UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LUCERO XOCHIHUA-JAIMES, No. 18-71460 Petitioner, Agency No. v. A206-105-249

WILLIAM P. BARR, Attorney General, Respondent. OPINION

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

Before: EUGENE E. SILER, * KIM MCLANE WARDLAW, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

* The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 XOCHIHUA-JAIMES V. BARR

SUMMARY **

Immigration

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

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. XOCHIHUA-JAIMES V. BARR 3 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.

COUNSEL Max Carter-Oberstone (argued) and Brian Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco, California, for Petitioner. Rebecca Hoffberg Phillips (argued) and Jessica D. Strokus, Trial Attorneys; Anthony C. Payne, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 XOCHIHUA-JAIMES V. BARR

OPINION M. SMITH, Circuit Judge:

Lucero Xochihua-Jaimes, a native and citizen of Mexico, petitions for review of the BIA’s denial of her Convention Against Torture (CAT) claim. Petitioner has lived in the United States for almost twenty years, since she fled Mexico as a teenager after being raped mu