Unreported / Non-Citable
Background
Silvestre Zapien Diaz, a native and citizen of Mexico, petitioned for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal from an Immigration Judge's (IJ) denial of his applications for withholding of removal and protection under the Convention Against Torture (CAT). He also challenged the BIA's denial of his motion to remand based on ineffective assistance of counsel. The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252. The panel, consisting of Circuit Judges Bumatay, VanDyke, and Mendoza, Jr., determined the case was suitable for decision without oral argument.
Zapien claimed fear of harm from gangs and cartels upon return to Mexico. He proposed two particular social groups (PSGs): 'Mexican nationals returning to Mexico' and 'individuals who refuse to support or join gangs and cartels,' and also claimed persecution based on an anti-gang political opinion. The IJ denied relief, and the BIA dismissed the appeal, finding the first PSG not cognizable, the nexus requirement unmet for the alternative PSG and political opinion, and CAT relief unwarranted. The BIA also denied a motion to remand based on ineffective assistance of counsel for failure to comply with Matter of Lozada requirements.
The Court’s Holding
The Ninth Circuit denied the petition for review. First, substantial evidence supported the BIA's determination that Zapien's proposed PSG of 'Mexican nationals returning to Mexico' was not cognizable because it was indistinguishable from the 'returning Mexicans from the United States' PSG rejected as too broad in Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010), which remains good law. Second, substantial evidence supported the finding that Zapien failed to establish a nexus between his fear and either his alternative PSG or his anti-gang political opinion; the record demonstrated only a generalized fear of criminal violence, not a particularized one based on a protected ground. Because Zapien failed to establish nexus, the BIA did not err in declining to independently consider whether the alternative PSG was cognizable.
Third, substantial evidence supported the denial of CAT relief. The record did not compel the conclusion that Zapien is 'more likely than not' to be tortured by or with the acquiescence of a public official in Mexico. Evidence showed Mexican authorities undertook significant efforts between 2011 and 2016 to investigate, prosecute, and imprison cartel members, supporting the conclusion that the government actively opposes cartel violence rather than acquiesces in it. Zapien also failed to demonstrate a 'particularized threat of torture,' presenting no evidence that any gang member identified him as a target. Fourth, the BIA did not abuse its discretion in denying the motion to remand for ineffective assistance of counsel. Zapien did not dispute his failure to satisfy Lozada requirements, and his argument that the BIA should have reviewed the record for 'clear and obvious' ineffective assistance lacked supporting authority. Moreover, Zapien failed to demonstrate prejudice, as the excluded evidence—speculative articles—did not establish nexus to a protected ground or distinguish his PSG from the broad group rejected in Delgado-Ortiz, and would not compel a different result on CAT relief given existing record evidence of Mexican government opposition to cartels.
Key Takeaways
- The Ninth Circuit reaffirmed that 'Mexican nationals returning to Mexico' is not a cognizable particular social group under Delgado-Ortiz v. Holder.
- A generalized fear of criminal violence from gangs or cartels is insufficient to establish the nexus required for withholding of removal; the applicant must show a particularized threat tied to a protected ground.
- Evidence of a foreign government's active efforts to investigate, prosecute, and imprison cartel members supports a finding that the government does not acquiesce in torture for CAT purposes.
- To succeed on a motion to remand for ineffective assistance of counsel, a petitioner generally must comply with the procedural requirements of Matter of Lozada and demonstrate prejudice by showing the excluded evidence may have changed the outcome.
- The BIA does not abuse its discretion in denying a motion to remand where the petitioner fails to satisfy Lozada and the proffered evidence is speculative and fails to establish nexus or a particularized threat of torture.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's strict approach to defining particular social groups in the context of Mexican nationals fleeing generalized gang violence, maintaining the precedent set in Delgado-Ortiz that broad groups based on national origin and return migration are not cognizable. It underscores the high bar for establishing nexus between feared harm and a protected ground, requiring particularized evidence rather than generalized country conditions. The decision also illustrates the court's deference to agency factual findings on CAT claims when record evidence shows government efforts to combat the very groups the applicant fears, and it reaffirms the procedural rigor of the Lozada framework for ineffective assistance claims in immigration proceedings.