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9th Circuit Grants Petition for Review Based on Totality of Circumstances

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Board of Immigration Appeals (BIA)

Last week, the 9th Circuit came out with an opinion rejecting the Board of Immigration Appeals’ (“BIA”) decision. In Madrigal v. Holder, the 9th Circuit granted a petition for review of the BIA’s decision denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) to a Mexican citizen who sought asylum based on his past military service and involvement in the arrest of several members of the Los Zetas drug cartel.

Victor Hugo Tapia Madrigal (“Mr. Madrigal”) is a citizen of Mexico and a member of the Mexican army. In 2007, 10 members of the Los Zetas drug were arrested, including one high-ranking member. Mr. Madrigal assisted in transferring the arrestees from the small town where they were apprehended to authorities in Guadalajara.

A few months after, Mr. Madrigal learned that all the soldiers who had arrested the 10 members of Los Zetas had been beheaded. Fearing for his safety, he decided to leave the army. He was living at his family’s home for a few months until he found out his commander had also been killed. At that point, Mr. Madrigal decided to leave his family’s house and move to a small town. After living in his new town for a few months, a group of unknown individuals shot at Mr. Madrigal while he was walking down the street. Mr. Madrigal was able to escape the bullets, but after this experience, he decided he needed to leave Mexico.

Mr. Madrigal entered the United States in 2008, to seek protection from Los Zetas. Shortly thereafter, Mr. Madrigal’s mother received an anonymous letter that threatened Mr. Madrigal’s life and stated that he had been located. His mother also said that unknown people had been asking his relatives where he had gone. In 2009, the government initiated removal proceedings against Mr. Madrigal. Mr. Madrigal sought asylum, withholding of removal, and CAT relief. However, an immigration judge found him ineligible for asylum and the BIA dismissed his appeal.

However, the 9th Circuit granted Mr. Madrigal’s petition for social group-based asylum for both past persecution and well-founded fear of future persecution. The Court rejected BIA’s finding that no evidence supported the belief that Los Zetas were responsible for Mr. Madrigal’s past persecution. Judge Raymond Fisher writing for a three-judge panel stated: “The BIA appears to have reached this conclusion by viewing each incident in isolation, instead of examining the totality of the circumstances. This was error because post-military incidents took place in the context of a larger pattern of conduct.” When assessing the totality of the circumstances, the Court found that there was a very distinct possibility that Los Zetas were responsible for the harm Mr. Madrigal experienced post-military.

Further, the Court found that BIA erroneously concluded that the lack of nexus between Mr. Madrigal’s persecution and a protected ground precluded a grant of asylum. The Court explained: “[I]f Tapia Madrigal can establish that Los Zetas are responsible for his post-military … then the record compels the conclusion that such persecution was on the basis of his membership in the particular social group of ‘former Mexican army soldiers who participated in anti-drug activity.” In other words, if Mr. Madrigal can show that he was mistreated because of his affiliation with the Mexican army, then he will be able to obtain asylum on account of being a former military member, which is recognized a valid social group. This case is significant because the 9th Circuit’s approach allows asylees a chance to argue eligibility based on the totality of the circumstanced and nexus between the harm suffered and the protection sought.

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