Ramirez-Peyro v. Gonzales

• Decision Date: 23 February 2007
• Docket Number: No. 06-1569.,06-1569.
• Citation: 477 F.3d 637
• Parties: Guillermo Eduardo RAMIREZ-PEYRO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

477 F.3d 637

Guillermo Eduardo RAMIREZ-PEYRO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 06-1569.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2007.

Filed: February 23, 2007.

Jodilyn M. Goodwin, argued, Harlingen, Texas, for petitioner.

Anthony C. Payne, argued, Washington, D.C. (Peter D. Keisler and David V. Bernal, on the brief), for respondent.

Before MURPHY, HANSEN, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner Guillermo Ramirez-Peyro (Ramirez) sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming that if he were returned to his native Mexico he would be harmed or killed in retaliation for his work as an informant for United States agents. The immigration judge granted him deferral of removal under CAT, but the Board of Immigration Appeals (Board) reversed and ordered Ramirez removed to Mexico. Ramirez petitions for review, arguing that the Board applied the incorrect standard of review. We remand for further proceedings.

Ramirez was born in Mexico in 1971. By his own account, he became involved in drug trafficking after leaving his job with the Mexican highway police in 1995, and he oversaw the warehousing and distribution of large amounts of cocaine in Guadalajara, Mexico. In 2000 he became a confidential informant for the United States Customs, now the Bureau of Immigration and Customs Enforcement (ICE). He was subsequently asked to infiltrate the Juarez Cartel run by Vincente Carillo Fuentes, one of Mexico's most dangerous and prolific narcotics trafficking organizations. Ramirez claims to have facilitated the arrest of some 50 individuals, including Heriberto Santillan, a top lieutenant in the Juarez Cartel. Ramirez was taken into United States custody as a material witness necessary to the prosecution of Santillan, who eventually pled guilty to a drug trafficking charge. Ramirez also gave a statement to representatives of the Mexican government implicating Santillan in the murders of rival drug traffickers.

Ramirez was temporarily paroled into this country for the public benefit in connection with his work for United States agencies, but he was never admitted. He states that he has been in protective custody since 2004. His parole permit expired on January 14, 2005, and he was subsequently placed into expedited removal proceedings. On May 9, 2005 the Department of Homeland Security (DHS) issued a Notice to Appear charging Ramirez with being subject to removal under section 212(a)(7)(A)(i)(I) of the Immigration and Naturalization Act (INA) on the ground that he was an applicant for admission not in possession of a valid immigration document. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Ramirez conceded that he was removable, but filed an application for asylum, withholding of removal, and relief under the Convention Against Torture, claiming that he feared torture and death at the hands of the Juarez Cartel and Mexican law enforcement acting on the cartel's behalf. Ramirez had an interview with an asylum officer who found that he had a credible fear of persecution from the Mexican government based on his own testimony and a 2004 Department of State report that described the involvement of Mexican police officers in criminal activity, including acts of violence, on behalf of drug cartels. After a reviewing supervisor concurred in his assessment, the asylum officer gave Ramirez's case a positive referral to an immigration judge.

Ramirez appeared before an immigration judge on June 9, 2005. He conceded in his prehearing brief that he had been involved in drug trafficking in Mexico, rendering him ineligible for asylum and withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(iii) (withholding and asylum barred where alien had committed "serious nonpolitical crime outside the United States . . ."); see also In re Y-L-, 23 I. & N. Dec. 270, 274 (BIA 2002) (drug trafficking constitutes a particularly serious crime). He maintained that he was entitled to deferral of removal under the Convention Against Torture, which contains no so such bar on the basis of prior criminal activity. CAT protects an individual from being returned to a country where it is more likely than not that he will be tortured. 8 C.F.R. § 1208.16(c)(2). To warrant relief, the harm feared must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Id. § 1208.18(a)(1).

Although it is not enough that a government is aware of torture but powerless to stop it, see In re S-V-, 22 I. & N. Dec. 1306, 1312, 2000 WL 562836 (BIA 2000), a government official may be responsible for torture under CAT if he knows that it will occur and "thereafter breach[es] his or her legal responsibility to intervene to prevent such activity." 8 C.F.R. § 1208.18(a)(7). In order to determine the likelihood that an applicant faces torture in the proposed country of removal, the immigration judge must consider all evidence, including but not limited to: (1) evidence of past torture inflicted upon the applicant, (2) evidence that the applicant could relocate to another part of the country where he is not likely to be tortured, (3) evidence of gross, flagrant or mass violations of human rights within the country of removal, and (4) other relevant country conditions. Id. § 1208.16(c).

Ramirez claimed that he would be tortured and killed if he were removed to Mexico and that he feared retaliation not only from members of the Jaurez Cartel but also from members of the police force who worked on their behalf, alleging that all levels of the Mexican police had illicit connections to drug trafficking. He testified that while working as an ICE informant he witnessed police officers murder individuals at the behest of Santillan and other members of the Juarez Cartel, and that he saw many other bodies of individuals killed in a similar fashion. He also testified that Mexican authorities would often alert the cartel about informants, and that on at least one occasion Mexico's Federal Agency of Investigation (AFI) provided information to the cartel about a possible informant, leading to his murder.

Ramirez further testified that ICE agents warned him that his life was in danger and that two attempts had already been made on his life in connection with his work for ICE. He stated that he and his family, which had been relocated to the United States for their protection and at the federal government's expense, had already been paid some $220,000 by the United States government for his work as an informant but that ICE had also orally agreed to give him resident status in this country. He testified that he was surprised when he was placed into removal proceedings. Ramirez was the only witness to testify at the hearing, but both parties submitted documentary evidence, including country reports from the Department of State confirming the close relationship between Mexican law enforcement and drug cartels, records detailing Ramirez's relationship with ICE, evidence that United States government officials were concerned for his safety, and newspaper accounts of his role as an ICE informant. Some of these news reports suggested that Ramirez's relationship with ICE had become a source of embarrassment for the federal government, since he had been present when cartel members murdered several rival drug traffickers and was alleged to have some role in those killings and or their coverup.

In an oral decision on August 11, 2005, the immigration judge (IJ) concluded that relief was "clearly" warranted under CAT, credited Ramirez's testimony, and noted that the documentary evidence indicated that "there are U.S. law enforcement officials who believe that this cartel would be most interested in having the respondent killed." The IJ found that the...