Xochihua-Jaimes v. Barr

• Decision Date: 26 June 2020
• Docket Number: No. 18-71460,18-71460
• Citation: 962 F.3d 1175
• Parties: Lucero XOCHIHUA-JAIMES, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

962 F.3d 1175

Lucero XOCHIHUA-JAIMES, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-71460

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2020 San Francisco, California

Filed June 26, 2020

Max Carter-Oberstone (argued) and Brian Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued) and Jessica D. Strokus, Trial Attorneys; 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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-249

Before: EUGENE E. SILER,^* KIM MCLANE WARDLAW, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Lucero Xochihua-Jaimes, a native and citizen of Mexico, petitions for review of the BIA's denial of her Convention Against Torture (CAT) claim. Petitioner has lived in the United States for almost twenty years, since she fled Mexico as a teenager after being raped multiple times and being ejected from her parents’ home because she is a lesbian. Petitioner eventually became involved in an abusive relationship with Luna, a man connected to Los Zetas, one of Mexico's major drug cartels. After Petitioner reported Luna for raping her twelve-year-old daughter in 2013, and Luna went to prison as a result, Luna's family began a campaign of threatening Petitioner that if she ever returned to Mexico, Petitioner and her daughter would be killed. The Immigration Judge (IJ) found that Petitioner did not carry her CAT burden, and the Board of Immigration Appeals (BIA) affirmed. We grant the petition, and hold that Petitioner is entitled to deferral of removal pursuant to CAT.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

Petitioner grew up in Veracruz, Mexico, where she lived with her parents and two siblings.¹ At seven or eight years old, her grandfather and later her cousin began raping her. Her parents did not protect her. After Petitioner came out as a lesbian, her parents told her that the sexual abuse was happening so she could "learn to be a woman."

In 2001, as a teenager, Petitioner was raped by a schoolteacher and became pregnant with her first child, a daughter we will refer to as I.X. When Petitioner reported the rape to her parents, her parents did not believe her because she had a girlfriend. Soon afterward her father kicked her out of the house. Petitioner fled to the United States and entered without admission or parole.

In 2003, Petitioner met Clemente Leonardo Arias Luna, a Mexican citizen and U.S. lawful permanent resident, in North Carolina. Luna offered, and Petitioner agreed, to enter a "pretend" relationship, in order for Petitioner to regain her parents’ approval by appearing to be heterosexual. In 2004, Luna began beating and raping Petitioner. Petitioner would ultimately have five children by him. According to Petitioner, Luna and "all his family" were then, and are still, members of Los Zetas.

Also in 2004, Luna's nephew Chavelo attempted to sexually assault Petitioner. Petitioner reported the assault to the police in North Carolina, who arrested Chavelo. However, when it became evident that Petitioner would be called to testify against Chavelo, Luna moved her to Arizona. Luna used abuse, rape, and taking Petitioner's children away in order to force Petitioner to stay with him, despite her attempts to escape from him. Petitioner also stayed because her relationship with Luna was the only way to keep her parents talking to her—as she said, "they are the only family I have."

In 2005, Petitioner was apprehended by immigration authorities, and agreed to voluntarily return to Mexico. Petitioner's parents refused to take her in, so Petitioner went to stay with a cousin of Luna's in Baja California, whom Petitioner described as one of Los Zetas’ "major heads of the drugs over there." When she arrived, this cousin "beat [her] up very bad," pointed a gun at her head, and told her if she ever left Luna he would kill her. Petitioner testified that onlookers "were all just laughing," and that "the police would drive by, but they wouldn't give me any help. They were just laughing at me."

Petitioner stayed in Baja California for one month while she "wait[ed] for the bruises to go away" and had a surgery for an ectopic pregnancy. Petitioner then re-entered the United States without admission or parole. She lived in a mobile home in Arizona with Luna and her children. She eventually began working cleaning jobs outside the home. Luna continued to abuse her. Petitioner called the police to report Luna multiple times, but she received no help from them.

In 2010, Petitioner became aware that Luna had bribed Mexican officials to put the mother of some of his other children, Isabelle Moreno, in jail. Moreno had reported Luna and his family for threatening her and taking her children, and Luna was able to pay off Mexican police to put Moreno in jail instead of him. Petitioner learned about this incident because Luna made Petitioner help take care of Moreno's children during her incarceration.

Petitioner managed to leave her relationship with Luna in 2012, on the condition that she would allow him to see their children. Although Luna provided no financial support, he agreed to babysit when Petitioner was at work.

In 2013, Luna sexually molested I.X., then twelve years old, while Petitioner was working a night shift. Petitioner filed a police report but the police did not immediately apprehend Luna because he had fled to California. Luna returned to Petitioner's home a few months later, where he broke down the door, hit Petitioner, and tried to take the children. Petitioner's neighbor called the police but Luna fled again. In March 2014, Luna returned, and a neighbor witnessed Luna sexually molesting I.X. The neighbor called the police, who successfully apprehended Luna. Luna is currently serving a 37-year sentence for sexual conduct with, and molestation of, a child.²

At some point after Luna's arrest, police came to Petitioner's home while she was working and a babysitter was watching her children. The babysitter hid because she was afraid of talking to the police due to her immigration status. The police concluded that the children were unsupervised. As a result, Arizona Child Protective Services took Petitioner's children. Petitioner has been trying to regain custody ever since.

After Luna was imprisoned, two of Luna's adult children (a son and a daughter from another relationship, both members of Los Zetas, who live in California) went to Petitioner's home. They put a gun to Petitioner's back, threw her to the floor, and threatened that Petitioner "would pay because their dad was in jail." They threatened that if Petitioner ever returned to Mexico, she and I.X. "would be dead." Petitioner believes they would have taken her children if they had been present at the time. Petitioner received numerous threats thereafter, accompanied by actions such as breaking the windows of her house, cutting the brake fluid lines of her truck, and puncturing her tires. The threats continued to reach her even after she changed her telephone number, and would only worsen when she reported incidents to the police. The threats came from several members of Luna's family, including the same son and daughter who had previously gone to Petitioner's house, as well as Chavelo, Luna's nephew, who tried to sexually assault Petitioner in North Carolina, and who is now in Mexico again after being deported. In light of these threats, Petitioner believes that Luna's Zetas relatives in Mexico would torture and murder both her and I.X. if she were removed.

In 2015, Petitioner met a lawyer who "guarantee[d]" to get her custody of her children again for a $2000 fee. Petitioner's co-worker, Yvette, offered to lend Petitioner the money if Petitioner helped Yvette pick up Yvette's family members. Petitioner agreed and drove behind Yvette to "the middle of nowhere," where three armed strangers entered Petitioner's vehicle and yelled at her to drive fast. Petitioner refused, driving so slowly that she got pulled over by police. The strangers fled before police could apprehend them. Petitioner cooperated fully, and the police found nothing in Petitioner's vehicle. However, police arrested Yvette and found six backpacks full of marijuana in Yvette's vehicle. Petitioner claims she had not known she was agreeing to help pick up drugs, and that she would not have agreed to help Yvette if she had known. Petitioner fought her case for 11 months before the prosecutor and public defender convinced Petitioner to sign a plea deal for a 2-year sentence for possession of marijuana for sale. The judge sentenced Petitioner to 1.5 years.

When her prison sentence was completed, Petitioner was charged with removal. She petitioned for withholding of removal and CAT protection. Petitioner fears that Los Zetas will find and torture her anywhere in Mexico. She thinks they will easily find her because of her unique surname. Petitioner believes Los Zetas previously tried to kidnap her brother and sister who still live in Veracruz. Petitioner has received numerous threats from various members of Luna's family who are also Zetas. Petitioner believes that Los Zetas are able to control Mexican police and that the Mexican police therefore will not protect her from Luna, Luna's family, or Los Zetas.

II. IJ Decision

On consideration of whether Petitioner was eligible for deferral of removal under CAT,³ the IJ first found that Petitioner's past harms in Mexico did not amount to torture. The IJ found that neither the sexual abuse Petitioner suffered in Mexico as a child or teenager, nor the mental suffering she experienced as a result of her parents’ reaction to her sexual orientation, constituted torture.

The IJ then found that, even assuming Petitioner's past harm...