Rodriguez-Molinero v. Lynch

• Decision Date: 17 December 2015
• Docket Number: No. 15–1860.,15–1860.
• Citation: 808 F.3d 1134
• Parties: Hair RODRIGUEZ–MOLINERO, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

808 F.3d 1134

Hair RODRIGUEZ–MOLINERO, Petitioner,

v.Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 15–1860.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 18, 2015.

Decided Dec. 17, 2015.

Carla Iveth Espinoza, Chicago Immigration Advocates, Chicago, IL, for Petitioner.

OIL, Enitan Otunla, Attorney, Department of Justice, Washington, DC, for Respondent.

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 party, 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 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 mandatory 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 numerous opinions, see, e.g., INS v. Cardoza–Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ; Milosevic v. INS, 18 F.3d 366, 372 (7th Cir.1994), cannot be and is not taken literally, and this for several 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" tortured). 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 information is that there is, or is not, a substantial risk that a given 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 information 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 burden of proof in civil cases (the ‘preponderance’ standard) and rarely is the trier of fact asked to translate it into a probability (i.e., more than 50 percent). Maybe some strong suspicion that [the alien] is at risk of being tortured if he is [removed] ... 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 accompanied 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 methamphetamine 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 aggravated felony consisting of trafficking in controlled substances, 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 removal on the ground that should he be sent back to Mexico he is highly likely to be tortured by the Zetas, a violent Mexican drug cartel. Sylvia Longmire, the petitioner's expert witness and a respected student of Mexico's drug wars, stated 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.

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 Mexican 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 torture," 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 return 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 explained, "have long memories and do not easily let transgressions go without some sort of punishment or retribution, even years after they're committed. By ‘forgiving and forgetting,’ it makes these organizations look weak and [this] implies 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 Mexico 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 shortcomings 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 return 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 brutality of the Mexican drug gangs and the complicity, corruption, 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 Soldiers, Criminal Entrepreneurs, and the Shadow State They Created (2012); Ted Galen Carpenter, "Corruption, Drug Cartels and the Mexican Police," National Interest, September 4, 2012, http://nationalinterest.org/commentary/corruption–drug–cartels–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, November 6, 2013, http://nsarchive.gwu.edu/NSAEBB/NSAEBB445/.

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 petitioner's mother has said that while her uncle (the petitioner'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...