Jose Gonzalez Moran v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE A. GONZALEZ MORAN, No. 19-72838
Petitioner, Agency No. A215-906-360
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 6, 2021**
Pasadena, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Jose Gonzalez Moran, a native and citizen of Mexico, petitions for review of
a Board of Immigration Appeals (BIA) order upholding the denial of his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We deny Gonzalez’s petition for review in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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part and grant it in part.
1. Substantial evidence supports the BIA’s finding that Gonzalez failed to
establish a nexus between any past or future harm and a protected ground for his
asylum and withholding of removal claims. See Barajas-Romero v. Lynch, 846
F.3d 351, 360 (9th Cir. 2017). Before the immigration judge (IJ), Gonzalez sought
relief based on an unspecified particular social group and explained that he feared
harm because he was “caught in the territorial crossfire” between two rival drug
cartels. Gonzalez credibly testified that he was targeted by two different cartels:
The first cartel sought information about the whereabouts of his uncle, who was a
member of a different cartel; the second cartel, whose members previously worked
with his uncle, believed that Gonzalez had shared information with the first cartel.
The BIA properly concluded that, rather than facing persecution on the basis of a
particular social group, Gonzalez was “caught up in the crossfire of cartels fighting
for territory” and thus merely a victim of general crime and violence unconnected
to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
Before the BIA, Gonzalez sought to raise the proposed particular social
groups of “his uncle’s family” and “Mexicans perceived to have opposed and taken
concrete steps against the cartels.” The BIA declined to address these groups
because it held that Gonzalez failed to raise them before the IJ. See Honcharov v.
Barr, 924 F.3d 1293, 1296–97 (9th Cir. 2019). Because the lack of a nexus is
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dispositive, we need not decide whether the IJ should have considered any
particular social groups not specifically raised by Gonzalez. The BIA properly
denied his applications for both asylum and withholding of removal.
2. The BIA erred in its finding that Gonzalez failed to establish government
or public official acquiescence to warrant protection under CAT. Gonzalez
submitted a declaration stating that “armed men with soldiers’ uniforms on”
participated in the second cartel attack, during which cartel members beat and
threatened to kill him. Gonzalez was otherwise found credible, so this evidence
could support a finding of government acquiescence, even if the Mexican soldiers
were merely passive bystanders. See Madrigal v. Holder, 716 F.3d 499, 509–510
(9th Cir. 2013). But in denying his CAT claim, the BIA relied on Gonzalez’s
testimony during the merits hearing, in which he responded “no” to the IJ’s queries
about whether he had ever been arrested by the police or experienced problems
with the Mexican authorities. Both the IJ and the BIA construed this testimony as
proof that Gonzalez could not show government acquiescence in any torture the
cartels might inflict. The BIA’s explanation takes Gonzalez’s merits testimony out
of context to refute his declaration. Gonzalez’s testimony was only in reference to
his own personal criminal history and does not necessarily disprove his
declaration’s assertion that Mexican soldiers acquiesced in the second cartel attack.
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As a result, the BIA improperly denied Gonzalez’s application for protection under
CAT on the rationale provided.
PETITION FOR REVIEW GRANTED in part and DENIED in part;
CASE REMANDED.