Garcia v. Wilkinson

• Decision Date: 18 February 2021
• Docket Number: No. 19-72803,19-72803
• Citation: 988 F.3d 1136
• Parties: Alicia Naranjo GARCIA, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

988 F.3d 1136

Alicia Naranjo GARCIA, Petitioner,

v.Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 19-72803

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2020 Seattle, Washington

Filed February 18, 2021

Sarah A. Nelson (argued), Certified Law Student; Thomas V. Burch and Anna W. Howard, Supervising Attorneys; University of Georgia School of Law, Athens, Georgia, for Petitioner.

Jessica D. Strokus (argued), Trial Attorney; 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.

Before: Ronald M. Gould and Michelle T. Friedland, Circuit Judges, and Stephen R. Bough,^* District Judge.

GOULD, Circuit Judge:

Alicia Naranjo Garcia ("Garcia") is a native and citizen of Mexico. Garcia petitions for review of the Board of Immigration Appeals ("BIA") decision affirming the Immigration Judge's ("IJ") denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Knights Templar, a local drug cartel, murdered Garcia's husband, twice threatened her life, and forcibly took her property in retaliation for helping her son escape recruitment by fleeing to the United States. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and remand.

I

In 2012, while Garcia was living in Apatzingán, Michoacán, Mexico, members of the Knights Templar drug cartel ("the Templars") kidnapped her husband. The cartel sought property Garcia's husband had inherited from his parents. The cartel kept him for two days, letting him go when he agreed to turn over the deed to a house he owned in Apatzingán, which was different from the house in which he and Garcia lived. One month later, after Garcia's husband had already turned the property over, he was found dead from a gunshot at the base of his skull with his body left near the home that he and Garcia shared. Garcia told police officers about her husband's property dispute with the cartel.

Garcia spoke at her husband's funeral, asserting that the Templars were responsible for his death. A local cartel leader then "called [her] out and told [her] not to be saying" that the Templars killed her husband, that what was at stake was her and her children's well-being, and implied that if she did not say anything they would "let [her] live there in peace." For the next five-and-a-half years, Garcia said nothing, and the Templars did not "bother" her. The police never arrested anyone in connection with Garcia's husband's death.

Garcia has two children, both of whom are United States citizens and live in the United States.¹ In August 2017, Garcia's 18-year-old son went to Mexico to visit her. In February 2018, cartel members targeted Garcia again when they tried to recruit her son into the Templar ranks after finding out that he was in Mexico. Garcia learned of the cartel's recruitment efforts and helped him to escape by buying a plane ticket for him to return to the United States. Shortly thereafter, on April 25, 2018, two cartel members came to Garcia's family home to tell her that she "only had a month to leave." From experience with the cartels, Garcia knew that if she disobeyed, cartel members would kill her. The cartel members told her that "once [she] left, they would keep the property," referring to the house in which she was currently living. In response to the cartel's threats, Garcia left Mexico on May 13, 2018. She knew that when the cartel says they are going to take property, "they just say it, and then they keep it." Garcia did not report the Templars’ threat to the police because she thought the Templars would find out and she feared what would happen if they did.

Garcia entered the United States on May 21, 2018. On June 20, 2018, the Department of Homeland Security initiated removal proceedings by filing a Notice to Appear ("NTA") in immigration court, charging Garcia with inadmissibility under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). On July 17, 2018, Garcia appeared before an immigration judge ("IJ") and conceded the allegations in the NTA. The IJ sustained the charge of inadmissibility. On August 16, 2018, Garcia submitted an I-589, Application for Asylum and for Withholding of Removal.

On September 28, 2018, Garcia appeared pro se before an IJ for an individual hearing on the merits of her application. Garcia testified to the Templars’ role in her husband's murder, her son's fleeing to the United States, and the loss of her family's property. Garcia also testified that she did not feel she would be safe anywhere else in Mexico because of the Templars’ threats. She has no family in Mexico outside of Michoacán and her children all live in the United States. She testified that she did not believe she could live with her parents in Michoacán, the area where she previously lived and her husband was killed, because if she went "to live with them, then [the Templars are] going to start taking it out on [her parents] too." When asked if she could live in Mexico City, Garcia stated that she didn't know, but would be "scared," and that "[w]herever you go, right away [the Templars] find out."

When asked about other family members, Garcia testified that her brother, Pedro Naranjo Garcia ("Pedro"), had worked for the Templars and was currently incarcerated in Morelia, Michoacán, Mexico. At the time, Garcia believed Pedro had served three years of what she thinks is a 45-year sentence. The record does not specify for what crime Pedro was convicted. Garcia also testified that she has a nephew who was killed by an unknown assailant on December 9, 2009.

Despite finding Garcia's testimony credible, the IJ denied her any relief. The IJ said: "Whether specifically mentioned or not, the court has considered all of the testimony and documentary evidence contained in the application in this decision." The IJ incorporated by reference an addendum of law discussing the relevant legal standards for asylum, withholding of removal, and CAT protection.

The IJ found that two events to which Garcia testified qualified as persecution: (1) the Templars’ 2012 death threat after her husband's funeral, when combined with her husband's murder; and (2) the cartel's 2018 threats in connection with leaving her home. But even though Garcia demonstrated past persecution, the IJ denied relief because the IJ concluded that these threats were not made "on account of" any protected ground. Instead, the IJ found that the cartel persecuted Garcia because it "wanted either her property or ... found an excuse by her son's defiance of the recruitment over him to also get rid of [her] and displace her from her property." The IJ noted that Garcia, proceeding pro se , "did not claim membership in a particular social group," and that she provided insufficient testimony or evidence that she was threatened "because she was a family member of her husband." Also, the IJ determined that Garcia could not show that Mexican governmental officials were unable or unwilling to control the cartel. As a result, the IJ decided that Garcia was not entitled to a presumption of future persecution.

Without that presumption, the IJ then found that Garcia's fear of future persecution was subjectively, but not objectively, reasonable. In so deciding, the IJ noted that Garcia did not report the 2012 and 2018 death threats to the police, and she did not show that it would be unreasonable for her to relocate elsewhere within Mexico. Because of that, the IJ denied Garcia's asylum application. The IJ also denied Garcia's withholding of removal claim, finding that because she did not meet the threshold showing for asylum, she could not have met "the more stringent requirement for withholding." Finally, the IJ denied Garcia's CAT application, finding that she was unable to show it was more likely than not that she will be tortured in Mexico, because the Mexican government "fights corruption" and "was able to apprehend at least one cartel member and sentence him for 45 years as evidenced by the case of her own brother."

Garcia timely appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Garcia, who was represented by counsel in that appeal, contended that she was persecuted on account of her membership in social groups consisting of (1) her family and (2) property owners. The BIA accepted for the sake of argument that these were cognizable social groups but nonetheless affirmed the IJ's determinations on Garcia's asylum, withholding, and CAT claims. The BIA reasoned as follows:

First, the BIA denied Garcia's asylum claim solely on the nexus ground, holding that she was not persecuted "on account of" any protected ground. The BIA stated that it would "express no opinion" about the IJ's other reasons for denying this relief. Second, the BIA denied her withholding of removal claim, stating that: "As [Garcia] did not satisfy the lower standard of proof for asylum, it necessarily follows that she did not satisfy the more stringent standard for withholding of removal." The BIA rejected Garcia's contention that the IJ's analysis of this issue was too cursory or used the wrong legal standard, noting that the addendum of law the IJ incorporated into her oral decision explicitly recognized the difference in the nexus inquiry between asylum and withholding of removal ("one central reason" as opposed to "a reason," respectively). Third, and finally, the BIA denied Garcia's request for CAT relief by concluding that the IJ "did not clearly err in predicting the likelihood of [Garcia's] future torture in Mexico, even considering the prior threats."

This timely petition for review followed.

II

Because the BIA conducted a de novo review of the IJ's decision, our review is "limited to the BIA's decision except to the extent that the IJ's opinion is expressly adopted [by the BIA]." Hosseini...