Madrigal v. Holder

• Decision Date: 15 May 2013
• Docket Number: No. 10–73700.,10–73700.
• Citation: 716 F.3d 499
• Parties: Victor Hugo Tapia MADRIGAL, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

716 F.3d 499

Victor Hugo Tapia MADRIGAL, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–73700.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2012.

Filed May 15, 2013.

Theodore J. Angelis and John S. Wilson (argued), K & L Gates, LLP, Seattle, WA, 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.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A089–859–690.

Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and RAYMOND J. DEARIE, District Judge.^*

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 substantialevidence, 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 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.

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.

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 also8 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.

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 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 threatening life itself constitute persecution.”). If the postmilitary 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...