Barajas-Romero v. Lynch

• Decision Date: 18 January 2017
• Docket Number: No. 13-70520,13-70520
• Citation: 846 F.3d 351
• Parties: Raul BARAJAS-ROMERO, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

846 F.3d 351

Raul BARAJAS-ROMERO, Petitioner,
v.
Loretta E. LYNCH, Attorney General, Respondent.

No. 13-70520

United States Court of Appeals, Ninth Circuit.

Submitted April 7, 2014
Withdrawn from Submission August 19, 2014
Resubmitted July 30, 2015 San Francisco, California
Filed January 18, 2017

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.

Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.

846 F.3d 354

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 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 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

846 F.3d 355

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 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 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

846 F.3d 356

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-Romero] expressed to his attackers that he was against police corruption. Rather, the attacks were designed to extort money." As for the Convention...