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Justo v. Sessions

United States Court of Appeals, First Circuit

July 16, 2018

JAVIER ROSALES JUSTO, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Talia Barrales, with whom Law Offices of Talia Barrales was on brief, for petitioner.

          Rebekah Nahas, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Briena L. Strippoli, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          LIPEZ, Circuit Judge.

         Petitioner Javier Rosales Justo ("Rosales"), a citizen of Mexico, claims that the Board of Immigration Appeals ("BIA") erred when it reversed an immigration judge's order granting him asylum. The immigration judge ("IJ") concluded that Rosales met his burden of proving he was entitled to asylum based, inter alia, on a finding that the police in Mexico would be unable to protect him from members of organized crime who had murdered his son and continued to target him and the rest of his nuclear family. The BIA rejected that finding, concluding that it was clearly erroneous.

         We agree with Rosales that the BIA's conclusion that the IJ's finding was clearly erroneous is unfounded because the BIA committed several errors in its review of the IJ's decision. Most importantly, the BIA failed to examine separately the evidence of the government's willingness to protect Rosales from persecution and the evidence of its ability to do so. Instead, the Board cited evidence only of the willingness of local authorities to promptly investigate the murder of Rosales's son as support for its conclusion that the IJ's finding of inability was clearly erroneous. Because of the BIA's flawed analysis of the IJ's decision, we grant Rosales's petition and remand the case to the BIA for reconsideration of Rosales's eligibility for asylum.

         I.

         A. Factual Background

         Rosales applied for admission to the United States immediately upon arriving with his wife and children at the border crossing in San Ysidro, California on May 9, 2016. He was detained, transferred to a correctional facility in Plymouth, Massachusetts, and subsequently served with a notice to appear charging him with removability because he lacked a valid entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rosales conceded removability, but requested asylum pursuant to section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158, and cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3). A hearing before an IJ was held on October 21, 2016. Rosales and his wife both testified at the hearing, and Rosales also submitted extensive documentary evidence, including declarations from himself and his family members, reports from the U.S. Department of State and international non-governmental organizations regarding country conditions in Mexico, and documents and reports from the police investigation into his son's murder. In reaching his decision, the IJ considered "[a]ll admitted evidence . . . in its entirety, regardless of whether [it was] specifically mentioned" in the decision.

         Finding the testimony of Rosales and his wife credible, the IJ found the following facts. Rosales is a 39-year-old police officer from Acapulco, a city in the state of Guerrero. The tragic events that precipitated his move to the United States began on January 24, 2016. That afternoon, his wife, Vincenta, and son, Tomas, were working at the store that the family ran to supplement Rosales's income as a police officer. Two strangers walked into the store and demanded that the family pay "rent" to them. When Vincenta asked, "what rent?," they told her that the family must pay 2, 000 pesos every two weeks. Vincenta responded that her family could not afford to pay that amount because the store was too small to generate enough money. One of the men became upset with her and stated that if she did not pay, her family would face the consequences.

         Following this threatening encounter, Rosales and his wife decided to close the store. Although they did not know the identity of the men who had come to the store, they believed they were members of organized crime. However, Vincenta testified that she did not report the threat to police because she thought it would "blow over."[1] After a week, Vincenta decided to reopen the store because the family needed the income.

         On the evening of February 4, Vincenta heard gunshots while she was working at the store. Earlier, her daughter had told her that Tomas had stopped at home after school to change clothes and then left to go help a friend paint nearby. After hearing the gunshots, Vincenta went to look for Tomas and could not find him.[2] She called Rosales at work to tell him that Tomas was missing, and they went to the police station and the ministry of police to see if Tomas had been detained by the police in either place. Not finding him and fearing the worst, Rosales also checked the morgue to no avail.

         The next day, having still not found Tomas, Rosales was informed by friends that a body had been found on the side of a nearby highway, and Rosales and Vincenta went there. After speaking with the federal police who were at the scene and being shown a photo of the body, they identified the victim as Tomas. He had been shot five times, and there was evidence that he was tortured before his death. A forensic team was called to examine the body, and the police took statements from Rosales and his wife and opened a criminal investigation. Rosales also hired a lawyer to conduct a separate investigation into the murder.

         Fearing for his family's safety following Tomas's death, Rosales moved with Vincenta and their two daughters to Pueblo Viejo, a town several hours from Acapulco where Rosales has extended family. Approximately eleven days after the murder, their neighbors from Acapulco reported to Rosales that they had seen suspicious cars near Rosales's old house and several unknown men with guns "from organized crime" had asked a neighbor whether Rosales and his family still lived there. Two months later, in April, several unknown men came to their neighborhood in Pueblo Viejo and asked for the location of the Rosales family. Rosales did not report these incidents to the police because he was afraid members of organized crime would find him and kill him. Fearing that he and his family were at risk of being murdered if they stayed in Mexico, Rosales decided to move with Vincenta and his daughters to the United States in May 2016.

         Because he had been detained until the day of the hearing, Rosales had not recently spoken to the police in Acapulco about the status of the investigation into his son's murder. He was therefore unable to say for certain at the hearing that no one had been arrested for the murder. Similarly, although Rosales believed that his extended family in Pueblo Viejo had not been contacted or harmed by organized crime in the time that he was living in the United States, "he was not sure" due to the limited contact he had with his extended family during his detention.

         B. The IJ's Decision

         Based on the above factual findings, the IJ concluded that Rosales had a well-founded fear of future persecution because of his membership in his nuclear family.[3] In particular, the IJ found that the credible testimony of Rosales and his wife established that individuals "presumably associated with organized crime[] wanted to extort money from [Rosales]" and that "the minute [Rosales]'s wife refused, or did not pay the demand," they targeted his family for "a retaliatory hit, not just because the money was not paid, but because at this juncture, the unknown assailants wanted to inflict the consequences that they promised." Thus, the IJ found that Tomas's murder was "directed at [Rosales]'s nuclear family because of the failure to pay the rent."

         Further, the IJ noted that "armed men" who "were not members of the Mexican police" were "patrolling [Rosales]'s home in Acapulco, and specifically asked about [Rosales]'s and his family's whereabouts," and that "other unknown individuals were looking for [Rosales] and his family in Pueblo Viejo." The IJ concluded that "[t]his tracking and directing and looking for [Rosales]'s family, combined with the initial threats," provided an objective basis for Rosales's fear that he would be targeted by organized crime if he returned to Mexico.

         In addition to the testimony of Rosales and his wife, the IJ relied on the Department of State report on country conditions in Mexico to support the conclusion that someone in Rosales's "particularized situation would fear harm in Mexico." The IJ noted both the report's general statements that "[o]rganized criminal groups killed, kidnapped, and intimidated citizens, migrants, journalists, and human rights defenders" throughout Mexico, and its specific descriptions of crime in Rosales's home state of Guerrero, including the kidnapping of a journalist and the disappearances and murders of students, and the general "impunity of organized crime and drug traffickers in Guerrero."[4]

         After finding that Rosales reasonably feared persecution if he returned to Mexico, the IJ concluded that Rosales had met his burden of proving a government nexus for that persecution by showing that the government was unable or unwilling to control the members of organized crime who had threatened to harm him and his family. The IJ recognized that "police took an immediate and active interest in the respondent's son's murder," noting that Rosales observed seven officers and a forensic team at the scene where Tomas's body was recovered, the police took statements from Rosales and his wife, and an autopsy was performed. However, the IJ ultimately concluded that these investigative steps showed only that the police were "willing to take on organized crime," not that "the government is able to protect its citizens from organized crime."

         To determine whether the government was able to protect Rosales from organized crime, the IJ, "[l]ooking at the specific facts of this record," found that the country condition reports submitted by Rosales demonstrated that there was corruption among police in Guerrero, and that they were unable to control organized crime. In particular, the IJ referred to a report written by the International Crisis Group (ICG), stating that "violence remains an intense problem in states such as Guerrero, which, in 2014, had the highest homicide rate, where bloodshed is rising." Moreover, the report stated that, "[d]espite deployment of more federal police," the homicide rate in Guerrero had risen by more than 20 percent in the first half of 2015. Indeed, it noted that "some 94 percent of all crimes go unreported" in Guerrero, implying both that the real homicide numbers may be ...


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