Tapia Madrigal v. Holder, No. 10-73700 (9th Cir. 2013)
Annotate this CasePetitioner, a former member of the Mexican military, petitioned for review of the BIA's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court granted the petition with respect to petitioner's past persecution claim and remanded to the BIA to determine whether certain post-military incidents were attributable to the Los Zetas drug cartel, where petitioner assisted in transferring the arrestees, and whether the Mexican government was able to control Los Zetas as relevant to those in petitioner's particular social group. The BIA did not sufficiently consider Mexico's ability to control Los Zetas, so the court granted the petition and remanded for further proceedings on petitioner's claim of future persecution. Because the court rejected the BIA's finding on the lack of a causal nexus and remanded on the issue of the government's ability to control Los Zetas, the court also granted the petition on the withholding of removal claim and remanded to the BIA to reconsider petitioner's application; and the court remanded for the BIA to consider whether any torture petitioner was likely to endure if returned to Mexico would be with the consent or acquiescence of a public official.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ decision denying asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Mexico who asserted claims based on his past military service and involvement in the arrest of several members of the Los Zetas drug cartel. The panel held that the Board erred by concluding that the harm petitioner suffered, including attempts by unknown individuals to find him after he relocated, a drive-by shooting, and an anonymous threatening note, did not rise to the level of past persecution. The panel held that the Board erred by viewing these incidents in isolation, instead of examining the totality of the circumstances, and remanded for the Board to reconsider whether petitioner met his burden of establishing that Los Zetas were likely responsible for the incidents. The panel explained that if Los Zetas were responsible, then the record compels the conclusion that petitioner’s membership in the particular social group of “former Mexican army soldiers who participated in anti-drug activity” was at least one central reason for his persecution. The panel held that the Board erred by focusing only on the Mexican government’s willingness to control Los Zetas, and remanded for the Board to consider in the first instance whether the Mexican government is able to control Los Zetas, and also whether a Mexican public official would likely acquiesce to any torture.
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