UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
3260 NORTH PINAL PARKWAY

 

FLORENCE, ARIZONA 85132
IN THE MATTER OF: IN REMOVAL PROCEEDINGS
BERNABE GARCIA, Jose Ulises F ile No. A202-063—596
RESPONDENT DATE: JAN () 7 2020
CHARGE: INA 5 212(a)(7)(A)(i)(l)

APPLICATIONS: Asylum pursuant to INA & 208
Withholding of Removal pursuant to INA 5 241 (b)(3)
Protection under the Convention Against Torture

 

 

 

FOR RESPONDENT: FOR THE DEPARTMENT:
Mary Margaret Cowan, Esquire Jeremy Martinez, Esquire

Pima Public Defender Wilbert Rocker, Esquire

33 North Stone Avenue Assistant Chief Counsel

2lst Floor Department of Homeland Security
Tucson, Arizona 85701 3250 North Pinal Parkway

Florence, Arizona 85132

 

MEMORANDUM ORDER AND DECISION OF THE IMMIGRATION COURT
I. PROCEDURAL HISTORY

Respondent is a thirty-ñve year-old native and citizen of Mexico. (Exh. 1, Form I-862; see also
Ex. 4, Form I—589.) Re3pondent entered the United States on or about April 20, 2015. (Id.) The
Department of Homeland Security (“DHS” or ““Department”) issued a notice to Appear (“NTA”)
against Respondent on April 20, 2015, alleging:

(1) You are not a citizen or national of the United States;

(2) You are a native of Mexico and a citizen of Mexico;

(3) On or about April 20, 2015, you applied for admission into the United States
from Mexico at the DeConcini Port of Entry in Nogales, Arizona;

(4) You are, by your own admission, an intended immigrant not in possession
of a valid Immigrant Visa as required by the Immigration and Nationality
Act and you are not exempt from this documentary Requirement.

BERNABE GARCIA
A202—063—596

(Id.) However, after the initial filing of the NTA, DHS filed a Form I—261, amending allegation 4
of the NTA. (See Exh. 2, Form I—261.) Allegation 4 was amended as follows:

(4) You did not then possess a valid unexpired immigrant visa, reentry permit,
border crossing card, or other valid entry dócument required by the Act.

(Id.) Based on these modified allegations, the Department charged Respondent with removability,
pursuant to section 212(a)(7)(A)(i)(1) of the Immigration and Nationality Act (“INA” or “Act”) as
“an immigrant, who, at the time of application for admission, [was] not in possession of a valid
unexpired immigrant visa, reentry perrnit, border crossing card, or other valid entry document
required by the Act…” ld. On April 24, 2015, the Department filed the NTA with the Immigration
Court, which initiated removal proceedings against Respondent, and vested this Court with
jurisdiction. See id.; see also 8 C.F.R. 5 1003.14(a) (2018).

On July 6, 2015, Respondent, through written pleadings, admitted all modified factual allegations,
conceded removability, and declined to designate a country of removal. (Ex. 3, Respºt Written
Pleading.) Based on Re5pondentºs admissions and concession, the Court sustained the charge of
removability pursuant to INA ; 212(a)(7)(A)(i)(l), and directed Mexico as the country of removal.
See INA ¿$ 240(c)(1)(A); see also 8 C.F.R. & 1240.10(c). On July 6, 2015, Respondent submitted
a Form I-589, Application for Asylum and for Withholding of Removal. (Exh. 4, Form I-589.)
Respondent also checked the box requesting protection under the Convention Against Torture.
(Id. at 5.) Accordingly, the Court will consider Respondentºs application to be an application for
asylum under INA 5 208, Withh01ding of removal under INA ¿¿ 241 (b)(3), and for protection under
the Convention Against Torture (CAT). (Exh. 4, Form 1—5 89.)

At numerous hearings on the matter, Respondent testified in support of his Form 1—5 89. An expert
witness also testified in support of Respondent's application for relief. At the conclusion of the
December 18, 2019, hearing, the Cou1t reserved ruling on a decision. This is the decision of the
Court.

II. REMOVABILITY

Through written pleadings, Respondent admitted all the modified factual allegations, as set forth
in the NTA and the Form I—261. (Ex. 1, Form I—862; Ex. 2, Form I—261 .) Specifically, Respondent
admitted that he is a native and citizen of Mexico, and that he is not a citizen of the United States.
Respondent also admitted that he applied for admission into the United States at the DeConcini
Port of Entry on or about April 20, 2015, and that he did not then possess a valid entry document
as required by the INA. Based on the evidence of record, including Respondentºs admissions, the
Court finds that that clear, convincing, and unequivocal evidence supports a finding that
Respondent is subject to removal pursuant to INA 5 212(a)(7)(A)(i)(1). Thus, the Court sustains
the sole charge of removability.

BERNABE GARCIA
A202—063-596

III. . EVIDENTIARY RECORD

A. Documentary Evidence

In reviewing Respondent s applications for relief, all admitted evidence and testimony was
considered in its entirety, regardless of whether specifically referenced in the text of this decision,
and is incorporated as part of the factual basis and substantial evidence upon which this Court
bases this instant decision.

During the course of the proceedings, the Court admitted the following exhibits into the record:

Exhibit l: Notice to Appear, Form I—862 (dated July 6, 2015)

Exhibit2: Additional Charges of Inadmissibility, Deportability, Form I—261 (dated July 6,
2015

Exhibit 3: Respondentºs Written Plea

Exhibit 4: Application for Asylum, Withholding of Removal, and CAT, Form I—5 89

Exhibit 5: Respondent's Motion to Continue and Expand Time Period for Filing Documents
and Witness List

Exhibit6: DHS'S Opposition to the Respondentºs Motion to Continue Merit Hearing and
Expand Time Period for Filing Documents and the Witness List

Exhibit 7: DHS Exhibit List for Evidentiary Hearing

Exhibit 8: DHS Exhibit List for Evidentiary Hearing _

Exhibit 9: Respondent's F iling of Informe Ayotzínapa Report in English and Spanish
(received November 15, 2016)

Exhibit lO: Respondentºs Transcription of Recorded Interview Conducted with J ournalists
Anabel Hernández and Steven Fisher (received October 13, 2015) (Tabs A—B)

Exhibit 10A: Respondentºs Filing of Two News Magazine Articles Previously Filed in Spanish
(received January 4, 2016) (Tabs A—B)

Exhibit 11A: Resmndentºs Disclosure of Witnesses with Attached Curriculum Vitaes (received
October 13, 2015)

Exhibit 11A: Respondent's Motion to Permit Re3pondent to File Documents and Required
Translations (received Dec. 31, 2015)

Exhibit 12: Respondent's Documentary Evidence in Support of Respondent's I—589
Application— for Identiñcation Only (received October 13, 2015)

Exhibit 12A: Respondentºs Documents in Support of Respondent's 1—589 Application (received
December 31, 2015) (Tab A — I)

Exhibit 13: Re5pondentºs Filing of Documentary Evidence Offered in Support of Respondent's
I—5 89 Application (received October 13, 2015)

Exhibit 14: Respondentºs Motion to Continue Merits Hearing (received Oct. 13, 2015)

Exhibit 15: Respondentºs Filing Proposed Order of the Court Inadvertently Not Attached to
Motion to Continue Merit Hearing (received October 13, 2015)

Exhibit 16: DHS”S Opposition to Respondentºs Motion to Continue Merit Hearing (received
October 20, 2015)

 

' Exhibits 12, 27, 3 IA, 32, and 61 were admitted for identification purposes only, and as such, the Court did not
consider these exhibits in issuing a decision. The portions of Exhibit 57, Ayotzinapa Report II, which were not
translated from Spanish to English were also not considered by the Court in issuing its decision.

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BERNABE GARCIA

A202—063—596
Exhibit 17:
Exhibit 1 8:
Exhibit 19:
Exhibit 20:
Exhibit 21 :
Exhibit 22:
Exhibit 26:

Exhibit 27:

Exhibit 28:
Exhibit 29:

Exhibit 30:

Exhibit 31A:

Exhibit 31B:

Exhibit 32:

Exhibit 32A:

Exhibit 33:

Exhibit 33A:

Exhibit 33B:

Exhibit 33 C:

Exhibit 33D:

ReSpondentºs Filing of English Translation of Five News Magazine Articles
Previously Filed in Spanish (received February 8, 2016) (Tab A —E)
Respondentºs Filing of Articles and Documents (received February 8, 2016) (Tabs
A—D)

Respondentºs Filing of Articles and Documents (received February 18, 2016) (Tabs
A—B)

Respondent”s Filing of Mexico Country Report (received March 4, 2016)
Respondentºs Filing of Articles (received March 2, 2016) (Tabs A—E)
Respondent's Filing of Articles (received March 4, 2016) (Tabs A—C)

DHS Exhibit List for Evidentiary Hearing (marked into evidence on May 22, 2019)
(Tabs A—D)

Respondentºs Filing Documentary Evidence in Support of Respondent's I-589
Application for Identification Only until English Language Translation is
Complete; Informe Ayo!zinapa ]] report (received May 6, 2016)

Respondent's Filing Documents in Support of Respondent's I-589 Application
(received June 24, 2016)

ReSpondentºs Filing Documents in Support of Re5pondentºs I-589 Application,
Translated Proceso Articles (received July 1, 2016)

Respondent's Filing of Narcoland; The Mexican Drug Lords and their Godfathers,
a book by Anabel Hernández (received November 15, 2016) (Not admitted, as it is
not relevant)

Respondentºs Exhibit List for Removal Proceedings: English translation of
Mexican Attorney General Report—for Identification Only (received September
12, 2017) (marked into evidence on September 18, 2018)

Respondentºs Exhibit List for Removal Proceedings: English translation of
Mexican Attorney General Report (received September 18, 2018)

Respondentºs Exhibit List for Removal Proceedings— for Identification Only
(received on September 12, 2017) (marked into evidence on September l8, 2018)
(Tabs A—D)

Respondentºs Exhibit List for Removal Proceedings: Unofficial English translation
of True Night of Iguala (received September 18, 2018)

Respondentºs Filing of English Translated Attorney General of Mexico's
Investigation Report of the Disappearance of the 43 Students in Iguala, Mexico
(received August 17, 2018) (pp. 1—170)

Respondent's Filing of English Translated Attorney General of Mexico's
Investigation Report of the Disappearance of the 43 Students in Iguala, Mexico
(marked into evidence on September 18, 2018) (pp. 171—340)

Respondentºs Filing of English Translated Attorney General of “Mexico's
Investigation Report of the Disappearance of the 43 Students in Iguala, Mexico
(marked into evidence on September 18, 2018) (pp. 341—510)

Respondent's Filing of English Translated Attorney General of Mexico's
Investigation Report of the Disappearance of the 43 Students in Iguala, Mexico
(marked into evidence on September 18, 2018) (pp. 511—680)

Respondentºs Filing of English Translated Attorney General of Mexico”s
Investigation Report of the Disappearance of the 43 Students in Iguala, Mexico
(marked into evidence on September 18, 2018) (pp. 681—820)

BERNABE GARCIA
A202—063-596

Exhibit 50: ResPondentºs Filing Proposed Exhibit No. 44 (submitted August 12, 2019) (Tabs
A—D)

Exhibit 51: Respondentºs Filing of Documents that were originally filed on January 17, 2017
but do not appear on the Court”s list of exhibits (received July 10, 2019) (Tabs A—
G)

Exhibit 52: Respondent's Filing of Supplement Brief in Support of Asylum Application [To be

- considered a continuation of Exhibit 45: Brief in Support of Respondentºs Asylum

Application] Proposed Exhibit 59 (received October 15, 2019)

Exhibit 53: Respondentºs Filing: Experts Say Authoritarian Regimes Abuse Interpol Notices,
Jack Rogers, September 12, 2019 (received October 15, 2019)

Exhibit 54: Re5pondentºs Filing of Proposed Exhibit 58 (received October 15, 2019)
(Tabs A—F) ' _

Exhibit 55: Respondentºs Filing Advice to the Court Regarding the Status of Translation of
Respondentºs Admitted Exhibit 27 (ROF 32, 33, 34) and Respondent's Admitted
Exh. 42 (ROP 36) (received October 15, 2019)

Exhibit 56: Respondent's Filing Proposed Exhibit: Institutional Reports (received October 15,
2019) (Tabs A—D)

Exhibit 57: Re3pondent's Filing: Ayotzinapa Report II: Forward Steps and New Conclusions
on the Investigation, Search, and Care for Victims. Summary. Interdisciplinary
Group of Independent Experts (IGIE) Organization of American States (received
October 15, 2019) (Spanish Portions Without Translation Withdrawn)

Exhibit 58: Respondentºs Filing of Documents (received October 15, 2019) (Tabs A—B)

Exhibit 59: Respondentºs Filing Transcribed Record of the Testimony of Respondent Jose
Ulises Bernabe Garcia October 26, 2015; May 9, 2016; July 12, 2016 (received
October 15, 2019)

Exhibit 60: DHS Exhibit List Updated Country Conditions (received October 15, 2019)

Exhibit61: Respondentºs Proposed Supplemental Brief— for Identification Only (received

' December 18, 2019)

In addition to the documentary evidence contained in the record, the Court also considered
Respondentºs testimony before the Court, and Respondentºs expert witness's testimony before the
Court.

B. Summary of Re5pondentºs Claim

Respondent testified that he is afraid to return to Mexico because he fears persecution on account
of his political opinion, and his membership in a particular social group. Respondent is an attorney,
and served as a magistrate to the Police Department of Iguala, in the state of Guerrero, Mexico.
Respondent's duties at the Police Department included checking in those who were arrested and
charged with a crime and brought to the police station. Respondent created a record by
documenting a detaineeºs information in the official register, and noting their crimes. He also
created an inventory of a detaineeºs personal belongings. Additionally, Respondent sentenced
those who had committed misdemeanors to pay fines, and collected the fines when a detaineeºs
family members arrived to the station to take the detainee home.

On September 26, 2014, forty—three Mexican student teachers from a rural college were on the

way to a protest when they were kidnapped. (See Ex. 4, Form 1—5 89, at Supplement B; see also
Ex. 9, Ayotzinapa Report 1.) All forty—three students are presumed dead. The case has brought

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controversy against the Mexican government as many reliable reports have demonstrated that the
Mexican government engaged in a cover-up of the real incidents of that night. According to the
official Mexican government report of the incident, hereinafter known as the “Historic Truth,” the
forty—three student teachers were arrested by the Iguala Police after the students hij acked buses.
The Mexican government contends that the Iguala Police, after imprisoning the student teachers,
turned the students over to a local drug cartel, the Guerreros Unidos, at the insistence of the local
mayor. (Ex. 9, Ayotzinapa Report I, at pg. 121—124.) The local drug cartel then allegedly
murdered all forty-three students, and burned their bodies at a local landfill. (Id.) After burning
the bodies, the local cartel members then reportedly collected the remains and ashes, and put them
in the river. Only the bone fragments of two students have been identified by DNA testing. (Ex.
19, Tab A, 2nd outside report says Mexico students not burned at dump, THE WASHINGTON POST
(Feb. 9, 2016).) The Mexican government contends that all of these events occurred without the
knowledge or participation of the Mexican government, the Guerrero State, and Mexican military
ofñcials.

Respondent, however, testif1ed that he was on duty at the Iguala Police Station the night of
September 26, 2014, and that the forty-three students were never brought into the Iguala Station.
(ld. , at pg. 65; see also Ex. 10, Recorded Interview.) Re3pondent stated that there were only six
people detained at the Iguala Police Station the night of September 26, 2014. According to
Respondent, all those who were detained were arrested for public drunkenness, and the detainees
were all released by 2:20 am. (Ex. 9, Ayotzinapa Rep01t I, at pg. 65.) Respondent explained that
none of the detainees were students, and that at no point that night were any students brought to
the Iguala Police Station.

Furthermore, Respondent stated that during the night of September 26, the police station was
visited by members of the Mexican military, the Mexican state police, and Mexican state officials.
Respondent testif1ed that he was only told there was a “red alert” involving some students, buses,
and shootings in the area. (Ex. 10, Recorded Interview, at pg. 20.) Respondent was advised to be
on the lookout for attacks on the police station, but he was not told anything else. The Mexican
military, state police, and state officials searched the police station, and inspected the weapons of
the ofñcers at the station. (Ex. 9, Ayotzinapa Report I, at pg. 65.)

The next morning, Respondent and all the police on duty the night of September 26, were taken to
the state police station. While there, Respondent was questioned about the disappearance of the
students, and asked why detainees had been released from the station. Respondent insisted that he
knew nothing about the students, and stated that the detainees released were not students.
Respondent also said that he did not think it was proper that the students” disappearances were
being investigated in this way, when Mexican law requires a period of 72 hours before a person is
considered missing. Respondent also testiñed that a representative from the Mexican Attorney
General threatened him, and subjected him and the other police ofñcers to a series of tests, such
as looking for gun powder residue, and taking the off1cersº fingerprints. Respondent was not
charged, and he was not given an opportunity to provide testimony to the Mexican authorities.
Respondent and a few officers were then released, but 22 police ofñcers remained in custody,
including Respondent's brother-in-law.

According to Resmndent, the 22 ofñcers were taken into state police custody, where they were

severely beaten and tortured, including receiving electric shocks to the genitals. These beatings
and torture were used as an attempt to force the ofñcers to claim responsibility for the kidnapping

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and murder of the 43 students. Respondent stated that he heard what the detained ofñcers endured
from the news and his family members.

The next day after being called to the police station, Respondent went back to work, and nothing
extraordinary happened. Two days later, however, Respondent and other police personnel were
informed that they were on administrative leave. Respondent's home was also later searched and
ransacked by Mexican military police. (Ex. 10, Recorded Interview, at pg. 38.) Respondent
alleged that this search was illegal. The military police stole from Respondent's home, and
threatened Respondentºs family at gunpoint. (Id.) Respondent stated that his mother called him,
and told him not to return home because they had been threatened. Re5pondent then decided to
live with his brother, a few kilometers away. During that time, the police and military continued
to watch Respondentºs motherºs home.

After reading numerous statements and reports in the Mexican media that blamed the Iguala police
for the disappearance and murder of the 43 students, Respondent decided to speak with the press.
Respondent stated that the students were never arrested by the Iguala police or held at the Iguala
Police Station, and that, instead, it was the Mexican military who had custody of the students.
Respondent first spoke with Anabel Hernández (“Ms. Hernández”), an investigative journalist with
the news magazine Proceso, in October 2014. Respondent also gave a formal interview to Ms.
Hernández in February 2015. Ms. Hernández testified as an expert witness during Respondent's
removal hearings. Additionally, some of the surviving student teachers of the September 26, 2014,
incidents have also spoken out, and they stated that the Mexican military were involved in the
events of that night.

Respondent has refused to retract his statements to the press about the Mexican governmentºs
involvement in the September 26 incidents. As a consequence, Respondent testified that his family
has been under military surveillance and threatened. Respondent believes the Mexican military is
still searching for him, and if he were returned to Mexico, he would be detained and tortured, as
were the other Iguala police ofñcers, in order to get Respondent to publicly recant his statements.

C. Summary of Anabel Hernándezºs Testimonv

Hernández has been an investigátive reporter for 23 years, and has spent 16 of those years
investigating abuses of power. Hernández has also published books on corruption in Mexico. She
has also written for the Mexican news media for the last several years, including Proceso news
magazine.

In October 2014, Hernández began her investigation into the story of the missing 43 students. (See
Exh. 32, Respºt Exh. List; Exh. 32a, True Night of Iguala.) Hernández used her numerous sources
within the Mexican government, which she accumulated over the course of her career, to

investigate the disappearances. Hernández first arrived in Iguala, and began interviews, at the end
of October 2014.

Throughout her investigation, Hernández has spoken to survivors of the September 26, 2014,
incidents, who have provided photographs and videos taken by cellphone that night. She has also
talked with attorneys, families, and neighbors of the surviving students, and other witnesses who
witnessed the incidents of that night. She gained access to testimony featured in police reports
from the bus drivers and soccer players who were also attacked that night, as well as other

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witnesses. Witnesses to the attacks, such as Fernando Marin, the only survivor from the third bus,
verified to Hernández that officers from the Mexican state and municipal police, who had been
monitoring the buses, attacked the buses and the students within by shooting at them. The
survivors also stated that many of those who were wounded went to a nearby hospital, but were
informed by & nurse that they could not be treated. The survivors noted that about 14 Mexican
military personnel were present at the hospital.

Through ministerial reports and student testimony, Hernández verified that military personnel
searched students for weapons, took pictures of them, and demanded their true names, threatening
that they would not be found if they did not provide their true names. According to Hernández,
the testimony of the military varies greatly; some military members said they searched students,
some stated that they took pictures, and some said that they did not do any of those actions.

Hernández testified that, at the end of the night of September 26th, three students, a driver, & soccer
player, and a taxi passenger had all been killed. There were also several wounded, including
approximately 20 students, passersby, and journalists. Furthermore, initially 53 students could not
be located; however, the number missing was later settled at 43. On the morning of September
27, 2014, the surviving students went to the Guerrero state to file a report of the assault. This is
where journalists at the news conference spread the news about the events of the prior night.
Hernández also verified that the official Mexican government version of the events, also known
as the “historic truth,” is that the local Iguala police forces kidnapped the students, and a local gang
killed the students.

Hernández first encountered Respondent when she was at the office of an attorney representing
the victims” families, as well as a detained Iguala police officer. Respondent was also at the
attomeyºs office, and joined into a conversation between Hernández and the attorney, discussing
the incidents. Respondent confirmed that the 43 missing students were never taken to the Iguala
police station, in contradiction to the historic truth. Hernández eventually interviewed Respondent
three times over the course of her investigation, and she testified that she found Respondent to be
credible and consistent in his story over the course of those interviews.

Hernández has done extensive research on the issue, and discovered that the Mexican federal
police and the Mexican army were involved in the disappearance of the 43 students. Hernández
testified that she knew it was a sensitive accusation, so she sought out confirmation from multiple
sources. On December 16, 2004, Hernández published her first article in Proceso implicating the
Mexican military in the attacks. (See Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN MEXICO 225—
26 (Verso, 2018).) After Hernández published this article, the Mexican government tried to
discredit her, and issued a localization order for her to appear before the Procuraduría General de
la República (“PGR”) in January 2015.

Hernández was also able to obtain a copy of a non—public legal audit conducted by the PGR, which
confirmed Respondent's account of torture of the detained police officers. Hernández testified
that the report and the exams within it documented fractured bones, scratches, and pointed marks,
consistent with electric shocks close to the genitals of several detained officers. Hernández also
verified the torture of the officers during interviews with the detained officers themselves.

Hernández testified that, without speaking to Respondent, she would never have requested the
documentation involving interviews with military personnel about the events of September 26th.

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Respondent's statements led Hernández to discover an extensive amount of information proving
that the Mexican military was involved in the student massacre. Hernández also testiñed that her
search is not over, because it is still unknown who made the students disappear, and where they,
or most likely their remains, are located.

IV. BURDEN OF PROOF AND CREDIBILITY

The respondent bears the burden to establish that he is eligible for any requested benefit or
privilege, and that it should be granted in the exercise of discretion. See INA & 240(c)(4)(A). If
the evidence indicates that one or more of the grounds for mandatory denial of the application for
relief may apply, the respondent shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply. See 8 C.F.R. €3' 1240.8(d); see also Matter of M—B-C—, 27
I&N Dec. 31 (BIA 2017).

To determine if the respondent has met his burden, the Court will assess whether his testimony is
credible, persuasive, and fact-specific. See INA é240(c)(4)(B). In applying a “totality of the
circumstances” approach, the Court assesses:

the demeanor, candor, or reSponsiveness of the applicant or witness, the inherent
plausibility of the applicant's or witnessºs account, the consistency between the
applicantºs or witness's written and oral statements . . . the internal consistency of
each such statement, the consistency of such statements with other evidence of
record (including the reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicantºs claim,
or any other relevant factor.

INA % 240(c)(4)(C). There is no presumption of credibility. ld. A respondent's testimony is
typically sufñcient in and of itself to sustain respondent's burden of proof for asylum, withholding
of removal, and other relief applications. See 8 U.S.C. 5 1158(b)(1)(B)(ii) (as amended); see also
Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (Under the REAL ID Act, an applicant
may establish eligibility on his credible testimony alone, without any corroboration. 8 U.S.C.
5 1 158(b)(1)(B(ii).) When the Court deems it necessary, corroborating evidence must be provided
unless the respondent does not have the evidence and cannot reasonably obtain it. See Matter of
S—M-J-, 21 I&N Dec. 722, 724—26 (EIA 1997); see also Matter 0fL-A-C-, 26 I&N Dec. 516, 518
(BIA 2015). Furthermore, under the REAL ID Act, inconsistencies no longer need to go to the
heart of the claim; however, when an inconsistency does go to the heart of the claim, it is of great
weight. See Shrestha v. Holder, 590 F.3d 1034, 1046—47 (9th Cir. 2010) (applying REAL ID Act).

Upon review of the totality of the circumstances, the Court finds Respondent credible. Notably,
the Court finds that Respondentºs testimony was detailed, consistent, and speciñc. In particular,
Respondent's accounts of the actual events that occurred on September 26, 2014, and the events
that occurred after that night, including Respondent's interrogation, the abuse of detained police
ofñcers, and the ransacking of Respondentºs home, were consistent with the evidence of record.
Additionally, Respondent's personal account of what he witnessed on the night of September 26th
was corroborated and consistent with the discoveries made by Ms. Hernández through her
investigative reporting. Furthermore, Re5pondent explained any discrepancies between his written
declaration and his in—court testimony to the satisfaction of this Court. As Respondent's testimony

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was credible, persuasive, and fact-specific, he has met his burden of proof and persuasion in
connection with his claim and need not corroborate it further. See INA & 208(b)(1)(B)(I); see also
8 C.F.R. % 1208.13; see also Matter ofMogharrabi, 19 I&N Dec. 439, 445 (BIA 1987).

V. ASYLUM

To qualify for asylum, the alien must establish that: (1) his application was filed timely within one
year of his last arrival in the United States; (2) he is not statutorily barred from relief; (3) he is a
refugee within the meaning of INA ?; 101(a)(42)(A); and (4) he merits asylum as a matter of
discretion. INA ¿¿ 208(b)(1)—(2); Matter of Acosta, 19 I&N Dec. 211, 218—19 (BIA 1985),
modified on other grounds by Mogharrabi, 19 I&N Dec. at 446; 8 C.F.R. % 1208.13(a). Here,
Respondent timer filed his application. He last arrived in the United States on or about April 20,
2015, and filed his Form I-589 on July 6, 2015. (See Ex. 1, Form I—862; see also Ex. 4, Form I—
589.) While Respondent timely filed his application, DHS alleges that he is barred from relief as
it alleges there are serious reasons for the Court to believe that Respondent committed a serious,
non—political crime in Mexico. See 8 USO. % 1158(b)(2)(A)(iii).

A respondent is ineligible for asylum and withholding of removal if there are serious reasons for
believing that he committed a serious, non-political crime outside the United States prior to arrival.
See id.; see also McMullen v. INS, 788 F.2d 591, 599 (9th Cir. 1986), overruled in part on other
grounds by Barapind v. Enomoto, 400 F .3d 744, 751 n.7 (9th Cir. 2005) (en bano). The court
interprets “serious reasons to believe as being tantamount to probable cause.” Go v. Holder, 640
F.3d 1047, 1052 (9th Cir. 2011) (internal quotation marks and citation omitted)). The Immigration
Judge is not required to balance the seriousness of the offense against the degree of persecution
feared. See INS v. Aguirre—Aguirre, 526 U.S. 415, 432 (1999).

Here, the Department asserts that Respondent was involved in the students” disappearances, in that
he booked the students into the Iguala Police Station. In support of this argument, the Department
cites witness statements which state that the students were taken to the Iguala Police Station and
booked on the night of September 26, 2014. This is contradictory to Respondentºs testimony that
the students were never arrested or brought to the Iguala Police Station on the night of September
26, 2014. The Department points to the summary of the Ayotzinapa Report II, which states that
“[a]ccording to the statements of several defendants given to the PGR [Ofñce of the Attorney
General of the Republic], a group of normal school students had been taken to these headquarters.”
(Ex. 60, DHS Exh. List, at Tab G, pg. 11.) In that summary, the Rep01t also cites statements from
the two surviving students of the attack, who stated that “they observed the normal school
students... being arrested and taken away in patrol cars to the Iguala Municipal Police
Headquarters.” (ld…) According to the Report, other witnesses testified that, at the police
headquarters, a police ofñcer standing guard outside the door “told them that there was a group of
normal school students being held in custody there.” (Id.)

The Department also points to other witness statements throughout the record indicating that the
students were at the Iguala Police Station on the night of September 26, 2014. (See Ex. 9,
Ayotzinapa Report I, pg. 66—67 (& statement made by Oscar Rodríguez Salgado to the PGR noted
that there would be a group of student teachers taken from the Iguala police station in at least two
or three patrol cars; also a statement from the deputy secretary of the Iguala Police noting that
there were between 12 and 16 detainees at the Police Station, but their faces were covered; other
statements by various sources that a group of 16—17 student teachers were taken to holding cells

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that night); see also Ex. 10, Interview with Ms. Hernández, pg. 27 (Ms. Hernández asked
Respondent if he had seen the declaration in which a man, Hugo Hernandez Arias, claimed that
Respondent was talking with some young people at the Iguala Police Station the night of
September 26, 2014. Respondent stated that he never spoke with any young people at the station,
and that it was a lie. Respondent also stated that interrogating suspects is not in his line of duty).)

The Department further notes that Respondent has an active Red Notice issued by the Office of
Interpol Mexico calling for Respondent's arrest for the crimes of conspiracy to commit a crime
and kidnapping. (Ex. 40, Re5p't Interpol Red Notice; see also Ex. 8, DHS Exh. List, Tab A,
Apprehension Order.) The Department contends that Interpol does not issue red notíces that
violate Interpolºs “Constitution, which forbids the Organization from undertaking activities of a
political, military, religious or racial character.” (Ex. 41, International Notices System.)
Consequently, the Department argues that Interpol would not create a Red Notice calling for the
execution of an arrest warrant if the subject of the Red Notice, in this case, Respondent, would be
tortured or persecuted. The Department produced no evidence to substantiate this assumption.

The Court, however, does not ñnd serious reasons to believe Respondent committed a serious,

non-political crime in Mexico prior to his arrival in the United States. See 8 U.S.C.

& 1158(b)(2)(A)(iii). Numerous plausible sources, including sources submitted by DHS, note that
the historic truth created'by the Mexican government has unraveled over numerous investigations
into the incident. (See Ex. 38, DHS Exh. List, Tab E, at pg. 45, Azam Ahmed, Disappearance of
43 Mexican Students Must Be ]nvestigated Anew, THE NEW YORK TIMES (Jun. 5 , 2018); Ex. 38,
DHS Exh. List, Tab F, Mexico cannot move forward “without addressing the shadows of the past ',

says UN rights chief, UN NEWS (Apr. 10, 2019); Ex. 39, DHS Exh. List, Tab A, Mexico: The

Government creates a search party to find the 43 students from Ayotzinapa, EL PERIÓDICO (Apr.

18, 2019) (Parents of the missing students “asked that the investigation consider the possibility of
participation on the party of the Army and the Federal Police”) ; Ex. 10A, Re3pºt Proceso Articles,

Marcela Turati, The Night of Iguala: The Collapse of the ”Historical Truth ” — Myth, omissions,

and lies of the oficial investigation, PROCESO (Sep. 13, 2015); Ex. 51, Resp't Docs, Tab A, Reports
implicate Mexico AG Ojice in missing students case, EFE: MEXICO CITY (Dec. 17, 2016); Ex. 51,

Resp't Docs, Tab B, Experts ask for new investigation into disappearance of 43 Mexican students,

REUTERS (Jun. 22, 2016).) The investigation revealed that many of the initial accounts of the
incident, which blamed the local Iguala police department, were obtained through torture. (Ex.

36, ANABEL HERNÁNDEZ, A MASSACRE IN MEXICO 237—256 (Verso, 2018); see also Ex. 9
Ayotzinapa Report I.)

Consequently, the Court agrees with the conclusion of the expert witness, Ms. Hernández, that the
official historic truth created by the Mexican government has been disproven, that numerous
witnesses were tortured by the Mexican government, and that pieces of evidence were either
fabricated or planted at the crime scene by the Mexican government in order to support the false
“historic truth.” (Hrºg (Dec. 4, 2018); see also Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN
MEXICO 305—309 (Verso, 2018); see also Ex. 9 Ayotzinapa Report I.) The Court also concurs
with Respondentºs credible testimony, and Ms. Hernández, that the Mexican Army and the
Mexican Federal Police participated in, and had been present during the attacks, and the
disappearance of the students. (Id.) It defies credulity that a municipal police department would
have the political clout and resources to masterrnind an intricate cover—up, and the actual
disappearance of 43 Mexican students. It is much more plausible that the Mexican federal
government and federal police were responsible for this horrif1c incident.

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Furtherrnore, Ms. Hernández stated that, through her thorough investigation, everything
Respondent told her has been confirmed, in particular that the Mexican government lied about the
missing students being taken to the municipal police station on the night of September 26, 2014.
(Id.) For example, Ms. Hernández noted that a member of Guerrero's State Commission of Human
Rights searched the municipal police station for any indication that the students were there, such
as any hair, saliva, or discarded clothing; however, the State Commission member did not find any
evidence that the students were present at the police station. (Id.; see also Ex. 36, ANABEL
HERNÁNDEZ, A MASSACRE IN MEXICO 309 (Verso, 2018).) Ms. Hernández also stated that a police
officer from Iguala, Honorio Atunez Osorio, was detained, and allegedly provided a list of those
who participated in organized crime, including Respondent. (Hr' g (May 20, 2019).) Ms.
' Hernández testified that Mr. Atunez Osorio later changed his story, and declared that he had not
given any names, and that he had been tortured and forced to sign papers containing unknown
information to him. (Id.)

After a review of Ms. Hemández's testimony, as well as several pieces of reliable documentary
evidence submitted by both Respondent and DHS, the Court does not find serious reasons to
believe Respondent committed a serious, non—political crime in Mexico prior to his arrival in the
United States. See 8 U.S.C. & 1158(b)(2)(A)(iii). Contrary to the Departmentºs argument, the
historical truth as created by the Mexican government has been disproven, and this cover—up by
the Mexican government has been well-documented in several news articles and reports, as well
as Ms. Hemández's published book. (See Ex. 10A, Respºt Proceso Articles, Marcela Turatí, The
Night of Iguala: The Collapse of the “Historical Truth ” —Myih, omíssions, and lies of the official
investigation, PROCESO (Sep. 13, 2015); Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN MEXICO
305—309 (Verso, 2018).) Ms. Hernández, an investigative journalist who is considered a leading
source on the disappearance of the 43 Mexican students, herself stated that she has no reason to
doubt Respondentºs testimony, and that everything Respondent told her has been proven consistent
and truthful throughout her investigation. (Hr' g (Dec. 4, 2018).) Although the Court is not bound
to find Respondent credible based on Ms. Hernández's belief in his testimony, the Court finds that
a thorough review of Respondent's testimony and evidence of record, supports Respondent's
version of events. As a result, the Court finds that Respondent is not statutorily barred from asylum
relief.

A. “Refugee” as Defined under INA S 101(a)(42)(A)

A reSpondent may qualify as a refugee because he has suffered past persecution or because he has
a well-founded fear of future persecution. See 8 C.F.R. & 1208.13(b)(1). If the respondent
establishes past persecution, he shall be presumed to have a well—founded fear of future
persecution. See id. That presumption may be rebutted if DHS proves by a preponderance of
evidence that either: (1) there has been a fundamental change in circumstances such that the
applicant no longer has a well—founded fear ofpersecution; or (2) the respondent could avoid future
persecution by relocating to another part of his country of nationality or country of last habitual
residence, and under all the circumstances, it would be reasonable to do so. See 8 C.F.R.
& 1208.13(b)(1)(i)(A)—(B). The resPondent must also establish that the alleged persecution or
well-founded fear of persecution was or will be “on account of [his] race, religion, nationality,
membership in a particular social group, or political opinion.” See INA 55 101(a)(42)(A),
208(b)(1)(B)(í)-

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1. Past Persecution

Here, Respondent has not demonstrated that he has suffered past persecution, which requires a
respondent to show: (1) harm that rises to the level of persecution; (2) which was inflicted “on
account of” one of the statutorily—protected grounds; and (3) was committed “by the government
or forces the government is either “unable or unwilling” to control.” See Navas v. INS, 217 F.3d
646, 655—56 (9th Cir. 2000); see also Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th Cir. 2010).
While there is no universally accepted definition of “persecution,” the BIA has defined
“persecution” as “either a threat to the life or freedom of, or the infliction of suffering or harm
upon, those who differin a way regarded as offensive.” Acosta, 19 I&N Dec. at 222. 4 In addition,
“persecution” under the Act “contemplates that harm or suffering must be inflicted upon an
individual in order to punish him for possessing a belief or characteristic a persecutor seeks to
overcome.” Id. at 223. Various forms of physical violence, including assault and beatings, amount
to persecution.

In this case, Respondent never suffered any physical violence, such as an assault or a heating, at
the hands of Mexican officials. Consequently, considering the persecutory acts in their totality,
and viewing the cumulative effect of all the alleged acts, the Court finds that Respondent has not
established that he suffered past persecution in Mexico. See INA % 101(a)(42)(A); 8 C.F.R.
5 1208.13(b)(1).

2. Well-Founded Fear of Future Persecution

Even if past persecution is not found, a respondent may still be eligible for asylum due to a well—
founded fear of future persecution. 8 C.F.R. & 1208.13(b). A well—founded fear must be
subjectively genuine and objectively reasonable. See Parada v. Sessions, 902 F.3d 901, 909 (9th
Cir. 2018). A “well—founded fear” can only be given concrete meaning through a process of
case—by—case adjudication.” INS v. Cardoza-Fanseca, 480 U.S. 421, 448 (1987). A respondent
can demonstrate a well-founded fear of persecution if: (1) he has a fear of persecution in his
country; (2) there is a reasonable possibility of suffering such persecution; and (3) he is unable or
unwilling to return to that country because of such fear. See 8 C.F.R. 5 1208.13(b)(2)(i). Here,
although the Court finds that Respondent has not established past persecution in Mexico, the Court
finds that Respondent has established a well-founded fear of future persecution in Mexico.

First, the subjective prong of the well-founded fear test is satisfied by a respondent's credible
testimony that he genuinely fears harm. See Parada, 902 F .3d at 909 ; see also Lolong v. Gonzales,
484 F.3d 1173, 1179—79 (9th Cir. 2007) (en bano) (finding subjective fear where petitioner
described fears and gave specific examples of violent incidents involving friends and family).
Turning to Respondentºs testimony, he clearly testified that he genuinely fears harm in Mexico.
(Hrº g (Nov. 20, 2019); Hr” g (May 9, 2016); see also Ex. 2, Form I-589.) Respondent stated that
he is afraid to return to Mexico, as the Mexican military and police are still searching for him, and
there is a warrant and an Interpol Red Notice requesting his arrest. (Ex. 8, Tab A, Certified
Translation of Apprehension Order; see also Ex. 40, Resp't Interpol Red Notice.) Respondent
testified that he fears he will be detained and tortured like the other Iguala police officers in order
to force Respondent to publicly recant his statement about the truthñ11 events of September 26th.
(Hrº g (May 9, 2016); see also Ex. 4, Form I—5 89.)

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Second, the objective prong of the test can be met in two different ways. One way is to “prove
persecution in the past, giving rise to a rebuttable presumption that a well-founded fear exists.”
Ladha v. INS, 215 F .3d 889, 897 (9th Cir. 2000) (internal citations and quotation marks omitted),
0verruled on other grounds byAbebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc).
The second way “is to show a good reason to fear future persecution by adducing credible, direct,
and speciñc evidence in the record of facts that would support a reasonable fear of persecution.”
Id. This requirement can be met by either the production of specific documentary evidence, or by
a respondentºs credible and persuasive testimony.” Id. In addition, “[e]ven a ten percent chance
of persecution may establish a well—founded fear.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.
2001). A respondent may demonstrate a well-founded fear by showing that he has been targeted
for persecution. See, e.g., Marcos v. Gonzales, 410 F.3d 1112, 1119 (9th Cir. 2005) (Philippine
applicant demonstrated well-founded fear based on credible death threats by members of the New
People's Army.)

Here, Re3pondent can show at least “a ten percent chance of persecution.” Al—Harbi, 242 F.3d at
888. Respondent testiñed that he was threatened with detention by the Mexican Attorney General.
(Hrº g (May 9, 2016).) Respondent and the other Iguala police officers were also subjected to a
serious of inspections after the disappearance of the students. (Id.) Respondent was released, but
several officers remained in custody. (Id.) Notably, several of the 22 Iguala police ofñcers who
remained in custody, including Respondentºs brother—in—law, were severely beaten and tortured in
an attempt by the Mexican government to force the police officers to say the Iguala Police Ofñcers
were responsible for the kidnapping and murder of the students. (Id.; see also Ex. 36, ANABEL
HERNÁNDEZ, A MASSACRE IN MEXICO 237—241 (Verso, 2018).) The torture included electric
shock applied to the ofñcersº genitals. (Id.) Additionally, Respondent was placed on
administrative leave from his position. (Hrº g (Oct. 27, 2015).) During this time, Respondentºs
mother's home was ransacked, and searched by armed Mexican military police searching for
Respondent. (Ex. 9, Ayotzinapa Report I, pg. 65.) The military police also threatened
Respondentºs family at gunpoint. (Id.) Even after Respondent left to live with his brother,
Mexican state police and military continued to observe and patrol his motherºs home. (Id.) They
parked in front of her home, took pictures of the house, and questioned neighbors about
Respondent and his whereabouts. (Id.) In Ayotzinapa Report I, in which Re5pondent was
interviewed, when Respondent reported to the office of the Federal Public Secretary, the presence
of members of the military became more frequent at his residence. (Id.)

Finally, Respondent is unwilling or unable to return to Mexico. Respondent has expressed his fear
of death or bodin injury if returned to Mexico. (Id.) Respondent stated that he fears detention
and torture, as many of his fellow Iguala Police Officers have suffered this fate at the hand of
Mexican military police. (Id.)

a. Changed Círcumstances

The government may rebut the presumption of a well-founded fear by showing “by a
preponderance of the evidence” that there has been a “fundamental change in circumstances such
that the applicant no longer has a well—founded fear.” 8 C.F.R. && 1208.13(b)(1)(i) — (ii); see also
Singh v. Whitaker, 914 F.3d 654 (9th Cir. 2019); see also Kamalyan v. Holder, 620 F .3d 1054,
1057 (9th Cir. 2010) (to rebut presumption of a well—founded fear, government must show by a
preponderance of the evidence that a fundamental change in country conditions has dispelled any
well—founded fear). To meet its burden pursuant to 8 C.F.R. & 208.13(b)(1), the government is

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“obligated to introduce evidence that, on an individualized basis, rebuts a particular applicantºs
specific grounds for his well-founded fear of future persecution.” Popova v. INS, 273 F.3d 1251,
1259 (9th Cir. 2001). Thus, the government “must provide an individualized analysis of how
changed conditions will affect the specific petitionerºs situation.” Lopez v. Ashcroft, 366 F .3d 799,
805 (9th Cir. 2004) (citation and internal quotation marks omitted); see also Parada v. Sessions,
902 F.3d 901, 912 (9th Cir. 2018) (“[T]he IJ must make an ºindividualized determination” of how
the changed circumstances affect the alien's specific situation”).

In the case at hand, the Department argues that the Mexican government is now reopening the
investigation for the 43 missing students, and releasing incarcerated suspects indicted in the initial
investigation. (Hrº g (Dec. 18, 2019); see also Ex. 60, DHS Exh. List.) In support of this position,
DHS presented articles which state that Mexican Attorney General will be “[o]pening a fresh
investigation” into the students” disappearances as the new Mexican President, Andrés Manuel
López has taken power. (Ex. 60, DHS Exh. List; Mexico missing students: New investigation
ordered, BBC, Sep. 19, 2019.) The Attorney General plans on also investigating the officials who
handled the original probe “so that those “who had failed in their duties” could be held
accountable.” (Id.; see also Ex. 60, DHS Exh. List Tab D, Mexico targets former attorney general
in probe of missing students case, REUTERS, Sep. 15, 2019.) The Department also points out that,
earlier in September 2019, a key SUSpect in the case, a leader of the Guerreros Unidos gang, was
freed because he had been tortured in detention. (Ex. 60, DHS Exh. List; Mexico missing students:
New investigation ordered, BBC, Sep. 19, 2019.) Of the “142 pe0ple detained in connection with
the case, only 65” remain in custody as of September 16, 2019. (Ex. 60, DHS Exh. List, Tab F,
Mexico missing students: Anger at sus_pects ' release, BBC.)

However, the Department did not introduce evidence that “on an individualized basis” rebuts
Respondentºs specific grounds for his well—founded fear of future persecution. See Lopez, 366
F.3d at 805. Although the Department presents evidence regarding the release of suspects involved
in the original investigation, the record does not contain any evidence that indicates or leads to a
presumption that Respondent would not be arrested or tortured upon a return to Mexico. The Court
notes that, despite the Department” s assertion that the Mexican government is releasing individuals
who were seen as involved in the students” disappearances in the original investigation, there is
still an active warrant seeking Respondentis arrest, as well as an Interpol Red Notice requesting
his arrest. (See Ex. 8, Tab A, Certified Translation of Apprehension Order; see also Ex. 40, Respºt
Interpol Red Notice.)

Additionally, the Department presents no evidence that the Mexican government would not
incarcerate or torture Respondent, the main whistleblower who initially brought to light the
Mexican govemment's involvement in the students: disappearance. (See Ex. 60, DHS Exh. List,
Tab F, Mexico missing students: Anger at suspects ' release, BBC.) Instead, the Department asks
the Court to rely on broad information regarding several unnamed local police officers in order to
reach an unsubstantiated conclusion that Respondent, a main actor in the original investigation,
would not be incarcerated, tortured, or ha1med upon his return to Mexico. All the police officers
who were released by Mexican Judge Samuel Ventura are unnamed individuals lumped into a
singular group— local police officers. (Id.) Only one individual was specifically identified and
named in the news articles provided by DHS, Gildardo Lopez Astudillo, a man suspected of being
the gang leader who ordered the killing of the students. (Id.) ln contrast, Respondent's name has
been both published and mentioned numerous times in reference to the students” disappearance,
including several mentions in Ms. Hernándezºs published book. (See Ex. 36, ANABEL

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HERNÁNDEZ, A MASSACRE IN MEXICO 77, 166, 185, 304—09, 338 (Verso, 2018).) In fact, Ms.
Hernández stated that Respondent “would become a key element for overturning the stateºs official
version of events.” (Id., at pg. 166.) Re5pondent has also been named in several important
publications and news articles reporting the incident, such as a June 14, 2015, Proceso news article
which focused entirely on an exclusive interview with Respondent about the events of September
26, 2014. (Ex. 17, Respºt Submission of Proceso News Magazine Articles, at Tab A, The
Ayotzinapa Case: New testimonies refute the 0jjºzcíal history, PROCESO Jun. 14, 2015.) Respondent
was also interviewed for the Ayotzinapa Report, which was completed by an Interdisciplinary
Group of Independent Experts. (Ex. 9, Aytozinapa Report 1, pg. 65—66.) Again, Respondent was
mentioned by name, and his testimony was detailed within the report itself. (Id.) Although the
Mexican government has released local Mexican police ofñcers, DHS has not provided any
indication that Respondent, a main actor and initial whistleblower of the Mexican govemmentºs
involvement, would not be targeted by the Mexican government upon his return. In fact, both
Respondentºs Mexican arrest warrant and the Interpol Red Notice indicate that Respondent would
be incarcerated upon his return to Mexico if he were removed.

In light of the Mexican government's previous acts of torture against suspects indicted in the
students” disappearance, as well as Respondentºs particular status as a main whistleblower, the
Court finds that Respondent has established a well-founded fear of future persecution in Mexico.
Respondent has shown both a subjective and objective fear of persecution in Mexico, and
demonstrated his unwillingness or inability to return to Mexico. Additionally, the Department has
not shown “by a preponderance of evidence” that there has been a “fundamental change in
circumstances” in Mexico, such that Re5pondent no longer has a well-founded fear. See Singh,
914 F.3d at 654. Thus, even if the Respondent has not demonstrated past persecution, the Court
finds he is still eligible for asylum. 8 C.F.R. & 1208.13(b).

3. On Account of a Protected Ground

In addition to demonstrating harm rising to the level of persecution, the respondent bears the
burden of establishing that establish that “race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least one central reason for persecuting the”
respondent. 8 U.S.C. & 1158(b)(1)(B)(i) (emphasis added).

[A] motive is a “central reason” if the persecutor would not have harmed the
applicant if such motive did not exist. Likewise, a motive is a “central reason” if
that motive, standing alone, would have led the persecutor to harm the applicant.
[P]ersecution may be caused by more than one central reason, and an asylum
applicant need not prove which reason was dominant. Nevertheless, to demonstrate
that & protected ground was “at least one central reason” for persecution, an
applicant must prove that such ground was a cause of the persecutorsº acts.

Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009); see also Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); Regalado—Escobar v. Holder, 717 F.3d
724, 732 (9th Cir. 2013) (“Under the REAL ID Act, the applicant bears the burden to show nexus
by showing that a protected ground was “one central reason” for his persecution.”); Zetino v.
Halder, 622 F.3d 1007, 1015 (9th Cir. 2010) (“The REAL ID Act of 2005 places an additional
burden on Zetino to demonstrate that one of the five protected grounds will be at least one central
reason for his persecution.”).

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A whistleblowerºs exposure of government corruption “may constitute political activity sufñcient
to form the basis of persecution on account of political opinion.” Grava v. INS, 205 F.3d 1177,
1181 (9th Cir. 2000) (Filipino policeman and customs officer); see also Khudaverdyan v. Holder,
778 F.3d 1101, 1106 (9th Cir. 2015) (applying REAL ID Act); Baghdasaryan v. Holder, 592 F .3d
1018, 1024 (9th Cir. 2010) (pre-REAL ID Act application) (“Whistle-blowing against government
corruption is an expression of political opinion.”). In determining if a respondentºs whistleblowing
“constitutes protected political Opinion, the…ºsalient questionº is whether the individualºs actions
are cdirected toward a governing institution, or only against individuals whose corruption was
aberrational.” See Khudaverdyan, 778 F.3d at 1106; see also Grava, 205 F.3d at 1181. However,
“[w]hen the alleged corruption is inextricably intertwined with govemmental operation, the

exposure and prosecution of such an abuse of public trust is necessarily political.” Grava, 205
F.3d at 1181.

“To qualify as a whistleblower, [respondent] was not required to expose governmental corruption
to the public at large. It was sufñcient that [he] demonstrated that he suffered retaliation for acting
against governmental corruption.” Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007)
(pre-REAL ID Act application); see also Perez—Ramirez v. Holder, 648 F.3d 953, 956 (9th Cir.
2011) (“Whistleblowing by a government employee against government officials engaged in
corruption “may constitute political activity suff1cient to form the basis of persecution on account
of political opinion” for the purposes of an asy1um claim.” (quoting Grava, 205 F.3d at 1177)),
0verruled on other grounds by Maldonado v. Holder, 786 F.3d 1155, 1163—64 (9th Cir. 2015) (en
bano)…

A respondentºs uncontroverted credible testimony as to the persecutor's motivations may be
sufficient to establish nexus. See, e.g. Antonycm v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011);
see also Shoafera v. [NS, 228 F.3d 1070, 1074-75 (9th Cir. 2000) (Ethiopian applicant established
through her credible testimony and witness testimony that the perpetrator was motivated to rape
her based, in part, on her Amhara ethnicity). Furthermore, direct proof of motivation may consist
of evidence concerning statements made by the persecutor to the respondent, or by respondent to
persecutor. See, e.g., Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (soldiers stated that
rape was because of Kebedeºs familyºs position in prior Ethiopian regime); see also Duarte de
Guinac, 179 F.3d at 1162 (noting that motivation was on account of ethnicity where persecution
was “coupled with explicit expressions of ethnic hatred”).

Here, Respondent asserts that his political opinion as a whistleblower of the Mexican
governmentºs involvement in the disappearance of the 43 students was at least one central reason
for his persecution. See, e.g., INA ¿j 208(b)(1)(B)(i). (See also Ex. 4, Form I—589.) In support of
his claim, Respondent credibly testified that he informed investigative journalist Ms. Hernández
of the actual events of the night of September 26, 2014. (Hr'g (Oct. 26, 2015).) Substantial
evidence supports the Courtºs conclusion that Respondent was a whistleblower. Ms. Hernández
first interviewed Respondent in October 2014, and then on multiple occasions after that. (Hrº g
(Dec. 6, 2018); see also Ex. 10, Respºt Interview.) Ms. Hernández testiñed that Respondentºs
testimony was the first time an eyewitness spoke out about the truthful events of September 26,
2014, and that prior to Respondentºs published testimony in December 2014, no one had
questioned the “historical truth” presented by the Mexican government. (Hrº g (Dec. 6, 2018).)
Ms. Hernández also stated that Respondent's initial statement opened an investigative line for her,
and that Respondent “would become a key element for overturning the state's official version of
events.” (See Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN MEXICO 166 (Verso, 2018).)

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Re3pondent also credibly testified that he suffered threats and has a well—founded fear of future
_persecution in Mexico as the initial whistleblower of the Mexican governmentºs actions on
September 26, 2014. (Id.) Respondent testified that he was threatened with detention by a
representative of the Mexican Attorney General for questioning during the initial investigation.
(Hrº g (May 9, 2016).) Respondent stated that he, and other Iguala police officers, were taken to
the offices of the state police by local law enforcement. (Id.) At the state police office, all Iguala
police officers were subjected to a test for gunpowder residue. (Id.) Respondent was told that
there was an ongoing investigation, and he was interviewed by the representative of the Mexican
Attorney General about the disappearance of the students. (Id.) Respondent was also forced to
undergo similar testing, including a test for gunpowder residue, and the taking of his fmgerprints.
(Id.) After he completed the testing, Respondent was released, but several officers, including
Respondentºs brother-in—law, remained in custody. (ld…) Before Respondent departed the state
police station, however, Respondent testified that a representative for the Mexican Attorney
General threatened him. (Id.) The representative told Respondent that he- may not be detained
today, but he will be detained eventually. (Id.) The representative stated that he did not like
Respondent's behavior in the interview, specifically Respondent questioning the representativeºs
knowledge of the situation involving the missing students. (Id.)

On October 2, 2014, Mexican state police ofñcers dressed in civilian clothes searched and
ransacked Respondentºs motherºs home. (Ex. 9, Ayotzinapa Report 1, pg. 65; see also Hr” g (May
9, 2016).) The armed state police officers threatened Respondentºs mother and his other relatives
at gunpoint, and hit one of his relatives with a pistol, mistaking the relative for Respondent. (Hrºg
(May 9, 2016).) The police officers asked about Respondentºs whereabouts during the search.
(Id.) The police officers also threatened Respondentºs family with their pistols. (Id.) The officers
also took several of Respondentºs belongings, such as new pants and shirts, and stole some of
Respondentºs motherºs money. (Id.) Respondent was not present during this search, but his
mother later informed him of the search. (Id.)

Even after Respondent left to live with his brother for approximately three months, Mexican state
police and military continued to observe his motherºs home. They parked in front of her home,
took pictures of the house, and questioned neighbors about Re5pondent's whereabouts. (Id.) In
the Ayotzinapa Report, in which Respondent was interviewed, Re3pondent stated that when he
reported to the office of the Federal Public Secretary, the presence of members of the military
became more frequent at his residence. (Id.)

In December 2014, Ms. Hernández published her article “The True Night of Iguala in Proceso
magazine, which exposed “several falsehoods” in the original “historical truth…” (See Ex. 36,
ANABEL HERNÁNDEZ, A MASSACRB IN MEXICO 225—26 (Verso, 2018).) In this article, Ms.
Hernández published part of Respondent's first testimony. (Id. , at pg. 305.) Ms. Hernández wrote
in her book that immediately after the article's publication, the Attorney General of Mexico issued
an order for Respondent's arrest claiming that he had interrogated the students, and that he was
working with the Guerreros Unidos. (Id., at pg. 305—06.) In reality, however, Respondent “was
the first witness to assert that the Army was indeed in the streets during the attacks that night..”
(1d. , at pg. 306.) Ms. Hernández also testified that, after she published her December 2014 article
featuring Respondentºs testimony, Respondent started to be followed, as did another public ofñcer
from Iguala to whom Ms. Hernández had also spoken. (Hr' g (Dec. 6, 2018).) Ms. Hernández
stated that Re3pondentºs life is in danger. (Id.)

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In light of Respondentºs credible testimony regarding the circumstances demonstrating the harm
he faces in Mexico, the Cou1t finds that Respondent has demonstrated that he faces the prospect
of persecution because of a protected ground, namely his political opinion as a whistleblower of
the Mexican governmentºs involvement in the 43 students” disappearances. See INA
% 101(a)(42)(A); see, e.g. Kebede, 366 F.3d at 812; see e.g., Duarte de Guinac, 179 F.3d at 1162;
see also Navas, 217 F.3d at 646. Respondent has been threatened due to his questioning of the
Attorney General with regard to the investigation of the missing students, and Respondent has
been tracked and watched by the Mexican government, particularly after speaking to the
international press. (Hrºg (May 9, 2016); see also Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN
MEXICO 225—26 (Verso, 2018).) The Mexican government even went as far as issuing an arrest
warrant and an Interpol Red Notice for Respondent. (Ex. 8, Tab A, Certified Translation of
Apprehension Order; see also Ex. 40, Respºt Interpol Red Notice.) Consequently, the Court finds
that the Respondent has established that he faces the prospect of persecution on account of a
protected ground. See INA (¿ 101(a)(42)(A); 8 C.F.R. ¿j 1208.13(b)(1).

a. Particular Social Group

In the alternative, even if Respondent has not established that he faces the prospect of future
persecution on account of his political opinion as a whistleblower, the Court would find
Respondent has established that he faces future persecution on account of his membership in a
particular social group (“PSG”). Here, Respondent alleges that he faces future persecution on
account of his membership in a cognizable PSG, which the Court interprets as “whistleblowers of
the Mexican governmentºs fabricated “historic truth” regarding the 43 students” disappearances on
September 26, 2014.”

When claiming membership in a PSG, a respondent must prove that the alleged group is cognizable
and that he is, in fact, a member of that group. See Matter ofA—B—, 27 I&N Dec. 316, 318—20 (AG
2018) (overruling Matter 0fA—R-C—G-, 26 I&N Dec. 338 (BIA 2014)); Matter of W-G-R—, 26 I&N
Dec. 208, 221—23 (BIA 2014). To do so, the re5pondent must establish that the group in which he
is claiming membership is: “(I) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.” Matter of M—E— V—G—, 26 I&N Dec. 227, 237 (BIA 2014). A common immutable
characteristic is one that is so fundamental to the identity or conscience of each group member that
it cannot or should not be changed; it can be an innate characteristic, such as sex or family relation,
or a shared past experience. See Acosta, 19 I&N Dec. at 222. “[A] cparticular social group” is one
united by & voluntary association, including a former association, or by an innate characteristic
that is so fundamental to the identities or consciences of its members that members either cannot
or should not be required to change it.” Henriquez—Montiel v. INS, 225 F.3d 1084, 1092—93 (9th
Cir. 2000) (Mexican gay men with female sexual identities constitute a particular social group),
overruled on ofher grounds by Thomas v. Gonzales, 409 F .3d 1177 (9th Cir. 2005) (en banc).
Particularity requires the group to be “discrete and have definable boundaries” rather than being
“amorphous, overbroad, diffuse, or subjective.” W—G—R-, 26 I&N Dec. at 214. Social dístinction
requires the group to be “perceived as a group by society.” M—E— V—G-, 26 I&N Dec. at 240.

Once the respondent has established the existence of a cognizable particular social group, he must

demonstrate that he is a member of the delineated group. See W—G—R—, 26 I&N Dec. at 221—23.
The respondent must then demonstrate that the persecution alleged was inflicted “on account of”

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BERNABE GARCIA
A202—063—596

his membership in that group. See 8 C.F.R. 5 1208.16(b). To meet his burden of proof, he must
provide some evidence, direct or circumstantial, that the persecutor's motive to harm him arose
from the asserted protected ground. See Matter 0fN-M—, 25 I&N Dec. 526, 529 (BIA 2011).

Here, the Court finds that Respondent has established that he is a member of a cognizable PSG.
See A-B—, 27 I&N Dec. at 318—20. Respondentºs proffered PSG contains members who share
common and immutable characteristics, it is defined with particularity, and the group is socially
— distinct. First, the PSG contains members who share a common experience — speaking out against
the Mexican government's cover-up of the 43 students” disappearances. Acosta, 19 I&N Dec. at
222; see also Henriquez—Montiel, 225 F.3d at 1092—93. Furthermore, the PSG is defined with
particularity, and is not “amorphous, overbroad, diffuse, or subjective.” W-G—R—, 26 I&N Dec. at
214. Finally, although the PSG is not literally visible, the group is still “socially distinct.” See M—
E—V—G—, 26 I&N Dec. at 227, 238. Respondent was a prior magistrate at the Iguala Police
Department, and served many roles at the Police Department, such as checking in those who were
arrested and charged with a crime, and documenting a detainee's information in the official
register. Furthermore, Respondent has been identified by name in several publications which
identify Respondent as calling into question the “historic truth”, and identifying the Mexican
govemment's cover-up of the disappearance. (See Ex. 36, ANABEL HERNÁNDEZ, A MASSACRE IN
MEXICO 77, 166, 185, 304—09, 338 (Verso, 2018); see also Ex. 17, Respºt Submission of Proceso
News Magazine Articles, at Tab A, The Ayotzinapa Case: New testimonies refute the oficial
history, PROCESO Jun. 14, 2015; see also Ex. 9, Aytozinapa Rep01t1, pg. 65—66.)

Respondent has provided evidence that the Mexican government's motive to harm him arose from
his asserted protected ground. See N—M—, 25 I&N Dec. at 529. Respondent credibly testiñed that
he was threatened with detention by a representative of the Mexican Attorney General for
questioning the Mexican governmentºs initial investigation of the students” disappearances. (Hr' g
(May 9, 2016).) Furthermore, Mexican state police officers dressed in civilian clothes searched
and ransacked Respondent's mother's home. (Ex. 9, Ayotzinapa Report 1, pg. 65; see also Hr'g
(May 9, 2016).) The armed state police officers also threatened Respondentºs family at gunpoint,
and the officers took several of Respondentºs belongings, such as new pants and shirts, and stole
Respondentºs motherºs money. (Hr' g (May 9, 2016).) Additionally, even after Respondent left
to live with his brother for approximately three months, Mexican state police and military
continued to observe his mother's home. (Id.)

Ms. Hernández wrote in her book that immediately after her December 2014 Proceso article's
publication, theAttorney General of Mexico issued an order for Respondentºs arrest claiming that
he had interrogated the students, and that he was working with the Guerreros Unidos. (See Ex. 36,
ANABEL HERNANDEZ, A MASSACRE IN MEXICO 305—06 (Verso, 201 S).) - Ms. Hernández also
testified that, after she published her December 2014 article featuring Respondent s testimony,
Respondent started to be followed, as was another public officer to whom Ms. Hernández had also
spo.ken (Hr g (Dec. 6, 2018).)

Accordingly, in the alternative, the Court finds that Respondent had demonstrated his membership
in a cognizable PSG of “whistleblowers of the Mexican government's fabricated chistoric truth”
regarding the 43 students” disappearances on September 26, 2014.” Respondent has also
demonstrated his well-founded fear of future persecution is “on account of” his membership in
that group. See 8 C.F.R. 5 1208.16(b). As a result, this Court concludes that Respondent has met
his burden of establishing his eligibility for asy1um based on his well-founded fear of future

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persecution in Mexico.

4. Whether the Government is Unable or Unwilling to Control the Prosecutioi1

A respondent must further establish that the persecution he suffered was either at the hands of the
government or by persons that the government is unable or unwilling to control. Acosta, 19 I&N
Dec. at 222. In other words, the persecution must be inflicted under government sanction or by
groups the government is unable or unwilling to control. See Baghdasaryan v. Holder, 592 F.3d
1018,1023 (9th Cir. 2010); see also Rahímzadeh v. Holder, 613 F. 3d 916, 923 (9th Cir. 2010)
(substantial evidence supported the determination that Dutch authorities were willing and able to
control extremists that attacked the alien), see also Desi; v. Ilchert, 840 F. 2d 723, 727—28 (9th Cir.
1988) (persecution by quasi— —ofñcial Haitian security force).

Furthermore, when a government is responsible for the persecution, there is no need to inquire
whether a respondent sought help from the police. See Baballah v. Ashcroft, 367 F .3d 1067, 1078
(9th Cir. 2004); see also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005). In cases
where the respondent failed to file a report, there is not a heightened burden of proof requirement.
Bringas—Rodriguez v. Sessions, 850 F.3d 1051, 1069—70 (9th Cir. 2017) (en bano).

Respondent has also met his burden to demonstrate the requisite government nexus to his claimed
persecution. The Court has found Respondent credible, and the Court finds through his cumulative
experiences that Respondent has established that he fears future persecution on account of his
political opinion as a whistleblower at the hands of the Mexican government. (Ex. 4, Form I—5 89;
see also Hr” g (May 9, 2016).) Specifically, Respondent testiñed that the Mexican military and
state police are responsible for his fear of future persecution. (Id.)

Respondent testiñed that he was threatened with detention by a representative of the Mexican
Attorney General after questioning the Mexican governmentºs investigation of the students”
disappearances. (Hrº g (May 9, 2016).) Respondent's motherºs home was also ransacked and
searched by Mexican state police ofñcers. (Id.) The officers threatened Respondent's family at
gunpoint, and also stole several of Respondentºs belongings, as well as his mother's money during
the search. (Id.) Respondent testiñed that the Mexican police ofñcers continued to search for
Respondent by observing and patrolling his mother's home, even after Respondent left to live with
his brother. (Id.) Furthermore, Respondent stated that when he reported to the office of the Federal
Public Secretary, the presence of members of the military became more frequent at his residence.
(Ex. 9, Ayotzinapa Report 1, pg. 65.)

Overall, the evidence of record demonstrates that the persecution Respondent suffered was at the
hand of the Mexican government, namely by the Mexican military and state police. Thus,
Respondent has met his burden to establish that it is more likely than not that he would suffer
future threats to his life or freedom at the hands of the government or forces the government is
unable or unwilling to control. Consequently, Respondent has demonstrated a well—founded fear
of future persecution on account of a protected ground by the Mexican government. See INA
& 101(a)(42)(A); 8 C.F.R. & 1208.13(b)(1).

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A202—063-5 96

B. Discretion

Once & respondent has established that he is statutorily eligible for a grant of asylum, he must
further show that he merits such relief as a matter of discretion. INA & 240(c)(4); 8 C.F.R.
é 1240.8(d); see also Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004). Here, the Court
finds that Respondent merits a favorable exercise of discretion. Respondent testified credibly
about his fear of returning to Mexico. The Court believes that the Respondent sincerer fears for
his life in Mexico, and finds that general humanitarian considerations mitigate in Re5pondentºs
favor. See id. Moreover, the Court believes that Respondent is capable of finding employment
and becoming a contributing member of society in the United States. Finally, Respondent has not
engaged in any activities indicating that he would not be a desirable member of society. See supra
55 II, III. Although there is an active arrest warrant for Respondent, as well as an Interpol Red
Notice, the Court finds the issuance of these notices were politically charged, and believes that
Respondent is being targeted by the Mexican government due to his political cpinion as a
Whistleblower of the Mexican government's involvement with the students” disappearances.

Consequently, the Court concludes that Respondent warrants a favorable exercise of discretion.
See INA ?; 240(c)(4)(A).

VI. WITHHOLDING OF REMOVAL UNDER INA % 241(b)(3)

As the Cou1t is granting Respondentºs application for asylum under INA 5 208, the Court will not
address Respondent's concurrent application for withholding of removal under INA 5 241(b)(3)
and will hold a decision on Respondent's application for such relief in abeyance. See Mogharrabi,
19 I&N Dec. at 449; see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

VII. PROTECTION UNDER THE CONVENTION AGAINST TORTURE

As the Court is granting Respondent's application for asylum under INA 5 208, the Court will not
address Respondentºs concurrent application for protection under the Convention Against Torture
(“CAT”). The Court will hold a decision on Respondentºs application for protection under the
CAT in abeyance.

VIII. CONCLUSION

For the foregoing reasons, the Court finds that Respondent is credible, that he has established his
eligibility for asylum, and that he warrants relief as a matter of discretion. See INA 55 208(a),
241(b)(3). As the Court is granting Respondent's application for asylum, it will hold his
concurrent application for withholding of removal and protection under CAT in abeyance. See
Mogharrabi, 19 I&N Dec. at 449; see also Bagamasbad, 429 U.S. at 25 (“As a general rule courts
and agencies are not required to make findings on issues the decision of which is unnecessary to
the results they reach.”).

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BERNABE GARCIA
A202-063—5 96

In light of the above, the Court will enter the following orders:

ORDERS: IT IS HEREBY ORDERED THAT Respondentºs application for Asylum
under section 208 of the Act is GRANTED.

IT IS FURTHER ORDERED THAT Respondentºs application for
Withholding of Removal under section 241(b)(3) of the Act is HELD IN
ABEYANCE.

IT IS F URTHER ORDERED THAT Respondentºs application for
protection under Article III of the Convention Against Torture is HELD IN
ABEYANCE.

JAN 07 “2020 . W£ZÁ//j/

Date Molly s. Frazéí ”
Immigration Judge

 

 

RIGHT OF APPEAL PRESERVED: Any right of appeal is reserved to both parties,
Respondent and DHS, with any Notice of Appeal due to be filed with and received at the Board
of Immigration Appeals (EIA), in Virginia, within 30 days of this Order.

 

CERTIFICA…ERVI CE

¡—

THIS DOCUMENT SERVED BY: (M ) le/ílíA/II», ( P ) P RSONAL SERV%%
ce ) S

TO: ( )ALIETI_& ?ALIEN c/o Custo tar=e (L/)A IENÍSUKÁW L,
DATE: l 7 ' 33230 BY COURT STAFF: —… -':—./..

Attachméntsi (")E01R-33 ( )EOIR—28 ( )Appea1Fonns7 )Other

 

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