In Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review in favor of a citizen of Mexico who was denied protection under the Convention Against Torture (CAT) by an IJ and the BIA, based on the agency’s determination that the petitioner did not substantiate his claim that he would likely be tortured by the Zetas drug cartel or that the Mexican government would participate in or acquiesce in any such torture. The court concluded that the agency erred in assessing the petitioner’s evidence, and also emphasized that it was irrelevant whether the police officers, who previously abused the petitioner, were rogue, as it was unnecessary for him to show that the entire Mexican government is complicit in the misconduct of individual police officers.
Record failed to support IJ’s denial of alien’s Convention Against Torture application for deferral of removal, even though IJ found that alien had failed to show likelihood that he would be tortured by Mexican drug cartel if forced to go back to Mexico. Record showed that alien had participated in drug trade involving Zeta drug cartel, and alien argued that he would be tortured by said cartel, since he owed it $30,000 for prior meth purchase, and since he had reported his experiences with cartel to U.S. drug authorities. Moreover, govt. offered no testimony to counter expert’s claim that instant cartel had pattern of torturing and killing individuals who owed it large sums of money, and who had worked with U.S. drug authorities. Alien also asserted that Mexican police had beaten and stabbed him at behest of cartel member as means to test alien’s loyalty to cartel, and that cartel members had kidnapped and killed his great-uncle during time frame when cartel was seeking alien’s whereabouts. Ct. rejected IJ’s belief that alien could not prevail on his application where alien had failed to show that entire Mexican gov’t. would likely acquiesce to cartel’s torture of alien.
Download Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015)
The petitioner, Mr. Rodriguez, had lived in the U.S. for many years as an LPR. After his conviction for trafficking in methamphetamine (meth) and service of his resulting prison sentence, he was detained by DHS and charged in removal proceedings under the “aggravated felony” ground of deportation-INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)]-based on his drug trafficking offense, included under the “aggravated felony” definition-INA § 101(a)(43)(B) [8 USCA § 1101(a)(43)(B)]. According to his testimony, which the IJ deemed to be credible, Rodriguez took several trips to Mexico between 2005 and 2007, during which he bought meth from the Zetas for resale in the U.S. In 2006, he was tortured by Mexican police, who entered his hotel room, burned him with cigarettes, and stabbed him with an ice pick. He indicated that this was done at the behest of a member of the Zetas cartel, known to the petitioner only as Jose. Rodriguez explained that the “torture” by the police was intended to test his loyalty to the cartel. The IJ concluded that Rodriguez had indeed been tortured by the police and the Seventh Circuit agreed with that finding. When Rodriguez returned to the U.S. after his last trip to Mexico, he owed the gang an estimated $30,000 for the meth he had purchased from Jose on credit and he was not able to repay this debt. When arrested in the U.S. and charged with intended sale of the meth, he reported his experiences with the Zetas to both the FBI and the DEA. Rodriguez also testified that, after he returned to the U.S., members of the Zetas cartel kidnapped and murdered his great-uncle, after visiting the great-uncle’s house several times asking for information about petitioner Rodriguez. His expert witness, Sylvia Longmire, who testified before the IJ, opined that as a “deadbeat and informer,” Rodriguez was “marked for death.” Ms. Longmire elaborated that the Mexican drug cartels “have long memories and do not easily let transgressions go without some sort of punishment or retribution, even years after they’re committed.” She added that the cartels have networks of employees and paid police and government officials throughout Mexico, and that it was difficult for her to envision a scenario where Rodriguez would not be tortured and killed for both owing Jose a drug debt and working with the DEA against “Los Zetas.” She detailed hundreds of deaths attributable to the Zetas between 2010 and 2012, and opined that, due to corruption-induced shortcomings and a general unwillingness to assist, neither the Mexican government nor Mexican law enforcement would be able to adequately protect the petitioner. The Seventh Circuit noted that the government waived cross-examination of Longmire, thus leaving unchallenged her testimony concerning the brutality of the Mexican drug gangs and the complicity, corruption, and incompetence of the Mexican police.
The court observed that the cartel’s ferocity and the helplessness of the Mexican government to curb it is legendary, as corroborated by reports and articles, including the U.S. State Department’s Country Reports on Human Rights Practices for Mexico, submitted by the petitioner. The IJ ruled that the petitioner failed to show that he faced a substantial risk of torture were he to be removed to Mexico, or, if that happened and he was tortured, that the Mexican government would acquiesce to the torture. After a single member of the BIA affirmed the IJ’s negative decision, Rodriguez took his case to the Seventh Circuit, which introduced its opinion by discoursing on the international Convention Against Torture, to which the U.S. is a party, and which forbids the return of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It then referred to federal regulation 8 CFR § 1208.17(a), which indicates that deferral of removal under the CAT shall be granted with respect to a country where the applicant is more likely than not to be tortured. Judge Richard Posner, writing for the court, suggested that this italicized phrase, though repeated in numerous opinions, cannot and is not to be taken literally, as it would contradict the CAT, which speaks in terms of “substantial grounds” and being “in danger.” He viewed the concept of “more likely than not” as a “puzzler,” and suggested that maybe some strong suspicion that the alien is at risk of being tortured if he is removed would persuade the immigration authorities to let him stay. In addition, he noted that “torture,” as defined in the CAT as well as in regulation 8 CFR § 1208.18(a)(4)(iii), includes killing whether or not accompanied by other torture. Besides finding that the IJ’s assessment on the likelihood of future torture by Jose or the Zetas in general was flawed, the court took cognizance of the fact that Mexican police had already tortured the petitioner as an indication of the widespread understanding that many Mexican police are allied with the big drug cartels, such as the Zetas. The court declared that the fact that the Mexican government may be trying, apparently without much success, to prevent police from torturing its citizens at the behest of drug gangs is irrelevant, citing to N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014),13 and Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013),14 a case involving the Zetas cartel in which the Ninth Circuit concluded that if public officials at the state and local level in Mexico would acquiesce in torture, this satisfies CAT’s acquiescence requirement, even if the federal government would not similarly acquiesce. The Seventh Circuit also referred to a more recent Ninth Circuit decision, Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015),15 which held that the BIA erred by requiring that petitioner to show acquiescence of the Mexican government when her torture was inflicted by public officials themselves (emphasis by the court). Besides identifying the above-outlined errors in the agency’s assessment of the petitioner’s CAT claim, the court noted that the government made no effort to refute the expert’s testimony that petitioner Rodriguez could not relocate to a safer part of Mexico, a proposition that neither the IJ nor the BIA questioned. Accordingly, the matter was remanded to the BIA for further proceedings.
