Hair Rodriguez-Molinero v. Loretta E. Lynch , 808 F.3d 1134 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1860
HAIR RODRIGUEZ-MOLINERO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A075-614-869
____________________
ARGUED NOVEMBER 18, 2015 — DECIDED DECEMBER 17, 2015
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Rodriguez-Molinero seeks deferral
of removal to Mexico on the ground that he will be tortured
if forced to return there. The Convention Against Torture, an
international convention to which the United States is a par-
ty, 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.” Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
2 No. 15-1860
or Punishment, Dec. 10, 1984, Senate Treaty Doc. No. 100–20,
p. 20, 1465 U.N.T.S. 85, Art. 3(1). A federal regulation states
that “an alien who: has been ordered removed; has been
found … to be entitled to protection under the Convention
Against Torture; and is subject to the provisions for manda-
tory denial of withholding of removal … shall be granted
deferral of removal to the country where he or she is more
likely than not to be tortured.” 8 C.F.R. § 1208.17(a) (emphasis
added). The phrase we’ve italicized, though repeated in nu-
merous opinions, see, e.g., INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987); Milosevic v. INS, 18 F.3d 366, 372 (7th Cir.
1994), cannot be and is not taken literally, and this for sever-
al reasons: It would contradict the Convention (which as
noted above requires only “substantial grounds for believing
that” if removed the alien “would be in danger of being” tor-
tured). It would dictate that while an alien who had a 50.1
percent probability of being tortured in the country to which
he had been ordered removed would be granted deferral of
removal, an otherwise identical alien who had “only” a 49.9
percent probability of being tortured would be removed—an
absurd distinction. And it is not enforceable. The data and
statistical methodology that would enable a percentage to be
attached to a risk of torture simply do not exist. All that can
be said responsibly on the basis of actually obtainable infor-
mation is that there is, or is not, a substantial risk that a giv-
en alien will be tortured if removed from the United States.
As we pointed out in Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 461
(7th Cir. 2004): “How one translates all this vague infor-
mation into a probability that [the alien, if removed] will be
tortured (remember the test is ‘more likely than not’) is a
puzzler. Maybe probability is the wrong lens through which
to view the problem. ‘More likely than not’ is the standard
No. 15-1860 3
burden of proof in civil cases (the ’preponderance’ standard)
and rarely is the trier of fact asked to translate it into a prob-
ability (i.e., more than 50 percent). Maybe some strong sus-
picion that [the alien] is at risk of being tortured if he is [re-
moved] … would persuade the immigration authorities to
let him stay.” (We should note—it relates to this case—that
“torture” as defined in the Convention Against Torture as
well as in the regulations includes killing whether or not ac-
companied by other torture—and it is indeed death as well
as torture that the petitioner in this case fears. See 1465
U.N.T.S. 85, Art. 1(1), defining torture to include “any act by
which severe pain or suffering … is intentionally inflicted,”
and 8 C.F.R. § 1208.18(a)(4)(iii), including ”the threat [and a
fortiori the actuality] of imminent death.”)
Rodriguez-Molinero is a Mexican citizen in his mid-
thirties who has lived in the United States for many years as
a lawful permanent resident. He got involved in the meth-
amphetamine trade and this led to his conviction of federal
drug crimes and to a prison sentence that he has now served.
But he remains detained in the custody of the Department of
Homeland Security, and as an alien convicted of an aggra-
vated felony consisting of trafficking in controlled substanc-
es, he is subject to being removed to Mexico. See 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(B). He seeks deferral of re-
moval on the ground that should he be sent back to Mexico
he is highly likely to be tortured by the Zetas, a violent Mex-
ican drug cartel. Sylvia Longmire, the petitioner’s expert
witness and a respected student of Mexico’s drug wars, stat-
ed in a report credited by the immigration judge that in 2012
the Zetas killed 49 people and dumped their bodies on a
highway near Monterrey—a typical, not an isolated, atrocity
committed by the gang.
4 No. 15-1860
And why is Rodriguez-Molinero in danger from the
Zetas? During several trips to Mexico between 2005 and 2007
he bought meth from the Zetas for resale in the United States
and on one of those trips, in 2006, he was tortured by Mexi-
can police, who entered his hotel room, burned him with
cigarettes, beat him, and stabbed him with an ice pick. This
was done at the behest of a member of the cartel known to
the petitioner only as Jose. The torture was intended, Jose
explained to the petitioner, to test his loyalty to the cartel.
The immigration judge concluded that “the unfortunate
beating and cigarette burns he experienced amount to tor-
ture,” and we agree.
When the petitioner returned to the United States after
his last trip to Mexico, he owed the gang an estimated
$30,000 for meth that he had bought from Jose on credit; he
has never repaid the debt. And when arrested upon his re-
turn with a substantial amount of meth that he had intended
to sell in the United States, he reported his experiences with
the Zetas to both the FBI and the DEA. As a deadbeat and
informer, he is, Longmire stated, “marked for death.” The
Zetas may not know that he has informed against them, but
they have only to read the opinions of the immigration judge
and the Board of Immigration Appeals to discover it.
The Mexican drug cartels, expert witness Longmire ex-
plained, “have long memories and do not easily let trans-
gressions go without some sort of punishment or retribution,
even years after they’re committed. By ‘forgiving and forget-
ting,’ it makes these organizations look weak and [this] im-
plies they don’t always follow through with their threats.”
She added that the cartels have “network[s] of employees
and paid police and government officials” throughout Mexi-
No. 15-1860 5
co and that “it is difficult for [her] to envision a scenario
where [the petitioner] would not be tortured and killed for
both owing Jose a drug debt of $30,000 and working with the
DEA against Los Zetas. … Due to corruption-induced short-
comings and a general unwillingness to assist, neither the
Mexican government nor Mexican law enforcement would
be able to adequately protect” the petitioner if he were to re-
turn to Mexico. She detailed hundreds of deaths attributable
to the Zetas in Mexico between 2010 and 2012, adding that
“Los Zetas have taken a disturbing turn for the worse in the
last few years.”
The government waived cross-examination of Longmire,
thus leaving unchallenged her testimony concerning the bru-
tality of the Mexican drug gangs and the complicity, corrup-
tion, and incompetence of the Mexican police. The cartel’s
ferocity and the helplessness of the Mexican government to
curb it is legendary, as Longmire observed and as detailed in
other reports and articles submitted in Rodriguez-Molinero’s
immigration proceeding. See, e.g., George W. Grayson &
Samuel Logan, The Executioner’s Men: Los Zetas, Rogue Sol-
diers, Criminal Entrepreneurs, and the Shadow State They Creat-
ed (2012); Ted Galen Carpenter, “Corruption, Drug Cartels
and the Mexican Police,” National Interest, September 4, 2012,
http://nationalinterest.org/commentary/corruption-drug-cart
els-the-mexican-police-7422 (visited December 15, 2015, as
were the other websites cited in this opinion); Michael Evans
& Jesse Franzblau, eds., “Mexico’s San Fernando Massacres:
A Declassified History,” The National Security Archive, No-
vember 6, 2013, http://nsarchive.gwu.edu/NSAEBB/NSAE
BB445/.
6 No. 15-1860
After Rodriguez-Molinero returned to the United States,
members of the Zetas cartel kidnapped and murdered his
great-uncle after visiting the great-uncle’s house several
times asking for information about his grand-nephew—
Rodriguez-Molinero. According to the great-uncle’s widow,
police officers “took [the great-uncle] in a patrol car [and]
days later they found him dead[,] unrecognizable [and] days
later we found out that it was a kidnap[p]ing and that they
[had] tortured him to death[.] [S]ome days passed and some
men arrived asking for Hair [the petitioner] and it has been
several times now that they come to ask for him.” In another
letter the widow said she “still continue[s] to receive calls
from the infamous Zetas asking for [the petitioner].” The pe-
titioner’s mother has said that while her uncle (the petition-
er’s great-uncle) was being held by his kidnappers before
they killed him, a man had called and “identified himself as
a member of Los Zetas” and “said that if they did not get in-
formation about [the petitioner] that my uncle was going to
pay the consequences.” They did not get the information
and he did pay the consequences—with his life.
The petitioner submitted in his removal proceeding an
article describing a brutal beheading committed by members
of the Zetas after the victim posted information about the
cartel on an online discussion board. The U.S. State Depart-
ment has chimed in on the Mexican drug gangs in its annual
human rights report, which estimates that 26,121 persons
disappeared in Mexico between 2006 and 2012, and most are
believed to have been kidnapped by criminal organizations
like the Zetas. U.S. Department of State, Bureau of Democra-
cy, Human Rights & Labor, “Mexico 2013 Human Rights
Report,” Country Reports On Human Rights Practices for 2013
109 (2013).
No. 15-1860 7
Surprisingly in light of the evidence we’ve just summa-
rized, the immigration judge ruled that the petitioner had
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 in
the torture. The immigration judge reached this conclusion
despite finding that the petitioner’s testimony was “largely
consistent with the documents in the record regarding dan-
gerous country conditions in Honduras [she meant to say
Mexico]” and “that the respondent’s fear of returning to
Honduras [again she meant Mexico] [was] credible.” She
suggested that Jose must have lost interest in the petitioner,
whom he hadn’t seen in seven years (it is now eight years
since Jose and the petitioner last met). But that was a period
in which the petitioner was in the United States in prison
and Jose was in Mexico; one could hardly expect Jose to visit
the petitioner in an American prison.
We don’t understand the immigration judge’s sugges-
tion that the petitioner should be reassured by the fact that
the great-uncle’s widow hasn’t been killed or otherwise
harmed by the Zetas “despite having receiv[ed] the threaten-
ing call from the Zetas just before her husband was purport-
edly killed.” She has been harmed—her husband’s brutal
murder surely harmed her, albeit not physically. And sinis-
ter men, dangerous men, have continued to come to her
house looking for the petitioner even after the murder.
And why did the immigration judge say that the great-
uncle was only “purported” to have been killed? His dead
body was found mutilated and his death certificate was
submitted as evidence during the immigration proceeding;
wasn’t that evidence enough that he’d been murdered?
8 No. 15-1860
“In sum,” the immigration judge said, the petitioner
“did not demonstrate that Jose or the Zetas are likely to tor-
ture him if he returns to Mexico” and even if he would be
tortured upon his return he “did not demonstrate that the
Mexican government will inflict or acquiesce in torture of
the [petitioner] by Jose and/or the Zetas, a group of private
actors”—this despite her crediting the petitioner’s evidence
concerning local government officials’ complicity by remark-
ing that “country conditions documents and Ms. Longmire’s
affidavit do indicate that Mexico has significan[t] problems
with governmental corruption and occasional police brutali-
ty.”
The immigration judge erred when she said in the pas-
sage from her opinion that we’ve just quoted that to be a
ground for deferral of removal the infliction, instigation,
consent, or acquiescence in torture must be by the Mexican
government rather than just by Mexican police officers or oth-
er government employees—and so she denied Rodriguez-
Molinero’s application for deferral of removal because she
thought he had “failed to demonstrate that he will more like-
ly than not be tortured by, or with the acquiescence of, gov-
ernment officials if he is removed to Mexico.” Not the issue!
Torture as a basis for deferral of removal is defined so far as
bears on this case as severe pain or suffering “inflicted by or
at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1). The alien need not show that multi-
ple government officials are complicit in order to be entitled
to relief. “Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her
legal responsibility to intervene to prevent such activity.” Id.,
No. 15-1860 9
§ 1208.18(a)(7) (emphasis added). That Mexican police par-
ticipate as well as acquiesce in the torture of the petitioner is
evidenced by the torture that police have already inflicted on
him at Jose’s direction, an atrocity consistent with the wide-
spread understanding that many Mexican police are allied
with the big drug cartels, such as the Zetas.
Nor is the issue, as the immigration judge opined,
whether the police officers who tortured the petitioner “were
rogue officers individually compensated by Jose to engage in
isolated incidents of retaliatory brutality, rather than evi-
dence of a broader pattern of governmental acquiescence in
torture.” It is irrelevant whether the police were rogue (in
the sense of not serving the interests of the Mexican gov-
ernment) or not. The petitioner did not have to show that the
entire Mexican government is complicit in the misconduct of
individual police officers.
The immigration judge further compounded her errors
by saying that because “the Mexican government has made
efforts to prevent violence by drug cartels,” it would “not
participate in or acquiesce to torture of the” petitioner.
Again that is not the issue. That the Mexican government
may be trying, though apparently without much success, to
prevent police from torturing citizens at the behest of drug
gangs is irrelevant to this case. N.L.A. v. Holder, 744 F.3d 425,
440–42 (7th Cir. 2014). See also Madrigal v. Holder, 716 F.3d
499, 509–10 (9th Cir. 2013), a case involving the Zetas cartel
and concluding, as do we, that “if public officials at the state
and local level in Mexico would acquiesce in any torture
[that the petitioner] is likely to suffer, this satisfies CAT’s re-
quirement that a public official acquiesce in the torture, even
10 No. 15-1860
if the federal government in Mexico would not similarly ac-
quiesce.”
For a sound analysis, we go to Avendano-Hernandez v.
Lynch, 800 F.3d 1072 (9th Cir. 2015), where we read that
“Avendano-Hernandez provided credible testimony that she
was severely assaulted by Mexican officials on two separate
occasions: first, by uniformed, on-duty police officers, who
are … ‘public officials’ for the purposes of CAT. … The BIA
erred by requiring Avendano-Hernandez to also show the
‘acquiescence’ of the government when her torture was in-
flicted by public officials themselves, as a plain reading of
the regulation demonstrates. … We reject the government’s
attempts to characterize these police … officers as merely
rogue or corrupt officials. … Avendano-Hernandez was not
required to show acquiescence by a higher level member of
the Mexican government … . Thus, the BIA erred by finding
that Avendano-Hernandez was not subject to past torture by
public officials in Mexico.” Id. at 1079–80.
The Board of Immigration Appeals, to which Rodriguez-
Molinero appealed from the immigration judge’s denial of
deferral of removal, repeated the same errors, en route to
dismissing the appeal, that the immigration judge had com-
mitted. The first oddity in the Board member’s opinion (as
usual the appellate “panel” consisted of just one member of
the Board, see Board of Immigration Appeals Practice Manual,
www.justice.gov/sites/default/files/pages/attachments/2015/
10/30/biapracticemanual_fy2016.pdf#page=13 at 3) is the
statement that “despite several previous trips to Mexico, [pe-
titioner] now is afraid of returning to his homeland because
he owes money to the gang or drug cartel known as the
Zetas and because he gave information to United States law
No. 15-1860 11
enforcement authorities about this organization.” No, it was
not despite his previous trips to Mexico that he is afraid of
being sent back there, but because of the previous trips and
his involvement with Jose and other Zetas in smuggling
drugs into the United States. He provided information about
the Zetas to American law enforcement after he had returned
from his last trip to Mexico in 2007. His situation vis-à-vis
the Zetas has changed for the worse since he was last in
Mexico.
The Board member also failed to detect the immigration
judge’s error in finding torture by police officers insufficient
for CAT relief, for he remarked that the petitioner had “not
demonstrated any error by the Immigration Judge in evalu-
ating the evidence, [or] in applying legal standards.” He
should have remanded the case to the immigration judge to
enable her to correct her errors.
If the Mexican government could be expected to protect
the petitioner from the Zetas should he be returned to Mexi-
co, the risk that he would be tortured or killed might be too
slight to entitle him to deferral of removal. But the legal team
representing our government in this case presented no evi-
dence of this—indeed, it presented no evidence at all. And
though the immigration judge remarked that the Mexican
government was trying to control the drug gangs, it is suc-
cess rather than effort that bears on the likelihood of the peti-
tioner’s being killed or tortured if removed to Mexico. And
finally the government made no effort to refute the expert’s
testimony that the petitioner could not relocate to a safe part
of Mexico—that no part is safe for him—a proposition that
neither the immigration judge nor the BIA member chal-
lenged.
12 No. 15-1860
For all the reasons we have given, we grant the petition
for review and remand the case to the Board of Immigration
Appeals for further proceedings consistent with this opinion.