Mendoza-Sanchez v. Lynch

• Decision Date: 23 December 2015
• Docket Number: No. 15–2551.,15–2551.
• Citation: 808 F.3d 1182
• Parties: Martin MENDOZA–SANCHEZ, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

808 F.3d 1182

Martin MENDOZA–SANCHEZ, Petitioner,

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

No. 15–2551.

United States Court of Appeals, Seventh Circuit.

Submitted July 22, 2015.

Decided Dec. 23, 2015.

Michael Evan Rayfield, Attorney, Mayer Brown LLP, New York, N.Y., for Petitioner.

Jesse M. Bless, Attorney, Oil, Attorney, Anthony Cardozo Payne, Attorney, Department of Justice, Washington, DC, for Respondent.

Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The petitioner, a citizen of Mexico, asks us to vacate an order of the Board of Immigration Appeals affirming an immigration judge's denial of his application, based on the Convention Against Torture (an international convention to which the United States belongs), for deferral of removal. He contends that removal (which would mean returning him to Mexico) would result in his death—a form of torture within the meaning of the Convention, see 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. 1(1); 8 C.F.R. § 1208.18(a)(4)(iii) —at the hands of the notorious Mexican drug cartel La Linea.

We recruited counsel for the petitioner (who had filed his petition in our court pro se) and directed briefing on whether the Board had been justified in concluding that Mendoza–Sanchez had not presented sufficient evidence to establish that if he were returned to Mexico "a Mexican public official would acquiesce in (or be willfully blind to)" his being murdered by La Linea.

After the petitioner's opening brief was filed, the government, before filing its brief in response, filed a motion asking us to remand the case to the Board for "reconsider[ation] of Mendoza's eligibility for deferral of removal under the CAT." The motion does not confess error, but instead recommends remand to enable the Board to "conduct an additional investigation of the record evidence and attempt to issue a fuller explanation concerning issues presented by ... Mendoza's request for deferral of removal."

He opposes the motion but we've decided to grant it, as we think a sound resolution of this case will be promoted by our giving the Board an opportunity to reconsider the standard for acquiescence articulated by it and the immigration judge in this and other cases, and, more broadly, to reconsider the Board's approach (and that of immigration judges) to requests for deferral of removal on the basis of the Convention Against Torture and its implementing regulations.

Mendoza–Sanchez came to the United States at the age of 18, in 1983, and became a lawful permanent resident. But somewhere along the line he became a cocaine dealer, and some of the cocaine that he sold he'd obtained from members of the La Linea cartel, which is known to be violent and to work with corrupt Mexican police officers. In 2010 he was convicted in an Indiana court of dealing in cocaine and sentenced to 12 years in prison. A fellow prisoner who was a member of La Linea—a man whom Mendoza–Sanchez knew as "Pelon"—attacked him when he was standing in line at the prison cafeteria, broke two of his teeth, and explained to him that several members of the cartel, who had been arrested, believed that he had snitched on them. As he testified at the immigration hearing, "I was facing a lot more time than what I actually got and this gave them another reason to believe that I snitched on them to get less time." For though sentenced to 12 years, he had been released after only 5.

Pelon told him that the cartel would have him killed if he returned to Mexico, and that it knew where in the country he had grown up (the city of Matamoros) and presumably would want to return to. At his immigration hearing, Mendoza–Sanchez presented evidence that La Linea is "not confined to a State or a small area but its reach is nationwide," and that the "law enforcement agencies are infiltrated by the Cartels." The State Department's human rights report on Mexico, which he also submitted, details the widespread corruption of Mexican police and their routine participation in the activities of drug organizations.

Having been placed in removal proceedings at the end of his prison term, Mendoza–Sanchez was found to be removable to Mexico on the basis of his drug conviction. He does not question his removability, but seeks only a deferral of removal under the Convention Against Torture. We summarized the evidence that he introduced at the hearing on his motion for deferral. Counsel for the Department of Homeland Security conducted only a brief cross-examination. He did not dispute the bulk of Mendoza–Sanchez's testimony and with his questioning elicited only a few pieces of potentially relevant information: that he did not know Pelon's full name (only his nickname), hadn't spoken to him since the incident in the prison, had learned only from people in prison that Pelon had returned to Mexico, and had been threatened by no one other than Pelon. Asked whether there was any place in Mexico where he would not be menaced by La Linea, Mendoza–Sanchez responded that although La Linea's name ("The Line") was derived from its control of the Mexican border, members of the cartel are "all over Mexico" and "work everywhere."

The immigration judge's decision describes Mendoza as "a credible witness" whose "testimony is generally consistent internally and with the limited documentary evidence in the record," but concluded that the evidence did not "establish [his] eligibility for deferral of removal." The Board of Immigration Appeals affirmed, without rejecting either the immigration judge's credibility finding or Mendoza–Sanchez's contention that he would more likely than not be killed by La Linea if he returned to Mexico. The Board based its affirmance on Mendoza–Sanchez's not having "presented sufficient evidence to establish that ... a Mexican public official would acquiesce (or be willfully blind) to such harm." The Board did this in the face of evidence, apart from what we've already discussed, that police officers routinely collaborate with and protect drug cartels in Mexico and La Linea specifically, and that according to the State Department's Mexico 2013 Human Rights Report "despite some arrests for corruption, widespread impunity for human rights...