Plancarte-Sauceda v. Garland, No. 19-73312 (9th Cir. 2021)
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Plancarte, a licensed nurse from Mexico, obtained the position after the Mayor of Arteaga recommended her to the director of the hospital “because I had treated cartel members before in silence and the Mayor wanted” her to continue to work on cartel members. Plancarte recounted incidents during which armed men forcibly took her to “treat” people. She saw violence and rape; her family was threatened with violence. During one incident, a man “snatched” Plancarte’s infant son from her arms; another man pointed his gun at her mother and her son. Another time, they beat her until she bled, kidnapped her son, and forced her into a vehicle; after complying with their orders, she got her son back and fled to the U.S.
The BIA affirmed the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit remanded for a determination of whether the likelihood of torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief. The Board’s rejection of Plancarte’s proposed particular social group of “female nurses” on the ground that “nursing” is not an immutable characteristic was unreasonable. Even if Plancarte ceased employment as a nurse, she would still be a nurse; the cartel targeted Plancarte precisely because of her special skills. The Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials.
Court Description: Immigration. Granting Mariela Plancarte Sauceda’s petition for review of a decision of the Board of Immigration Appeals affirming the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture, and remanding, the panel held that the Board’s rejection of Plancarte’s proposed particular social group of “female nurses” on the ground that “nursing” is not an immutable characteristic was unreasonable, and that substantial evidence did not support the Board’s finding of no governmental involvement or acquiescence in a drug cartel’s actions forcing her to provide them medical services. The panel first concluded that venue under 8 U.S.C. § 1252(b)(2) was proper in the Ninth Circuit where: (1) the immigration judge in this case formally transferred venue from Salt Lake City to Boise; (2) thereafter Plancarte never physically appeared in Salt Lake City, but rather remained in Boise; (3) the IJ indicated that proceedings were conducted in Boise, and the Board held that proper venue was in the Ninth Circuit; (4) both final hearing notices designated Boise as the location for the final hearing; and (5) the statute expressly allows any of the participants in a removal hearing to appear at the designated hearing location by “video conference,” pursuant to 8 U.S.C. § 1129a(b)(2)(A)(iii), and the IJ and the government attorney elected to do so from Salt Lake City. PLANCARTE SAUCEDA V. GARLAND 3 Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.” Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of 4 PLANCARTE SAUCEDA V. GARLAND torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.
The court issued a subsequent related opinion or order on January 14, 2022.
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