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Mexican Torture Case Revived by Full 9th Circ.

SAN FRANCISCO (CN) - A man denied immigration relief because of his supposed ability to avoid torture in Mexico by moving found relief Friday from the en banc 9th Circuit.

Roberto Curinsita Maldonado claimed that when the United States government first deported him nearly 20 years ago, Mexican police drove screwdrivers into his legs, burned him with cigarettes and shocked his testicles.

He said police then forced him to participate in a criminal enterprise in which his job was to hand recent deportees over to officers from the airport.

Maldonado returned to the U.S. and was deported three separate times between 2000 and 2007, according to Friday's ruling.

In an application for deferral of removal under the Convention Against Torture, Maldonado claimed that, if he returned to Mexico, the police's enterprise would kill him because he knows too much about their operation, including their plans to begin kidnapping elected officials' children.

An immigration judge credited Maldonado's torture claims but still denied his application based on the possibility that the immigrant could still try to relocate away from his persecutors, internally in Mexico.

Maldonado was removed to Mexico in 2009 while petitioning the en banc 9th Circuit for relief, but the 11-judge court found Friday that his claims are not moot because the immigrant is apparently back in the United States, having renewed his California driver's license in 2010.

The new ruling says that its precedent improperly supported the immigration judge's finding that Maldonado had not met his burden on challenging the possibility of internal relocation.

"In deciding whether the applicant has satisfied his or her burden, the IJ must consider all relevant evidence, including but not limited to the possibility of relocation within the country of removal," Judge Richard Paez wrote for a six-person majority. "Section 1208.16(c)(2) does not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative. Nor do the regulations shift the burden to the government because they state that the applicant carries the overall burden of proof."

With this in mind, the court overruled four of its cases dating back to 2004 that it says conflict with the regulations: Hasan v. Ashcroft, Lemus-Galvan v. Mukasey, Singh v. Gonzales, and Perez-Ramirez v. Holder.

Having clarified its internal-relocation case law, the court ordered the Board of Immigration Appeals to consider these issues on remand.

Three judges joined a dissent by Judge Ronald Gould that says the uncertainty about Maldonado's whereabouts moots his petition.

"We are engaging in what might be called a 'ghost ship' ruling, with the case careening along unmanned by the party seeking relief," Gould wrote.

"Instead, we should limit the awesome power of the federal courts to decide important immigration law matters to cases where parties also remain within the effective reach of our court's jurisdiction so that we can give meaningful relief."

In a separate opinion, joined by a fifth dissenting judge, Judge Milan Smith also cited said the uncertainty of Maldonado's whereabouts.

Were the case not moot, Smith said he would affirm denying Maldonado relief.

"In overruling [the] precedents, the majority throws the baby out with the bath water," Smith said.

Maldonado's failings in briefing internal relocation was not the sole basis for the denying him relief, Smith said, adding that it was "just one factor."

"A CAT petitioner is not required to conclusively prove that internal relocation is impossible - but the BIA did not hold Maldonado to such a standard here," he said.

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