Victor Tapia Madrigal v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HUGO TAPIA MADRIGAL, No. 10-73700
Petitioner,
Agency No.
v. A089-859-690
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 5, 2012—Seattle, Washington
Filed May 15, 2013
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Raymond J. Dearie, District Judge.*
Opinion by Judge Fisher
*
The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
2 TAPIA MADRIGAL V . HOLDER
SUMMARY**
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision denying asylum, withholding
of removal, and protection under the Convention Against
Torture to a citizen of Mexico who asserted claims based on
his past military service and involvement in the arrest of
several members of the Los Zetas drug cartel.
The panel held that the Board erred by concluding that the
harm petitioner suffered, including attempts by unknown
individuals to find him after he relocated, a drive-by shooting,
and an anonymous threatening note, did not rise to the level
of past persecution. The panel held that the Board erred by
viewing these incidents in isolation, instead of examining the
totality of the circumstances, and remanded for the Board to
reconsider whether petitioner met his burden of establishing
that Los Zetas were likely responsible for the incidents. The
panel explained that if Los Zetas were responsible, then the
record compels the conclusion that petitioner’s membership
in the particular social group of “former Mexican army
soldiers who participated in anti-drug activity” was at least
one central reason for his persecution.
The panel held that the Board erred by focusing only on
the Mexican government’s willingness to control Los Zetas,
and remanded for the Board to consider in the first instance
whether the Mexican government is able to control Los Zetas,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAPIA MADRIGAL V . HOLDER 3
and also whether a Mexican public official would likely
acquiesce to any torture.
COUNSEL
Theodore J. Angelis and John S. Wilson (argued), K&L
Gates, LLP, Seattle, Washington, for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Shelley R. Goad, Assistant Director, and Julia J. Tyler
(argued), Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.
OPINION
FISHER, Circuit Judge:
Victor Hugo Tapia Madrigal, a former member of the
Mexican military, petitions for review of a decision of the
Board of Immigration Appeals (BIA) denying him asylum,
withholding of removal and relief under the Convention
Against Torture (CAT). Because the BIA’s decision
employed incorrect legal standards and rests on factual
findings not supported by substantial evidence, we grant the
petition for review and remand to the BIA.
I. BACKGROUND
Tapia Madrigal is a native and citizen of Mexico. In a
hearing before an immigration judge (IJ), Tapia Madrigal
4 TAPIA MADRIGAL V . HOLDER
testified that he joined the Mexican army in 2005 at age 18.1
After basic training, he was assigned to a military base in the
state of Jalisco, where he spent the next two-and-a-half years
conducting anti-drug activities such as destroying marijuana
and poppy flower crops. In mid-2007, 10 members of the
Los Zetas drug cartel were arrested, including at least one
high-ranking member. Tapia Madrigal was not involved in
the arrest, but he assisted in transferring the arrestees from the
small town where they were apprehended to civil authorities
in Guadalajara. The transfer was broadcast on national
television because of the importance of some of the arrestees.
The national broadcast provided a clear view of Tapia
Madrigal’s face.
When Tapia Madrigal left his military base on authorized
leave after the transfer of the arrestees, two men wearing
masks kidnapped him while he was waiting for the bus not far
from the base. The men covered his head, forced him into a
truck and beat him with their fists, boots and heavy objects.
They threatened to kill him because of his participation in
transferring the arrestees, leading Tapia Madrigal to believe
the men were members of Los Zetas. After 24 hours of
beatings, the men released Tapia Madrigal with a message to
convey: tell his commanding officer, Fortino Castillo León,
that the 10 arrestees must be released or else all the people
responsible for the arrest would be killed. Tapia Madrigal
conveyed the message to Commander León, who did not
believe the story and did not release the arrestees.
1
The IJ found Tapia Madrigal to be a credible witness. W e therefore
assume that his testimony, as set forth in declarations and live testimony
before the IJ, was true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th
Cir. 2004).
TAPIA MADRIGAL V . HOLDER 5
After a day off to recover from his injuries, Tapia
Madrigal was sent on a three-month mission to destroy
marijuana crops. When he returned to the base, he learned
that all the soldiers who had arrested the 10 members of Los
Zetas had been beheaded while on leave. Fearing for his
safety, Tapia Madrigal decided to leave the army. He went
to his family’s home for a few months, but after learning that
Commander León had also been killed, he discreetly moved
to a small town. Whenever someone asked Tapia Madrigal’s
family members where he was, his family members would lie
about his whereabouts. Some of the people who asked about
his current location were strangers, and Tapia Madrigal
believes these strangers were affiliates of Los Zetas who were
trying to find him.
Four or five months later, unknown individuals shot at
Tapia Madrigal from a passing car while he was walking
down the street in his new town. No one else was in the
vicinity, so Tapia Madrigal felt sure the bullets were intended
for him. He dropped to the ground to avoid the bullets and
escaped harm. The car sped up and drove away quickly.
Tapia Madrigal testified that he had not made any enemies in
his new town and that he knew of no one who wished him
harm besides members of Los Zetas. After this experience,
he decided to leave Mexico.
After he moved to the United States in 2008, an
anonymous letter was left at Tapia Madrigal’s mother’s house
in Mexico. The letter, which was written by pasting together
letters of different sizes and fonts that had been cut from
other published materials, threatened Tapia Madrigal’s life
and stated that he had been located. After his mother and one
of his sisters read the letter, his mother tore up the letter in
her distress.
6 TAPIA MADRIGAL V . HOLDER
The government initiated removal proceedings against
Tapia Madrigal in 2009. Tapia Madrigal conceded
removability, but sought asylum, withholding of removal and
CAT relief. The IJ determined Tapia Madrigal was ineligible
for all forms of requested relief, and the BIA dismissed his
appeal. Tapia Madrigal petitions for review.
II. STANDARD OF REVIEW
We review for substantial evidence the factual findings
supporting the BIA’s decision that an applicant has not
established eligibility for asylum, see Yan Xia Zhu v.
Mukasey, 537 F.3d 1034, 1038 (9th Cir. 2008), withholding
of removal, see Pagayon v. Holder, 675 F.3d 1182, 1190 (9th
Cir. 2011), or relief under CAT, see Li Chen Zheng v.
Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). We review
questions of law de novo. See Yan Xia Zhu, 537 F.3d at 1038.
III. ASYLUM
To establish asylum eligibility, an applicant must show
that he is unable or unwilling to return to his country of
nationality “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C.
§ 1158(b)(1)(A). “Either past persecution or a well-founded
fear of future persecution provides eligibility for a
discretionary grant of asylum.” Baghdasaryan v. Holder,
592 F.3d 1018, 1023 (9th Cir. 2010) (quoting Ratnam v. INS,
154 F.3d 990, 994 (9th Cir. 1998)). Tapia Madrigal claims
eligibility for asylum based on both past persecution and fear
of future persecution.
TAPIA MADRIGAL V . HOLDER 7
A. PAST PERSECUTION
“An applicant alleging past persecution has the burden of
establishing that (1) his treatment rises to the level of
persecution; (2) the persecution was on account of one or
more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.” Id. Tapia
Madrigal contends that (1) the kidnapping, beatings, death
threats, inquiries regarding his whereabouts, drive-by
shooting and threatening note rise to the level of persecution;
(2) this persecution was on account of an imputed political
opinion and on account of his membership in the particular
social group of former Mexican army soldiers who
participated in anti-drug activity; and (3) the Mexican
government is unable or unwilling to control Los Zetas.
The BIA’s conclusion that Tapia Madrigal was not
persecuted “on account of” an imputed political opinion is
supported by substantial evidence. Nothing in the record
suggests that members of Los Zetas believed Tapia Madrigal
held a political belief contrary to their own. For the reasons
expressed below, however, his claim that he was persecuted
on account of his membership in a particular social group
might be meritorious. We therefore remand this claim for
further proceedings.
1. Degree of Harm
Tapia Madrigal bases his past persecution argument
partially on the mistreatment he endured while in the military
and partially on events that occurred after he left the military.
The BIA correctly concluded that mistreatment suffered
while Tapia Madrigal was in the army cannot support his
8 TAPIA MADRIGAL V . HOLDER
claim of past persecution on account of a particular social
group because he was not a former soldier at that time and his
particular social group is comprised of only former soldiers.
Mistreatment suffered while an applicant was an active
military member does not by itself provide a basis for asylum
because active duty members of the military do not constitute
a social group. See Cruz-Navarro v. INS, 232 F.3d 1024,
1029 (9th Cir. 2000) (“Persecution occurring because a
person is a current member of . . . the military . . . is not on
account of one of the grounds enumerated in the Act.”
(internal quotation marks omitted)); Matter of Fuentes, 19
I & N Dec. 658, 661 (BIA 1988) (holding that the dangers
faced by soldiers “as a result of that status alone are not ones
faced on account of race, religion, nationality, membership in
a particular social group, or political opinion”); see also
Chanco v. INS, 82 F.3d 298, 302 (9th Cir. 1996). However,
“[o]ur cases have . . . drawn a distinction between current and
former military or police service when determining the scope
of a cognizable social group under the INA.” Cruz-Navarro,
232 F.3d at 1029. Thus, Tapia Madrigal cannot establish past
persecution arising from his time in the army. We
nonetheless consider these incidents to the extent they inform
our analysis of the mistreatment he suffered after leaving the
military.
Tapia Madrigal points to three incidents that occurred
after he left the military to help establish his claim of past
persecution: the attempts of unknown individuals to find him
after he relocated, the drive-by shooting and the anonymous
threatening note (collectively, “post-military incidents”). The
BIA’s conclusion that these incidents, which include an
attempt to murder Tapia Madrigal, do not rise to the level of
past persecution is contrary to our precedent. See Lopez v.
Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004) (“[A]ssaults
TAPIA MADRIGAL V . HOLDER 9
threatening life itself constitute persecution.”). If the post-
military incidents – certainly the murder attempt – are
attributable to Los Zetas, then the cartel subjected Tapia
Madrigal to mistreatment severe enough to provide a basis for
asylum eligibility, assuming the other necessary factors are
also present.2
The BIA discounted the post-military incidents because,
in its view, “no evidence” supports Tapia Madrigal’s belief
that Los Zetas were responsible. The BIA appears to have
reached this conclusion by viewing each incident in isolation,
instead of examining the totality of the circumstances. This
was error because the post-military incidents took place in the
context of a larger pattern of conduct. First, Tapia Madrigal
was kidnapped, detained, beaten and threatened with death
for his role in transporting arrestees who were members of
Los Zetas. Second, the soldiers who actually arrested those
cartel members were beheaded. Third, Tapia Madrigal’s
commanding officer was killed. Fourth, after Tapia Madrigal
tried to quietly relocate, unknown individuals inquired
regarding his whereabouts. Fifth, he was shot at on the street
from a passing car. Sixth, his family received an anonymous
threatening note.
2
The BIA held that, even considering the kidnapping, detention and
beatings Tapia Madrigal endured while he was in the army, the
mistreatment he suffered was not severe enough to constitute persecution.
In light of the significant circuit authority to the contrary, see, e.g., Lopez,
366 F.3d at 803 (murder attempts constitute persecution); Fedunyak v.
Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007) (beatings and death threats
constitute persecution); Tarubac v. INS, 182 F.3d 1114, 1118 n.2 (9th Cir.
1999) (kidnapping, beatings and threats constitute persecution), the
government on appeal explicitly decided not to defend this part of the
BIA’s ruling.
10 TAPIA MADRIGAL V . HOLDER
Viewed in context, Tapia Madrigal’s belief that the three
post-military incidents are attributable to Los Zetas is more
than pure speculation. The course of conduct and
surrounding circumstances provide circumstantial evidence
that Los Zetas were the ones who inquired about his
whereabouts, shot at him on the street and sent the
threatening note. Although it is Tapia Madrigal’s burden to
establish his eligibility for asylum, he may satisfy this burden
with circumstantial evidence. See Singh v. Gonzales,
439 F.3d 1100, 1111 (9th Cir. 2006); Bhasin v. Gonzales,
423 F.3d 977, 984 (9th Cir. 2005). Because his 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. See Navas v. INS,
217 F.3d 646, 657 (9th Cir. 2000) (“[T]his court has held
persecution to be on account of political opinion where there
appears to be no other logical reason for the persecution at
issue.”); see also Li v. Holder, 559 F.3d 1096, 1112 (9th Cir.
2009) (inferring that the asylum applicant’s mistreatment was
on account of his political opinion in the absence of any other
logical explanation); Navas, 217 F.3d at 656–57, 660–61
(same); Hernandez-Ortiz v. INS, 777 F.2d 509, 516–17 (9th
Cir. 1985) (same), superseded by statute on other grounds as
stated in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th
Cir. 2009).
We therefore remand 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. If the BIA
finds that Los Zetas are likely responsible for the murder
attempt, an extremely serious incident, that would be
sufficient to show persecution. See Lopez, 366 F.3d at 803.
Unlike the shooting, the other two post-military incidents are
TAPIA MADRIGAL V . HOLDER 11
not individually severe enough to constitute past persecution,
but viewed as part of a course of conduct, could justify or
reinforce a finding of persecution if traceable to Los Zetas.
2. Causal Nexus
The BIA concluded that the lack of a nexus between the
persecution Tapia Madrigal suffered and a protected ground
precludes a grant of asylum. We agree that Tapia Madrigal
has not established a nexus between his persecution and an
imputed political opinion. However, if Tapia Madrigal can
establish that Los Zetas are responsible for his post-military
persecution as discussed above, then the record compels the
conclusion that such persecution was on the basis of his
membership in the particular social group of “former
Mexican army soldiers who participated in anti-drug
activity.”
The BIA acknowledged that Tapia Madrigal’s social
group has the requisite particularly and social visibility to be
cognizable under the Immigration and Nationality Act. But
the BIA concluded, without discussion, that he had not
established a nexus between the “vague” post-military
incidents and his membership in this social group. To the
extent the BIA’s conclusion rested on its view that Tapia
Madrigal had not established Los Zetas as the source of these
incidents, we have explained above why its reasoning is
flawed. If the BIA meant that even if Los Zetas were
involved there would be no nexus, that is not supported by the
record. Assuming it was Los Zetas who continued to go after
Tapia Madrigal after he left the military, the record shows
that one central reason was his status as a former Mexican
army soldier who had participated in anti-drug activity.
12 TAPIA MADRIGAL V . HOLDER
Tapia Madrigal had no trouble with Los Zetas before his
face was broadcast transporting arrestees from the cartel to a
different detention facility. After the broadcast, however,
other members of Los Zetas kidnapped, beat and threatened
him the next time he was on leave. From the kidnappers’
communications and demands during the event, we know it
was his participation in the transfer of the arrestees that
prompted this abuse. If Los Zetas continued to pursue Tapia
Madrigal even after he left the army, the record compels the
conclusion that such mistreatment was motivated by the
cartel’s disapproval of his anti-drug activities and its hope to
intimidate him and others like him.
The government contends that because Los Zetas’
mistreatment of Tapia Madrigal after he left the military was
“retribution” for actions he took while in the military, there
is no nexus to his social group membership. Although
mistreatment motivated purely by personal retribution will
not give rise to a valid asylum claim, see Ayala v. Holder,
640 F.3d 1095, 1098 (9th Cir. 2011), if a retributory motive
exists alongside a protected motive, an applicant need show
only that a protected ground is “one central reason” for his
persecution. 8 U.S.C. § 1158(b)(1)(B)(i).3 For example, in
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en
banc), we held that Salvadorans who testified in open court
against drug cartels could constitute a particular social group,
3
In Ayala, the asylum applicant was attacked and threatened by the very
same drug dealers “he had personally arrested” while he was in the
military. Ayala, 640 F.3d at 1096. W e emphasized that it was the same
individuals the applicant had targeted who later sought him out for
revenge after he left the military. See id. at 1096, 1098. Here, in contrast,
there is no suggestion that Tapia M adrigal’s mistreatment has been or will
be at the hands of the same members of Los Zetas he transferred. Ayala,
a case of purely personal retribution, is not controlling.
TAPIA MADRIGAL V . HOLDER 13
and we faulted the BIA for “fail[ing] to consider significant
evidence that Salvadoran society recognizes the unique
vulnerability of people who testify against gang members in
criminal proceedings, because gang members are likely to
target these individuals as a group.” Id. at 1092. Gang
persecution of adverse witnesses would certainly have
revenge as one motive, but group-based intimidation would
be another. “[A]nti-cartel informants, who might not be
recognizable on-sight as members of that group, would be
socially visible – particularly to revenge-seeking cartel
members – if their identity were discovered because they
testified in court, as Henriquez-Rivas did here.” Id. at 1088.
In Tapia Madrigal’s case, even if revenge partially motivated
Los Zetas’ mistreatment of him, the record makes clear that
their desire to intimidate members of his social group was
another central reason for the persecution.
3. Willingness and Ability to Control Los Zetas
The BIA concluded that the Mexican government is
willing and able to control Los Zetas, precluding Tapia
Madrigal from obtaining asylum on any basis. This
conclusion was the result of legal error: the BIA appears to
have focused only on the Mexican government’s willingness
to control Los Zetas, not its ability to do so. The BIA cited
various statistics on the efforts of the national Mexican
government to combat drug violence, but it did not examine
the efficacy of those efforts.
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. According to
14 TAPIA MADRIGAL V . HOLDER
one State Department report, as a result of the Mexican
government’s increased pressure against narco-traffickers,
“drug-related assassinations and kidnappings have reached
unprecedented levels . . . including the deaths of 522 military
and law enforcement officials” in 2008. David T. Johnson,
U.S. Dep’t of State, Guns, Drugs and Violence: The Merida
Initiative and the Challenge in Mexico (2009). 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.” U.S. Dep’t of
State, 2008 Human Rights Report: Mexico (2009). 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.”
Id. Some of the successes cited in the BIA’s opinion – such
as the arrests during a seven-year period of “79,000 people on
drug trafficking related charges” – may be of limited practical
significance to Tapia Madrigal’s situation, because corruption
is also rampant among prison guards, and prisoners can and
do break out of prison with the guards’ help. See, e.g., Marc
Lacey, Mexico’s Drug Traffickers Continue Trade in Prison,
N.Y. Times, Aug. 11, 2009.
Because the BIA appears to have considered only the
Mexican government’s willingness to control Los Zetas and
not its ability to do so insofar as it might affect Tapia
Madrigal’s asylum application, we remand for the BIA to
consider in the first instance whether the Mexican
government is able to control Los Zetas. See INS v. Orlando
Ventura, 537 U.S. 12, 16–17 (2002) (requiring remand when
the BIA has not yet considered an issue); Lopez v. Ashcroft,
366 F.3d 799, 805–07 (9th Cir. 2004) (remanding the case to
the BIA where the BIA’s decision was based on erroneous
TAPIA MADRIGAL V . HOLDER 15
legal standards); Pannu v. Holder, 639 F.3d 1225, 1229 (9th
Cir. 2011) (same).
***
We therefore grant the petition with respect to Tapia
Madrigal’s past persecution claim and remand to the BIA.
On remand, the BIA must determine whether the post-
military incidents are attributable to Los Zetas and whether
the Mexican government is able to control Los Zetas as
relevant to those in Tapia Madrigal’s particular social group.
If the BIA determines both that Los Zetas are likely
responsible for the drive-by shooting – a logical conclusion
in this context if no other plausible explanation is proffered
– and that Mexico was unable to control Los Zetas, then
Tapia Madrigal is eligible for asylum, because a murder
attempt rises to the level of persecution and his membership
in the relevant social group is one central reason for the
persecution.
B. FUTURE PERSECUTION
The BIA disposed of Tapia Madrigal’s claim of a well-
founded fear of future persecution by concluding that the
Mexican government is willing and able to control Los Zetas.
As discussed above, the BIA did not sufficiently consider
Mexico’s ability to control Los Zetas, so we grant the petition
and remand for further proceedings on Tapia Madrigal’s
claim of future persecution.
Even if the BIA determines that Tapia Madrigal has not
suffered past persecution because the drive-by shooting is not
attributable to Los Zetas, it must still consider whether he is
likely to suffer future mistreatment at the hands of Los Zetas
16 TAPIA MADRIGAL V . HOLDER
severe enough to give rise to an asylum claim. The BIA
should consider the kidnapping Tapia Madrigal endured
while he was in the military, the fates of his fellow soldiers,
any post-military incidents the BIA determines are
attributable to Los Zetas and any country conditions evidence
describing how Los Zetas treat former soldiers who
participated in anti-drug activity.4 If the BIA concludes that
the Mexican government cannot control Los Zetas and that
Tapia Madrigal has a well-founded fear of severe
mistreatment at their hands, then he is eligible for asylum
because a causal nexus would necessarily exist between that
mistreatment and his membership in a particular social group,
as discussed above.
IV. WITHHOLDING OF REMOVAL
An applicant is entitled to withholding of removal if his
“life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The BIA denied withholding of removal
based on the Mexican government’s willingness and ability
to control Los Zetas and based on the lack of a nexus between
any past or future persecution and a protected ground.
Because we reject the BIA’s finding on the lack of a causal
nexus and remand on the issue of the government’s ability to
control Los Zetas, we also grant the petition on this claim and
4
If attributable to Los Zetas, even those post-military incidents that do
not standing alone rise to the level of persecution – the inquiries about his
location and the anonymous note – could provide evidence that Los Zetas
have “marked” Tapia Madrigal and would continue to seek him out for
abuse if returned to Mexico.
TAPIA MADRIGAL V . HOLDER 17
remand to the BIA to reconsider Tapia Madrigal’s application
for withholding of removal.
V. CONVENTION AGAINST TORTURE
An applicant is eligible for CAT relief if he establishes
that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.”
8 C.F.R. § 208.16(c)(2). Torture is “any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted on a person . . . when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). Thus, a CAT
applicant must show both a greater than 50 percent likelihood
that he will be tortured, see Cole v. Holder, 659 F.3d 762, 770
(9th Cir. 2011), and that a public official would inflict,
instigate, consent to or acquiesce in that torture, see 8 C.F.R.
§ 208.18(a)(1).
A. LIKELIHOOD OF TORTURE
Under CAT’s implementing regulations, the BIA must
consider all evidence of country conditions to determine the
likelihood that an applicant would be tortured. See 8 C.F.R.
§ 1208.16(c)(3) (“In assessing whether it is more likely than
not that an applicant would be tortured in the proposed
country of removal, all evidence relevant to the possibility of
future torture shall be considered, including, but not limited
to: . . . (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.” (emphases added)); see
also Cole, 659 F.3d at 771–72 (“[W]here there is any
18 TAPIA MADRIGAL V . HOLDER
indication that the BIA did not consider all of the evidence
before it, a catchall phrase [stating that the BIA considered all
the evidence] does not suffice, and the decision cannot
stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705–06
(9th Cir. 2010) (remanding a CAT claim where the BIA and
the IJ failed to consider a portion of the country condition
evidence).
It appears the BIA did not consider all the country
condition evidence Tapia Madrigal properly placed before it.
The BIA faulted Tapia Madrigal for appending to his
appellate brief “new” country conditions evidence that he had
not presented to the IJ, stating that it would not consider this
“new” material. In fact, none of the country condition
evidence was new; all of it had been presented to the IJ.
Given the high likelihood that the BIA did not consider all the
country condition evidence properly before it, remand is
appropriate.
On remand, the BIA must determine whether it is more
likely than not that Tapia Madrigal would be tortured if
removed to Mexico. The BIA must consider all country
condition evidence, the kidnapping that occurred while Tapia
Madrigal was in the military, the fates of his fellow soldiers
and any post-military incidents it determines are attributable
to Los Zetas. While relatively minor forms of abuse do not
constitute torture, if the BIA determines that Tapia Madrigal
is more likely than not to be murdered if returned to Mexico,
that could constitute torture. See Cole v. Holder, 659 F.3d at
771 (“‘Acts constituting torture’ under CAT ‘are varied, and
include beatings and killings.’” (quoting Bromfield v.
Mukasey, 543 F.3d 1071, 1079) (9th Cir. 2008))); see also
Comollari v. Ashcroft, 378 F.3d 694, 697 (7th Cir. 2004)
(Posner, J.).
TAPIA MADRIGAL V . HOLDER 19
B. ACQUIESCENCE OF A PUBLIC OFFICIAL
Without analysis, the BIA concluded that any torture
Tapia Madrigal is likely to suffer would not be with the
consent or acquiescence of a public official. The BIA failed
to “state with sufficient particularity and clarity the reasons
for” this decision and so does not “provide an adequate basis
for this court to conduct its review.” Castillo v. INS, 951 F.2d
1117, 1121 (9th Cir. 1991). The inquiry about whether
Mexican officials would acquiesce in torture is related to the
inquiry in the asylum context of whether the Mexican
government is not just willing but also able to control Los
Zetas, at least insofar as it would affect Tapia Madrigal. Both
require examining the efficacy of the government’s efforts to
stop the drug cartels’ violence, and both are affected by the
degree of corruption that exists in Mexico’s government.
Remand is therefore also appropriate for the BIA to consider
whether a Mexican public official is likely to acquiesce in any
torture Tapia Madrigal might suffer.
“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. § 208.18(a)(7). Although the public official must
have “awareness” of the torturous activity, he need not have
actual knowledge of the specific incident of torture. See Li
Chen Zheng v. Ashcroft, 332 F.3d 1186, 1194–96 (9th Cir.
2003). Acquiescence also does not require that the public
official approve of the torture, even implicitly. See id. It is
sufficient that the public official be aware that torture of the
sort feared by the applicant occurs and remain willfully blind
to it. See id.; Aguilar-Ramos, 594 F.3d at 705–06.
20 TAPIA MADRIGAL V . HOLDER
Importantly, an applicant for CAT relief need not show
that the entire foreign government would consent to or
acquiesce in his torture. He need show only that “a public
official” would so acquiesce. 8 C.F.R. § 208.18(a)(1); see Li
Chen Zheng, 332 F.3d at 1189–96 (remanding a CAT claim
to the BIA where corrupt Chinese officials at the local level
colluded with human smugglers, even though the national
government “appears to be taking active measures to target
people smugglers,” id. at 1191). Voluminous evidence in the
record explains that corruption of public 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. Facing analogous
facts, the Eighth Circuit held that eligibility for CAT relief
does not require that the public official [who
acquiesces in torture] be executing official
state policy or that the public official be the
nation’s president or some other official at the
upper echelons of power. . . . [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 . . . .
Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009).
We agree. If public officials at the state and local level in
Mexico would acquiesce in any torture Tapia Madrigal is
likely to suffer, this satisfies CAT’s requirement that a public
official acquiesce in the torture, even if the federal
government in Mexico would not similarly acquiescence. We
therefore remand for the BIA to consider whether any torture
Tapia Madrigal is likely to endure if returned to Mexico
TAPIA MADRIGAL V . HOLDER 21
would be with the consent or acquiescence of a public
official.
***
We grant Tapia Madrigal’s petition with respect to his
claim for social group based asylum – both past persecution
and fear of future persecution – withholding of removal and
CAT relief and remand to the BIA for further consideration
consistent with this opinion. The panel retains jurisdiction for
any subsequent appeals.
PETITION GRANTED.