Sauceda v. Garland

• Decision Date: 20 August 2021
• Docket Number: No. 19-73312,19-73312
• Citation: 9 F.4th 1146
• Parties: Mariela Jovanni PLANCARTE Sauceda; Josmar Jose Plancarte Sauceda, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.4th 1146

Mariela Jovanni PLANCARTE Sauceda; Josmar Jose Plancarte Sauceda, Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-73312

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2021 Seattle, Washington

Filed August 20, 2021

Vallerye Anderson (argued), Garcia & Anderson, Sacramento, California, for Petitioners.

Timothy Bo Stanton (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.

W. FLETCHER, Circuit Judge:

Mariela Plancarte Sauceda and her minor son petition for review of a Board of Immigration ("BIA") order affirming the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Plancarte, a licensed nurse, claims she was forced to provide medical services to drug cartel members, both at and outside of the hospital where she worked. Plancarte ultimately fled to the United States.

The BIA agreed with Plancarte that the Immigration Judge ("IJ") erred by not considering her proposed particular social group of "female nurses," but it deemed the error harmless after determining that her occupation did not qualify because in its view, being a nurse is not an immutable characteristic. The BIA did not reach the question whether the proposed social group is sufficiently particular and/or socially visible, and it failed to analyze whether Plancarte was persecuted on account of her membership in this group. The BIA also affirmed the IJ's denial of relief under CAT.

We first address venue and hold that the Ninth Circuit is the proper venue for this petition for review because Boise, Idaho, is the place "in which the immigration judge completed the proceedings." See 8 U.S.C. § 1252(b)(2). We next address the substance of Plancarte's petition and hold that (1) the BIA's rejection of the proposed particular social group of "female nurses" on the ground that "nursing" is not an immutable characteristic was unreasonable, and (2) the BIA's CAT finding that there was no governmental involvement or acquiescence in the cartel's actions is not supported by substantial evidence.

We grant the petition and remand to the BIA.

I. Background

A. Plancarte's Evidence

The IJ found Plancarte's removal hearing testimony credible, and the BIA left this finding undisturbed. "We therefore accept the following facts from her testimony as true." Davila v. Barr , 968 F.3d 1136, 1139 (9th Cir. 2020) ; Garland v. Dai , ––– U.S. ––––, 141 S. Ct. 1669, 1678, 210 L.Ed.2d 11 (2021) (holding that reviewing courts may only treat an asylum seeker's testimony as credible if the agency first finds the applicant credible). We accept as true both her oral and written testimony.

Plancarte is a licensed nurse from Arteaga, Michoacán, Mexico. She obtained the position after the Mayor of Arteaga recommended her to Dr. Tello, the director of the hospital. She wrote in her asylum application that the Mayor recommended her for the position "because I had treated cartel members before in silence and the Mayor wanted to keep me there to continue to work on cartel members."

Early in her employment at the hospital, Dr. Tello came to Plancarte's home. He was accompanied by cartel members dressed in bulletproof vests and "belts with straps and knives." Dr. Tello told Plancarte they were going to "heal some people." Plancarte told the men she was off duty. One cartel member, known as "El Rojo," said, "[W]e are not asking if you want to go. You are going."

The men took Plancarte to an aviation field, blindfolded her, and tied her hands with rope. They changed vehicles at the field and took her to a cabin. Once there, the men took off Plancarte's blindfold and untied her hands. There were three people with bullet wounds in the cabin. Plancarte was told to treat them.

El Rojo then took Plancarte to another cabin. Inside, there were three injured people who appeared to have been kidnapped. She saw three men "gang raping a young woman." They also raped her with a "PVC pipe and tree branches." "They made me watch and told me this would happen to me if I disobeyed them. I saw that the woman was unconscious, bleeding out, and dying, and I could not do anything to save her so she died." El Rojo threatened Plancarte's family with violence and told Plancarte that the cartel knew where she lived, knew where her family lived, and knew everything about her.

Plancarte was later forced to care for cartel members and their family members at the hospital. The cartel members had private rooms, special guards, and no identifying paperwork. The police protected them by guarding the entrance to the hospital. Upon discharge, the police escorted the cartel members and their families out of the hospital.

On a later occasion, El Rojo and two other men came to Plancarte's home "in a hurry" and said, "[L]et's go." Plancarte had her infant son in her arms. She told the men she needed to set down her son. One of the men "snatched" Plancarte's son from her arms and gave him to Plancarte's mother. Another man pointed his gun at her mother and her son, and said that he was not joking.

Plancarte was blindfolded, tied up, and taken to a house. Inside the house, Plancarte saw that two cartel members, El Rojo's brother and another man, were injured. Dr. Tello and three or four other people were also inside the house. At the insistence of the cartel members, Plancarte treated the wounded men. She was repeatedly threatened with violence if she said anything about what she was being forced to do. "[T]hey said to me that I was going to go through the same thing [as] the girl I had seen, of how they killed her, of how they tortured her. ... They would say that they would have to kill my mom or my son[.]"

On a final occasion, Plancarte initially refused to go to an off-site location. Cartel members grabbed her and beat her until she bled, kidnapped her son, and forced her into a vehicle. Plancarte was taken to a house where there was a man who had been shot twice, in the stomach and the foot. Plancarte told the cartel members that she would do whatever they asked as long as she got her son back. After Plancarte treated the man, the cartel members took her back to her home at about 10:00 or 11:00 that night. Her son was there when she arrived.

After this last episode, Plancarte fled to the United States.

B. Procedural History

When Plancarte arrived in the United States, she immediately expressed her fears to immigration officials about returning to Mexico. However, she did not file a formal application for asylum until more than a year after her entry into the United States.

In March 2018, the IJ issued a written decision denying Plancarte's applications for asylum, withholding of removal, and relief under CAT. The IJ concluded that Plancarte's asylum application was untimely¹ and that she was therefore ineligible for asylum. The IJ denied withholding of removal on the ground that "women who have been forced to work for the cartel who are skilled labor" and "women forced to work for the cartel because of their specialized skills who have subsequently refused to work for the cartel" did not qualify as particular social groups. The IJ failed to discuss Plancarte's proposed social group of "female nurses." The IJ denied CAT relief on the ground that Plancarte had not established that it was more likely than not that she would be tortured by, or with the acquiescence of, a Mexican public official. The IJ wrote, "There is no evidence that public officials were involved in her being pressed into servitude for the cartel as a nurse."

On appeal, the BIA held that the IJ erred by not considering Plancarte's proposed particular social group of "female nurses," but that the error was harmless. In the view of the BIA:

In light of prior precedent decisions, gender can be an immutable characteristic. ... However, with respect to "nurses," or the portion of that group regarding nurses, we discussed a similar claim in Matter of Acosta , 19 I. & N. Dec. at 211, regarding members of a taxi collective who refused to participate in a guerilla-sponsored work stoppage. We held that neither of these characteristics is immutable because the group members could avoid the threats either by changing jobs or by cooperating in the work stoppages. Matter of Acosta , 19 I. & N. Dec. at 234.

"[E]ven assuming the respondent's eligibility to apply for asylum," the BIA found no nexus to a particular social group. Because Plancarte had not established a particular social group, the BIA affirmed the IJ's denial of both asylum and withholding relief. The BIA affirmed the IJ's denial of CAT relief on the ground that "respondent did not show that she is more likely than not to be tortured, by or with the acquiescence ... of a government official upon return to Mexico." The BIA wrote, "The Immigration Judge ... noted that there is no evidence that Mexican public officials were involved in the respondent being pressed into service for a criminal organization as a nurse."

II. Standard of Review

Our review is limited to the BIA's decision except where the IJ's opinion is expressly adopted. Cordon-Garcia v. INS , 204 F.3d 985, 990 (9th Cir. 2000). We review legal conclusions de novo . Davila , 968 F.3d at 1141. We review for substantial evidence factual findings underlying the BIA's determination that a petitioner is not eligible for asylum, withholding of removal, or CAT relief. Id. To prevail under the substantial evidence standard, the petitioner "must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous." Id.

III. Discussion

A. Venue

On March 10, 2017, Plancarte moved to change venue from Salt Lake City, Utah (in the Tenth Circuit) to Boise, Idaho (in the Ninth Circuit). The IJ...