Ochoa v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERMAN OCHOA; CLAUDIA DIAZ,  No. 03-72322
Petitioners,
Agency Nos.
v.
 A77-421-768
ALBERTO R. GONZALES, Attorney A77-421-769
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 15, 2005—San Francisco, California

Filed May 16, 2005

Before: Donald P. Lay,* Betty B. Fletcher, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge B. Fletcher

*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

5231
5234 OCHOA v. GONZALES

COUNSEL

Stephen Shaiken, Law Offices of Stephen Shaiken, San Fran-
cisco, California, for the petitioners.

Peter D. Keisler, Richard M. Evans, & John L. Davis, Depart-
ment of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent.
 OCHOA v. GONZALES 5235
OPINION

B. FLETCHER, Senior Circuit Judge:

German Ochoa, the primary petitioner, and his wife Clau-
dia Diaz, the secondary petitioner, are natives and citizens of
Colombia. They petition for review of a Bureau of Immigra-
tion Appeals’ (“BIA”) order denying asylum, withholding of
removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”).

Removal proceedings against the petitioners commenced
on or about January 14, 1999. Because the proceedings were
initiated after April 1, 1997, the effective date of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), the permanent rules apply. See Tawadrus v.
Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004). The parties
conceded at oral argument that the petitioners are subject to
final orders of removal. This court has jurisdiction to review
final orders of removal pursuant to 8 U.S.C. § 1252. Moran
v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005).

Factual Background

In Colombia, Ochoa owned a women’s clothing store in the
San Andresito Shopping Center. Initially, Ochoa purchased
clothes in Colombia and sold them at his shop. Then in 1996,
he started traveling to the United States to purchase clothing.
The clothes he purchased were shipped to Colombia, where
he sold them wholesale and retail. In the course of Ochoa’s
business he borrowed $20,000 from a private lender. The
money was lent to Ochoa at six percent interest monthly,
seventy-two percent interest annually.

In addition to lending money, the lender sent retailers to
Ochoa. The retailers would buy clothing from Ochoa on credit
and then resell the clothes. The retailers would post-date
5236 OCHOA v. GONZALES
checks for the clothes and thirty days later Ochoa would cash
the checks. Several of the retailers defaulted on their checks.
Ochoa never recovered the money. Because the retailers
defaulted on their credit, Ochoa could not repay his loan.

Soon thereafter a man named Efrain came to Ochoa’s store
on behalf of the lender to collect the money. In a very harsh
way, Efrain demanded Ochoa repay the money immediately.
Ochoa had heard that Efrain was the “kind of person that you
had to watch out for, that he had possibly killed one or two
people, but that no one could really prove it.” Ochoa was also
approached by a person who claimed to own the money lent
to Ochoa. This person, who never said his name, proposed a
plan for Ochoa to work for him to repay the loan. Ochoa testi-
fied, “he simply wanted me to keep on doing my traveling, so
they’d be in charge of picking up my merchandise, send it to
Colombia, and then delivering it to me.” Ochoa’s testimony
and evidence in the record indicates the lender was a narco-
trafficker and that he was pressuring Ochoa to participate in
a narco-trafficking money laundering scheme.

Ochoa did not accept the proposal. Instead, Ochoa offered
to give the lender/narco-trafficker his house, car, and business
to pay off the loan. The approximate value of these things was
$30,000. This would have been an immediate fifty percent
profit on the loan. The lender refused. Ochoa’s friends and
family advised him to reject the deal and “to just get out, to
leave.” They said that people who “worked” for the lenders
“normally got killed, or else those who refused to work for
them got killed right away.” Ochoa said in his asylum decla-
ration that “In San Andrecito merchants disappeared on a reg-
ular basis without any police inquiry, when the merchants had
[fallen] in disgrace[ ] with the money lenders.”

Because of the threats to their lives Ochoa and Diaz left
Colombia and came to the United States. Ochoa entered the
United States on December 4, 1997. Diaz entered approxi-
mately a month and a half later. They have not returned to
 OCHOA v. GONZALES 5237
Colombia since. Ochoa believes the situation in Colombia has
“actually gotten worse” since they left.

Procedural History

The IJ found the petitioners credible and directed Colombia
as the country of removal. The IJ denied the petitioners’
applications for asylum and withholding because he found the
petitioners did not prove their fear of persecution was “on
account of” an enumerated basis. The IJ found the petitioners
would be subject to torture if they returned to Colombia and
he granted them withholding under CAT.

The BIA affirmed the IJ’s asylum and withholding decision
because it found the persecution the petitioners fear is not on
the basis of a protected ground. The BIA reversed the IJ’s
decision that granted relief under CAT. The BIA found there
was not sufficient evidence to show the government’s acqui-
escence in the feared torture. The BIA granted voluntary
departure to Ochoa but denied voluntary departure to Diaz
because she had not been in the United States for the required
period of time.

Standard of Review

The Ninth Circuit reviews the BIA’s legal conclusions de
novo. Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.
2004). Factual findings made by the BIA are reviewed under
the deferential substantial evidence standard and will be
upheld unless the evidence compels a contrary result. 8
U.S.C. § 1252(b)(4)(B); Melkonian v. Ashcroft, 320 F.3d
1061, 1065 (9th Cir. 2003).

When the BIA conducts a de novo review of an IJ’s deci-
sion, rather than adopting the IJ’s decision as its own, the
Ninth Circuit reviews the BIA’s decision. Kankamalage v.
INS, 335 F.3d 858, 861 (9th Cir. 2003). Here the BIA issued
its own opinion.
5238 OCHOA v. GONZALES
Analysis

A. Asylum and Withholding of Removal

[1] Eligibility for asylum requires showing a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The persecutor must be a govern-
ment official or persons the government is unable or unwill-
ing to control. See Avetovo-Elisseva v. INS, 213 F.3d 1192,
1196 (9th Cir. 2000). Withholding of removal requires show-
ing a clear probability of the same. 8 U.S.C. § 1231(b)(3); Al-
Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).

[2] The dispute in this case is not over whether the petition-
ers have a legitimate fear of persecution. It is clear that if
Ochoa and Diaz return to Colombia they will likely be tar-
geted and possibly killed by drug traffickers. Ochoa credibly
testified that he fears for his life if he is returned to Colombia.
The record is replete with evidence showing frequent use of
violence by guerillas and narco-traffickers in Colombia1 and
that the Colombian government is unable to protect the petition-
ers.2 Thus, the only question here is whether the persecution
1
U.S. Dep’t of State, Columbia-Profile of Asylum Claims & Country
Conditions, June 1997; Colombia in Crisis, Journal of Commerce, Aug.
17, 1998 at 6A; Colombian Murder Rate Rises 19 Per Cent, Gazette, May
6, 1998 at B6; Crime Rising in Already Crime-Ridden Colombia, Agence
France Press, May 4, 1998; County Profile, Quest Economics Database,
Oct. 1997 at 54; Gunmen Kill Parents, Nine Children in Colombia, AAP
Newsfeed, May 7, 1998; Kidnappings Grow by 42 Percent, Boston Globe,
Apr. 27, 1999 at A21.
2
The 1997 Colombia-Profile of Asylum Claims & Country Conditions
by the State Department notes: “Rampant impunity is at the core of the
country’s human rights problems. According to Government reports,
three-quarters of all crimes go unreported, and law breakers are never
brought to justice in 97-99.5 percent of all crimes. The Samper administra-
tion has yet to take sufficient action to curb increasing abuses by para-
military groups.” See also IJ opinion (“The respondents have submitted a
plethora of evidence to show that those that are in a position, public offi-
cials, to protect respondents are corrupt and have so thoroughly been infil-
trated by drug traffickers that the narcotics traffickers have become almost
a shadow government.”).
 OCHOA v. GONZALES 5239
feared by the petitioners would be on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion. The petitioners argue their fear of persecu-
tion stems from membership in a particular social group and
imputed political opinion.

Membership in a particular social group

[3] Ochoa argues he is a member of a social group com-
prised of business owners in Colombia who rejected demands
by narco-traffickers to participate in illegal activity. The term
“particular social group” is not defined by the Immigration
and Naturalization Act. The BIA has said a social group
requires “a common, immutable characteristic.” Matter of
Acosta, 19 I.&N. Dec. 221, 233 (BIA 1985). In contrast, this
court has said a social group requires a “voluntary associa-
tional relationship.” Sanchez-Trujillo v. INS, 801 F.2d 1571,
1576 (9th Cir. 1986). We harmonized these definitions by
saying, “a ‘particular social group’ is one united by a volun-
tary association, including a former association, or by an
innate characteristic that is so fundamental to the identities or
consciences of its members that members either cannot or
should not be required to change it.” Hernandez-Montiel v.
INS, 225 F.3d 1084, 1093 (9th Cir. 2000).

[4] Key to establishing a “particular social group” is ensur-
ing that the group is narrowly defined. This court has said:

Major segments of the population of an embattled
nation, even though undoubtedly at some risk from
general political violence, will rarely, if ever, consti-
tute a distinct “social group” for the purposes of
establishing refugee status. To hold otherwise would
be tantamount to extending refugee status to every
alien displaced by general conditions of unrest or
violence in his or her home country.
5240 OCHOA v. GONZALES
Sanchez-Trujillo, 801 F.2d at 1577. This was of particular
concern to the IJ and the BIA in this case. Both feared the
social group was “too broad.” We agree.

[5] A social group of business persons in Ochoa’s circum-
stances is too broad to qualify as a particularized social group.
There is neither a voluntary relationship nor an innate charac-
teristic to bond its members. Business persons targeted by
drug traffickers are analogous to the young, working class
men of military age that this court found were not a social
group in Sanchez-Trujillo. There this court said “[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 lean-
ings.” 801 F.2d at 1577. The same is true of business owners
who resist pressure from narco-traffickers to participate in
illegal activity. There is no unifying relationship or character-
istic to narrow this diverse and disconnected group. This cate-
gory is too broad to qualify as a particularized social group
for the purposes of asylum and withholding of removal.

Political opinion

[6] Persecution on account of a political opinion may be
based on an imputed political belief. Canas-Segovia v. INS,
970 F.2d 599, 601-02 (9th Cir. 1992). To prove persecution
based on an imputed political belief the petitioner “must show
that his persecutors actually imputed a political opinion to
him.” Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997).
This may be shown through the petitioner’s “association with,
or relationship to, people who are known to hold a particular
political opinion.” Navas v. INS, 217 F.3d 646, 659 (9th Cir.
2000). For example, if one’s family is politically active the
family’s views may be imputed to the individual. See Ramirez
Rivas v. INS, 899 F.2d 864, 865-66 (9th Cir. 1990). Alterna-
tively, a person’s political neutrality or refusal to act may
imply a political opinion and establish an imputed political
belief. For example, in Desir v. Ilchert, 840 F.2d 723, 725
 OCHOA v. GONZALES 5241
(9th Cir. 1988) the petitioner was arrested, threatened, and
assaulted for refusing to pay bribes in return for fishing privi-
leges. This court looked to the context of the petitioner’s
refusal to pay the bribes, i.e. the absence of political participa-
tion, and found it constituted a political choice. Id. at 729. To
further explain political neutrality as a basis for asylum this
court has said:

[W]e have found persecution to be on account of
imputed political opinion where, regardless of the
petitioner’s motives, he expressly refused to affiliate
himself with a particular political faction or to
accede to its extortionate demands, and was then
perceived by the group as opposing it because of that
refusal.

Navas, 217 F.3d at 660 n.19. But this court cautioned:

Applicants can no longer establish that their persecu-
tion was “on account of” political opinion by infer-
ence, unless the inference is one that is clearly to be
drawn from facts in evidence. . . . Persecution by
anti-government guerillas may no longer, from that
fact alone, be presumed to be “on account of” politi-
cal opinion. The petitioner must prove something
more than violence plus disparity of views.

Sangha, 103 F.3d at 1487 (citations omitted). Here the peti-
tioners’ claim is based on a theory of political neutrality, i.e.
rejecting the narco-traffickers extortionate demands was an
act of political neutrality. Thus, the question here is whether
it is clear from the facts in evidence that the narco-traffickers’
targeting of Ochoa would be, at least in-part,3 on the basis of
an imputed political opinion.
3
A persecutor may have more than one motive for inflicting harm.
“[A]n applicant need only produce evidence from which it is reasonable
to believe that the harm was motivated, at least in part, by a protected
ground.” Deloso v. Ashcroft, 378 F.3d 907, 910 (9th Cir. 2004) (citation
and quotation marks omitted).
5242 OCHOA v. GONZALES
[7] In this case, the record provides no evidence that the
narco-traffickers imputed political beliefs to Ochoa. The
record does, however, establish a non-political motivation for
the narco-traffickers to seek out Ochoa: he owes them a large
sum of money. Even considering the context of Ochoa’s deci-
sion, the facts in evidence do not draw a clear inference that
the narco-traffickers would attack Ochoa on the basis of an
implied political opinion. To hold otherwise would directly
conflict with this court’s admonition in Sangha that
“[p]ersecution by anti-government guerillas may no longer,
from that fact alone, be presumed to be ‘on account of’ politi-
cal opinion.” 103 F.3d at 1487.

[8] The petitioners failed to proved their feared persecution
was “on account of” a protected ground. Accordingly, the
BIA’s denial of asylum and withholding of removal is
affirmed.

B. CAT Claim

[9] Under CAT a person qualifies for relief if “it is more
likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
Regulations implementing CAT define torture as “any act by
which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for . . . any reason based on
discrimination of any kind . . . by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
The feared torture need not be on account of an enumerated
basis.

In this case, the BIA reversed the IJ’s grant of relief under
CAT. The BIA found Ochoa could not show the Colombian
government acquiesced to the feared torture. The BIA applied
its interpretation of government acquiescence from Matter of
S-V-, 22 I.&N. Dec. 1306 (BIA 2000). That standard requires
a petitioner to “do more than show that the officials are aware
 OCHOA v. GONZALES 5243
of the activity constituting torture but are powerless to stop
it.” Id. at 1312. Matter of S-V- requires government officials
to be “willfully accepting” of the feared torturous activities.
Id.

[10] This standard was overruled by us in Zheng v. Ash-
croft, 332 F.3d 1186, 1194-96 (9th Cir. 2003). We held that
“[t]he BIA’s interpretation and application of acquiescence
impermissibly requires more than awareness and instead
requires that a government be willfully accepting of a third
party’s tortuous activities.” Id. at 1196. In Ochoa’s case, the
BIA required too much. For relief under CAT a petitioner
need only prove the government is aware of a third party’s
tortuous activity and does nothing to intervene to prevent it.
Id. at 1194.

[11] The BIA did not consider the facts of petitioners’ case
under the proper standard. As this court instructed in Zheng,
in light of INS v. Ventura, 537 U.S. 12 (2002), this case is
remanded “to the BIA to give the BIA the first opportunity to
apply the correct standard of ‘acquiescence.’ ” 332 F.3d at
1197. See also Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788
(9th Cir. 2004).

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.