Tapia Madrigal v. Holder

For purposes of granting asylum under the Convention Against the Torture, the Board of Immigration Appeals should view the events leading to the past and present “fear of persecution” under the “totality of the circumstances.”

Victor Hugo Tapia Madrigal moved to the United States from Mexico after his involvement in the Mexican military and aiding with the arrest of several members of the Los Zetas drug cartel. In 2009, the United States began removal proceedings, and Tapia Madrigal sought asylum. The immigration judge determined that Tapia Madrigal was not eligible for relief, and the Board of Immigration Appeals (“BIA”) dismissed his appeal and denied asylum, concluding that each of the events in question, when viewed in isolation, did not rise to the level of “fear of persecution” for past or future acts required. The Ninth Circuit reversed the BIA’s decision and granted the petition, holding that the events that Tapia Madrigal claimed warranted a “fear of persecution” did rise to the necessary level because they should be viewed under a “totality of the circumstances,” rather than in isolation. The panel remanded Tapia Madrigal’s claim that he was persecuted because of his “membership in a particular social group” because the incidents that occurred after he left the military may rise to the required level of past persecution. The panel also remanded Tapia Madrigal’s claim of fear of future prosecution because the BIA did not adequately consider “Mexico’s ability to control Los Zetas.” Next, the panel rejected the BIA’s finding of a “lack of a causal nexus between past or future persecution and a protected ground” and granted Tapia Madrigal’s petition on his claim for withholding of removal. Third, under the Convention Against Torture, the BIA must consider all the “country condition evidence.” Because the BIA did not, the panel remanded for the BIA to “determine whether it is more likely than not” that Tapia Madrigal would be tortured if he returned to Mexico. PETITION GRANTED.