Castro v. Holder

• Decision Date: 02 March 2010
• Docket Number: Docket No. 08-4820-ag.
• Citation: 597 F.3d 93
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Milton Ronaldo Rodas CASTRO, Maria Luisa Carranza-Fuentes, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.

597 F.3d 93

Milton Ronaldo Rodas CASTRO, Maria Luisa Carranza-Fuentes, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General,^* Respondent.

Docket No. 08-4820-ag.

United States Court of Appeals, Second Circuit.

Argued: December 9, 2009.

Decided: March 2, 2010.

Ann Pilsbury (Miwako Dai and Heather Y. Axford, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioners.

Jamie M. Dowd (Michael F. Hertz, Acting Assistant Attorney General Civil Division, and Ernesto H. Molina, Jr., Assistant Director, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: LEVAL, HALL and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

In September 2005, Milton Ronaldo Rodas Castro ("Rodas"), a native and citizen of Guatemala and a former police officer there, applied for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b)(3), and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see 8 C.F.R. §§ 1208.16-18 (implementing the CAT), alleging retaliation and threats on his life by the Guatemalan police following his reports of official corruption to an international human rights organization. Rodas's wife, Maria Luis Carranza-Fuentes ("Carranza"), also a native and citizen of Guatemala, independently applied for asylum, withholding of removal and relief under the CAT based on the same factual predicate, and their cases were consolidated in the Immigration Court. Carranza is also listed as a derivative applicant on Rodas's application.¹

On September 10, 2008 the Board of Immigration Appeals ("BIA"), affirmed a January 8, 2007 decision of Immigration Judge ("IJ") Vivienne E. Gordon-Uruakpa, granting Rodas and Carranza relief under the CAT, but denying their requests for asylum and withholding of removal under the INA. In re Caranza & Rodas, Nos. A097 909 250 & A099 423 445 (B.I.A. Sept. 10, 2008), aff'g Nos. A097 909 250 & A099 423 445 (Immig. Ct. N.Y. City Jan. 8, 2007). At issue in this appeal is the portion of the BIA's order holding petitioners ineligible for asylum upon a finding that Rodas failed to establish a sufficient nexus between a protected ground and the harm he encountered and will encounter if removed to Guatemala.² We find that the agency erred in concluding that the danger Rodas encountered lacked any political dimension, because the agency failed to properly consider the relevant context in which Rodas's claim arises and, in so doing, misconstrued the concept of political opposition. Accordingly, we grant the petition and remand the case for further consideration.

BACKGROUND

I. Rodas's Claim of Persecution

In 1996, with the signing of various Peace Accords, Guatemala emerged from thirty-six years of civil war under the leadership of President Álvaro Arzú of the Partido de Avanzada Nacional ("PAN"). Following the implementation of the Peace Accords, among other changes, President Arzú abolished the Guatemalan National Police and Treasury Police, which had been run by the military, and established in their place the Guatemalan National Civil Police Force ("PNC"). According to Rodas's unrebutted testimony—as well as an affidavit submitted by Jorge Nowell Enriquez, a former Guatemalan political leader—as part of this transformation, President Arzú removed many corrupt officers from power. Against this backdrop, Rodas joined the PNC in 1998 as part of the first wave of new post-Peace Accord officers, because it "had a good image" and he wanted to contribute to his community.

In 2000, however, Present Arzú and the PAN were succeeded in power by President Alfonso Portillo of the Frente Republicano Guatemalteco ("FRG"). President Portillo was closely aligned with a former military dictator and, according to Rodas's and Enriquez's unrebutted testimony, under President Portillo's command, many corrupt elements from the pre-Peace Accord regime were reinstated. Following President Portillo's assumption of power, problems with corruption in Guatemala reportedly deepened. As noted by a 2003 report of the United States Drug Enforcement Administration provided as part of Rodas's asylum application, in that environment, "[r]ampant corruption permeate[d] all levels of law enforcement, the judiciary, military and other governmental agencies in Guatemala." Drug Enforcement Admin., U.S. Dep't of Justice, Drug Intelligence Brief, Country Brief: Guatemala 2, 7 (2003) (hereinafter "DEA Drug Intelligence Brief").

In August 2001, Rodas's supervisor, Second Officer Edgar Noberto Hernandez Revolorio, assigned him to investigate suspected leaders of drug trafficking groups. Rodas did so, and presented his findings to Revolorio. The following month, while Rodas and another officer were patrolling the streets, they witnessed Revolorio and another supervisor, First Officer Rubelio Navas, engaged in a cocaine transaction with one of the men Rodas had been assigned to investigate and about whom Rodas had provided information to Revolorio.

Upon the arrival of Rodas and his partner, Revolorio and Navas passed off the transaction as official police business and instructed the subordinate officers to return to the police station. They did so, but Rodas dismissed the suggestion that Revolorio and Navas were engaged in an undercover sting operation because, as Rodas testified, the Guatemalan police did not engage in such transactions. Accordingly, upon returning to the station Rodas immediately called the regional police commissioner, Juan Francisco Jacinto Ruiz, who was superior to both Revolorio and Navas, and reported what he had seen. Jacinto Ruiz told Rodas not to worry and that he would take care of the situation.

The following day, Revolorio removed Rodas from patrol duties, prohibited him from making phone calls, and suspended him. Several days later, on September 21, Rodas went to the United Nations Human Rights Verification Mission in Guatemala ("MINUGUA")—a human rights organization set up under United Nations auspices as part of the implementation of the Peace Accords to monitor the peace process and human rights issues—to report the drug trafficking activities of his police supervisors. Rodas explained that he sought to report the incident to MINUGUA "because it was an organization that was created so that human rights would be respected, [that] has been guarding or watching the human rights not just of police officers but all of the citizenry in general," and because Rodas "like[s] to be a man who's honest and correct." Rodas's partner, who also witnessed the drug transaction, did not want to put himself in danger by making such a report and did not accompany Rodas to MINUGUA.

MINUGUA workers warned Rodas that reporting such a blatant act of corruption was extremely dangerous. Accordingly, on MINUGUA's advice, Rodas's official report was limited to several lesser incidents of malfeasance within the PNC, which would enable MINUGUA to open an investigation and thereby lead them to the more serious issues Rodas presented while minimizing the risk to Rodas.

Police commissioner Jacinto Ruiz was unhappy that Rodas made this report to MINUGUA and instructed him to rescind it. MINUGUA officers cautioned Rodas not to accede to Jacinto Ruiz's demands because if Rodas's complaint were withdrawn there would be no evidence of Rodas's actions in the event something were to happen to him. Rodas decided not to withdraw the complaint and so informed Jacinto Ruiz.

Thereafter, Rodas's life took a drastic turn for the worse, exemplified by his effective ouster from the PNC, several attempts on his life, and his brother's murder. Initially, Rodas's work duties were reduced and he was assigned to security detail at the hospital. One day in October 2001, while Rodas was guarding a prisoner, three men, one carrying a pistol, came looking for Rodas. The armed man said that they were sent "from the above" because Rodas did not behave, and said something to the effect of "we're coming for you now that you won't join us." Rodas summoned another officer for help, and, after a scuffle, Rodas and his partner were able to arrest two of the three men. Rodas and his partner brought the arrestees to the police station and reported the incident. A subsequent background check revealed that one of the arrestees was a fellow PNC officer from another unit. Charges against these men never went forward, however, for when Rodas appeared in court to present charges as the arresting officer, he discovered that his assailants had been released and replaced by two innocent homeless men.

Following this event, Rodas was given six months of disability leave to tend to his ankle, which had fractured during the hospital fight. Rodas and Carranza moved to the town where Carranza grew up and stayed with various relatives while Rodas received physical therapy. Over the next several months, Rodas was followed on various occasions by people driving motorcycles and cars and by uniformed police officers, and was told that armed men came looking for him at his wife's parents' house and at the hospital where he was being treated. PNC officers also visited Rodas's parents in another town, informing Rodas's parents that they had a message for Rodas that could only be delivered to him personally.

Rodas's suspicions that the PNC were out to get him were confirmed by his colleague—the same officer who witnessed the cocaine transaction with Rodas, and who still worked for the PNC—who warned Rodas not to return to police duty because the PNC were setting a trap to kill him. At some point, Rodas encountered two men who said they were from "the above," and asked when Rodas would return to work. Terrified that the PNC had finally tracked them down, Rodas and Carranza moved to...