Xochihua-Jaimes v. Barr – Ninth Circuit Court of Appeals

9th Circuit Court of Appeals



WILLIAM P. BARR, Attorney General, 


No. 18-71460 

Agency No. A206-105-249 


On Petition for Review of an Order of the Board of Immigration Appeals 

Argued and Submitted March 4, 2020 San Francisco, California 

Filed June 26, 2020 

Granting a petition for review of the Board of Immigration Appeals’ denial of deferral of removal under the Convention Against Torture, and remanding, the panel held that the evidence compelled the conclusion that petitioner would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. 

The panel held that the Board misapplied Ninth Circuit precedents regarding acquiescence of a public official and the possibility of safe relocation, and relied on factual findings that are directly contradicted by the record, in concluding that petitioner failed to meet her burden to establish that she would more likely than not be tortured. Specifically, the panel held that the Board erred by relying on national efforts to combat drug cartels in concluding that petitioner failed to establish acquiescence. Considering petitioner’s testimony regarding multiple instances of acquiescence in the past involving her personal circumstances, and extensive country conditions evidence documenting the widespread problem of public official acquiescence in crimes by Los Zetas cartel generally, the panel held that the record compelled the conclusion that petitioner established the requisite level of acquiescence by public officials. The panel also held that the evidence compelled the conclusion that petitioner could not safely relocate within Mexico to avoid future torture, where there was no affirmative evidence that there is a general or specific area within Mexico where petitioner could safely relocate, and the evidence indicated that Los Zetas operate, and that LGBTQ individuals are at heightened risk, throughout much of Mexico. 

The panel held that the evidence compelled the conclusion that it is more likely than not that Los Zetas will target petitioner for murder or other torture if she is removed to Mexico, and remanded for the Board to grant deferral of removal. 

Petitioner has lived in the United States for almost twenty years, since she fled Mexico as a teenager after being raped multiple times and being ejected from her parents’ home because she is a lesbian. Petitioner eventually became involved in an abusive relationship with Luna, a man connected to Los Zetas, one of Mexico’s major drug cartels. After Petitioner reported Luna for raping her twelve-year-old daughter in 2013, and Luna went to prison as a result, Luna’s family began a campaign of threatening Petitioner that if she ever returned to Mexico, Petitioner and her daughter would be killed. The Immigration Judge (IJ) found that Petitioner did not carry her CAT burden, and the Board of Immigration Appeals (BIA) affirmed. We grant the petition, and hold that Petitioner is entitled to deferral of removal pursuant to CAT. 

Finally got husband in prison for sexually molesting 12 year old daughter.  CPS took all the kids.  

Luna’s older children came from CA to AZ and threatened with gun etc.  “Friend” promised to lend $2,000 if she would come with.  Turned out was deal to take some guys to move drugs.  She had no drugs in car and did not even know about it but got 1.5 years in prison.  After she got out, ICE tried to deport her. The IJ claimed all that happened to her and her daughter was not torture.  Or that she specifically was in danger of torture.  – in spite of evidence!!  She could move to another part of Mexico and the gang wouldn’t find her.  Even if tortured, it wouldn’t be the government.  BIA affirmed holding that she could not prove she would be tortured in Mexico. 

On appeal to the 9th Circuit they held that she met her burden on everything!  Lower court put burden on her to show she could not live anywhere in Mexico safely.  That is not the legal burden.  Extensive evidence shows that gang operates throughout Mexico. Even if they didn’t find her, violence against LGBT is going up.


16 States v. Trump

No. 19-16299 

D.C. No. 4:19-cv-00872- HSG 

9th circuit decision, Filed June 26, 2020 

The panel affirmed the district court’s judgment holding that budgetary transfers of funds for the construction of a wall on the southern border of the United States in California and New Mexico were not authorized under the Department of Defense Appropriations Act of 2019. 

Section 8005 and Section 9002 of the Act (collectively “Section 8005”) was invoked to transfer $2.5 billion of Department of Defense funds appropriated for other purposes to fund border wall construction. Sixteen states, including California and New Mexico, filed suit challenging the Executive Branch’s funding of the border wall. The district court granted California and New Mexico’s motion for partial summary judgment, and issued declaratory relief, holding the Section 8005 transfer of funds as to the El Centro and El Paso sectors unlawful. 

The panel held that California and New Mexico established the requisite Article III standing to challenge the federal defendants’ actions. 

Concerning the injury in fact element of standing, the panel held that California and New Mexico alleged that the actions of the federal defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as to their sovereign interests in enforcing their environmental laws. First, the panel held that California and New Mexico each provided sufficient evidence, if taken as true, that would allow a reasonable fact- finder to conclude that both states would suffer injuries in fact to their environmental interests, and in particular, to protect endangered species within their borders. Second, the panel also held that California and New Mexico demonstrated that border wall construction injured their quasi-sovereign interests by preventing them from enforcing their environmental laws. 

Concerning the causation element for standing, the panel held that California alleged environmental and sovereign injuries that were fairly traceable to the federal defendants’ conduct. The panel held that with respect to most of the environmental injuries, causation was apparent. The panel also concluded that the causation requirement was likewise satisfied for the injuries to California’s and New Mexico’s quasi-sovereign interests. 

Concerning the redressability element of standing, the panel held that a ruling in California and New Mexico’s favor would redress their harms. Without the Section 8005 funds, the Department of Defense would have inadequate funding to finance construction of the projects, and this would prevent both the alleged and environmental and sovereign injuries. 

The panel held that California and New Mexico had the right to challenge the transfer of funds under the Administrative Procedure Act (“APA”). Specifically, the panel held that Section 8005 imposed certain obligations upon the Department of Defense, which it did not satisfy. The panel further held that California and New Mexico, as aggrieved parties, could pursue a remedy under the APA, as long as they fell within Section 8005’s zone of interests. The panel held that California and New Mexico were suitable challengers because their interests were congruent with those of Congress and were not inconsistent with the purposes implicit in the statute. The panel concluded that California and New Mexico easily fell within the zone of interests of Section 8005. 

The panel held that Section 8005 did not authorize the Department of Defense’s budgetary transfer to fund construction of the El Paso and El Centro Sectors. Specifically, the panel concluded that the district court correctly determined that the border wall was not an unforeseen military requirement, and that funding for the wall had been denied by Congress. Absent such statutory authority, the Executive Branch lacked independent constitutional authority to transfer the funds at issue here. The panel concluded that the transfer of funds was unlawful, and affirmed the district court’s declaratory judgment to California and New Mexico. 

Finally, the panel declined to reverse the district court’s denial of California and New Mexico’s request for permanent injunctive relief, without prejudice to renewal. 



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