Edgar Cordoba v. Eric H. Holder Jr. , 726 F.3d 1106 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR RENE CORDOBA , No. 08-74384
Petitioner,
Agency No.
v. A096-085-156
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
ANTONIO MEDINA GONZALEZ, No. 10-73112
Petitioner,
Agency No.
v. A022-997-885
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted
April 11, 2013—Pasadena, California
Filed August 13, 2013
2 CORDOBA V . HOLDER
Before: Stephen Reinhardt and Mary H. Murguia, Circuit
Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Zouhary
SUMMARY**
Immigration
The panel granted the petitions for review of Edgar Rene
Cordoba and Antonio Medina-Gonzalez from the Board of
Immigration Appeals’ decisions denying asylum and
withholding of removal on the grounds that their status as
landowners did not qualify as a particular social group within
the meaning of 8 U.S.C. § 1101(a)(42)(A).
The panel remanded for the BIA to reconsider in light of
this court’s recent en banc decision in Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013), on the question of
whether landownership may form the basis for membership
in a particular social group for purposes of eligibility for
asylum and withholding. The panel found that there were
clear inconsistencies between Henriquez-Rivas and the BIA's
decisions, which were decided before the en banc opinion
was published.
*
T he Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORDOBA V . HOLDER 3
The panel also remanded for reconsideration of
Medina-Gonzalez’s CAT claim in light of Tapia-Madrigal v.
Holder, 716 F.3d 499 (9th Cir. 2013), which found that a
public official must be aware of the torturous activity but
need not have actual knowledge of the specific incident of
torture.
Judge Zouhary concurred in the judgment of the asylum
claims, but wrote separately to clarify that remand is
appropriate because the BIA decisions in these cases came
down before the en banc opinion in Henriquez-Rivas. Judge
Zouhary would remand to the BIA for the limited purpose of
determining whether there was evidence that members of the
proposed group would be perceived as a group by society.
Judge Zouhary dissented from the section addressing
Medina-Gonzalez’s CAT claim. He would find that the
BIA’s denial of the claim was supported by substantial
evidence and would affirm.
COUNSEL
Cordoba v. Holder, No. 08-74384
Susan E. Hill (argued), Hill, Piibe & Villegas, Los Angeles,
California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Stephen J. Flynn, Assistant Director, and Imran R. Zaidi
(argued), Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.
4 CORDOBA V . HOLDER
Medina-Gonzalez v. Holder, No. 10-73112
Saad Ahmad (argued), Saad Ahmad & Associates, Fremont,
California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Melissa Neiman-Kelting, Assistant Director, Imran R. Zaidi
(argued) and Ilissa Gould, Trial Attorneys, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
OPINION
REINHARDT, Circuit Judge:
These cases, consolidated for purposes of disposition,
both present the question of whether landownership may form
the basis for membership in a particular social group for
purposes of eligibility for asylum. Because the agency did
not have the benefit of our recent en banc decision in
Henriquez-Rivas v. Holder when it adjudicated petitioners’
claims, we grant the petitions for review and remand for the
BIA to reconsider its determinations.
I.
The Attorney General may, in his discretion, grant asylum
to applicants determined to be refugees within the meaning of
the Immigration and Nationality Act (“INA”), INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). An individual qualifies
as a refugee when he is “unable or unwilling to return to [his
last country of residence] . . . because of persecution or a
well-founded fear of persecution on account of race, religion,
CORDOBA V . HOLDER 5
nationality, membership in a particular social group, or
political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A); see Navas v. INS, 217 F.3d 646, 654 (9th
Cir. 2000). These cases involve two individuals whose
asylum applications were denied because the BIA held that
the particular social groups in which they claimed to be
members did not qualify as “particular social group[s]”
within the meaning of the statute.
A.
Edgar Rene Cordoba, a native and citizen of Colombia,
petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying his claims for asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT). Cordoba’s primary claim is that he
and his family were persecuted by the Revolutionary Armed
Forces of Colombia (the “FARC”), because they are wealthy,
educated landowners and businesspeople.
Cordoba was born into a family that had significant
landholdings, including several family properties and farms,
in and near Cali, Colombia, as well as some family
businesses. Cordoba was educated in the United States and
then returned to Colombia, where he inherited and ran the
family business. According to Cordoba, whose testimony
was deemed credible by the Immigration Judge (IJ), he was
well-known in the area as the owner and principal manager of
these properties and businesses, and his name appeared on the
deeds to the properties and business licenses.
According to country conditions materials submitted by
Cordoba, the FARC claims to represent the rural poor against
Colombia’s wealthy classes, and accordingly targets wealthy
6 CORDOBA V . HOLDER
landowners, foreigners, and people in political office. These
materials document that the FARC is responsible for
hundreds of kidnappings, hijackings, and other attacks on
civilians each year, as well as numerous political
assassinations.
Cordoba’s testimony recounted numerous incidents,
dating back to the 1990s, in which he and his family had been
targeted by the FARC. In 1992, Cordoba’s father was
kidnapped by the FARC and held for approximately one
month, until some friends arranged for his liberation by
paying a ransom. Not long thereafter, Cordoba took over the
family landholdings and businesses from his father. He
relates that in the mid-1990s, members of the FARC
intercepted trucks from Cordoba’s transportation business and
demanded payment in return for the trucks’ safe passage
through FARC-controlled territory. When Cordoba refused
to comply, the FARC destroyed two of his company’s trailers
by rolling them down a mountain—leading Cordoba to shut
down the transportation part of his business.
Cordoba’s wife and children were the target of three
separate confrontations in early 2001, two of which involved
armed individuals. In January, his wife was driving in Cali
when she was surrounded by individuals on two motorcycles
and in a pickup truck. The individuals hit their pistols against
her car windows in an attempt to scare her, and demanded
that she pull over so that they could “take [her] for a drive.”
She was able to escape only by hitting the accelerator and
speeding down the wrong side of the street—against traffic.
Cordoba’s wife called the police, but they did not come. The
next month, his wife, driving the same car, was again
followed by motorcycles after picking up her children from
a well-known and prestigious school; she escaped by driving
CORDOBA V . HOLDER 7
her car into a ditch and fleeing on foot. In March, Cordoba’s
wife was attacked yet again, this time by two masked
gunmen. They came up to the door of Cordoba’s store,
showed his wife their gun, and demanded entry. She grabbed
a gun from behind the counter and exchanged gunfire with
the two men. The gunmen eventually fled the scene.
Cordoba’s wife called the police, who responded to the scene
and wrote up a report, but, to Cordoba’s knowledge, there
was no prosecution or further investigation of the incident.
One month later, individuals associated with the FARC
began contacting Cordoba directly by regularly calling the
business phone at the convenience store he owned. The
individuals identified themselves as members of the FARC
militia; as Cordoba testified, the callers stated that “[t]hey
knew who I was and where I lived and where I worked, [and]
where my kids went to school.” They called him a “toad”
(meaning “snitch”), and demanded money from him. Despite
Cordoba’s refusal of the callers’ demands, they continued to
call, to the point where Cordoba began instructing his
employees not to answer the phone. Within a few days,
Cordoba began receiving telephone calls at his home. In
these calls, FARC members repeatedly called Cordoba a
“toad,” demanded financial contributions to their cause, and
threatened that he would “pay the consequences of not
contributing or assisting them.” Cordoba began instructing
his family not to answer the home phone. He and his family
began regularly changing apartments in order to evade the
FARC.
Having no faith in the ability of the police to protect him,
Cordoba and his family fled to the United States on visitor
visas in June 2001. They returned that December, believing
that the FARC might no longer be targeting them. The
8 CORDOBA V . HOLDER
FARC, however, did not cease targeting Cordoba when he
returned to Colombia. On December 17, 2001, as Cordoba
and his father were driving up to one of their farms outside
Cali (a citrus farm and poultry farm that supplied local
supermarkets), they witnessed five “suspicious” men standing
at the entrance to their farm, questioning the farm
administrator. Cordoba and his father accordingly did not
stop at the farm as they had intended. The administrator later
told Cordoba that the men knew that the farm belonged to
Cordoba and wanted to talk to him; the men also asked the
administrator questions about Cordoba: “about my
whereabouts, where they can get ahold of me and how . . .
they can [r]each me.” When Cordoba reported this incident
to the unit of the Colombian police that handles kidnapping
and extortion cases, he was advised that his farm was located
in an area within the FARC’s control, and that his story was
similar to that of many individuals who were later
kindnapped by the FARC. He was cautioned that he should
not return to the farm “under any circumstances.”
In January 2002, Cordoba received another phone call
from the FARC—this time at his real estate and leasing office
in Cali. The caller asked for Cordoba by name, and told him
that he had been targeted to contribute to the FARC’s cause,
with an expected “contribution” of 200 million pesos
(approximately $100,000). Cordoba instructed his secretary
not to answer the phone and eventually disconnected his work
number; he also decided to ask the local prosecutor’s office
to initiate a formal investigation. The officers advised him to
leave the country, stating that they had many cases like his,
that they could not handle them all, and that “[t]here’s no
protection. We can’t offer you any protection.” Cordoba,
along with his wife and children, fled to the United States
shortly thereafter.
CORDOBA V . HOLDER 9
Although, at the time of his hearing, Cordoba’s parents
remained in Colombia, his father did not frequently leave
home. Cordoba’s father submitted a letter stating that the
family continued to receive telephone calls from strangers
seeking Cordoba’s current address. Further, on two different
occasions, three men visited Cordoba’s mother at her
business, asking for Cordoba and threatening to kill him;
these men also threatened to kidnap his mother in order to
extort money from him. Cordoba testified that, since his
departure, the family had been required to shut down some of
the businesses they once operated, because they could find no
one willing to risk running a business that had been targeted
by the FARC. As Cordoba stated with regard to one of his
businesses, “It was basically marked by the FARC. Nobody
wanted to take [it]. We couldn’t even rent the place because
they knew what type of problem [we] had.”
On September 5, 2002, Cordoba filed an application for
asylum, withholding of removal, and CAT relief. In his
asylum and withholding claims, Cordoba alleged, inter alia,
that he had been persecuted on account of his membership in
a particular social group consisting of wealthy, educated
landowners and businesspeople. Subsequently, Cordoba was
placed into removal proceedings and charged under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant
visitor who had overstayed his visa. After a hearing before an
IJ, at which Cordoba testified, he was deemed credible;
nevertheless, his claims for relief were denied, and he was
ordered removed.
The BIA affirmed the IJ’s order in an unpublished, one-
member decision. The BIA held that the social group
proposed by Cordoba “does not constitute a particular social
group for the purposes of the Act.” The BIA explained that
10 CORDOBA V . HOLDER
the group Cordoba had identified was “not the type of group
that is perceived by society as a group” and that it could not
“be accurately described in a manner sufficiently distinct that
the group would be recognized, in the society in question, as
a discrete class of persons.” Cordoba timely filed a petition
for review with this court.
B.
Antonio Medina-Gonzalez, a native and citizen of
Mexico, petitions for review of the BIA’s decision denying
his claims for asylum, withholding of removal, and CAT
relief. Medina-Gonzalez claims that he was abducted and
held for ransom by members of a Mexican drug cartel
because of his status as a landowner.
Medina-Gonzalez was born into a well-known, upper-
middle class family in the small town of Huanusco,
Zacatecas. As Medina-Gonzalez testified, in Huanusco,
“[e]verybody knows the Medina family.” Three of his
relatives (two uncles and a cousin) have served as mayors of
Huanusco, and one served as a senator of Zacatecas. Medina-
Gonzalez’s great-grandfather was a prominent figure in
Mexico who owned more than 5,000 acres of land, now
divided among his descendants. Medina-Gonzalez, along
with his brother, owns approximately 300 acres of this land
near Huanusco, on which they raise cattle and operate an
agave farm. Medina-Gonzalez took over operation of his
family land in 1997, after his parents died, and he had
continually managed his family’s ranch up to the time of the
incidents that form the basis of his asylum claim.
On December 17, 2008, Medina-Gonzalez was abducted
while he was taking care of the horses on his grandfather’s
CORDOBA V . HOLDER 11
nearby land. Several trucks and cars drove up to the property,
and seven or eight men carrying rifles and hand guns
surrounded him. Without offering an explanation, these men
put a gun to Medina-Gonzalez’s head and forced him into the
back seat of a car, saying “if you don’t cooperate with us,
we’re going to kill you.” His adbuctors, who claimed to be
members of the Zetas (a drug cartel in Mexico), drove him
from Huanusco to the city of Zacatecas (within the state of
the same name), approximately two-and-a-half hours away.
During the drive to Zacatecas, Medina-Gonzalez’s
abductors questioned him about his brother, Francisco, a U.S.
citizen who lives in Novato, California. They repeatedly
asked Medina-Gonzalez for his brother’s telephone number;
when he was unresponsive to their questions, he was hit “in
the face, in the head . . . anywhere they could.” Further,
during this drive, Medina-Gonzalez testified that he witnessed
the driver of the car stop twice at police check points. The
driver spoke with men whom Medina-Gonzalez believed to
be police officers and asked them “if everything was clear”
before continuing to drive down the road. Medina-
Gonzalez—who was not blindfolded during the ride—
recalled that the men who assisted his captors wore police
uniforms, including hats, and displayed police badges.
Upon arriving in Zacatecas, the abductors blindfolded
Medina-Gonzalez, placed a plastic bag over his head, and
took him into a house. He was held captive in the house for
eight days—until December 24, 2008—during which he was
subjected to extreme abuse. As Medina-Gonzalez put it, he
was “treated like an animal.” He was beaten repeatedly; inter
alia, his captors would throw him on the floor and kick him,
hitting him in the kidneys and on his feet. His captors also
played “Russian roulette” with him and subjected him to
12 CORDOBA V . HOLDER
electric shocks, and he was forced to urinate and defecate in
his own clothes. Further, Medina-Gonzalez testified that his
captors sexually molested him—an experience he described
as leaving him “humiliated” and “embarrassed.” Medina-
Gonzalez testified that when he was finally released, he
couldn’t walk, his body was covered with bruises, and he
sought medical treatment. According to a report from the
doctor who treated him, Medina-Gonzalez had “major
bruising,” “first-degree burns,” “multiple blunt injuries all
over his body,” and a “likely fractured left rib cage.”
Medina-Gonzalez testified that, during his captivity, his
abductors asked him numerous times for information about
his brother, Francisco, including where he was and how much
money he had. As it turned out, Medina-Gonzalez was
released only with significant efforts from his brother, who
testified at his hearing. Francisco was contacted on his U.S.
business telephone by Medina-Gonzalez’s captors the day
after he was abducted. The captors told Francisco that his
brother was being held and that he would be released only in
exchange for a $100,000 ransom. Despite Francisco’s efforts,
he was able to collect only approximately $20,000 of the
$100,000 ransom the kidnappers demanded. He contacted his
cousin, Martina, who works for the government in the city of
Zacatecas, for assistance; she told him that it was too
dangerous for her to help, and that, for the same reason, other
authorities also would not help him. She referred him to a
Mr. Lopez, an attorney in Mexico who routinely acts as a
mediator between hostage-takers and the families of hostages.
Francisco paid Lopez $5,000 and paid the kidnappers
$15,000, in order to secure Medina-Gonzalez’s release.
Francisco also testified that Lopez, who dealt frequently with
this sort of situation, told him that the individuals who had
kidnapped his brother were members of the Zetas.
CORDOBA V . HOLDER 13
The abductors’ targeting of Medina-Gonzalez did not end
with his release. They had released him with a threat that if
he ever mentioned his abduction to the police, his kidnappers
would kill him or his family. In January 2003, his captors
once again reached out to Francisco, calling his cell phone.
The same person who had spoken with him previously
demanded more money, as well as the deeds to properties and
vehicles that Francisco and Medina-Gonzalez owned in
Mexico. He told Francisco that, although they had released
Medina-Gonzalez, they knew where he was hiding in Mexico,
and that they would kill him if they did not receive the
additional money and title to the properties. Further, the
captors let Francisco know that they were aware of details of
his life in the United States—including details about his
Colombian wife, who had never traveled to Mexico.
After this phone call, Francisco cancelled his cell phone
account and arranged for his brother to travel to the United
States. Francisco has continued to experience harassment at
his business in California. Suspicious men have contacted his
employees and come to his business in person to ask
employees about him. Francisco testified that such incidents
had occurred only a few weeks before his testimony.
Francisco testified that he continued to fear that the
individuals who were harassing him were connected to the
Mexican drug cartel that abducted his brother.
Medina-Gonzalez entered the United States in January
2009. In May 2009, he was placed into removal proceedings
and charged under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an alien who was not in possession
of a valid document to enter the United States at the time of
his application for admission. He subsequently filed an
application for asylum, withholding of removal, and CAT
14 CORDOBA V . HOLDER
relief. He alleged, inter alia, that he had been persecuted on
account of his membership in a particular social group
consisting of landowners in Mexico.1
At a hearing before an IJ, Medina-Gonzalez also
presented the testimony of an expert witness, Dr. William
Avilés, a professor at the University of Nebraska specializing
in Latin American politics and in particular the effects of U.S.
drug policy in Mexico. Dr. Avilés testified as to the
prevalence of kidnapping such as that suffered by Medina-
Gonzalez in Mexico. Further, Dr. Avilés testified (and
provided a written affidavit confirming) that the history of
landownership in Medina-Gonzalez’s family was likely to
draw attention of drug cartels to him as a target for abduction.
Dr. Avilés also documented the successful efforts by cartels
to co-opt police in their criminal activities, noting that
repeated efforts to “cleanse” the police forces of corruption
have failed. Medina-Gonzalez and his brother both also
testified at the IJ hearing, and the testimony of all three
witnesses was deemed credible. The IJ, however, denied
Medina-Gonzalez’s claims for relief and ordered him
removed.
The BIA affirmed the IJ’s order in an unpublished, one-
member decision. The BIA held that the social group
identified by Medina-Gonzalez was not “defined . . . with
sufficient particularity to qualify as a ‘particular social group’
1
The government contends that Medina-Gonzalez described himself as
a member of a particular social group consisting of “landowners in
Mexico who are targeted by the drug cartels” (emphasis added). As
stated below, however, we do not believe that the addition of the phrase
“who are targeted by the drug cartels,” to the extent that it accurately
reflects the basis of Medina-Gonzalez’s claim, affects our conclusion here.
CORDOBA V . HOLDER 15
under the Act” and lacked the “necessary social visibility to
qualify as a ‘particular social group.’” The BIA also denied
Medina-Gonzalez’s CAT claim, holding that he had not
established the “acquiescence of a government official” in
any potential torture he might suffer. Medina-Gonzalez
timely filed a petition for review with this court.
C.
We have jurisdiction over these petitions for review under
INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). “We review the
BIA’s purely factual determinations for substantial evidence.
However, we review de novo both purely legal questions and
mixed questions of law and fact requiring us to exercise
judgment about legal principles.” Mendoza-Pablo v. Holder,
667 F.3d 1308, 1312 (9th Cir. 2012) (internal quotations and
citations omitted). When, as here, the BIA “conduct[s] an
independent review of the IJ’s findings, we review the BIA’s
decision and not that of the IJ.” Id.We have recognized that the phrase “particular social
group” is ambiguous. See Henriquez-Rivas v. Holder,
707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). Unpublished,
one-member decisions of the BIA, however, are not entitled
to Chevron deference. Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1012-13 (9th Cir. 2006). Instead, they are
accorded Skidmore deference “proportional to [their]
thoroughness, reasoning, consistency, and ability to
persuade.” Lezama-Garcia v. Holder, 666 F.3d 518, 524–25
(9th Cir. 2011) (citing Skidmore v. Swift & Co., 323 U.S. 134(1944)) (internal quotations omitted).
16 CORDOBA V . HOLDER
II.
For almost thirty years, the BIA has recognized that
landownership may form the basis of a particular social group
within the meaning of the INA. In Matter of Acosta, the first
case in which the BIA defined the term “particular social
group,” the BIA held that “persecution on account of
membership in a particular social group” is “persecution that
is directed toward an individual who is a member of a group
of persons all of whom share a common, immutable
characteristic.” 19 I. & N. Dec. 211, 233 (BIA 1985).
Among the examples of criteria enumerated by the BIA as
giving rise to a particular social group was “a shared past
experience such as . . . land ownership.” Id. In 1996, the
BIA re-affirmed that definition. See In re H-, 21 I. & N. Dec.
337, 342 (BIA 1996). More recently, in cases refining the
definition of “particular social group” with reference to
factors such as particularity and social visibility, the BIA has
continued to assert that landownership may form the basis of
membership in a particular social group. In In re C-A-, the
BIA explicitly pointed to “land ownership” as an example of
an “easily recognizable trait[]” that may be the basis of
membership in a particular social group. 23 I. & N. Dec. 956,
960 (BIA 2006); see also In re A-M-E & J-G-U-, 24 I. & N.
Dec. 69, 73 (BIA 2007) (again affirming the Acosta
definition).
Both our court and other circuits have followed the BIA’s
lead in recognizing that landownership may be the basis of a
particular social group. In multiple cases, we have cited with
approval the BIA’s enumeration, in Acosta, of landownership
as an illustrative example of a characteristic that might form
the basis of a particular social group. See Donchev v.
Mukasey, 553 F.3d 1206, 1216–17 (9th Cir. 2009);
CORDOBA V . HOLDER 17
Hernandez-Montiel v. INS, 225 F.3d 1084, 1091–93 (9th Cir.
2000). The Seventh Circuit in 2005 recognized a social
group quite similar to that urged by Cordoba here, consisting
of “members of the educated, wealthy, landowning class in
Colombia” who were persecuted by members of the FARC.
Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668 (7th Cir.
2005). It did so by noting that the BIA’s own cases, such as
Acosta, supported recognition of a social group based on
landownership, and added that even casual readers of Latin
American literature “will recall that the history of conflict
between large landowners and the rest of society is a long one
in Latin America.” Id. at 672–73.
Furthermore, both Petitioners offered evidence suggesting
that landowners in their respective countries are targets of
persecution. Cordoba, for example, offered country
conditions materials showing that the FARC specifically
targets “wealthy landowners.” A report published in 2000 by
the United States government stated that the FARC maintains
“archives listing owners of real estate and property prices in
Bogota and other cities” in order to find victims for its
extortion efforts. Similarly, Medina-Gonzalez offered
credible expert testimony from Dr. William Avilés, a
professor specializing in Latin American politics at the
University of Nebraska. Dr. Avilés noted that the fact that
the Medina-Gonzalez family had “been established land
owners in this region for generations” was a significant factor
suggesting why Medina-Gonzalez had been targeted by drug
cartels.
Although it is questionable whether the agency’s
decisions in these cases merit Chevron deference, we do not
decide the issue. See Nat'l Cable & Telecommunications
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981–82
18 CORDOBA V . HOLDER
(2005) (holding that an agency must “adequately explain[] the
reasons for a reversal of policy” in an interpretation that is
itself “otherwise entitled to Chevron deference”); Marmolejo-
Campos v. Holder, 558 F.3d 903, 914 (9th Cir. 2009).
Instead, we remand in light of clear inconsistencies between
the BIA’s decisions and our recent en banc opinion in
Henriquez-Rivas—a decision of which the BIA did not have
the benefit when it made its decisions. Henriquez-Rivas is
directly relevant to the questions before the BIA. First, in our
opinion in Henriquez-Rivas, we clarified, in important ways
that are directly relevant to Petitioners’ proposed social
groups, the BIA’s inquiry into whether a social group has
sufficient social visibility. As an initial matter, we
concluded, consistent with precedents from other circuits, that
the social visibility inquiry cannot “require ‘on-sight’
visibility.” 707 F.3d at 1088. Instead, we held that the proper
inquiry is whether the shared characteristic would “generally
be recognizable by other members of the community,” or
whether there was “evidence that members of the proposed
group would be perceived as a group by society.” Id. at
1088–89 (internal quotation marks omitted). Further, we
noted that there were multiple possible perspectives from
which the visibility of a social group might be
perceived—from that of the society in question as a whole, to
that of the residents of a particular region, or members of a
different social group. We suggested that the views of
society as a whole were not necessarily dispositive, and that
“social visibility may be demonstrated by looking to
perceptions of the persecutors,” which we held were “highly
relevant to, or even potentially dispositive of, the question of
social visibility.” Id. at 1090.
Further, in explaining the characteristics that may form
the basis of a “particular social group,” our opinion in
CORDOBA V . HOLDER 19
Henriquez-Rivas explicitly relied on Acosta’s use of
landownership as an example of a characteristic that fit within
the BIA’s definition:
Referencing Acosta’s examples of ‘‘former
military leadership or land ownership’’ during
its discussion of ‘‘social visibility,’’ the BIA
[in C–A–] called them ‘‘easily recognizable
traits.’’ C–A–, 23 I. & N. Dec. at 959–60.
Those traits would not be ‘‘easily
recognizable’’ if the ‘‘social visibility’’
criterion required ‘‘on-sight’’ visibility, since
former military officers do not always wear
epaulets, nor do landowners wear T-shirts
mapping their holdings. Instead, the key in
these older BIA cases, as well as in C–A–, is
whether the social groups are ‘‘understood by
others to constitute social groups.’’ Id. at 959
(emphasis added).
Henriquez-Rivas, 707 F.3d at 1088. Henriquez-Rivas thus
not only modified the nature of the social visibility inquiry,
but did so while once again citing landownership as a
defining example of a characteristic that may be the basis for
membership in a “particular social group.” Accordingly,
Henriquez-Rivas provides substantial additional support for
the proposed social groups offered by petitioners.
Henriquez-Rivas also appears to undermine one
justification for the BIA’s decisions in the cases before us:
that the social groups urged by Cordoba and Medina-
Gonzalez would be too broad, or encompass too many diverse
elements in society, to constitute a “particular social group.”
The BIA’s decision denying Medina-Gonzalez’s appeal, for
20 CORDOBA V . HOLDER
example, specifically cited our decision in Velasco-Cervantes
v. Holder, 593 F.3d 975, 978 (9th Cir. 2010). Velasco-
Cervantes is one in a line of Ninth Circuit cases focusing on
the breadth of a proposed social group, or the diversity of
individuals within a proposed social group, as preventing it
from constituting a “particular social group.” See id. at 978(noting that “any person of any origin can be involuntarily
placed” in the social group at issue); Sanchez-Trujillo v. INS,
801 F.2d 1571, 1577 (9th Cir. 1986) (rejecting a proposed
social group because “[i]ndividuals falling within the
parameters of this sweeping demographic division naturally
manifest a plethora of different lifestyles, varying interests,
diverse cultures, and contrary political leanings.”); see also
Soriano v. Holder, 569 F.3d 1162, 1166–67 (9th Cir. 2009)
(repeating the Sanchez-Trujillo standard); Ochoa v. Gonzales,
406 F.3d 1166, 1170–71 (9th Cir. 2005) (same).
In Henriquez-Rivas, the en banc court expressly rejected
this line of cases as too narrowly defining what constitutes a
particular social group. We noted that the reasoning
underlying these cases proved deficient, especially when the
particular social group inquiry was properly construed in light
of the perceptions of the persecutor. See Henriquez-Rivas,
707 F.3d at 1090 (noting that if, “as far as the persecutor is
concerned, there is a particular characteristic . . . that defines
a finite collection of individuals as a group . . . , the fact that
these individuals may have a variety of other characteristics
. . . would not be a bar to potential relief”). We concluded
that “[t]he diversity of ‘lifestyles’ and ‘origin’ to which [our
prior] cases refer[red]” did not accurately describe whether a
group was sufficiently “particular” to constitute a “particular
social group;” “nor,” as we held, “are they relevant to our
analysis.” Id. at 1093–94. Accordingly, we explicitly
overruled both Velasco-Cervantes and Soriano as no longer
CORDOBA V . HOLDER 21
accurately describing what constitutes a particular social
group. Id. Our rejection in Henriquez-Rivas of these
precedents focusing on the breadth or diversity of
membership within a proposed social group thus affects the
particular social group inquiry in a substantial way that
requires the BIA to re-evaluate its conclusions regarding the
proposed social groups here.2
Our opinion in Henriquez-Rivas also directly addresses
one of the government’s contentions as to why Petitioners’
proposed social groups cannot constitute a “particular social
group.” Specifically, the government contended that even if
landowners per se might, consistent with the BIA’s
precedents, form a particular social group, the addition of
other characteristics (e.g., “wealthy” or “educated”
landowners) somehow invalidates the social group. We reject
this contention. As we held in Henriquez-Rivas, if, “as far as
the persecutor is concerned, there is a particular characteristic
2
For purposes of determining a social group, landownership may appear
to be indistinguishable from wealth in many aspects. The BIA has held,
however, that the latter attribute does not, standing alone, generally form
the basis of a particular social group. See A-M-E, 24 I. & N. Dec. at
73–76. Its reason for so holding was that it found wealth to be too
“indeterminate,” in that it might “vary from as little as 1 percent to as
much as 20 percent of the population,” and that it would be too difficult
to determine who the members of the purported class would be. Id. at 76.
The BIA noted, nevertheless, that “in appropriate circumstances, ‘wealth’
may be a shared characteristic of a social group,” when the group is more
“defined” (such as when a government or an uncontrolled rebel group
targets individuals above an established income level). Id. at 75 n.6. The
BIA has recognized that, in contrast, “land ownership” is an “easily
recognizable trait[],” see C-A-, 23 I & N. Dec. at 959–60, and, even in its
decisions distinguishing wealth, has recognized landownership as a
“common, immutable characteristic,” see A-M-E-, 24 I. & N. Dec. at 73;
see also Tapiero de Orejuela, 423 F.3d at 672.
22 CORDOBA V . HOLDER
. . . that defines the collection of individuals as a group,” then
a petitioner has adequately defined his particular social group.
Id. at 1090 (internal citation omitted). “[T]he fact that those
individuals may have a variety of other characteristics, and
belong to various other groups, would not be a bar to
potential relief.” Id. Thus, the BIA may not rest its denial of
asylum on the claim of an additional characteristic when the
individual has asserted membership in a particular social
group that the BIA has recognized as such. Nor is the easy
recognition of landownership changed when a petitioner
proposes additional characteristics that other landowners may
or may not share. Id.
III.
We address finally the CAT claim raised by Medina-
Gonzalez. Medina-Gonzalez predicated his CAT claim on
the behavior of the police during the two-and-a-half-hour
drive from his home to the place where he was held. As he
credibly testified, at multiple police checkpoints, the police
appeared to aid his captors by responding when his captors
asked “if everything was clear.” The BIA rejected his CAT
claim because it held that there was no proof that “the police
were aware that he was being held captive or that they knew
the men holding him.” In our recent decision in Tapia-
Madrigal v. Holder, however, we noted that “[a]lthough the
public official must have ‘awareness’ of the torturous
activity” in order for an applicant to qualify for CAT relief,
“he need not have actual knowledge of the specific incident
of torture.” 716 F.3d 499, 509 (9th Cir. 2013) (emphasis
added). Further, we noted that “corruption of public officials
in Mexico remains a problem, particularly at the state and
local levels of government, with police officers and prison
guards frequently working directly on behalf of drug cartels.”
CORDOBA V . HOLDER 23
Id. at 510. Considerable evidence in the record—including
the results of an investigation provided by Medina-
Gonzalez’s expert, Dr. Avilés, finding that as many as 90%
of federal police have some manner of link to a
cartel—supports a similar conclusion here. We therefore
remand for reconsideration of Medina-Gonzalez’s CAT claim
in light of our decision in Tapia-Madrigal.
IV.
For the reasons stated above, we grant Cordoba and
Medina-Gonzalez’s petitions for review as to their asylum
claims based on their membership in a particular social
group, and we remand for the BIA to reconsider its
determinations that the particular social groups offered by
Petitioners are not cognizable under the INA, in light of our
en banc decision in Henriquez-Rivas. We leave to the BIA to
address in the first instance whether the harm suffered by
Petitioners constituted persecution and whether that
persecution was “on account of” a protected basis. INS v.
Orlando Ventura, 537 U.S. 12, 18 (2002). Because, in both
of these cases, the BIA denied Petitioners’ withholding of
removal claims on the same basis as their asylum claims, we
also reverse and remand those determinations. We further
24 CORDOBA V . HOLDER
grant Medina-Gonzalez’s petition for review as to his CAT
claim, and remand for reconsideration of that claim in light of
our recent decision in Tapia-Madrigal.3
Petition for Review in 08-74384 DENIED in part;
GRANTED in part; REMANDED.
Petition for Review in 10-73112 GRANTED;
REMANDED.
ZOUHARY, District Judge, concurring in part and dissenting
in part:
Respectfully, I concur with Section II and dissent from
Section III.
I concur in the judgment of the asylum claims but write
separately to clarify that remand is appropriate because the
BIA decisions in these cases came down before the recent en
banc opinion in Henriquez-Rivas v. Holder, 707 F.3d 1081(9th Cir. 2013). The BIA should re-examine the record to
determine whether there was “evidence that members of the
proposed group would be perceived as a group by society.”
Id. at 1088–89. Specifically, was social visibility
3
Cordoba also petitions for review of the BIA’s decision denying his
claim for relief under the Convention Against Torture, and denying his
claim for asylum to the extent that it is based on persecution on the basis
of his political opinion. We hold that the BIA’s denial of these claims is
supported by substantial evidence, and thus deny his petition for review
as to them. See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir.
2008) (CAT); INS v. Elias-Zacarias, 502 U.S. 478, 482–83 (1992)
(political opinion).
CORDOBA V . HOLDER 25
demonstrated through the perceptions of the persecutors? Id.at 1089–90.
A remand for this limited purpose will enable the parties
and the BIA to address these questions in the first instance.
Comments by the majority, purporting to modify Petitioners’
proposed social groups or to steer the IJ or BIA to a particular
conclusion, defeat the purpose of the limited remand. For
these reasons, I concur separately with Section II.
I dissent from Section III, which addresses Medina-
Gonzalez’s CAT claim. I believe the BIA’s denial of this
claim, as with the denial of Cordoba’s CAT claim, is
supported by substantial evidence and would affirm. The
recent decision in Tapia-Madrigal v. Holder, 716 F.3d 499,
509 (9th Cir. 2013) does not mandate a remand where, as
here, the record supports the conclusion that the sole support
for CAT relief — a car ride through several police
checkpoints with Medina-Gonzalez allegedly held captive —
did not satisfy his burden. As the BIA properly held:
“[Medina-Gonzalez] did not show that the police were aware
that he was being held captive or that they knew the men
holding him.”