Argued and Submitted En Banc; September 19, 2014.
On Petition for Review of an Order of the Board of Immigration Appeals.
The en banc court overruled Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral of removal under the Convention Against Torture.
The en banc court first determined that the petition was not moot, notwithstanding petitioner's removal after filing his petition for review, because there was solid evidence that petitioner is currently present in the United States.
The en banc court held that Hasan and Lemus-Galvan are inconsistent with 8 C.F.R. § § 1208.16(c)(2) and (3) because they improperly place the burden on the petitioner to prove that internal relocation is impossible. The en banc court also concluded that Singh departs from § 1208.16(c)(3) because the regulation does not specify that the inability to relocate safely is an element of claim for deferral of removal for which a petitioner bears the burden of proof, and that Perez-Ramirez improperly applied to the CAT context the burdenshifting scheme for internal relocation applicable to asylum claims.
The en banc court held that neither the petitioner nor the government bear the burden of proof as to internal relocation, rather such evidence, if relevant, must be considered in assessing whether it is more likely than not that the petitioner would be tortured if removed. The court remanded to the Board for reconsideration of petitioner's eligibility for deferral of removal.
Dissenting, Judge Gould, joined by Judges Clifton, Ikuta, and N.R. Smith, would dismiss the case as moot because petitioner has not been in touch with his attorney and it is not clear that petitioner is currently in the United States.
Dissenting, Judge M. Smith, joined by Judge Clifton, also believes that the case is moot, but wrote separately to state that even if he agreed with the majority that Maldonado's petition for review continues to present a justiciable controversy, which he does not, he would affirm the denial of deferral of removal because the Board cited other appropriate factors in denying relief. He agrees with the majority that Perez-Ramirez must be overruled, and that the Board may have interpreted language in Lemus-Galvan as requiring a petitioner to establish that internal relocation is impossible, but he does not agree that Hasan and Singh, and the substance of Lemus-Glavan, conflict with the regulations.
Haitham Edward Ballout (argued), and Mairead C. Donahey, Law Offices of Haitham E. Ballout, Burlingame, California, for Petitioner.
Andrew C. MacLachlan (argued), Senior Litigation Counsel, and Ilissa M. Gould, Attorney, United States Department of Justice, Office of Immigration Litigation, Washington D.C., for Respondent.
Before: Alex Kozinski, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Richard R. Clifton, Milan D. Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Morgan Christen, Paul J. Watford, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Paez; Dissent by Judge Gould; Dissent by Judge M. Smith.
PAEZ, Circuit Judge:
Roberto Curinsita Maldonado (" Maldonado" ) petitions for review of the Board of Immigration Appeals' (" BIA" ) decision dismissing his appeal of an immigration judge's (" IJ" ) denial of his application for deferral of removal under the Convention
Against Torture (" CAT" ). Although the IJ found that Maldonado testified credibly that he was tortured by corrupt Mexican police officers after he was deported in 2000, the BIA concluded that Maldonado was not " eligible for deferral of removal under [CAT] because he failed to establish that internal relocation within Mexico was impossible."
In this proceeding, Maldonado argues that, although he bears the ultimate burden to prove he would be tortured if returned to Mexico, the BIA's ruling on internal relocation is inconsistent with the plain text of the governing regulation, 8 C.F.R. § 1208.16(c)(3). He also challenges our framework in Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), which the BIA cited in support of its ruling. We acknowledge that our case law on internal relocation under CAT departs from the text of § 1208.16(c)(3). We therefore take this opportunity sitting en banc to clarify our case law and to restore the integrity of § 1208.16(c)(3) in the analysis of a claim for deferral of removal under CAT. In light of the BIA's reliance on our interpretation of § 1208.16(c)(3), we grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.
While this petition for review was pending, Maldonado was removed to Mexico. This development prompted us to question whether this petition is moot. After considering the government's response to our post-argument inquiry, we conclude, as explained below, that this petition is not moot and proceed to the merits.
Factual Basis for Torture Claim
Maldonado entered the United States in 1966 as a young child. He obtained lawful permanent resident status through his father. As the result of a first degree burglary conviction in 1991, he was stripped of that status in 1997 and ordered deported to Mexico.
After Maldonado returned to Mexico, he attempted to settle in his family's hometown, Ciudad Hidalgo, in the state of Michoacan. As he passed through inspection at the airport in nearby Morelia, he was detained by what Maldonado described as " Mexican officers" or " Mexican judicial police"  who were inspecting individuals arriving after removal from the United States. The officers handcuffed him and took him to a police station. They questioned him about tattoos on his body, which they insisted were proof that he had been in a Mexican prison before relocating to Michoacan. As the police officers questioned Maldonado, they beat him, drove screwdrivers into his legs, and burned him with cigarettes, leaving multiple scars. At other points during his detention, the police officers administered shocks to his testicles and placed a bag filled with water over his head such that he believed he was choking. For approximately one month, the police detained Maldonado in a cell at the station without access to a phone.
While in custody, they continued to torture him. Eventually, Maldonado was able to contact his father, who paid $15,000 for his release. The police officers did not release Maldonado to his father. Instead, they moved Maldonado by helicopter to a prison and demanded more money for his release.
After three months of captivity and torture, the police informed Maldonado that they would release him only on the condition that he guide other recent deportees into their hands. When Maldonado refused, they stabbed him in the leg and beat him for two days. Fearing for his life, he agreed to participate. Maldonado's role in the criminal enterprise was to approach recent deportees at the airport, promise to assist them, and guide them to hotels that had been chosen by the police. Maldonado would instruct the deportees to wait for him in the hotel. Instead of returning, Maldonado would notify the police, who would then go to the hotel and take the deportees into custody where, according to Maldonado, they likely suffered a fate similar to his own. Maldonado received modest payments for his assistance. After he had saved enough money, Maldonado fled the enterprise and re-entered the United States illegally.
Between 2000 and 2007, Maldonado returned to the United States and was deported three separate times. Each time he returned to Mexico, he was subjected to further torture and abuse in retaliation for leaving the criminal enterprise. When he returned to Ciudad Hidalgo after his removal in 2007, the enterprise had grown in sophistication and was apprehending deportees from airports across Mexico and taking them to prisons and other locations in Michoacan. The corrupt officers had also expanded the enterprise to include kidnapping elected officials' children. Wanting nothing more to do with the criminal enterprise, Maldonado tried to sever his ties. When he attempted to leave the enterprise, however, he suffered further abuse. He suspected that he was being monitored and followed by the enterprise's operatives.
Maldonado approached his only relative in the area, a cousin, for help. His cousin provided Maldonado with a small amount of money, which he used to travel by bus to Sonora, near the United States-Mexico border. In 2007, Maldonado attempted to enter the United States by foot through the Arizona desert, where he was apprehended.
Maldonado asserts that if he is returned to Mexico, the enterprise will kill him because he " know[s] too much of what they were doing." In particular, Maldonado fears that he would be targeted because he overheard discussions of the enterprise's plans to begin pursuing government officials and their families. Maldonado suspects that photographs of him have been distributed to federal police " all over the place."
On July 23, 2008, the Department of Homeland Security reinstated Maldonado's June 17, 1997, removal order pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8. Because Maldonado feared that he would be tortured if returned to Mexico, the matter was referred to an asylum officer for a reasonable fear determination. See 8 C.F.R. § 241.8(e). An asylum officer interviewed Maldonado, found him credible, and determined that he had a reasonable fear of being tortured by the corrupt " Mexican judicial police" if he were returned to Mexico. Maldonado's matter was next referred to an immigration judge for a hearing on his claim of torture and request for ...