SAN FRANCISCO (CN) – Immigration authorities improperly burdened a Mexican immigrant with proving he could not safely relocate in Mexico for fear of being tortured, a Ninth Circuit panel found.
In their 28-page opinion issued Jan. 18, Circuit Judges Andrew Kleinfeld, Jacqueline Nguyen and Paul Watford ordered the Board of Immigration Appeals to apply the correct standard, which requires the petitioner prove a likelihood of torture but not that he’d be unable to safely relocate to Mexico to avoid future harm.
The Mexican immigrant came to the United States legally as a child and grew up in San Pedro, California. While the rest of his family became American citizens he never naturalized, and was deported in 1998 because of felony convictions for methamphetamine possession and receiving stolen property.
The man had a run-in two years after he moved back to the Mexican state of Michoacan, when he refused to give robbers his gold watch and everything in his pocket. The robbers beat him up and threw him off a bridge, which left the man with a broken nose, broken teeth and a head wound requiring more than a dozen stitches.
The man’s assailants also issued a warning: “Hey puto, no one messes with the Familia Michoacana.” He reported the assault to the police when he got out of the hospital, but officers took no action. His cousin was kidnapped by the drug cartel the following year, and a couple years after that his neighbor was murdered for refusing to pay extortion.
In 2006, the man was held hostage in his own home by four off-duty police officers who demanded money from him. They locked him in a bathroom for two days, and then told him to call his family for money. He called him mother in the United States, who said she didn’t have any money. His captors then burned him with cigarettes and hit him with the blunt side of a machete, according to the panel’s summary.
But when the man made an anticorruption remark to the police, saying, “I don’t pay no corrupt cops, nothing,” the torture became much worse. The policemen put two scorpions on the man’s legs, which stung him and left him feverish, swollen and unable to breathe without difficulty.
The policemen then rubbed a dried corncob on his forehead, which made him bleed and left a permanent scar. They threatened to cut his head off and slashed his leg, causing a deep wound. The man was locked in the bathroom again and passed out from pain.
The next day, the police officers were gone and the man made it outside. Two local medical clinics refused to treat him when they learned police tortured him, and he had to travel an hour for treatment. He was hospitalized for two weeks and a month later fled to the United States, reentering with a false passport. He was caught in 2010 and turned over to Immigration and Customs Enforcement.
At his 2012 hearing before the immigration judge, the man provided medical evidence of his torture which the judge found to be credible. But that judge denied his request to withhold deportation, finding the torture incident was “solely an effort to extort money by rouge police officers and not because of an expressed or implied political opinion” – noting the threat came from off-duty officers and not the government.
The board agreed with the immigration judge, finding Mexico “is aggressively targeting corrupt government elements” and that the immigrant “could relocate out of the area.”
Mexico’s murder rate has gotten significantly worse recently after years of improving: Tijuana, the border town just south of San Diego, saw more than 900 homicides in 2016, its deadliest year ever.
Amnesty International’s 2015 follow-up on its torture report on Mexico found torture has continued in Mexico and complaints to the federal government more than doubled between 2013 and 2014, despite the government’s promise to crack down on torture. While Mexico’s government fielded more than 2,400 complaints for torture in 2014, officials could not provide “any hard data” on charges brought related to those complaints, according to Amnesty International.
In their opinion, the Ninth Circuit panel also cited a report from the State Department of Human Rights which found “corruption remained a problem at all levels of government” in Mexico and some public officials continued to “perpetrate some criminal acts with impunity,” including police who acted on behalf of organized crime and drug cartels.
In his petition, the man argued the board failed to consider Mexico’s lack of success in its war on gangs, and corruption and “nationwide danger facing him if he returned to Mexico.”
The panel found there was ample evidence on record that local police and the drug cartel targeted the man without knowing anything about his political opinion. But the evidence also shows the torture escalated once he voiced his opposition to police corruption, the panel found.
Unlike the standard for asylum seekers – which requires a person’s political opinion be “one central reason” they need to be protected from persecution – the man in this case seeks withholding deportation, not asylum. The withholding statute says political opinion must be “a reason” rather than “at least one central reason,” the panel found.
The panel agreed with the man’s pointing to the difference in word choice in Congress’ statute on what’s required of asylum seekers and what’s required for withholding removal, saying it “appears to have been the product of a deliberate choice.”
“Congress’ 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,” the panel wrote.
The panel found the words “a reason,” used in the withholding of removal claims, is weaker and less demanding than for asylum seekers.
“The statutory language is unambiguously different, with different meanings, so there is no ambiguity justifying deference to the administrative agency’s contrary view. The different language should not be treated as though it means the same thing,” the panel wrote.
The panel remanded to the board to decide the case under the correct standard: “a reason” rather than “one central reason.”
As for relief under the Convention Against Torture Act, the panel rejected the immigration judge and board’s finding that the man’s torturers were “rouge officials,” noting the four policemen who attacked him were public officials even if they were not acting “in an official capacity” and tortured the man while off-duty.
The panel noted, as they had in another case, “the efficacy of the government’s efforts to stop the drug cartel’s violence” and not just the government’s willingness to do so, must be examined.
The Ninth Circuit judges also disputed whether the man could safely relocate to another region in Mexico because the policemen had permanently scarred his forehead to make him recognizable and told him “that is where the bullet would be” if he was seen in Mexico or reported the incident, which he did.