Opinion
15-73633
11-14-2022
MODESTO ALEMAN VARGAS, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted August 18, 2022 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A070-914-187
Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges.
MEMORANDUM [*]
Modesto Aleman Vargas ("Aleman Vargas"), a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We grant the petition.
"Where, as here, the BIA agrees with the IJ's reasoning, we review both decisions." Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). "We examine the BIA's 'legal conclusions de novo and its factual findings for substantial evidence.'" Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (quoting Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)).
1. The BIA erred when it affirmed the IJ's determination that the Mexican government is able and willing to control the Knights Templar. Although the IJ cited evidence regarding the Mexican government's willingness to combat the drug cartel, the IJ did not consider significant evidence in the record concerning the government's inability to do so. The IJ justified his "unwilling or unable" finding by referring to the Mexican government's "action against the various drug cartels in Mexico," such as its detention of a Knights Templar leader in Morelia and its statement that the presence of Mexican troops had "weakened" the Knights Templar in the region. But the IJ did not engage with the significant record evidence suggesting that the Mexican government's attempts to control the Knights Templar have been ineffective. According to a Congressional Research Service Report in the record, the Mexican government's efforts to reduce the "unprecedented and remarkably brutal" violence perpetrated by drug cartels have backfired. The government's "kingpin strategy" of using military forces to "tak[e] down top [drug trafficking organization] leaders" has created "more instability" and "more violence" by causing increased fragmentation among cartels, leading "the violence in Mexico [to] gr[o]w more extensive, more volatile, and less predictable." The State Department's 2014 Country Conditions Report on Mexico ("Country Conditions Report") describes the pervasive nature of "forced disappearances" by criminal organizations and the Mexican army, navy, and police. According to the Country Conditions Report, over 25,000 people disappeared between 2006 and 2012; "authorities routinely failed to conduct thorough and expeditious searches and investigations in disappearance cases"; and "prosecutors rarely employed basic investigative practices critical to finding missing persons." In many instances, organized criminal groups committed arbitrary and unlawful killings "with impunity and in league with corrupt state, local, and security officials," aided by "extremely low rates of prosecution for all forms of crime." Most relevant to Aleman Vargas, the Mexican government was unable to prevent the "disappearance" of his brother-in-law, the only other person to witness the 2012 cartel incident and, according to the record, the most similarly situated person to Aleman Vargas.
By failing to consider any of the aforementioned evidence regarding the Mexican government's ability to control the Knights Templar, the BIA and IJ erred in the "unwilling or unable" inquiry. Specifically, the agency committed legal error by "focus[ing] only on the . . . government's willingness to control" alleged persecutors and "not [the government's] ability to do so." Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (emphasis in original). Under the Immigration and Nationality Act, where the alleged persecution is by private parties, a petitioner can prove either unwillingness or inability by the government to control the forces responsible for his persecution (or both) to meet his burden for a claim of asylum or withholding of removal. See id. at 506-07; J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020). It was error for the agency to consider only one prong of the twopronged "unwilling or unable" inquiry.
We remand the question whether the Mexican government is both willing and able to control the Knights Templar to the BIA for reconsideration of the record under the proper legal standard. See Madrigal, 716 F.3d at 507.
2. Separately, the BIA improperly evaluated whether Aleman Vargas was a member of a cognizable "particular social group" for purposes of his asylum and withholding of removal claims. The agency considered and rejected two particular social groups for Aleman Vargas: (1) "individuals targeted for recruitment by criminal gangs in Mexico" and (2) individuals who "testify against gang members with regard to the criminal activities [they] witnessed." Neither group is the one Aleman Vargas proposed. After Aleman Vargas and his brother-in-law witnessed the Knights Templar transporting "dead people" and "people . . . that they were going to disappear," the Knights Templar found Aleman Vargas, demanded that he join the cartel, and beat him "everywhere" with "closed fist[s]" and "the handles of their weapons." As Aleman Vargas argues and the Government recognizes, Aleman Vargas's proposed particular social group based on his testimony is "known witnesses to illegal cartel activity," not potential cartel recruits or individuals who testify against cartels. Accordingly, we remand the question whether Aleman Vargas is a member of a cognizable particular social group for the purposes of asylum and withholding of removal relief to the agency. See Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015).
In his decision, the IJ stated that the standard for asylum and withholding of removal applications is the same in one important respect: the applicant "must establish that . . . membership in a particular social group . . . was or will be at least one central reason for the feared persecution." The IJ's decision is inconsistent with the current law in this Court. Although the "one central reason" standard applies to asylum claims, an applicant for withholding of removal must only show that his particular social group is "a reason" for his persecution, a lower standard because "[a] person may have 'a reason' to do something that is not his 'central' reason or even 'one central reason.'" Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017) (emphasis added). On remand, the BIA should apply the proper standard to the withholding claim.
3. The BIA improperly adopted the IJ's relocation analysis for Aleman Vargas. The IJ concluded that internal relocation within Mexico would be possible because "[Aleman Vargas] has family members who have moved away from Michoacan . . . without incident." "But the well-being of others who have stayed behind in a country is only relevant when those others are similarly situated to the petitioner[]." Zhao v. Mukasey, 540 F.3d 1027, 1031 (9th Cir. 2008). There is little evidence to suggest that Aleman Vargas's family members who moved are similarly situated to Aleman Vargas for purposes of his claims for relief. They did not witness the 2012 incident; the Knights Templar did not demand that they join the cartel; and they were not beaten by cartel members. In fact, the person most similarly situated to Aleman Vargas and the only other known witness to the 2012 incident-his brother-in-law-was "disappeared" in the months before Aleman Vargas returned to the United States. Because the BIA adopted the IJ's improper analysis of the relocation question, we remand the issue of Aleman Vargas's ability to relocate within Mexico. See Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019).
Given that the BIA expressly affirmed the IJ's conclusion that Aleman Vargas "has not met his burden of proof for asylum or withholding of removal" "for the reasons set out in the [IJ's] Oral Decision," and because the IJ expressly discussed the relocation question in his decision, Aleman Vargas's relocation arguments are not barred by the exhaustion doctrine. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013); Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc).
4. The BIA and IJ erred by failing to consider significant relevant evidence with respect to Aleman Vargas's CAT claim. The implementing regulations for CAT explicitly require the agency to consider "all evidence relevant to the possibility of future torture." 8 C.F.R. § 208.16(c)(3) (emphasis added). The agency's failure to do so-including by failing to consider the Country Conditions Report-is reversible error. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).
We do not ordinarily consider issues that were not substantively argued by an appellant in their opening brief. Wooten v. Kirkland, 540 F.3d 1019, 1025 n.4 (9th Cir. 2008). But "[w]e may . . . exercise our discretion and consider an issue that was not raised in an opening brief if 'the failure to raise the issue properly did not prejudice the defense of the opposing party.'" Id. (quoting Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003)). Aleman Vargas mentioned his CAT claim several times in his opening brief; substantively discussed his grounds for CAT relief in a 28(j) letter filed seven months before oral argument; and renewed his CAT claim during oral argument. Because the government "was put on notice" of Aleman Vargas's CAT claim, we exercise our discretion to reach the issue. Alcaraz v. I.N.S., 384 F.3d 1150, 1161-62 (9th Cir. 2004).
In the portion of his opinion analyzing Aleman Vargas's CAT claim-a decision the BIA affirmed-the IJ did not consider at least three critical pieces of evidence regarding the possibility of future torture for Aleman Vargas. First, the IJ did not discuss the Country Conditions Report or any of the record evidence regarding the Mexican government's seeming inability to control the Knights Templar discussed supra, including the evidence of widespread corruption and potential acquiescence in torture. Second, the IJ did not mention the recent disappearance of Aleman Vargas's brother-in-law, which is highly probative evidence in understanding the likelihood that Aleman Vargas would be tortured if returned to Mexico. Third, the IJ incorrectly stated that Aleman Vargas had "not had any contact with the drug cartel since 2007." Consistent with that mistake, he did not properly engage with the Knights Templar's recent attacks and threats against Aleman Vargas, including the cartel's 2012 beating of Aleman Vargas and its 2015 text messages to him stating that they had "found [him] and would kill [him]."
All these factors were relevant to Aleman Vargas's CAT claim and, under controlling law, should have been considered. Because they were not, we remand Aleman Vargas's CAT claim for the BIA's reconsideration in light of all relevant evidence. See Diaz-Reynoso, 968 F.3d at 1089; Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) ("We . . . grant petitions for review in CAT cases where the BIA did not consider country conditions evidence in the record.").
The petition for review is GRANTED. We REMAND Aleman Vargas's claims for asylum, withholding of removal, and protection under the Convention Against Torture for further proceedings consistent with this disposition.
TALLMAN, Circuit Judge, dissenting.
I respectfully dissent because the record does not compel the conclusion that the Board of Immigration Appeals ("BIA") erred when it affirmed the Immigration Judge's ("IJ") determination that the Mexican government is able and willing to control the Knights Templar.
The IJ did not commit legal error by focusing only on the government's willingness to control the Knights Templar-the IJ opinion discusses, as required by Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013), both the willingness and ability of the Mexican government to control the cartel.
Even the Petitioner, the only witness to testify, acknowledged the active law enforcement efforts that he first encountered as cartel members were pursued by the military. Petitioner's "initial statement that he was fishing and the Mexican Navy was chasing the cartel" demonstrates both that the government and the cartel are separate adversaries but also that the government was willing and able to go after the cartel in the midst of disposing at sea the bodies of its victims.
The IJ properly considered in his analysis "numerous articles" in the exhibits submitted by the agency that demonstrate "the Mexican government is taking action against the various drug cartels in Mexico." They confirm that the Mexican government has detained the leader of the Knights Templar and significantly weakened cartel leadership. These articles demonstrate that the government was both willing and able to control the cartel.
Because substantial evidence supports the IJ's opinion, the BIA did not err when it affirmed the denial of asylum. I cannot join a ruling that declares otherwise in the face of this evidence.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.