Raul Barajas-Romero v. Loretta E. Lynch , 846 F.3d 351 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL BARAJAS-ROMERO, No. 13-70520
Petitioner,
Agency No.
v. A017-190-075
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2014
Withdrawn from Submission August 19, 2014
Resubmitted July 30, 2015
San Francisco, California
Filed January 18, 2017
Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Kleinfeld
2 BARAJAS-ROMERO V. LYNCH
SUMMARY*
Immigration
The panel granted a petition for review, holding that the
Board of Immigration Appeals erred in applying the REAL
ID Act’s “one central reason” nexus standard, rather than the
“a reason” standard, to an application for withholding of
removal, and improperly placed the burden on petitioner to
prove that he could not safely relocate within Mexico for
purposes of Convention Against Torture protection relief.
Declining to afford deference to the Board’s precedential
decision in Matter of C-T-L, 25 I. & N. Dec. 341 (BIA 2010),
the panel held that by amending the asylum statute to include
the REAL ID Act’s “one central reason” nexus standard, but
not similarly amending the withholding of removal statute,
Congress did not intend for the “one central reason” standard
to apply to withholding of removal claims. The panel
explained further that the “a reason” standard applicable to
withholding of removal claims requires weaker motives than
the “one central reason” standard.
The panel held that there is no “rogue official” exception
for CAT relief, and that an applicant need show a likelihood
of torture at the instigation of or with the consent or
acquiescence of either a public official, or some other person
acting in an official capacity. The panel explained that CAT
relief may be based on the actions of off-duty police officers,
even where they were not acting in an official capacity, so
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BARAJAS-ROMERO V. LYNCH 3
long as they carried out the acts or knowingly acquiesced in
the acts.
The panel held that although petitioner bore the ultimate
burden to prove a likelihood of torture, the Board erred by
placing the burden on petitioner to establish that he could not
safely relocate within Mexico to avoid future harm.
The panel remanded for the Board to reconsider the
withholding claim applying the correct nexus standard, and
to reconsider the CAT claim under the no-burden-shifting
relocation standard.
COUNSEL
Katherine Cheng (argued), Certified Law Student, UCLA
School of Law, Los Angeles, California; Michael W.
Reynolds (argued), and Carlos M. Lazatin, O’Melveny &
Myers LLP, Los Angeles, California; for Petitioner.
Tim Ramnitz (argued), Attorney; Shelley R. Goad, Assistant
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
4 BARAJAS-ROMERO V. LYNCH
OPINION
KLEINFELD, Senior Circuit Judge:
We address the “principal reason” standard for
withholding of removal, and also the acquiescence and
relocation standards for Convention Against Torture relief.
At issue is why Raul Barajas-Romero was tortured and
whether he can be returned to Mexico without likely being
tortured again.
I. Facts.
Barajas-Romero came to the United States legally from
Mexico as a little boy. He grew up in San Pedro, California.
His mother, brothers, children, and grandchildren are
American citizens, but he never became naturalized, and he
remains a citizen of Mexico. Barajas-Romero was deported
in 1998 because of convictions for felony methamphetamine
possession and receiving stolen property.
After he was removed from the United States in 1998,
Barajas-Romero got a house in Santa Clara, a village in the
State of Michoacan, where he had relatives. Two years after
he moved to the village, men attacked him and demanded his
gold watch and everything in his pockets. He refused to hand
them over, so the men hit him on the head, kicked him in the
face, and threw him off a bridge. The assault left him with a
broken nose, broken teeth, and a wound on his head requiring
more than a dozen stitches and leaving a two- or three-inch
scar. The men identified themselves by announcing: “Hey,
puto, no one messes with the Familia Michoacana.” Barajas-
Romero’s political opinion did not come up in this first
BARAJAS-ROMERO V. LYNCH 5
attack, just the Familia Michoacana drug cartel’s pride in its
power.
Barajas-Romero reported the assault to the police when he
got out of the hospital. He told them La Familia Michoacana
were the attackers. The police did nothing. His cousin was
kidnaped by La Familia the following year. A couple of
years after that, his next door neighbor, who had built a grand
house, was murdered when he refused to pay extortion.
In 2006, Barajas-Romero was doing construction work on
his house in Santa Clara when the incidents directly giving
rise to this case occurred. Four off-duty local police officers
arrived at his home. Barajas-Romero recognized them
because he got off the bus daily at the police station stop, saw
them frequently, and had frequently seen them following him.
When he opened the door, the policemen forced him inside,
locked the door behind them, and asked him for his money.
Barajas-Romero said he had none, but they did not believe
him, especially because they saw all the building materials he
had purchased for his home.
The four policemen then locked Barajas-Romero in his
own bathroom for two days while they deliberated about what
to do with him. On the third day they took him out, told him
to call his family for money, and began burning him with
cigarettes. His leg was permanently scarred, and he later
showed the twenty or so scars to the Immigration Judge.
Barajas-Romero called his mother, who was in the United
States, but she said she had no money she could send. The
four policemen thought he could get money if they were more
persuasive, so one of them began hitting him all over his body
with the blunt side of a machete blade. Barajas-Romero
6 BARAJAS-ROMERO V. LYNCH
begged them to stop and said his mother was going to try to
get money from his brothers.
However, Barajas-Romero did not merely beg. He also
made a remark that annoyed the four policemen and could be
construed as expressing or manifesting an anti-corruption
political opinion. Barajas-Romero testified that he “got a
little bold and told them even if I had the money I wouldn’t
give it to you guys because you guys are getting paid for the
job, I don’t pay no corrupt cops, nothing.”
The torture became much worse after Barajas-Romero’s
“corrupt cops” remark. The four policemen threw him back
in the bathroom, but this time they did not just leave him
there. They lifted his pants and put two scorpions on his legs.
Both scorpions stung. Barajas-Romero became feverish,
swollen, and had trouble breathing.
While the policemen tortured him with scorpions, they
also rubbed a dried corncob back and forth on his forehead to
make him bleed and cause a permanent scar. They told him
that if he told anyone what happened, they would put a bullet
through his permanent scar. When Barajas-Romero begged
for mercy, the policemen responded by threatening to cut his
head off with a machete and slashed his leg, causing a deep
laceration. Then they locked him in the bathroom again.
Barajas-Romero could not move and passed out from pain,
fever, and difficulty breathing.
The next morning the four policemen were gone, and
Barajas-Romero stumbled out of his house. His neighbors
tried to help him. A police officer arrived and asked what
happened, and Barajas-Romero told him that his colleagues
had done this. The police officer stopped preparing his
BARAJAS-ROMERO V. LYNCH 7
report, stopped talking to Barajas-Romero, and dropped him
off him at the local clinic without saying a word. The police
never asked Barajas-Romero to come in to identify the
officers who had attacked him or for any other information
regarding their identities. The local clinic where he had been
dropped off refused to treat him once they learned that his
torturers were police officers. A second medical facility
likewise refused to treat him out of fear. Fortunately, a third
hospital, one about an hour away from Santa Clara, did treat
his injuries. He was hospitalized for two weeks.
Approximately a month after his release, Barajas-Romero
fled Mexico for the United States because he felt that he
could not trust the police anywhere in Mexico, and the mark
on his forehead would be, as his torturers had told him, where
a bullet would go if he returned.
Barajas-Romero reentered the United States with a false
passport and was eventually caught in 2010. Barajas-Romero
was charged, convicted, and imprisoned for illegal reentry,1
and then turned over to Immigration and Customs
Enforcement (“ICE”). ICE commenced proceedings to
reinstate his prior deportation order. These proceedings are
the subject of the petition before us. Barajas-Romero was
found statutorily eligible for withholding of removal and
Convention Against Torture relief.
At his hearing before the Immigration Judge in 2012,
Barajas-Romero provided medical evidence to support his
claims. As one example, when Barajas-Romero’s lawyer
showed the Immigration Judge Barajas-Romero’s leg, she
said “may the record reflect . . . close to 20 cigarette burns or
more on respondent’s left leg.” Government counsel
1
8 U.S.C. § 1326.
8 BARAJAS-ROMERO V. LYNCH
conceded that he saw perhaps 15 circular scars of some sort.
Barajas-Romero’s counsel then pointed to an exhibit, a
physician’s report saying that the scars were “typical
purposeful cigarette burns . . . resemb[ling] the cigarette
burns caused by torture.” Similarly, a physician’s report also
confirmed a 12 centimeter (4 3/4 inches) scar on his leg
consistent with a deep laceration, with consequential damage
to the veins and chronic swelling of the leg. Barajas-Romero
remains on medication for his physical injuries, and for the
post-traumatic stress disorder caused by his torture. The
Immigration Judge found Barajas-Romero to be credible, and
none of the horrendous facts concerning Barajas-Romero’s
torture are in question. The issues in this case have to do with
Barajas-Romero’s right to remain in the United States
because of his torture, not whether torture occurred.
The Immigration Judge denied Barajas-Romero’s
withholding of removal claim on the ground that the
persecution “was solely an effort to extort money by rogue
police officers and not because of an expressed or implied [or
imputed] political opinion” and the threat came “solely from
the off-duty, rogue officers themselves and not the
government.” He noted that Mexico has laws against torture
and corruption, and thousands of police officers have been
dismissed for violating them. As for the Convention Against
Torture claim, the Immigration Judge determined that
Barajas-Romero had the ability to find someplace “acceptable
to his standards” of safety to live in Mexico.
The BIA agreed. While the BIA did not disagree that
Barajas-Romero’s testimony was credible, the BIA held that
Barajas-Romero’s withholding of removal claim failed
because he failed to prove that the harm he suffered “was
fueled by any political motives, even though . . . [Barajas-
BARAJAS-ROMERO V. LYNCH 9
Romero] expressed to his attackers that he was against police
corruption. Rather, the attacks were designed to extort
money.” As for the Convention Against Torture claim, the
BIA held that Barajas-Romero did not show “that any
particular officer’s actions or acquiescence would not be that
of a rogue official.” The BIA also held that “the country is
aggressively targeting corrupt government elements” and that
Barajas-Romero “could relocate out of the area.”
Barajas-Romero petitions for review. First, he argues that
the BIA applied an erroneous standard to his withholding
claim. Second, he argues that the BIA failed to consider the
Mexican government’s lack of success in its war on gangs,
and corruption and the nationwide danger facing him if he
returned to Mexico.
II. Analysis
A. Withholding of removal.
The Attorney General must, in general, withhold removal
of an alien if the alien’s life or freedom would be threatened
“because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.”2 Barajas-
2
8 U.S.C. § 1231(b)(3)(A):
(A) In general
Notwithstanding paragraphs (1) and (2), the Attorney
General may not remove an alien to a country if the
Attorney General decides that the alien’s life or
freedom would be threatened in that country because of
the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.
10 BARAJAS-ROMERO V. LYNCH
Romero argues that his life and freedom would be threatened,
at least in part, because of his anti-corruption political
opinion. There is ample evidence in the record that the local
police and the local drug cartel targeted him without knowing
anything about his political opinion, merely because they
thought they could get money from him. There is also ample
evidence that the police escalated their torture considerably,
from confinement, beatings, and cigarette burns, to scorpions,
slashing with a machete, and permanent conspicuous facial
disfigurement, after he voiced his opposition to police
corruption. The parties dispute the extent to which political
opinion must be the basis for the threat for the threat to be
“because” of the political opinion.
For purposes of asylum or withholding of removal, it is
not enough that a person comes from a wretched place, where
life will most probably be far worse than if he remains in the
United States. For asylum, a person generally needs to face
persecution in his home country “on account of race, religion,
nationality, membership in a particular social group, or
political opinion.”3 The person seeking asylum has the
3
8 U.S.C. § 1101(a)(42):
The term “refugee” means (A) any person who is
outside any country of such person’s nationality or, in
the case of a person having no nationality, is outside
any country in which such person last habitually
resided, and who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion, or (B) in such special
circumstances as the President after appropriate
consultation (as defined in section 1157(e) of this title)
BARAJAS-ROMERO V. LYNCH 11
burden of proving not only the prospective persecution, but
also that it would be “on account of” one of the five listed
reasons.4 A person seeking withholding of removal must
prove not only that his life or freedom will be threatened in
his home country, but also that the threat is “because of” one
of the five listed reasons.5 The list of reasons for which relief
may be granted is identical for both asylum and withholding
of removal.
may specify, any person who is within the country of
such person’s nationality or, in the case of a person
having no nationality, within the country in which such
person is habitually residing, and who is persecuted or
who has a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion. The term “refugee”
does not include any person who ordered, incited,
assisted, or otherwise participated in the persecution of
any person on account of race, religion, nationality,
membership in a particular social group, or political
opinion. For purposes of determinations under this
chapter, a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization, or
who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a
coercive population control program, shall be deemed
to have been persecuted on account of political opinion,
and a person who has a well founded fear that he or she
will be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance shall
be deemed to have a well founded fear of persecution
on account of political opinion.
4
8 U.S.C. § 1158(b)(B)(1); 8 U.S.C. § 1101(a)(42).
5
8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b).
12 BARAJAS-ROMERO V. LYNCH
The words “on account of” and “because of” address the
persecutor’s motive for persecuting the victim.6 For example,
if the persecutor has no idea what the victim’s political
opinion is and does not care what it is, then even if the victim
does reasonably fear persecution, it would not be “on account
of” the victim’s political opinion. But what if the persecutor
does have some idea of the victim’s political opinion and
feels quite hostile to that opinion, but also has other reasons
for persecuting the victim? People, including persecutors,
often have mixed motives. When is the persecution,
motivated only in part by hostility to the victim’s political
opinion, “because of” or “on account of” that opinion?
We adopted the Second Circuit’s position in our 1999 en
banc decision in Borja v I.N.S., holding that persecution “on
account of” political opinion did not mean persecution solely
for that reason.7 The victim in that case sought asylum
because Communist guerrillas in the Philippines had pointed
a gun at her and threatened to kill her when she said she was
pro-government, but were also upset that she could not pay
the increased amount of monthly protection money they
demanded.8 They persecuted her partly because she was pro-
government and partly just for the money.9 We held that
6
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Navas v. I.N.S.,
217 F.3d 646, 656–57 (9th Cir. 2000).
7
Borja v. I.N.S., 175 F.3d 732, 735 (9th Cir. 1999).
8
Id. at 734–35.
9
Id. at 737.
 BARAJAS-ROMERO V. LYNCH 13
persecution was “on account of” political opinion if it was so
motivated “at least in part.”10
Our “at least in part” standard is no longer the law with
regard to asylum applicants. Congress amended the statute,
so that for asylum, the victim’s political opinion has to be
“one central reason.”11 When we decided Borja, the statute
did not indicate the appropriate burden of proof for
establishing that persecution was “because of” (or “on
account of”) a protected ground.12 However, the asylum
statute now states:
the applicant must 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
applicant.13
But Congress did not similarly amend the withholding of
removal statute, and Barajas-Romero seeks withholding of
removal, not asylum. The withholding statute just says “a”
reason, not “at least one central reason:”
10
Id. at 735–36.
11
Antiterrorism and Effective Death Penalty Act of 1996, PL
104–132, April 24, 1996, 110 Stat 1214; Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and Tsunami
Relief, 2005, PL 109–13, May 11, 2005, 119 Stat 231; 8 U.S.C.
§ 1231(3)(A).
12
8 U.S.C. § 1158 (1996) (current version at 8 U.S.C. § 1158 (2009).
13
8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).
14 BARAJAS-ROMERO V. LYNCH
In determining whether an alien has
demonstrated that the alien’s life or freedom
would be threatened for a reason described in
subparagraph (A) [race, religion, political
opinion, etc.], the trier of fact shall determine
whether the alien has sustained the alien’s
burden of proof, and shall make credibility
determinations, in the manner described in
clauses (ii) and (iii) of section 1158(b)(1)(B)
of this title.14
Congress’s decision to adopt the “one central reason”
standard for asylum but not withholding of removal claims
appears to have been the product of a deliberate choice, rather
than a mere drafting oversight. When Congress amended the
withholding of removal statute to clarify the applicable
burden of proof, it cross-referenced clauses (ii) and (iii) of the
asylum statute’s burden-of-proof provision, but not clause
(i).15 Clause (i) is the provision that imposed the “one central
reason” standard for asylum claims. Congress’s express
incorporation of two of the three asylum burden-of-proof
provisions into the withholding of removal statute, but not the
provision including the “one central reason” language,
indicates that Congress did not intend for the “one central
reason” standard to apply to withholding of removal claims.
See Kucana v. Holder, 558 U.S. 233, 249 (2010) (“Where
Congress includes particular language in one section of a
14
8 U.S.C. § 1231(b)(3)(C) (emphasis added). Clauses (ii) and (iii)
discussed in the quote refer to the credibility rules for asylum applicants
located directly after the subsection requiring “one central reason.”
8 U.S.C. § 1158(b)(i)–(iii).
15
8 U.S.C. § 1231(b)(3)(C).
BARAJAS-ROMERO V. LYNCH 15
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”).
The government argues that “one central reason” and “a
reason” mean the same thing. Barajas-Romero argues that
the different words used in each statute mean different
things.16 We agree with Barajas-Romero. The phrase “a
reason” includes weaker motives than “one central reason.”
A person may have “a reason” to do something that is not
his “central” reason or even “one central reason.” Ordinary
English usage, and the ordinary canon of statutory
construction reflecting “the same common-sense premise that
when people say one thing, they do not mean something else”
indicate that we should attribute some operative meaning to
the congressional decision to use the phrase “at least one
central reason” in one statute but not the other.17 Sometimes
omission of a phrase implies a negative pregnant, and
sometimes it does not.18 Considering how controversial the
reason for persecution has been in the immigration law
community, the express congressional narrowing of one
statute but not the other to “one central reason” cannot
reasonably be read so to narrow both.
16
Kucana, 558 U.S. at 249 (2010).
17
2A Sutherland Statutory Construction § 47:23 (7th ed.).
18
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.
1992).
16 BARAJAS-ROMERO V. LYNCH
The BIA in this case followed its own precedent in Matter
of C-T-L-.19 C-T-L- held that the “one central reason” test for
asylum applies to withholding, even though the withholding
statute says merely “a reason.”20 The BIA came to this
conclusion because: (1) the withholding statute is silent on
whether the “one central reason” standard applies, (2) the
general intent of the REAL ID Act was to correct what
Congress saw as an anomaly created by Borja v. I.N.S.21 and
Briones v. I.N.S.22 in mixed motive cases, and (3) before the
REAL ID Act the Immigration and Naturalization Service
(“INS”) applied the same standard to asylum and
withholding.23 This analysis starts with a false premise that
Congress was “silent.” It was not. It explicitly said “at least
one central reason” for asylum, and “a reason,” an expressly
different standard, for withholding.
The government argues that we should accept the BIA’s
view in C-T-L- because we assumed in Zetino v. Holder24 that
the “one central reason” standard applies to withholding as
well as asylum claims. Zetino does not so hold. The alien in
that case sought asylum and withholding, but submitted no
evidence that the feared persecution had anything to do with
19
Matter of C-T-L-, 25 I. & N. Dec. 341 (2010).
20
Id. at 344.
21
Borja, 175 F.3d 732.
22
Briones v. I.N.S., 175 F.3d 727 (9th Cir. 1999).
23
C-T-L-, 25 I. & N. Dec. at 344–48.
24
Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010).
BARAJAS-ROMERO V. LYNCH 17
actual or imputed political opinion.25 His evidence was that
masked gunmen murdered his family members to steal his
grandfather’s land and that his home country, El Salvador,
was infested with violent gangs.26 We drew no distinction
between the “one central reason” phrase in the asylum statute
and the “a reason” phrase in the withholding statute, because
there was no nexus at all between the feared persecution and
political opinion.27
We hold that “a reason” is a less demanding standard than
“one central reason.” The statutory language is
unambiguously different, with different meanings, so there is
no ambiguity justifying deference to the administrative
agency’s contrary view.28 The different language should not
be treated as though it means the same thing.29 The
withholding statute differs from the asylum statute in various
ways, not just this one, so there is no reason to assume that
Congress meant for them to be the same in this respect. The
withholding statute requires applicants to prove that it is more
likely than not they will be persecuted30, while the asylum
25
Zetino, 622 F.3d at 1015–16.
26
Id. at 1010.
27
Id. at 1016.
28
Cf. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984).
29
See Kucana, 558 U.S. at 249.
30
8 C.F.R. § 208.16.
18 BARAJAS-ROMERO V. LYNCH
statute requires only a “well-founded fear” of persecution31,
so the lighter standard for the strength of the nexus is offset
by the more demanding standard of proof in the withholding
statute. Since in withholding the petitioner must show a
probability, not just a well-founded fear, of persecution,
Congress may have diluted the nexus requirement in order to
afford more protection against mistaken deportations where
a protected ground played into that likelihood.
That is not the end of the withholding issue, though. The
government argues that the police kidnaped and tortured
Barajas-Romero to extort money, so his voicing of a political
opinion on the third day of his kidnaping and torture could
not mean that the torture was because of or on account of his
previously unknown and irrelevant (to the persecutors) anti-
corruption opinion. The evidence, though, is not
unambiguous. The torture became much worse after Barajas-
Romero voiced his anti-corruption opinion. Because the BIA
accepted the government’s view under the wrong standard,
we remand to the BIA to decide the case under the correct
standard: “a reason” rather than “one central reason.”
B. Convention Against Torture.
Congress provided that “it shall be the policy of the
United States not to expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there
31
Under 8 U.S.C. § 1158(a), an applicant “is eligible for asylum if he
is a ‘refugee,’ i.e., if he is unable or unwilling to return to his home
country ‘because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social
group, or political opinion.’ Lim v. I.N.S., 224 F.3d 929, 934 (9th Cir.
2000) (quoting 8 U.S.C. § 1101(a)(42)(A)).
BARAJAS-ROMERO V. LYNCH 19
are substantial grounds for believing that the person would be
in danger of being subjected to torture.”32 It directed that the
appropriate agencies should adopt regulations to implement
the provisions of the Convention Against Torture (“CAT”).33
The implementing regulations are at 8 C.F.R. §§ 208.16–.18.
For CAT relief, the alien must prove that it is “more likely
than not that he or she would be tortured if removed to the
proposed country.”34 The torturers’ motivations need not
relate to the five protected classifications for asylum or
withholding of removal, so Barajas-Romero can establish
entitlement to relief under CAT even if he cannot establish
motivation related to his political opinion.35 What matters is
the probability of future torture, which under circuit law
32
Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”),
Pub.L. No. 105–277, Div. G, Title XXII, § 2242, 112 Stat. 2681–822
(1998) (codified as a note to 8 U.S.C. § 1231 (1999)).
33
Id.:
(b) Regulations. - Not later than 120 days after the date
of enactment of this Act [Oct. 21, 1998], the heads of
the appropriate agencies shall prescribe regulations to
implement the obligations of the United States under
Article 3 of the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment, subject to any
reservations, understandings, declarations, and provisos
contained in the United States Senate resolution of
ratification of the Convention.
34
8 C.F.R. § 208.16(c)(2).
35
The five protected classifications for asylum are “race, religion,
nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(42); 8 U.S.C. § 1231(3)(A).
20 BARAJAS-ROMERO V. LYNCH
includes killing,36 carried out or knowingly acquiesced in by
a public official.37 All evidence relevant to the probability of
future torture must be considered, including past torture and
country conditions.38
Neither the BIA, the Immigration Judge, nor the
government’s brief, puts at issue whether Barajas-Romero’s
ordeal amounted to torture. The issue is that to be entitled to
CAT relief, the torture must be “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.”39
36
Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011).
37
Id.
38
8 C.F.R. § 208.16:
(3) In assessing whether it is more likely than not that
an applicant would be tortured in the proposed country
of removal, all evidence relevant to the possibility of
future torture shall be considered, including, but not
limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part
of the country of removal where he or she is not likely
to be tortured;
(iii) Evidence of gross, flagrant or mass violations of
human rights within the country of removal, where
applicable; and
(iv) Other relevant information regarding conditions in
the country of removal.
39
8 C.F.R. § 208.18(a)(1).
BARAJAS-ROMERO V. LYNCH 21
“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.”40
The BIA rejected Barajas-Romero’s claim on the grounds
that the police who tortured him were “rogue officials” and he
had not proved that he could not avoid the threat by
relocating. Here is the entire portion of the opinion
explaining rejection of the claim:
We find no clear error in the Immigration
Judge’s finding that there are insufficient facts
in this case to support the legal determination
that Mexican officials, acting under “color of
law,” will more likely than not torture the
applicant (or acquiesce in his torture) if he
returns to Mexico. The facts here are simply
inadequate to show such pervasive corruption
that any particular officer’s actions or
acquiescence would not be that of a rogue
official (I.J. at 6–7). As noted by the
Im m igrat i on J udge, the Mexican
government’s laws and enforcement policies
make it clear that the country is aggressively
targeting corrupt government elements. The
Immigration Judge also observed that the
respondent could relocate out of the area
where the 2006 attack occurred (I.J. at 7).
Accordingly, the applicant has not met his
burden of demonstrating eligibility for
protection under the CAT.
40
8 C.F.R. § 208.18(a)(7).
22 BARAJAS-ROMERO V. LYNCH
The portions of the Immigration Judge’s opinion to which the
BIA refers say, regarding the “rogue official” issue, that
although drug cartel violence and police corruption do exist
in Mexico, the national government aggressively seeks to
eliminate them:
Here there is evidence in the country report of
both drug cartel violence and police
corruption. As mentioned, police corruption
has been identified and targeted by Mexican
authorities. There are laws on the books and
verifiable efforts to root out corruption in
government. Still, rogue elements do operate;
however, the Mexican government’s laws and
enforcement policies make it clear the country
is aggressive against such groups. The
evidence does not establish that it is more
likely than not if the Respondent was returned
to Mexico he would suffer torture at the hands
of the government or persons acting in an
official capacity or aiding or acquiescing in
his torture by others. Wakkarv v. Holder,
558 F.3d 1049 (9th Cir. 2009).
Regarding relocation, the Immigration Judge says that both
California and Mexico have dangerous communities, and
Barajas-Romero could relocate to “any region where he feels
safe” and that is “populated by individuals, businesses, and
employers acceptable to his standards”:
Respondent has painted the entire country of
Mexico as a potential threat to him from a
2006 incident. The Court is not persuaded that
is the case. Respondent has the ability to
BARAJAS-ROMERO V. LYNCH 23
locate in any region where he feels safe or
where he has access to authorities should he
be threatened or attacked. Whether in
California or Mexico, each region has
communities that are both dangerous and
secure. The key for Respondent would be to
locate in an area populated by individuals,
businesses and employers acceptable to his
standards.
The statute and regulations do not establish a “rogue
official” exception to CAT relief. The regulations say that
torture, for purposes of relief, has to be “at the instigation of
or with the consent or acquiescence of a public official or
other person acting in an official capacity.”41 The four
policemen were “public officials,” even though they were
local police and state or federal authorities might not
similarly acquiesce.42 Since the officers were apparently off-
duty when they tortured Barajas-Romero, they were evidently
not acting “in an official capacity,” but the regulation does
not require that the public official be carrying out his official
duties, so long as he is the actor or knowingly acquiesces in
the acts. The regulation uses the word “or” between the
phrases “inflicted by . . . a public official” and “acting in an
official capacity.” The word “or” can only mean that either
one suffices, so the torture need not be both by a public
official and also that the official is acting in his official
capacity. An “and” construction would require that the
conjunction be “and.” The record leaves no room for doubt
41
8 C.F.R. § 208.18(a)(1).
42
Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013).
24 BARAJAS-ROMERO V. LYNCH
that the four policemen were public officials who themselves
inflicted the torture.
CAT relief is forward-looking, requiring the applicant
prove that it is more likely than not that he would be tortured
if he were removed to the proposed country, not that he was
tortured in the past. The alien must prove not only that
torture will more likely than not occur, but also that there is
sufficient state action involved in the torture.43 Public
officials acquiesce in torture if they: “(1) have awareness of
the activity (or consciously close their eyes to the fact it is
going on); and (2) breach their legal responsibility to
intervene to prevent the activity because they are unable or
unwilling to oppose it.”44 CAT relief is unavailable, despite
a likelihood of torture, without evidence that the police are
unwilling or unable to oppose the crime, not just that they are
unable to solve it, as when the torturers cannot be identified.45
Police ineffectiveness is not enough to establish an
entitlement to relief, “absent evidence of corruption or other
inability or unwillingness to oppose criminal organizations.”46
State involvement may be established, though, where “police
officials were corrupt, and worked on behalf of criminals or
gangsters.”47
43
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).
44
Id. at 1034.
45
Id.
46
Id.
47
Id. at 1035.
 BARAJAS-ROMERO V. LYNCH 25
The BIA’s “rogue official” rationale is inconsistent with
circuit law. The BIA held that the danger Barajas-Romero
faced from the drug cartel and corrupt police did not establish
government involvement because Mexican law, and national
policy to root out the corruption, established the absence of
official acquiescence. But we held in Madrigal v. Holder that
“if public officials at the state and local level in Mexico
would acquiesce in any torture [petitioner] is likely to suffer,
this satisfies CAT’s requirement that a public official
acquiesce in the torture, even if the federal government in
Mexico would not similarly acquiesce.”48 The four police
who tortured Barajas-Romero and told him he would be
killed if he returned to Mexico were themselves government
officials. As we held in Madrigal, the “efficacy of the
government’s efforts to stop the drug cartels’ violence,” not
just the willingness of the national government to do so, must
be examined.49 Here, the BIA focused only on the national
government’s efforts and not their efficacy, which was
mistaken under Madrigal.50
The other part of the BIA’s rationale was that Barajas-
Romero could relocate “to any region where he feels safe or
has access to the authorities” in some “area populated by
individuals, businesses and employers acceptable to his
standards.” The BIA did not articulate what standard of proof
it applied when considering relocation, nor why it rejected
Barajas-Romero’s evidence to the contrary. The policemen
had marked his forehead with a permanent scar to make him
48
Madrigal, 716 F.3d at 510.
49
Id. at 509
50
Id.
26 BARAJAS-ROMERO V. LYNCH
recognizable, and they told him that “that is where the bullet
would be” if he was seen anywhere in Mexico or if he
reported the incident, which he did. The State Department
Human Rights Report on Mexico, while recognizing the
national government’s efforts to eliminate corruption and
police entanglement with drug cartels, said that “corruption
remained a problem at all levels of government,” and some
“public officials continued to perpetrate . . . some criminal
acts with impunity.” The State Department cited with
approval reports that “police, especially at the state and local
level, were involved in kidnapping, extortion, and in
providing protection for, or acting directly on behalf of,
organized crime and drug traffickers.” The State Department
mentioned a member of Mexico’s national congress, at large
as a fugitive, who according to prosecutors was in charge of
providing institutional protection to La Familia, the drug
cartel who, along with the police, acted against Barajas-
Romero.
We recently held in Maldonado v. Lynch that, although a
petitioner bears the ultimate burden to prove he would be
tortured if returned to his country, the petitioner does not bear
the burden under 8 C.F.R. § 1208.16(c)(3) to show that it is
impossible to avoid torture by internally relocating within a
country.51 In doing so en banc, we overruled our earlier line
of authority which had established that the petitioner bore the
burden of proving that he would be unable to live safely
elsewhere in the country. We held that “[t]he regulations
governing CAT deferral, unlike the asylum regulation, do not
51
Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en
banc).
BARAJAS-ROMERO V. LYNCH 27
call for any burden shifting.”52 The regulation, rather than
imposing a burden of proof, says that all evidence bearing on
the likelihood of future torture should be “considered,”
including but not limited to past torture, possibility of safe
relocation, country evidence of flagrant human rights
violations, and other evidence regarding country conditions.53
The BIA ruled in this case before Maldonado came down,
so it doubtless applied what was then the applicable law, that
Barajas-Romero had the burden of proving that he could not
safely relocate. The State Department country report says
that the national government in Mexico is trying to eliminate
widespread police corruption and police cooperation with
drug cartels, but it is very much an ongoing effort rather than
52
Id.
53
8 C.F.R. § 1208.16:
(3) In assessing whether it is more likely than not that
an applicant would be tortured in the proposed country
of removal, all evidence relevant to the possibility of
future torture shall be considered, including, but not
limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part
of the country of removal where he or she is not likely
to be tortured;
(iii) Evidence of gross, flagrant or mass violations of
human rights within the country of removal, where
applicable; and
(iv) Other relevant information regarding conditions in
the country of removal.
28 BARAJAS-ROMERO V. LYNCH
a completed reform. Past evidence of torture is
uncontradicted and substantial. There was not much evidence
presented on relocation beyond Barajas-Romero’s testimony
that the police who tortured him told him that if he returned
to Mexico, not just the village of Santa Clara, a bullet would
go where they had scarred his forehead, and the State
Department country report, which does not identify a safe
place for individuals who have become targets of drug cartels
and the police.
Because the BIA did not evaluate relocation under the no-
burden-shifting standard, and applied the incorrect standard
in assessing Barajas-Romero’s withholding claim, we remand
pursuant to INS v. Ventura54 so that the BIA may conduct
such proceedings as may be appropriate to evaluate the
factors for CAT relief under the standard we set out in
Maldonado and review Barajas-Romero’s withholding claim
under the proper legal standard of “a reason.”
PETITION GRANTED.
54
I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).