Sauceda v. Garland

• Decision Date: 20 August 2021
• Docket Number: No. 19-73312,19-73312
• Citation: 23 F.4th 824
• 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

23 F.4th 824

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

Amended January 14, 2022

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

Timothy Bo Stanton (argued), Trial Attorney; W. Manning Evans, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; 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.

ORDER

The Opinion, filed on August 20, 2021, and reported at 9 F.4th 1146 (9th Cir. 2021), is amended as follows.

At 9 F.4th at 1149, the first paragraph of Section I.A is deleted and replaced with:

The IJ found Plancarte's removal hearing testimony credible, and the BIA left this finding undisturbed. Although credibility alone is not "dispositive of both persuasiveness and legal sufficiency," Garland v. Dai [––– U.S. ––––], 141 S. Ct. 1669, 1681 (2021), here there was no testimony or other evidence inconsistent with Plancarte's recounting of her experiences, and there was no reason to doubt the truth, or "persuasiveness," of her narrative, id. at 1680–81. See infra Section III.C. We therefore accept as true the following narrative based on her oral and written testimony.

At 9 F.4th at 1153, after the first paragraph of Section III.B, a new paragraph is added:

The IJ and the BIA found Plancarte's removal hearing testimony credible. The government makes no argument contrary to that finding. Nor does the government argue that Plancarte's testimony and other evidence fail to persuasively establish the truth of her narrative as it relates to the issues before us concerning her asylum and withholding claims. See Dai, 141 S. Ct. at 1680–81.

In addition, the first sentence of the following paragraph of Section III.B now begins , replacing .

At 9 F.4th at 1155, after the second paragraph of Section III.C, a new paragraph is added:

The IJ and the BIA found Plancarte's removal hearing testimony credible. The government makes no argument contrary to that finding. However, the government argues that Plancarte's evidence of acquiescence or involvement by Mexican public officials, though credible, is nonetheless insufficient to carry her burden of proof as it relates to her CAT claim. See Dai, 141 S. Ct. at 1680–81.

In addition, in the penultimate paragraph of Section III.C, the sentence "no evidence" that "Mexican officials were involved" in Plancarte's "being pressed into service by a criminal organization as a nurse."> is amended so that it now reads "no evidence" that "Mexican public officials were involved" in Plancarte's "being pressed into service for a criminal organization as a nurse.">

At 9 F.4th at 1156, the final paragraph of Section III.C is deleted and replaced with:

Here, the record does not "contain[ ] contrary evidence of a kind and quality that a reasonable factfinder could find sufficient." Dai, 141 S. Ct. at 1677 (citation and internal quotation marks omitted). We hold that, on this record, substantial evidence compels the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. See id. at 1679 (citing 8 U.S.C. § 1252(b)(4)(B) ). We therefore grant Plancarte's petition with respect to CAT, and remand for a determination whether the likelihood of torture if she were returned to Mexico is sufficient to warrant CAT relief.

An Amended Opinion is filed concurrently with this Order.

With the Opinion as amended, the panel has voted unanimously to DENY Respondent's petition for panel rehearing, filed September 29, 2021. No subsequent petitions for panel or en banc rehearing will be entertained.

AMENDED OPINION

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. Although credibility alone is not "dispositive of both persuasiveness and legal sufficiency," Garland v. Dai , ––– U.S. ––––, 141 S. Ct. 1669, 1681, 210 L.Ed.2d 11 (2021), here there was no testimony or other evidence inconsistent with Plancarte's recounting of her experiences, and there was no reason to doubt the truth, or "persuasiveness," of her narrative, id. at 1680–81. See infra Section III.C. We therefore accept as true the following narrative based on 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. ...