Evidence Shows Man Would Face Torture by Mexican Police

Wednesday, July 25, 2018

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Ninth Circuit:

Evidence Shows Man Would Face Torture by Mexican Police

Decision That He Failed to Show, Under Facts Assumed True, That It’s ‘More Likely Than Not’ He Would Incur Brutal Treatment if Deported Reversed; Truthfulness Can’t Be Assumed on Remand

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has reversed a determination by an administrative appeals body that a man failed to make the requisite showing, in order to elude deportation, that he would “more likely than not” be tortured by police if he were deported to his home country of Mexico.

In reaching its decision, the Board of Immigration Appeals (“BIA”) had assumed, for purposes of the appeal, the truth of allegations by Renee Garcia-Gonzalez concerning police beatings of him. A three-judge Ninth Circuit panel, in a memorandum opinion filed Monday, said that on remand, the BIA must consider the immigration judge’s finding that Garcia-Gonzales, who is seeking relief under the Convention Against Torture (“CAT”), had not produced sufficient evidence of truthfulness.

The opinion declares:

“Garcia-Gonzalez fears torture from three different sources: Mexican police officers, who have beaten him many times in the past; cartel members, who have kidnapped him and murdered his entire family; and mental health institutions, where he has seen police fail to protect patients from one another and, on one occasion, commit mass murder of patients. Although the proper inquiry requires calculating the sum of the weighted probabilities of each particular source of torture, we conclude that Garcia-Gonzalez has shown a likelihood that he will suffer torture at the hands of police officers. Therefore, we need not consider the additional likelihood of torture in mental health institutions or from cartel members.”

The panel indicated that while it did not need to address the petitioner’s claims as to prospects of torture in state mental health facilities or by members of drug cartels, the BIA does need to consider the strength of Garcia-Gonzalez’s evidence as to these purported potential dangers to him.

Ninth Circuit Judges Marsha S. Berzon and Paul J. Watford were joined in the case by Third Circuit Judge D. Michael Fisher, sitting by designation.

Third U.S. Circuit Court of Appeals Judge D. Michael Fisher, left, joins Ninth Circuit Judges Marsha S. Berzon and Paul J. Watford in hearing oral arguments in the case of Renee Garcia-Gonzalez who is seeking to avoid deportation to Mexico by claiming he would be tortured by police there if sent home.

Past Police Conduct

Addressing Garcia-Gonzalez’s claims of police beatings, the judges said:

“The evidence compels the conclusion that Garcia-Gonzalez is nearly certain to be detained by police officers in Mexico. During the time he has been in Mexico, he has ‘constantly’ been detained and questioned without cause. He has been arrested on at least three occasions. Police officers have told him that they believe people with tattoos, like him, are criminals. And he has had frequent contact with the police. He has often gone to shelters to get food, where police officers would frequently question and abuse the people in line, including him. This evidence compels the conclusion that, if returned to Mexico, he is virtually certain to be detained by police officers again.

“If Garcia-Gonzalez is detained, the evidence also compels the conclusion that it is more likely than not that police officers will inflict harm rising to the level of torture. In the past, Mexican police officers have beaten him with their guns and batons. They have punched him and kicked him during questioning. These beatings have been severe enough to inflict permanent damage, leaving him with constant back pain.”

The opinion continues:

“Country conditions evidence shows that treatment of this kind—and worse—at the hands of the police is not out of the ordinary. The State Department’s Human Rights Report found ‘frequent reports of citizens and foreign nationals beaten, suffocated, tortured with electric shocks, raped, and threatened with death in custody of arresting authorities.’ And there was further evidence that ‘[t]orture remains a widespread practice in Mexico to obtained forced confessions....Common tactics include beatings, asphyxiation, waterboarding, electric shocks, and death threats.’ The evidence that Mexican police frequently rely on torture, paired with Garcia-Gonzalez’s consistent and frequent past experiences, compels the conclusion that he will more likely than not be tortured in custody.”

Oral Argument

Oral argument in the case took place July 12 in Pasadena.

Watford, at first, appeared to signal that he was contemplating a vote to affirm the BIA. He asked Garcia-Gonzalez’s counsel, Elizabeth Dooley:

“Is it your position that if any person from Mexico can show that it’s more likely than not that they [sic] will be taken into police custody that they’re entitled to CAT relief given what’s stated in the State Department report? Because it seems to me that’s the logical implication of accepting your argument here.”

Dooley, an associate in the San Francisco office of Gibson, Dunn & Crutcher, responded that there was “a tremendous amount of evidence that Mr. Garcia was beaten several times” by police in Mexico, and suggested that this evidence should be considered “in combination” with pronouncements of the State Department as to the frequency of torture there.

Watford later told the lawyer, who was handling the case on a pro bono basis:

“You’ve basically established a 100 percent likelihood that he’s either going to wind up in police custody or one of these state mental institutions.”

The question that remained, the judge said, was how likely it was that Garcia-Gonzalez, in either circumstance, would be tortured.

If there were a 30 percent chance that police would torture him and a 30 percent chance he would be tortured in a mental institution, Watford remarked, “I don’t think you get to add those two together.”

He said that “in either scenario,” there was “less than a 50 percent chance” of Garcia-Gonzalez being tortured. The standard for relief from deportation was that it was “more likely than not” that the petitioner would face torture if returned to his or her country of origin.

Jonathan Robbins, senior litigation counsel for the U.S. Department of Justice’s Office of Immigration Litigation, cautioned:

“Just because something bad happened in the past does not create a presumption that something bad is going to happen in the future.”

He said that with respect to state mental health facilities, the evidence shows that the Mexican government is striving to improve conditions.

Watford pointed to the State Department’s observation that Mexican police inflict bodily harm on incarcerated persons with regularity, and said that Garcia-Gonzalez “has shown it’s quite likely that if he returns to Mexico, he’ll find himself once again in custody.” He asked:

“So, why isn’t that sufficient?”

Robbins responded:

“Past torture can be indicative of future torture, but there is no presumption created.”

The case is Garcia-Gonzalez v. Sessions, 16-70257.

Dooley commented yesterday that the “decision provides some welcome relief to Mr. Garcia,” adding:

“The Ninth Circuit got it exactly right, and we are very pleased with the result.”