Renee Garcia-Gonzalez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2018
• Docket: 16-70257
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENEE GARCIA-GONZALEZ, AKA No. 16-70257 Renee Garcia, AKA Gillermo Garcia Lopez, AKA Guillermo Garcia-Gonzalez, Agency No. A029-246-975 AKA Rene Garcia-Gonzalez, AKA Gillermo Garcia-Lopez, AKA Guillermo Lopez-Garcia, MEMORANDUM*

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted July 12, 2018 Pasadena, California

Before: BERZON, FISHER,** and WATFORD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Page 2 of 5 The Immigration Judge (“IJ”) denied Renee Garcia-Gonzalez’s claim for

protection under the Convention Against Torture, and the Board of Immigration

Appeals (“BIA”) upheld the IJ’s decision and dismissed the appeal. Garcia-

Gonzalez now petitions for review of the BIA’s decision.

In his removal proceedings, Garcia-Gonzalez provided a declaration setting

out his harrowing experiences in his native Mexico and fears of future torture if

forced to return. In denying relief under CAT, the IJ offered two distinct grounds

for his decision. First, he found that Garcia-Gonzalez’s declaration was

“insufficient to establish the truth of his claims.” Alternatively, he found that,

“assuming arguendo the truth of [Garcia-Gonzalez’s] claims in his declaration, . . .

[he] has failed to establish eligibility for deferral under the CAT.” The BIA relied

on the second ground only, assuming the contents of the declaration to be true for

purposes of the appeal and declining to address the IJ’s other findings. The BIA

then found that Garcia-Gonzalez had not shown that he was more likely than not to

be tortured if returned to Mexico.

Substantial evidence does not support the BIA’s determination. The

evidence in the record, including Garcia-Gonzalez’s declaration and country

conditions evidence, “compels a reasonable factfinder to conclude that the BIA’s Page 3 of 5 decision is incorrect.” Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir.

2010).

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 proposition that Garcia-Gonzalez is more likely than not to be tortured

by Mexican police officers follows from two premises. First, it is nearly certain

that, if returned to Mexico, he will again be detained by police officers at some

point. Second, it is more likely than not that, if he is detained by police officers, he

will suffer harm amounting to torture.

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 Page 4 of 5 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. 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, Page 5 of 5 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. See Nuru v. Gonzales, 404 F.3d 1207, 1217–18 (9th Cir. 2005).

Assuming, as the BIA did for the purposes of appeal, that the contents of

Garcia-Gonzalez’s declaration are true, the record compels the conclusion that he

is more likely than not to be tortured in police custody if returned to Mexico. We

therefore remand for the BIA to consider the IJ’s alternate ground for decision,

taking into account not only the risk of torture by police officers but also the other

sources of potential future torture (mental health institutions and cartel members)

that we have had no need to address.

PETITION FOR REVIEW GRANTED; CASE REMANDED.