Ramirez-Peyro v. Holder

• Citation: 574 F.3d 893
• Decision Date: 04 August 2009
• Docket Number: No. 08-2657.,08-2657.
• Parties: Guillermo Eduardo RAMIREZ-PEYRO, also known as Guillermo Eduardo Ramirez-Peyro, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

574 F.3d 893

Guillermo Eduardo RAMIREZ-PEYRO, also known as Guillermo Eduardo Ramirez-Peyro, Petitioner, v. Eric H. HOLDER, Jr.,¹ Attorney General, Respondent.

No. 08-2657.

United States Court of Appeals, Eighth Circuit.

Submitted: March 10, 2009.

Filed: August 4, 2009.

Jodilyn Marie Goodwin, argued, Harlingen, TX, for petitioner.

Tiffany Walters Kleinert, Office of Immigration Litigation, argued, Washington, DC, for respondent.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

This case involves the U.S. government's repeated efforts to remove from the country a former drug informant who has helped the government successfully prosecute and imprison several high-profile Mexican drug traffickers at great risk to his own life. Guillermo Ramirez Peyro, a Mexican native and citizen, petitions for review of the decision of the Board of Immigration Appeals ("BIA") to deny him deferred removal under the Convention Against Torture ("CAT"). Ramirez Peyro claims that the BIA improperly interpreted one of the CAT's implementing regulations, 8 C.F.R. § 1208.18(a)(1), when denying him relief from removal and that, if removed to Mexico, he will be tortured or killed in retribution for his actions as an informant. We grant Ramirez Peyro's petition for review.

I.

This is not the first time that Ramirez Peyro has petitioned this court for review of a BIA decision to deny him relief under CAT. The facts of his case are set out in our prior opinion, Ramirez-Peyro v. Gonzales, 477 F.3d 637, 638-41 (8th Cir.2007), and we recite here only those facts relevant to this particular appeal.

Ramirez Peyro became involved in the Mexican drug-trafficking trade after leaving his job with the Mexican highway police in 1995. While involved in the trade, he oversaw the warehousing and distribution of large amounts of cocaine and was involved in other illicit activity in Mexico. In 2000, Ramirez Peyro became a confidential informant for the U.S. Immigration and Customs Enforcement ("ICE") and infiltrated the Carillo Fuentes Cartel ("Cartel"), also known as the Juarez Cartel, in Mexico on ICE's behalf. As an ICE informant, Ramirez Peyro testified that he witnessed Mexican police officers murder individuals at the behest of the Cartel, saw Cartel members participate in many other killings in the presence of Mexican police officers, and further witnessed police cover-ups of those crimes.

Based on his observations during his tenure as an informant, Ramirez Peyro facilitated the U.S. government's arrest of approximately fifty individuals, including Heriberto Santillan, a top lieutenant in the Cartel. In addition to helping U.S. efforts to curtail the drug trade, Ramirez Peyro provided a statement to a representative of the Mexican government implicating Santillan in murders of the Cartel's rival drug traffickers. In that statement, Ramirez Peyro confessed to his involvement in numerous criminal activities while in Mexico.

It is undisputed that based on his work with the U.S. government there have been two attempts on Ramirez Peyro's life. One attempt occurred in El Paso, Texas and the other attempt occurred in Juarez, Mexico. Following the second attempt on his life, and believing him to be an integral part of its case against Santillan, the United States placed Ramirez Peyro into protective custody in 2004. While detaining him, the U.S. government has taken efforts to ensure that Ramirez Peyro is semi-isolated from the general prison population, and the record includes a list of over forty-five individuals in prison who may wish to harm him based on his work for the United States.

To date, the U.S. government has paid Ramirez Peyro approximately $220,000 for his work. Additionally, in exchange for his help, the U.S. government has provided Ramirez Peyro with immunity from prosecution, and, as the Government acknowledges, the United States paroled Ramirez Peyro and his family into the country "for their safety." See 8 U.S.C. § 1182(d)(5)(A) (authorizing the Attorney General to parole into the country persons for "urgent humanitarian reasons").

Ramirez Peyro's testimony from 2005 and 2007 hearings before an Immigration Judge ("IJ") indicates that there was some discussion regarding a grant of immunity from prosecution in Mexico, but there is no written documentation to that effect and there are no details of that alleged offer in the record. In the 2005 opinion granting CAT relief, the IJ stated that Ramirez Peyro "believes that he was promised immunity in Mexico regarding [his] statement [to Mexican authorities]." In the 2007 opinion, the IJ similarly indicated that Ramirez Peyro "states that he was . . . offered immunity from prosecution in Mexico by an anti-drug trafficking authority there." The IJ did not determine that Ramirez Peyro was, in fact, offered such immunity or the precise parameters of that grant. The IJ only determined that Ramirez Peyro believed there was some agreement. Furthermore, unlike the United States, the Mexican government has not offered Ramirez Peyro protection from those who wish to harm him, and the IJ found there is no effective witness-protection program in place that would shield Ramirez Peyro from harm.

While Ramirez Peyro was paroled into the United States in connection with his work for U.S. agencies, he has never been admitted within the meaning of the Immigration and Nationality Act. As a result, Ramirez Peyro was placed into expedited removal proceedings when his parole permit expired on January 14, 2005. Ramirez Peyro claims that ICE had agreed orally to give him legal-permanent-resident status in the United States in consideration for his work as an informant, so he was surprised when he was placed in removal.

A. First Hearing Before the Agency

During Ramirez Peyro's first hearing before an IJ in 2005, he conceded removability. He also conceded that he was ineligible for asylum and withholding of removal because of his criminal record. See 8 U.S.C. § 1231(b)(3)(B)(iii). He maintained, however, that he was entitled to deferral of removal under the CAT, asserting that he feared torture and death at the hands of the Cartel and of Mexican law enforcement acting on the Cartel's behalf. Ramirez Peyro alleged that all levels of the Mexican police have illicit connections to drug trafficking and that Mexican authorities, including Mexico's Federal Agency of Investigation, regularly reveal the identities of informants to the drug cartels, which has led to at least one informant's assassination.

In addition to Ramirez Peyro's testimony at the 2005 hearing, both parties submitted extensive documentary evidence confirming (1) the close relationship between Mexican law enforcement, politicians, and drug cartels; (2) the frequent involvement of police officers and military personnel in violent crimes; (3) Ramirez Peyro's relationship with ICE; (4) the U.S. government's concern for his safety both in Mexico and while in protective custody in the United States; and (5) Ramirez Peyro's role as an ICE informant and the resulting threat that he now faces.

On August 11, 2005, the IJ found Ramirez Peyro to be a credible witness and granted deferral of removal under the CAT. See 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). On appeal, the BIA did not find any error with the IJ's credibility or factual determinations but nevertheless reversed the IJ on two bases. First, the BIA found that Ramirez Peyro was not entitled to relief because he had failed to establish that the harm he faced would more likely than not be inflicted by government officials or with their consent or acquiescence. And, second, the BIA determined that the threat to Ramirez Peyro was localized.

Ramirez Peyro appealed to this court, claiming that the BIA had incorrectly reviewed the IJ's findings of fact de novo and improperly engaged in its own fact finding. See Ramirez-Peyro, 477 F.3d at 640. We held that the BIA had, in fact, applied an erroneous standard of review and engaged in improper fact finding with regard to Ramirez Peyro's ability to relocate within Mexico. Id. at 641. We then remanded the case for specific factual findings regarding the plausibility of internal relocation in Mexico and the Mexican government's acquiescence to drug traffickers and those public officials helping them. Id. at 641-42. On remand from this court, the BIA, in turn, remanded the case to the IJ to perform the requisite fact finding.

B. Second Hearing Before the Agency

To address this court's concerns, in 2007 the IJ heard additional testimony and conducted additional fact finding based on the parties' submissions of supplemental evidence on the country conditions in Mexico and the Mexican President's attempts to control drug traffickers. In its October 11, 2007 opinion, the IJ extensively outlined all of the documentary evidence both parties had submitted on remand. It discussed, in particular, the 2007 U.S. State Department Country Report on Mexico ("Report"), which the IJ believed evidenced a "deeply entrenched culture of impunity and corruption in [Mexico's government], particularly at the state and local level."

The IJ noted that Mexican "police and security forces" had been involved in "unlawful killings" and that "there were numerous reports of executions carried out by rival drug cartels, whose members allegedly included both active and former federal, state, and municipal security forces." The IJ further indicated that the Report provided support for Ramirez Peyro's claim that "police were involved in kidnaping, extortion, and providing protection for, or acting directly on behalf of, drug traffickers." The IJ also outlined evidence indicating that the Mexican President had begun efforts to curtail drug trafficking, its accompanying violence, and the corruption within the police and military forces. The IJ determined, however, that despite the Mexican government's good intentions, the success of such efforts remained...