efforts by
organized crime to find his family after the murder. The BIA
faulted the IJ for giving weight to the country condition reports
and articles about crime in Guerrero instead of the individualized
evidence regarding the police response to Tomas's murder, stating
that "[t]he immigration judge appears to have deferred to the
background evidence, and essentially discounted the actual,
individualized evidence of record in this case showing that the
police in Mexico initiated an investigation of the respondent's
son's murder."
The BIA concluded that "the Immigration Judge's finding
that the police would be unable or unwilling to control the persons
the respondent fears (assuming they are not already imprisoned) is
impermissibly speculative, and is clearly erroneous." To bolster
this conclusion, the BIA added that "the First Circuit . . . has
held that where a government is 'making every effort to combat'
violence by private actors, and 'its inability to stop the problem'
is not distinguishable 'from any other government struggles,' the
private violence has no government nexus and does not constitute
persecution."
One Board member dissented from the decision, stating
her view as follows:
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Although the majority correctly concludes that
some evidence in the record does not support
the Immigration Judge's determination that the
respondent demonstrated that the Mexican
government would be unable or unwilling to
control the persecutors whom he fears, other
evidence does support that determination. See
Exh. 4 at 65, 109.5 Consequently, the
Immigration Judge cannot be said to have
clearly erred in that regard.
Rosales timely filed this petition for review challenging the BIA's
reversal of the IJ's inability finding, primarily arguing that the
BIA committed a legal error by failing to differentiate between
the Mexican government's willingness and ability to protect him.
II.
A. Standard of Review
"Where, as here, 'the BIA has conducted an independent
evaluation of the record and rested its decision on a self-
generated rationale,' we focus our review on the decision of the
BIA, rather than the decision of the IJ." Gonzalez v. Holder, 673
F.3d 35, 38 (1st Cir. 2012) (quoting Zhou Zheng v. Holder, 570
F.3d 438, 440 (1st Cir. 2009)). Specifically, we review de novo
the determination by the BIA that the immigration judge's finding
that the police would be unable or unwilling to protect Rosales
was clearly erroneous. See Alimbaev v. Att'y General, 872 F.3d
5 This citation is a reference to the country condition
reports submitted by Rosales.
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188, 194 (3d Cir. 2017); Wu Lin v. Lynch, 813 F.3d 122, 129 (2d
Cir. 2016).
In an effort to avoid de novo review of the decision of
the BIA, the government tries to transform the BIA's decision into
something it is not -- a factual finding by the BIA that Rosales
failed to show that the Mexican government was either unwilling or
unable to protect him, and therefore a finding that we must review
under the deferential substantial evidence standard. See Ortiz-
Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007). Pursuant to
that standard, "administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B); Limani v. Mukasey,
538 F.3d 25, 30 (1st Cir. 2008). Without acknowledging Rosales's
argument that the BIA committed a legal error, the government
contends that we must therefore affirm the BIA's decision unless
the evidence in the record compels a contrary conclusion.
That approach reflects a profound misunderstanding of
the law. Most fundamentally, the BIA's regulations prohibit it
from engaging in fact-finding. See 8 C.F.R. § 1003.1(d)(3)(iv)
(stating that "the Board will not engage in factfinding in the
course of deciding appeals"). Instead, it is limited to making
legal conclusions and evaluating the IJ's findings of fact for
clear error. See id. §1003.1(d)(3)(i)-(ii); see also Rotinsulu v.
Mukasey, 515 F.3d 68, 72 (1st Cir. 2008). The BIA observed that
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limitation here, concluding that the central factual finding by
the IJ -- that the Mexican government was unable to protect Rosales
-- was clearly erroneous.6 That determination is not, as the
government contends, an "administrative finding of fact" subject
to the substantial evidence standard, 8 U.S.C. § 1252(b)(4)(B),
but a legal determination that the evidence in the record was
insufficient as a matter of law to support the IJ's factual
finding. See Wu Lin, 813 F.3d at 129 ("The BIA's application of
'clear error' review is the application of a legal standard to
findings of fact and as such is a ruling of law.").
To be sure, in the usual case where the BIA has adopted
or affirmed the IJ's findings, the factual findings at issue before
us on appeal from the BIA's decision remain the factual findings
of the IJ. Thus, we do not draw a distinction between the two for
the purposes of the standard of review, and we review the factual
findings -- which were originally made by the IJ but affirmed by
the BIA -- under the substantial evidence standard, rejecting them
only if the evidence in the record compels a contrary result. See
8 U.S.C. § 1252(b)(4)(B). At times while conducting such a review,
we have referred to the findings we are reviewing as the "BIA's
factual findings," when it would be more precise to describe them
6 Whether a government is unwilling or unable to protect an
asylum applicant from persecution "is a question of fact." Ortiz-
Araniba, 505 F.3d at 42.
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as the findings of the IJ that have been adopted or affirmed by
the BIA. See, e.g., Ortiz-Araniba, 505 F.3d at 42 (reviewing under
the substantial evidence standard the BIA's determination that the
asylum applicant had not proved that the government was unwilling
or unable to protect her where the BIA had affirmed an IJ's finding
on that point). Cf. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.
2007) (applying a deferential standard only to the "IJ's findings
of fact").
This appeal is not the usual case because the BIA
rejected the crucial factual finding of the IJ. Indeed, we have
never had occasion to squarely address the standard of review when
the BIA concludes that a factual finding of the IJ is clearly
erroneous. However, we have applied de novo review to the similar
inquiry of whether the BIA appropriately applied the clear error
standard or instead engaged in improper fact-finding, see Liu Jin
Lin v. Holder, 723 F.3d 300, 305 (1st Cir. 2013), and our sister
circuits have held that de novo review is the appropriate standard
when the BIA rejects a factual finding of the IJ as clearly
erroneous, see, e.g., Wu Lin, 813 F.3d at 129; Alimbaev, 872 F.3d
at 194, 197. We agree that, because the BIA's holding that the IJ
committed clear error is legal in nature, our review of that
conclusion is de novo.
As in other cases where we review the BIA's conclusions
de novo, we are limited by the well-established principle that an
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appellate court "should judge the action of [the BIA] based only
on the reasoning provided by the agency, not based on grounds
constructed by the reviewing court." Mejia v. Holder, 756 F.3d
64, 69 (1st Cir. 2014) (quoting Mihaylov v. Ashcroft, 379 F.3d 15,
21 (1st Cir. 2004)) (alteration in original). As a result, we do
not look at the entire record and determine anew whether, in our
judgment, the IJ committed clear error in finding that the Mexican
government was unable to protect Rosales. Instead, we conduct de
novo review only of the justifications provided by the BIA for
concluding that the IJ's finding that the Mexican government was
unable to protect Rosales was clearly erroneous. See Wu Lin, 813
F.3d at 129.7
B. The BIA's Misapplication of the Unwilling or Unable Standard
To qualify for asylum, an applicant must "demonstrate
either past persecution or a well-founded fear of future
persecution on account of her race, religion, nationality,
political opinion, or membership in a particular social group."
Ortiz-Araniba, 505 F.3d at 41; see 8 U.S.C. § 1101(a)(42)(A); id.
§ 1158(b)(1)(B)(i). Where a private actor, rather than the
government itself, is alleged to be the persecutor, the applicant
must demonstrate "some connection" between the actions of the
7 In that particular sense, de novo review of BIA decisions
is different from de novo review of district court decisions, where
we can affirm for any reason supported by the record. See P.R.
Ports Auth. v. Umpierre-Solares, 456 F.3d 220, 224 (1st Cir. 2006).
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private actor and "governmental action or inaction." Ortiz-
Araniba, 505 F.3d at 41. To demonstrate such a link, Rosales had
the burden of proving that the government was either "unwilling or
unable" to protect him from persecution. Burbiene v. Holder, 568
F.3d 251, 255 (1st Cir. 2009). Rosales contends that the BIA, in
determining that the IJ's finding of inability to protect Rosales
was clearly erroneous, misapplied the unwilling or unable standard
by treating it as one element, rather than separately examining
the government's unwillingness and its inability. We agree.
The BIA's application of the "unwilling or unable"
standard is a legal question that we review de novo. See Madrigal
v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (holding that
misapplication of "unwilling or unable" standard was legal error).
We have consistently stated that an applicant must prove either
unwillingness or inability. See, e.g., Khan v. Holder, 727 F.3d
1, 7 (1st Cir. 2013) (stating that there must be proof that "the
government is unwilling or unable to address" private violence
(emphasis added) (quoting Butt v. Keisler, 506 F.3d 86, 92 (1st
Cir. 2007))); Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008)
(requiring a showing "that the persecution is due to the
government's unwillingness or inability" to control the conduct of
private actors (emphasis added)); Ortiz-Araniba, 505 F.3d at 41
(requiring a showing of the "government's unwillingness or
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inability to control private conduct" (emphasis added)(quoting
Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006))).
In Khattak v. Holder, 704 F.3d 197, 206 (1st Cir. 2013),
we demonstrated that unwillingness and inability are distinct
issues, and that an applicant may be able to prove inability
without proving unwillingness where the government's willing
efforts to protect its citizens fall short. There, we held that
the BIA erred when it concluded that the Pakistani military's
actions in fighting the Taliban showed both willingness and ability
to protect Khattak, an anti-Taliban politician. Id. We explained
that "although such military action indicates that the Pakistani
government is willing to take on the Taliban, such action does not
show that the Pakistani government is able to protect its citizens
from Taliban attacks." Id. Accordingly, we remanded the case to
the BIA for reconsideration of its conclusion that the government
was neither unwilling nor unable to protect Khattak.
The BIA here missed the distinction drawn by the IJ
between the Mexican government's willingness to investigate
Tomas's murder and its ability to protect Rosales in the future.
It therefore incorrectly described the IJ's decision as finding
"that the general background country evidence showed that the
police would be unable or unwilling to protect the respondent."
(Emphasis added.) Elaborating on that description, as noted
earlier, the BIA stated that "[t]he Immigration Judge appears to
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have deferred to the background evidence, and essentially
discounted the actual, individualized evidence of record in this
case showing that the police in Mexico initiated an investigation
of the respondent's son's murder."
To the contrary, as described above, the IJ thoroughly
discussed the police investigation in assessing the government's
willingness to protect Rosales, but concluded, based on the country
condition reports and other evidence in the record, that the
government would nonetheless be unable to protect him. Therefore,
as a result of conflating unwillingness and inability, the BIA
erroneously concluded that the IJ should have found that evidence
of willingness (the police investigation) contradicted evidence of
inability (Rosales's testimony and the country condition reports
regarding impunity for organized crime and police corruption),
when in fact the IJ appropriately discussed evidence of
unwillingness and evidence of inability separately.
In support of the BIA's decision, the government cites
two of our cases that it says stand for the proposition that a
police response to persecution, such as the investigation here of
Tomas's murder, is sufficient to demonstrate that the government
is both willing and able to protect an asylum applicant, and that
therefore the BIA did not need to consider more than the police
investigation to conclude that the IJ's inability finding was
clearly erroneous. See Khan, 727 F.3d at 7-8; Ortiz-Araniba, 505
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F.3d at 42. The government misreads our precedent.8 In Khan, we
not only noted that the Pakistani government had investigated
Khan's reports of persecution by the Taliban and had "actively
sought to protect [him]," 727 F.3d at 8, but we also described his
testimony that the government had "arrest[ed] Taliban members and
call[ed] on the Pakistani army to secure the area" where he lived,
which Khan acknowledged had "improve[d] the situation," id. at 7
(alteration in original). There, unlike the circumstances here,
the investigative efforts by the government had proved fruitful,
demonstrating the ability of the police to protect Khan from
persecution.
Likewise, in Ortiz-Araniba, there was evidence that the
police not only responded to the applicant's complaint about
persecution, but also arrested the perpetrator, who was convicted
of the crime and served four years in prison. 505 F.3d at 42.
Given that scenario, we concluded that the successful prosecution
was evidence of both willingness and ability to protect the asylum
applicant, and that such evidence could serve to rebut the country
condition evidence relied on by the applicant to show inability.
Id. at 42-43; see also Harutyunyan v. Gonzales, 421 F.3d 64, 68
8 To the extent that our combined discussion of "unwillingness
or inability" in some cases has obscured the distinction between
the two -- despite our consistent use of the disjunctive "or" --
we clarify now that the inquiry into whether there is a government
nexus must include separate consideration of the evidence of
unwillingness and the evidence of inability.
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(1st Cir. 2005) (finding no inability where "the local authorities
responded immediately to each incident," and "the police succeeded
in tracking down the malefactors and initiated criminal
proceedings against them"); Matter of A-B-, 27 I. & N. Dec. 316,
343 (Att'y Gen. 2018) (finding that the BIA erred in overturning
the IJ's finding that the police were able to protect the
petitioner where she "not only reached out to police, but received
various restraining orders and had [the persecutor] arrested on at
least one occasion"). Here, on the other hand, the evidence in
the record showed only that the police made efforts to investigate
Tomas's murder. The evidence showed nothing about the quality of
this investigation or its likelihood of catching the perpetrators.
Indeed, evidence about law enforcement in Guerrero generally
suggested that the investigation was unlikely to make Rosales's
family any safer. Therefore, unlike Khan and Ortiz-Araniba, the
evidence of the investigation here was insufficient to justify the
BIA's conclusion that the IJ clearly erred in finding that the
Mexican police were willing but unable to protect Rosales.
C. Country Condition Reports
As a result of treating unwillingness and inability as
one element, the BIA erroneously dismissed the country condition
reports that were the basis for the IJ's finding of inability as
mere "background evidence" that was too general to support a
finding of inability in light of the more specific -- and in its
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view, contradictory -- evidence of the police investigation. See
Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009) (stating that,
while "country conditions reports are deemed generally
authoritative in immigration proceedings, the contents of such
reports do not necessarily override petitioner-specific facts").
Focusing only on the willingness of the police to investigate
Tomas's murder, the BIA did not recognize the value of the country
condition reports as support for the IJ's finding that the Mexican
police were unable to protect Rosales under the specific facts of
his case.
Although in some cases country condition reports can be
too generalized to support a finding of inability, see, e.g.,
Mendez-Barrera v. Holder, 602 F.3d 21, 28 (1st Cir. 2010); Amouri,
572 F.3d at 35, the country condition reports cited by the IJ here
were particularly probative because they closely mirrored the
specific circumstances described by Rosales, and thus were
corroborative of his testimony. For example, the International
Crisis Group report described a skyrocketing homicide rate in
Guerrero "[d]espite deployment of more federal police," and stated
that, in Guerrero specifically, "impunity, even for homicide, is
the norm." Those statements are consistent with the testimony of
Rosales, a police officer himself, that organized crime kills
"three or four people a day" in Acapulco and that arrests are
rarely made for such crimes.
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Also singling out Guerrero as a state where violence was
rampant, the State Department country condition report
specifically described one incident in which local police in
Guerrero arrested 43 students and then handed them over to drug
traffickers. Only the remains of two of the students have been
found. The ICG report described the same incident, as well as
another kidnapping of "more than a dozen people" that occurred in
Guerrero in May 2015, less than a year before Tomas's murder. The
report concluded that the second kidnapping "shows that months
after the students disappeared authorities remained unwilling or
unable to act decisively to prevent and resolve such crimes."
Similarly, Rosales characterized the police in Acapulco as being
overwhelmed by organized crime, and the testimony of Rosales and
his wife that they hired a private civil attorney to investigate
Tomas's murder suggests that they shared this view of the inability
of the police to bring criminals to justice.
Thus, while country condition reports generally have
"high probative value . . . regarding a foreign country's
conditions," Hang Chen v. Holder, 675 F.3d 100, 108 (1st Cir.
2012), and "may constitute 'substantial evidence' for the purposes
of reviewing immigration decisions," id. (quoting Ambartsoumian v.
Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004)), the country condition
reports here were particularly probative because they specifically
addressed the failure of the police in Rosales's home state of
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Guerrero to protect citizens from targeted kidnappings and murders
committed by organized crime, and they corroborated Rosales's
testimony regarding his first-hand experience with organized crime
as a police officer. These reports supported the IJ's conclusion
that the police were unable to protect Rosales from persecution,
and the BIA erred by discounting them as too general.
D. Rosales's Failure to Report Threats to the Police
In addition to conflating unwillingness and inability,
the BIA made an additional error in its clearly erroneous analysis
when it relied on the IJ's finding that Rosales did not report to
the police the efforts of organized crime to find him in Acapulco
and Pueblo Viejo as another basis for rejecting the IJ's inability
finding. In so doing, the BIA ignored the proposition in our case
law that "the failure by a petitioner to make [a police] report is
not necessarily fatal to a petitioner's case [of persecution] if
the petitioner can demonstrate that reporting private abuse to
government authorities would have been futile." Morales-Morales
v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017). The BIA then
compounded that error by failing to take into account the
significant documentary evidence cited by the IJ showing police
corruption and police complicity in organized crime in Guerrero.
Rosales corroborated that evidence with his testimony that, in his
experience as a police officer, the Acapulco police usually conduct
an initial investigation when there is a crime but, "after that,
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all that, it gets archived. They don't really follow up with the
cases." Rosales also testified that, although the police find ten
or eleven bodies every week in Acapulco, arrests are rarely made
in those cases because "the organized crime is overwhelmingly more
than the police." The IJ's finding that Rosales sought assistance
from an attorney outside the police department to investigate
Tomas's murder further corroborated this testimony and the country
condition reports.
Moreover, although he was a police officer, Rosales
testified that he was "afraid" to speak to the police about his
son's murder, and that he did not report the attempts to locate
him by organized crime because he was "afraid they were going to
kill us." He also stated that "that's why the lawyer helped us to
get all the paperwork . . . [for the asylum application], because
we were afraid" to speak to the police. Therefore, reviewing the
entire record before the IJ, we conclude that the BIA erred when
it decided that the IJ's inability finding was undermined by
Rosales's failure to report the attempts to find him to the police.
In citing that failure, the BIA did not address other evidence in
the record demonstrating that such a report would be futile or
even dangerous. Such a selective reading of the record by the BIA
is a misapplication of the clearly erroneous standard.
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E. Indistinguishable from Other Governments' Struggles
The BIA also supported its clear error determination by
concluding that any failure by the Mexican government to protect
Rosales from organized crime "is [in]distinguishable from any
other government's struggles to combat a criminal element,"
Burbiene, 568 F.3d at 255. Again, this selective reading of the
record by the BIA reflects a misapplication of the clearly
erroneous standard.
Drawing on the testimony of Rosales and country
condition reports, the IJ found that most homicides and kidnappings
in Guerrero go unsolved by police, and that at least some police
officers in Guerrero are themselves involved with assisting
organized crime in carrying out extortion, homicides, and even
mass kidnappings. That evidence of police complicity in organized
crime in the particular place where Rosales lived contrasts sharply
with the evidence in Burbiene, where the country condition reports
showed that the country had been largely successful in combatting
human trafficking but had merely failed to eradicate the crime
completely.9 See id.
9
The government draws our attention to the Attorney General's
recent decision in Matter of A-B-, 27 I. & N. Dec. at 320, which
reiterated that "[t]he mere fact that a country may have problems
effectively policing certain crimes . . . cannot itself establish
an asylum claim." This description of the government nexus
requirement is consistent with our precedent, discussed above,
holding that a government's inability to protect a petitioner from
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The government points out that there was some good news
in the country condition reports, including Mexico's enactment of
laws to facilitate the investigation of disappearances and
torture. However, in light of the BIA's dismissal of the country
condition reports altogether as too general, the government's
attempt to now use them as support for the BIA's decision is
unpersuasive. See Mejia, 756 F.3d at 69 (limiting appellate courts
to review of "the reasoning provided by the agency"). As much as
it might like to do so, the government cannot rewrite the BIA's
decision.
Moreover, the examples provided by the government of the
steps Mexico has taken to combat violence and police corruption
through legislation show only the willingness of the government to
enact laws, not the ability of the police to enforce the law.
Indeed, the government concedes that the results of these efforts
"have been 'limited.'" C.f. Burbiene, 568 F.3d at 255 (finding no
showing of inability where, in addition to legislative changes,
persecution must be "distinguishable from any other government's
struggles to combat a criminal element." Burbiene, 568 F.3d at
255; see also Ortiz-Araniba, 505 F.3d at 41 (stating that a
petitioner must show "more than 'difficulty . . . controlling
private behavior'" (quoting Menjivar v. Gonzales, 416 F.3d 918,
921 (8th Cir. 2005))). As we explain, Rosales has produced
competent and sufficient evidence that the failures by the police
in Guerrero went well beyond a government's failure to protect its
citizens from all crime.
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the government had "opened 24 criminal cases against alleged
traffickers").
Even if the reforms cited by the government could be
considered evidence of ability, we agree with the dissenting member
of the BIA panel that the existence of some evidence in the record
that could support a finding of ability does not render the IJ's
finding of inability clearly erroneous, especially given the
significant country condition evidence that supported the IJ's
decision. See Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012)
("The BIA cannot, under a clear error standard of review, override
or disregard evidence in the record and substitute its own version
of reality."); see also Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 573 (1985) (stating that the clear error "standard
plainly does not entitle a reviewing court to reverse the finding
of the trier of fact simply because it is convinced that it would
have decided the case differently").
III.
In sum, the BIA's justifications for its holding that it
was clearly erroneous for the IJ to find that the Mexican
government is unable to protect Rosales reflect multiple errors.
The BIA failed to consider evidence of the Mexican government's
inability to protect Rosales and his nuclear family, as distinct
from evidence of the willingness of the police to investigate the
murder of Rosales's son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country
condition reports which, when combined with Rosales's testimony
about the particular circumstances of his case, were sufficient to
support the IJ's finding that the police in Guerrero would be
unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the
IJ's finding that Rosales did not report threats by organized crime
to the police refuted the IJ's ultimate finding of inability. The
BIA both ignored our precedent stating that a failure to report a
crime does not undermine an assertion of inability if a report
would have been futile, and failed to consider evidence in the
record that would support a finding of futility, thereby
misapplying the clear error standard. Moreover, in another
misapplication of the clear error standard, the BIA incorrectly
concluded that the IJ's inability finding was clearly erroneous
because the Mexican government's failure to protect Rosales was
indistinguishable from the struggles of any government to combat
crime, when the record before the IJ supported a finding that it
was distinguishable.
Because of these errors, we grant Rosales's petition and
remand to the BIA for further proceedings consistent with this
opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam) (holding that remand to the BIA is generally the
appropriate remedy when the BIA commits a legal error).
So ordered.
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