Perez-Guerrero v. U.S. Attorney Gen.

• Decision Date: 12 June 2013
• Docket Number: No. 12–10261.,12–10261.
• Parties: Jose Alberto PEREZ–GUERRERO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

717 F.3d 1224

Jose Alberto PEREZ–GUERRERO, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 12–10261.

United States Court of Appeals, Eleventh Circuit.

June 12, 2013.

Eric J. Andalman, Dentons US, LLP, Chicago, IL, Aaron K. Block, Molly M. Jones, Alston & Bird, LLP, Atlanta, GA, for Petitioner.

Dana Michelle Camilleri, Franklin M. Johnson, Jr., David V. Bernal, Krystal Samuels, OIL, U.S. Dept. of Justice, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before PRYOR and JORDAN, Circuit Judges, and PRO,^* District Judge.

PER CURIAM:

This petition presents the question whether the Board of Immigration Appeals erred when it denied Jose Alberto Perez–Guerrero's request for relief under the Convention Against Torture. Perez–Guerrero accepted a bribe from a Mexican drug cartel while he was employed by the United States Embassy in Mexico City. After the United States arrested Perez–Guerrero, he provided valuable information about corrupt officials in Mexico and pleaded guilty to bribery and obstruction of justice. Perez–Guerrero completed a sentence in a federal prison, and the United States then petitioned to remove him. The immigration judge and the Board concluded that Perez–Guerrero was subject to removal and that he was not entitled to relief under the Convention because he had failed to prove that it was more likely than not that he would be tortured in Mexico. We have jurisdiction to review only the conclusions of law, but not the findings of fact, of the Board. 8 U.S.C. § 1252(a)(2)(C), (D). Because the Board committed no error of law, we deny Perez–Guerrero's petition for relief under the Convention. We also reject Perez–Guerrero's argument that his removal to Mexico would violate his right to due process. And we direct the Clerk to seal records of Perez–Guerrero's guilty plea and those portions of the record that contain information about the identity and whereabouts of Perez–Guerrero's family.

I. BACKGROUND

Perez–Guerrero, a native and citizen of Mexico, accepted a bribe from a Mexican drug cartel while he worked for the United States Embassy in Mexico City. Perez–Guerrero's job then was to assist the UnitedStates in locating and extraditing American fugitives in Mexico. In November 2007, Perez–Guerrero and an associate named Jose Antonio Cueto Lopez accepted a bribe from a man known as “Mr. Nineteen.” In exchange for the bribe, Perez–Guerrero gave Mr. Nineteen information about an American fugitive who the Embassy was tracking in Mexico.

In June 2008, the United States flew Perez–Guerrero to Virginia under the pretense that he was to receive training in the United States, but federal officials arrested Perez–Guerrero upon his arrival at Dulles International Airport. Perez–Guerrero admitted that he had accepted the bribe, and he cooperated with American and Mexican officials. Over the next several months, Perez–Guerrero provided those officials with information about corrupt officials in Mexico who cooperated with the drug cartels. Based in part on the information that Perez–Guerrero provided, officials conducted “Operation Cleanup,” which led to the arrest of 45 people, including several high-ranking Mexican law enforcement officials. Although officials promised Perez–Guerrero that his identity as an informant would remain confidential, Perez–Guerrero's identity as an informant was leaked to the media and published in news reports.

Perez–Guerrero pleaded guilty in the district court for the District of Columbia to one count of bribery, 18 U.S.C. § 201(b)(2)(C), and one count of obstruction of justice, id. § 1503. The district court sentenced Perez–Guerrero to 24 months of imprisonment. Perez–Guerrero agreed that he would be removed to Mexico after the completion of his sentence and that he would be in violation of the plea agreement if he contested his deportation on any grounds other than that he faced death or injury in Mexico as a result of the cooperation he provided to the United States and Mexican governments. Perez–Guerrero alleges that American officials told him that they would find a way to ensure that he did not return to Mexico at the conclusion of his prison sentence.

Near the end of his sentence, the Department of Homeland Security filed a notice for Perez–Guerrero to appear at a removal hearing. The Department stated that Perez–Guerrero was removable because he was an alien who had been convicted of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), and was an alien without a valid visa or entry document, id. § 1182(a)(7)(A)(i)(I). Guerrero conceded that he was removable, but he sought asylum, withholding of removal, and deferral of removal under the Convention Against Torture. Perez–Guerrero introduced evidence about country conditions and the likelihood that he would face torture in Mexico. This evidence included his own testimony, an affidavit from his wife, the testimony of an expert on country conditions in Mexico, and documentary evidence.

Perez–Guerrero testified that he fears that he will be tortured or killed by the drug cartels and corrupt officials in Mexico. Perez–Guerrero testified that the information that he provided to police implicated several high-ranking Mexican officials and that police arrested most but not all of the individuals he implicated. Perez–Guerrero also stated in an affidavit that “law enforcement and other governmental institutions are often infiltrated by and effectively run by organized crime groups” and that he believes that “[i]t is reasonable to expect that the organized crime groups and/or the officials controlled by these organized crime groups in Mexico will kill me in an effort to seek revenge for the information I disclosed, which took down their colleagues.” Perez–Guerrero testified that the witness protection program of Mexico would be unable to protect his identity from the cartels and corrupt officials. And he testified that, had he known that he would be sent back to Mexico after his arrest, he did not know if he would have assisted officials in their investigation because his safety and the safety of his family was “one of the main conditions” of his cooperation.

Perez–Guerrero also testified that his family has received threats in connection with his decision to cooperate with investigators. When Perez–Guerrero cooperated with American and Mexican officials, his wife worked at a Mexican law enforcement agency. Perez–Guerrero provided information to Mexican and American officials that led to the arrest of some of his wife's co-workers. Perez–Guerrero testified, and his wife's affidavit confirmed, that his wife had received death threats and that some of her co-workers had told her that they could not associate with her because she was in danger and they did not want to be killed. Perez–Guerrero also testified that his mother had received suspicious telephone calls in Mexico while he was in detention and that his wife had been forced to take their child out of school because she feared that he would be harmed. Perez–Guerrero acknowledged that neither he nor his wife received any threats after he began serving his prison sentence in the United States.

Perez–Guerrero also introduced the testimony of Dr. Bruce Bagley, an expert on country conditions in Mexico, who testified that Perez–Guerrero faces danger in Mexico. Dr. Bagley acknowledged that the then-president of Mexico, Felipe Calderón, had taken steps to combat corruption in the Mexican government, and that Calderón had attempted to reform the police forces at the national, state, and local levels. Dr. Bagley testified that Calderón had reorganized the national police force and that Mexico might experience results from a better trained, better paid, and more highly monitored police force in approximately four years. Dr. Bagley testified that Calderón had enjoyed less success in reforming state and local police forces, due in part to resistance from the Mexican Congress and the governors of the Mexican states. But Dr. Bagley testified that, despite the reforms in Mexico, corrupt individuals continued to work for the Mexican government, and Perez–Guerrero faced grave danger in Mexico. Dr. Bagley testified that, if Perez–Guerrero returned to Mexico, “his life would be very short, [and] he would be killed as an example,” and that Mexican officials would “[w]ithout a doubt” try to harm him. Dr. Bagley explained that corrupt officials sometimes torture or kill people on behalf of the cartels and that “there are cases where government officials have been participatory in torturing to get information out of individuals or actually pulling the trigger.” He testified that there is nowhere in Mexico that Perez–Guerrero would be safe from the cartels and that the witness protection program of Mexico would be inadequate to protect Perez–Guerrero.

The immigration judge denied Perez–Guerrero's request for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The immigration judge issued a 46–page opinion that identified the documentary evidence that Perez–Guerrero submitted to the court and discussed in detail the testimony of Perez–Guerrero and Dr. Bagley. The immigration judge denied Perez–Guerrero's request for deferral of removal under the Convention because Perez–Guerrero failed to prove that more likely than not he would be harmed in Mexico or that Mexican officials would participate in any harm that he might suffer.

The immigration judge found that Perez–Guerrero failed to prove that it was more likely than not that he would endure severe pain or suffering in Mexico. The immigration judge acknowledged that Perez–Guerrero fears that he will be harmed in Mexico and that his wife received second-hand warnings while she was in Mexico. But the immigration judge stated that neither Perez–Guerrero nor his wife...