Templos v. Wilkinson

• Decision Date: 09 February 2021
• Docket Number: No. 15-73122,15-73122
• Citation: 987 F.3d 877
• Parties: Alfredo MACEDO TEMPLOS, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

987 F.3d 877

Alfredo MACEDO TEMPLOS, Petitioner,

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

No. 15-73122

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2020 Honolulu, Hawaii

Filed February 9, 2021

WALLACE, Circuit Judge:

Alfredo Macedo Templos petitions from the Board of Immigration Appeals (Board) and challenges the denial of his application for withholding of removal and relief pursuant to the Convention Against Torture (CAT).

Macedo is a native citizen of Mexico. He states he fled Mexico after he and his family were targeted by criminals due to his successful clothing business. The Immigration Judge (IJ) concluded that, although Macedo was credible, he was not eligible for withholding of removal or CAT relief. The IJ held that Macedo's proposed particular social group was not cognizable, and there was no nexus between the alleged harm and his membership in the proposed group. The IJ also concluded that Macedo was not eligible for CAT relief because he failed to establish the Mexican government's involvement in, or acquiescence to, his torture. The Board affirmed and provided additional analysis for why it believed the IJ's determination was not clear error. Macedo petitions for review of the denial of his application for withholding of removal and CAT status.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We review both the IJ's and the Board's (collectively, the Agency) decisions when they each conduct a review of the evidence and the law. See Ali v. Holder , 637 F.3d 1025, 1028 (9th Cir. 2011). We review the IJ's factual findings for substantial evidence. Arteaga v. Mukasey , 511 F.3d 940, 944 (9th Cir. 2007). We review questions of law, such as whether a proposed particular social group is cognizable for purposes of withholding of removal, de novo. Perdomo v. Holder , 611 F.3d 662, 665 (9th Cir. 2010). We deny the petition for review in part and grant and remand in part.

I.

Macedo was a small business owner in Mexico City, and he achieved some success. His business produced custom-made shirts and clothing, and it employed approximately 20 workers. However, he was extorted in 2000 by a group of unidentified individuals because of this success; they demanded monthly safety fees. Macedo refused and relocated his business to his home to avoid reprisals. He did not file a report with the police after an official warned him that the criminals could retaliate if they learned of the report. His home was subsequently targeted in 2003 with a drive-by-shooting, and he discovered a note that he believed linked the extortion attempt with the shooting. Macedo then closed the production side of his business and transitioned to selling only his remaining stock of clothes. Yet he and his family continued to be targeted with other crimes.

While selling his clothes in 2005, Macedo asserts that his vehicle was pulled over and he was beaten by two individuals he believes were judicial police officers. Macedo testified that one of them told him the attack was because Macedo did not pay, although the individual did not elaborate further. Macedo, therefore, assumed the attack was related to the original extortion because he never changed his car and the judicial police officers likely identified him through it. He did not file a report because he believed the government and the criminals "were the same thing," and he would be punished for reporting the incident to the police. Macedo does not have proof that the people who targeted him were connected with the Mexican government, but he believes they had to be connected.

He first entered the United States in 2006 with a six-month permit. He returned to Mexico after five months but was shortly thereafter assaulted, and his car was stolen. Macedo reported the attack and theft for insurance purposes, and he decided to return to the United States. Macedo was admitted to the United States for a second time on January 12, 2007, as a non-immigrant B2 visitor with authorization to remain in the country until July 11, 2007. Macedo overstayed his visa without the Department of Homeland Security's approval.

In 2009, kidnappers abducted his youngest daughter in Mexico for ransom. Her kidnappers demanded two million pesos but agreed to one million pesos. During her ordeal, the kidnappers beat and raped her. The kidnappers did not explain why they had targeted the Macedo family, but the kidnappers warned the family not to report the crime because the kidnappers had police connections. The Macedo family ignored the warning and filed a report. In the end, Macedo reported some of these crimes to the local authorities, but he chose not to file reports on other crimes.

In 2013, the Department of Homeland Security initiated removal proceedings pursuant to its authority under the Immigration and Naturalization Act. Macedo admitted the factual allegations and conceded removability, but he requested the opportunity to present an application for withholding of removal and CAT relief. At his hearing in front of the IJ, Macedo presented testimony about how he was targeted due to his successful business. His sister and youngest daughter testified about the crimes against the family, as well as why Macedo had to leave Mexico and could not return. Macedo testified that he believed these crimes were connected and had to stem from his refusal to comply with the original extortion demand, and he feared for his life because he believed his government would not protect him.

The IJ confirmed that Macedo was not eligible for asylum because he failed to file the required petition within a year of his arrival in the United States and did not establish any of the exceptions to the one-year filing requirement. The IJ found Macedo and his family credible. Nonetheless, the IJ held that Macedo had not established past persecution nor a clear probability of future persecution so that his life would be threatened by returning to Mexico. The IJ also determined that Macedo's proposed group of "wealthy business owners" was not cognizable.

The IJ held that there was no nexus between the crimes against Macedo and his family and his membership in the proposed group; Macedo simply assumed the attacks against him were related to the original extortion. The IJ concluded that Macedo had not established acquiescence by Mexican officials or their involvement in his treatment. The IJ denied Macedo's applications for withholding of removal and CAT relief.

Macedo appealed to the Board. The Board affirmed the denials and held that Macedo had failed to establish a cognizable particular social group, as well as a nexus between the feared harm and a protected ground. The Board further held that "[b]eing a business owner is not an immutable characteristic." It determined that Macedo's victimization was the product of crime rather than persecution. The Board concluded that Macedo did not have a valid claim for CAT relief because he failed to establish government acquiescence to, or involvement in, his alleged torture.

Macedo argues two issues in his petition for review. The first is whether the Board erred in affirming that his proposed particular social group of Mexican wealthy business owners who do not comply with extortion attempts is not a cognizable group and there was no nexus between the harm and the proposed group. The second is whether the Board erred in affirming that Macedo was ineligible for CAT relief because he did not establish government involvement in, or acquiescence to, his alleged torture.

II.

The Board's rejection of Macedo's proposed particular social group as not cognizable was correct, as was its holding that Macedo failed to establish a clear nexus between the harm suffered and his alleged membership in the proposed group. Macedo makes three arguments, although we address only two. Macedo's third argument is that the IJ erred by not making a case-by-case determination of whether he made a valid claim. This argument ignores the record, as both the IJ and the Board conducted an individualized analysis of his petition. Therefore, we do not address this argument further.

Macedo's first argument is that his membership in his proposed group does not have to be the only central reason for his persecution, so that he should not be precluded from relief even if the primary motivation of his attackers was crime rather than persecution. His second argument is that his former occupation as a business owner corresponds with the characteristics of a particular social group because it was an immutable voluntary association. However, the cases Macedo relies on are easily distinguishable, and we reject his argument that being a wealthy business owner is an immutable characteristic.

To qualify for withholding of removal, Macedo must demonstrate that his life would be threatened if he were removed to Mexico because of one of five enumerated grounds, including membership in a particular social group. 8 U.S.C. § 1231(b)(3)(A) ; see also Reyes v. Lynch , 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (establishing the existence of a cognizable particular social group is a separate requirement from establishing membership in the group). Membership in the group must be "a reason" for Macedo's feared mistreatment. 8 U.S.C. § 1231(b)(3)(C) ; see also Barajas-Romero v. Lynch , 846 F.3d 351, 360 (9th Cir. 2017) (holding that the "a reason" standard in section 1231(b)(3)(C) is a less demanding standard than the asylum statute's "one central reason" standard in section 1158(b)(1)(B)(i)).

We have held that the phrase "particular social group" is ambiguous, thus the Agency's interpretation of that term is entitled to Chevron deference so long as it is reasonable. Henriquez-Rivas v. Holder , 707 F.3d 1081, 1083, 1087 (9th Cir. 2013) (holding Board's construction must be accepted if reasonable, even if not the best interpretation). An interpretation fails this step if it is "arbitrary or capricious in substance."...