Ct. of Appeals remanded case back of Bd. of Immigration Appeals upon govt.’s motion for said remand for purpose of allowing Bd. to reconsider its denial of alien’s eligibility for deferral of removal under CAT, where alien alleged that removal to Mexico would result in his death by members of La Linea drug cartel. Alien had presented evidence that while he was in U.S. prison on drug charges he had been attacked by member of La Linea cartel and had been told that other members of said cartel had believed that alien had snitched on them. Moreover, alien presented strong case for CAT relief, where Bd. did not reject IJ’s finding that alien was generally credible, and where record contained evidence that Mexican police officers routinely collaborated with and protected members of La Linea.
Download Mendoza-Sanchez v. Lynch, 2015 WL 9310586 (7th Cir. 2015)
In Mendoza-Sanchez v. Lynch, 2015 WL 9310586 (7th Cir. 2015), the U.S. Court of Appeals for the Seventh Circuit granted the government’s request to remand removal proceedings in which the petitioner’s application for deferral of removal under the CAT was denied by the BIA. Although the petitioner objected to a remand, the court deemed it provident to send the case back to the Board to provide it with an opportunity to reconsider the standard for “acquiescence” on the part of the applicant’s country and, more broadly, to reconsider the agency’s approach to requests for deferral of removal on the basis of the CAT and its implementing regulations.
The petitioner, Mr. Mendoza, is a citizen of Mexico who came to the U.S. at the age of 18, in 1983, and became a lawful permanent resident (LPR) of this country. In 2010, he was convicted in an Indiana court of trafficking in cocaine and sentenced to 12 years in prison. Some of the cocaine that he sold was purchased from members of the La Linea cartel, which is known to be violent and to work with corrupt Mexican police officers. While in prison, Mendoza was attacked by a member of La Linea. The attacker broke two of Mendoza’s teeth and told him that several members of the cartel who had been arrested believed that Mendoza had snitched on him. As he later testified before the IJ in removal proceedings, “I was facing a lot more time than I actually got and this gave them another reason to believe that I snitched on them to get less time.” As it turned out, he was eventually released from prison after five years despite the 12-year sentence. After his prison term, removal proceedings ensued based on the drug conviction. Mendoza did not contest the removal charge and only sought deferral of removal under the CAT on account of his fear of retaliation at the hands of La Linea. Asked whether there was any place in Mexico where he would not be menaced by this cartel, he responded that, although La Linea’s name (“The Line”) was derived from its control of the Mexican border, cartel members are “all over Mexico” and “work everywhere.” Mendoza submitted a State Department Human Rights report that detailed the widespread corruption of Mexican police and their routine participation in the activities of drug organizations. The IJ’s decision described Mendoza as a “credible witness” but concluded that the evidence did not establish eligibility for deferral of removal. The BIA affirmed the IJ’s decision without either rejecting the IJ’s positive credibility finding or Mendoza’s contention that he would more likely than not be killed by La Linea if he returned to Mexico, reasoning that Mendoza did not present sufficient evidence to establish that a Mexican public official would acquiesce (or be willfully blind) to such harm.
Judge Richard Posner, writing for the court’s three-judge panel, pointed out that “death,” as feared by the petitioner, is a form of torture within the meaning of the CAT. He observed that after counsel was recruited for Mr. Mendoza, who had filed his petition for review pro se, the petitioner’s opening brief was filed, and, rather than filing its own brief, the government asked for a remand back to the Board. Judge Posner highlighted the relevant evidence, emphasizing the reality that police officers routinely collaborate with and protect drug cartels in Mexico and La Linea specifically and that, according to the U.S. State Department’s 2011 Human Rights Report on Mexico, “despite some arrests for corruption, widespread impunity for human rights abuses by officials remained a problem in both civilian and military jurisdictions.” He noted that, in the case of Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015), the Seventh Circuit recently discussed the “acquiescence” element necessary to establish a CAT claim. He suggested that this decision can provide some useful guidance for the IJ and the BIA on remand of the present case. He explained that, in Rodriguez-Molinero, the court found that the IJ erred in saying that, in order to be a ground for deferral of removal, the infliction, instigation, consent, or acquiescence in torture, within the meaning of 8 CFR § 1208.18, must be by the Mexican government itself rather than just by Mexican police officers or other government employees. He cited to 8 CFR § 1208.18(a)(1), which provides that acquiescence of a public official requires that the official, prior to the activity constituting torture, have awareness of such activity and thereafter breech his or her legal responsibility to intervene to prevent such activity. He emphasized that it does not matter if the police officers who will torture Mendoza if he is forced to return to Mexico are “rogue officers individually compensated by a gang member to engage in isolated incidents of retaliatory brutality, rather than evidence of a broader pattern of governmental acquiescence in torture,” quoting from Rodriguez-Molinero, 2015 WL 9239398 at 5. The court further declared, “It’s simply not enough to bar [deferral of] removal if the [petitioner’s] government may be trying, but without much success, to prevent police from torturing citizens at the behest of drug gangs,” citing to N.L.A. v. Holder, 744 F.3d 425, 440-442 (7th Cir. 2014), and Madrigal v. Holder, 716 F.3d 499, 509-510 (9th Cir. 2013).
The Seventh Circuit also referred to a more recent Ninth Circuit decision, Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015), in which that petitioner provided credible testimony that she was severely assaulted by Mexican officials on at least two separate occasions and where the appellate court rejected the U.S. government’s attempt to characterize the Mexican police officers as merely rogue or corrupt officials for purposes of the CAT and accordingly found that the BIA erred by finding that Avendano-Hernandez was not subject to past torture.
In closing, Judge Posner suggested that petitioner Mendoza appears to have a strong case for deferral of removal based on his assessment that no evidence was presented to show that the Mexican government can protect its citizens from torture at the hands of local public officials. He expressed his trust that the BIA would “pay careful heed to the analysis in this [court’s] opinion and in Rodriguez-Molinero.”
