NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRICELIA ZEPEDA ACEVEDO; No. 17-72274
VALENTINA GUADALUPE ZEPEDA
ACEVEDO, Agency Nos. A202-153-726
A202-153-727
Petitioners,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2019**
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,*** District Judge.
Petitioners Cricelia Zepeda Acevedo and her infant daughter, both natives
and citizens of Mexico, seek review of the Board of Immigration Appeals’s
*
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).
***
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
(“BIA”) decision upholding the Immigration Judge’s (“IJ”) denial of their claims
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the
petition with respect to Petitioners’ asylum and withholding claims, grant the
petition with respect to Petitioners’ CAT claims, and remand to the BIA for
further consideration of Petitioners’ CAT claims.
1. An applicant for asylum or withholding of removal can demonstrate
membership in a “particular social group” for purposes of refugee status only if the
applicant shows that the group is “(1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).
Whether a group qualifies as a “particular social group” is a question of law that
we review de novo. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
With respect to the first asserted social group, business owners who have
opposed a criminal organization, Petitioners make no attempt to demonstrate either
immutable characteristics or social distinction, and have failed to show that the
proposed group is recognized by society as “a discrete class of persons.” Reyes, 82
F.3d at 1134 (quoting Matter of S–E–G–, 24 I. & N. Dec. 579, 584 (BIA 2008)).
With respect to the second proposed group, people who remain neutral in the
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conflict between criminal organizations and community self-defense groups,
Petitioners again fail to establish that the proposed group is defined with
particularity or recognized by society as a discrete group.1 The BIA did not,
therefore, err in denying Petitioners asylum on the basis of membership in a
particular social group.
2. The BIA did not err in denying asylum on the basis of Petitioners’ political
opinion, namely, neutrality. See Sangha v. INS, 103 F.3d 1482, 1487–89 (9th Cir.
1997) (recognizing that political neutrality can be a political opinion under the
under INA, but only if the neutrality was a “conscious choice” and was
“sufficiently articulated” in an environment where “political neutrality is fraught
with hazard”).
3. Having failed to demonstrate a well-founded fear of persecution on a
protected ground, Petitioners necessarily fail to demonstrate that it is more likely
than not that they will be persecuted on the basis of a protected ground. See
Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). The BIA, therefore, did
not err in denying Petitioners withholding of removal.
1
We need not and do not, therefore, reach the question whether Petitioners’
neutrality is an immutable characteristic “so fundamental to one’s identity that a
person should not be required to abandon it.” See Henriquez-Rivas v. Holder, 707
F.3d 1081, 1084 (9th Cir. 2013) (internal quotation and alteration omitted).
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4. To obtain relief under the Convention Against Torture, an applicant need
only show by a preponderance of the evidence that she would be tortured in the
proposed country of removal, regardless of the reason why. 8 C.F.R. §
208.16(c)(2); Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011). The torture must
be inflicted “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); see also Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). “In
assessing whether it is more likely than not that an applicant would be tortured in
the proposed country of removal, all evidence relevant to the possibility of future
torture shall be considered . . . .” 8 C.F.R. § 208.16(c)(3) (emphasis added).
“[T]he failure of the BIA to consider evidence of country conditions constitutes
reversible error where the Country Report has been submitted as evidence, it
addresses the risk of torture, and the BIA does not even mention it.” Andrade v.
Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015).
Here, Petitioners submitted a country report for Mexico that addresses
torture, but the BIA did not mention the report.2 Accordingly, we grant the petition
2
Although the IJ does mention the report, he appears to conclude that although
torture does occur in Mexico, it only occurs “at the hands of the authorities,” and
that Petitioners are not entitled to CAT relief because they did not specifically
allege fear of persecution “at the hands of the authorities.” Torture need not,
however, be perpetrated by or “at the hands of” government officials to warrant
CAT relief. 8 C.F.R. § 208.18(a)(1); Zheng, 332 F.3d at 1188. Torture instigated
4 17-72274
with respect to the CAT claims and remand to the BIA for further consideration of
those claims, taking into account all relevant evidence, including the country
report.
PETITION FOR REVIEW GRANTED in part, DENIED in part, and
REMANDED.
Each party shall bear its own costs.
by, or inflicted with the acquiescence or consent of, government officials will
suffice. Id.
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