Cruz Garcia v. Eric Holder, Jr. , 756 F.3d 885 ( 2014 )


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  •      Case: 13-60381    Document: 00512683929     Page: 1   Date Filed: 07/01/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 13-60381
    United States Court of Appeals
    Fifth Circuit
    FILED
    CRUZ ALBERTO GARCIA,                                                July 1, 2014
    Lyle W. Cayce
    Petitioner                 Clerk
    v.
    ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    Before KING, HAYNES, and GRAVES, Circuit Judges.
    JAMES E. GRAVES, JR., Circuit Judge:
    Cruz Alberto Garcia, proceeding pro se, petitions this court for review of
    a Board of Immigration Appeals (“BIA”) decision. The BIA dismissed his
    appeal from the Immigration Judge’s (“IJ”) denial of his application for
    statutory withholding of removal and Convention Against Torture (“CAT”)
    protection. We deny the petition for review as to statutory withholding, grant
    the petition for review as to CAT protection, and remand to the BIA for further
    consideration of Garcia’s petition for CAT protection.
    I. Factual and Procedural Background
    In 2006, Garcia, a native and citizen of El Salvador, was ordered removed
    in absentia to El Salvador after he failed to appear at a removal hearing and
    answer charges that he was an alien present in the United States without
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    being admitted or paroled. See 8 U.S.C. § 1229a(b)(5)(A). Garcia was removed
    in June 2011, but reentered the United States illegally in February 2012. In
    March 2012, the Department of Homeland Security (“DHS”) reinstated the
    2006 removal order. See 8 U.S.C. § 1231(a)(5). Because Garcia expressed a
    fear of persecution or torture if removed to El Salvador, he was referred to an
    asylum officer for an interview. See 8 C.F.R. § 241.8(e). The asylum officer
    found that Garcia did not have a reasonable fear of persecution but that he did
    have a reasonable fear of torture, and referred the case to an IJ. See 8 C.F.R.
    § 208.31(e). Garcia filed a pro se application for statutory withholding of
    removal under 8 U.S.C. § 1231(b)(3)(A) and for relief under the CAT.
    At his hearing before the IJ, Garcia testified to the events occurring
    between his 2011 removal from the United States, and his 2012 illegal reentry.
    He testified that when he returned to El Salvador after being removed, he lived
    and worked in San Salvador. In August 2011, Garcia submitted documents to
    renew his national identification card. Soon after, he received a call on his cell
    phone from a man who said he was from the National Registration Center
    (“NRC”) and needed to verify Garcia’s information. The man asked Garcia his
    name, telephone number, and his address. He also asked Garcia when he last
    had an identification check. Garcia told him that it had been awhile because
    he had just returned from the United States.
    Garcia testified that subsequently, on August 27, 2011, four police
    officers came to the home of Garcia’s brother and sister-in-law, where Garcia
    was staying. They were dressed in blue police uniforms with badges, carrying
    weapons, and wearing masks of the type that law enforcement often used to
    cover their faces. According to Garcia, they looked just like the Salvadoran
    National Civilian Police (“PNC”) police officers in photographs Garcia had
    submitted to the IJ. However, Garcia testified that there was no way of
    knowing if they were actually police or if they were criminals who had stolen
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    police uniforms. One of the officers told Garcia that he was required to pay the
    officers $10,000 because he had returned to El Salvador from the United
    States. Garcia told the police officers that he did not have any money. Garcia
    was given two weeks to make the payment. One of the officers put a gun in
    Garcia’s face and told him that he and his family would be murdered if he did
    not pay the money. Although no one was physically injured, Garcia and his
    family were afraid. Garcia believed that the extortion was connected with the
    information he had given the NRC official during the August 2011 phone call.
    On September 8, 2011, Garcia received a call on his cell phone from an
    unidentified individual who told him to go to a certain location where he would
    be given information about depositing the money. After the telephone call,
    Garcia destroyed his cell phone, and decided to leave his brother’s house and
    stay with a neighbor. On September 18, 2011, while Garcia was at work, the
    police officers returned to Garcia’s brother’s house, asking about Garcia’s
    whereabouts. Garcia’s brother told him that one of the police officers hit him
    in the chest and put a gun to his head.
    Garcia testified that about a week later, he moved to his aunt’s house in
    the Department of Usulután. He told his brother not to tell anyone about his
    whereabouts. The government notes that Usulután is about 68 miles from San
    Salvador. One day, Garcia took the bus to go shopping, and the bus was
    stopped at a checkpoint. Garcia was asked for his national identification card.
    The police asked why he was in Usulután when his document stated that he
    lived in San Salvador. Garcia said that he was in town to shop and that he
    worked in Usulután. An officer made a phone call and gave some numbers and
    Garcia’s name to someone on the other end of the call. Garcia was detained for
    over an hour before he was allowed to leave.
    On November 15, 2011, Garcia was walking home from work in Usulután
    when a car stopped and four men got out and beat him so severely that he was
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    hospitalized for a week. Garcia heard one of the men say that the beating was
    for the money that had not been paid. The men were in civilian clothes and
    had their faces covered.      Garcia was treated at the National Hospital of
    Usulután. He stated in an affidavit that he submitted to the IJ that the beating
    was so severe that the perpetrators were probably “sure that [he] was dead.”
    However, he was unable to obtain any documents from the hospital to provide
    to the IJ. Garcia spent the next two or three months recovering and hiding,
    until he left El Salvador for the United States in January or February of 2012.
    Garcia’s mother, aunt, two uncles, and several cousins still live in El
    Salvador. However, he testified that there was nowhere he could live in El
    Salvador where “these people” could not find him.            He testified that he
    previously thought he would be safe in Usulután, but they were able to find
    him there. Garcia testified that he and his family did not report any of the
    incidents to the police because they believed the police were involved and did
    not trust the police.
    Garcia testified that he feared he would be shot and killed if he returned
    to El Salvador. He stated that he feared returning to El Salvador because of
    the government and individuals who worked for the government. The IJ asked
    why Garcia thought he would be killed, since the extortionists would not be
    able to get any money if he were dead. Garcia stated that it would no longer
    be an issue of money, it would be a matter of vengeance because he had “pulled
    a fast one o[n] them.”
    Garcia also submitted multiple country reports regarding human rights
    in El Salvador. According to one of those reports, a May 2012 report by the
    United States Department of State, some of the “principal human rights”
    problems in El Salvador are “widespread corruption,” “weaknesses in the
    judiciary and the security forces that led to a high level of impunity,” and
    “isolated unlawful killings by security forces.”    United States Department of
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    State, 2011 Country Reports on Human Rights Practices – El Salvador,
    Executive             Summary              (2012),             available           at
    http://www.unhcr.org/refworld/docid/4fc75aa278.html. The PNC Office of the
    Inspector General reported that of the 964 complaints of police misconduct
    received during 2011, 679 cases were referred to the Office of the Attorney
    General and 919 officers were sanctioned in response to complaints filed in
    2011 and prior years, including 107 officers who were dismissed for misconduct
    and 664 who were suspended without pay. 
    Id. § 1(c).
    Further, the Office of the
    Attorney General investigated 364 cases against police officers, resulting in
    258 prosecutions and 10 convictions. 
    Id. However, the
    country report provides
    that “Although the government took steps to dismiss some officials who
    committed abuses in the penitentiary system and the police, impunity
    persisted.” 
    Id. The PNC
    Office of the Inspector General reported that in 2011,
    eight PNC officers were accused of homicide, PNC officers had killed six people,
    and 27 police officers were arrested on homicide charges. 
    Id. § 1(a).
    The report
    also noted that “Inadequate training, lack of enforcement of the administrative
    police career law, arbitrary promotions, insufficient government funding, lack
    of a uniform code of evidence, and instances of corruption and criminality
    limited the PNC’s effectiveness.” 
    Id. § 1(d).
    Further, the report notes that
    although the law
    provides criminal penalties for official corruption . . . the
    government did not implement the law effectively, and officials,
    particularly in the judicial system, engaged in corrupt practices
    with impunity.      The NGO Transparency International in
    December 2010 reported that government corruption was a serious
    problem, reflected by public perceptions of corruption in political
    parties, the police, judicial system, Legislative Assembly, and
    among public employees.
    
    Id. § 4.
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    After considering the exhibits and Garcia’s testimony, which the IJ found
    to be credible, the IJ denied withholding of removal and CAT protection. The
    IJ found that the evidence indicated that the perpetrators who harmed Garcia
    were motivated solely by economic gain. The IJ concluded that Garcia had not
    established eligibility for withholding of removal under § 1231 because he had
    not shown that he was harmed on account of a protected ground. With regard
    to CAT relief, the IJ noted that in order to qualify for CAT protection, the harm
    must be inflicted by, or with the acquiescence of, a government official. The IJ
    determined that Garcia’s claim failed because he was unable to identify
    whether the perpetrators who extorted and beat him were actual police officers
    or just criminals.
    Garcia appealed to the BIA. The BIA summarily dismissed Garcia’s
    appeal because he failed to submit an appellate brief.          Garcia moved for
    reconsideration of the dismissal of his appeal. The BIA granted the motion,
    vacated its prior decision, reinstated Garcia’s appeal, and dismissed the appeal
    on the merits. With regard to withholding, the BIA agreed with the IJ’s
    determination that Garcia had not established the requisite likelihood of
    persecution based on a protected ground.     With regard to CAT protection, it
    agreed with the IJ that Garcia had not shown the required government
    acquiescence because Garcia was unsure whether the extortionists were actual
    police officers or just common criminals.        Garcia’s removal order was
    reinstated. Garcia filed a timely pro se petition for review.
    II. Discussion
    We have jurisdiction to review a final order of removal. See 8 U.S.C.
    § 1252(a)(1) & (5). The reinstatement of a prior removal order is a reviewable
    final order. See Ojeda-Terrazas v. Ashcroft, 
    290 F.3d 292
    , 291 (5th Cir. 2002).
    We review constitutional and legal questions de novo. See Ovalles v. Holder,
    
    577 F.3d 288
    , 291 (5th Cir. 2009). We review factual findings for substantial
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    evidence. See Chen v. Gonzales, 
    470 F.3d 1131
    , 1134 (5th Cir. 2006). Under
    this standard, “the administrative findings of fact are conclusive unless any
    reasonable adjudicator would be compelled to conclude to the contrary.” 8
    U.S.C. § 1252(b)(4)(B); see 
    Chen, 470 F.3d at 1134
    .
    A.    § 1231 Withholding
    In his pro se brief, which we construe liberally, see, e.g., Andrade v.
    Gonzales, 
    459 F.3d 538
    , 543 (5th Cir. 2006), Garcia first asserts that he is
    eligible for withholding of removal under 8 U.S.C. § 1231.           Under this
    provision, the Attorney General may not remove an alien to a country if the
    alien has demonstrated a clear probability that his “life or freedom would be
    threatened in that country because of the alien’s race, religion, nationality,
    membership in a particular social group, or political opinion.”               
    Id. § 1231(b)(3)(A)
    & (C); see 8 C.F.R. § 208.16(b); Roy v. Ashcroft, 
    389 F.3d 132
    ,
    138 (5th Cir. 2004).
    The BIA agreed with the IJ that Garcia had not shown that he would be
    persecuted on account of a protected ground, because neither economic
    extortion nor being mistaken for an affluent Salvadoran national were
    protected grounds. We agree. Garcia did not present any evidence that he
    would be persecuted on account of one of the specified protected grounds.
    Instead, he testified that the perpetrators attempted to extort $10,000 from
    him because he had just returned from the United States and beat him because
    he had not paid the money.    This court does “not recognize economic extortion
    as a form of persecution under immigration law, nor does it recognize wealthy
    Salvadorians as a protected group.” Castillo-Enriquez v. Holder, 
    690 F.3d 667
    ,
    668 (5th Cir. 2012) (alteration, internal quotation marks, and citation omitted).
    Because Garcia did not show that he would be persecuted on account of a
    protected ground, he is ineligible for withholding of removal under § 1231.
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    B.     CAT Protection
    The majority of Garcia’s brief challenges the determination that he is not
    eligible for protection under the CAT.            “Claims based on the Convention
    Against Torture differ from those based on eligibility for asylum or withholding
    of removal because the claim need not be based on race, religion, nationality,
    membership in a particular social group, or political opinion.” 
    Chen, 470 F.3d at 1139
    . For a petitioner to be entitled to CAT relief, he or she must show that
    “it is more likely than not that he or she would be tortured if removed to the
    proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is defined, inter
    alia, as “any act by which severe pain or suffering . . . is intentionally inflicted
    on a person for such purposes as . . . intimidating or coercing him . . .by or at
    the instigation of or with the consent or acquiescence of a public official or other
    person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). 1 “Thus relief
    under the [CAT] requires a two part analysis—first, is it more likely than not
    that the alien will be tortured upon return to his homeland; and second, is
    there sufficient state action involved in that torture.”               Tamara-Gomez v.
    Gonzales, 
    447 F.3d 343
    , 350-51 (5th Cir. 2006); see 
    Chen, 470 F.3d at 1141
    .
    The government argues and the BIA found that Garcia failed to meet the
    second prong of the CAT analysis, by showing that any future torture is likely
    to 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.” 8 C.F.R.
    1The full definition of torture is:
    any act by which severe pain or suffering, whether physical or mental, is
    intentionally inflicted on a person for such purposes as obtaining from him or
    her or a third person information or a confession, punishing him or her for an
    act he or she or a third person has committed or is suspected of having
    committed, or intimidating or coercing him or her or a third person, or for any
    reason based on discrimination of any kind, when such pain or suffering is
    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.
    8 C.F.R. § 208.18(a)(1).
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    § 208.18(a)(1); see 
    Tamara-Gomez, 447 F.3d at 350-51
    . Although the regulation
    does not define “acting in an official capacity,” the Attorney General has
    interpreted that phrase to mean “under color of law.” See In re Y-L-, 23 I. & N.
    Dec. 270, 285 (AG 2002) (citing Ali v. Reno, 
    237 F.3d 591
    , 597 (6th Cir. 2001)).
    We have previously adopted the Attorney General’s interpretation in two
    unpublished cases, see Marmorato v. Holder, 376 F. App’x 380, 385 (5th Cir.
    2010); Ahmed v. Mukasey, 300 Fed. App’x 324, 328 (5th Cir. 2008), and now
    adopt it here. 2 Under this standard, we interpret “under color of law” as we
    would in a civil rights case. See Marmorato, 376 Fed. App’x at 385; Tamara-
    
    Gomez, 447 F.3d at 350-51
    (stating that torture under the CAT must involve
    “state action”); see also Ramirez-Peyro v. Holder, 
    574 F.3d 893
    , 900 (8th Cir.
    2009) (explicitly following Ahmed in adopting “the agency’s interpretation of
    ‘in an official capacity’ as the equivalent of ‘under color of law’ as used in the
    civil-rights context”).
    Under this standard, the government acquiescence need not necessarily
    be an officially sanctioned state action; instead, “an act is under color of law
    when it constitutes a misuse of power, possessed by virtue of state law and
    made possible only because the wrongdoer is clothed with the authority of state
    law.”       Marmorato, 376 Fed. App’x at 385 (internal quotation marks and
    alteration omitted) (quoting United States v. Causey, 
    185 F.3d 407
    , 442 (5th
    Cir. 1999)). “We have recognized on numerous occasions that acts motivated
    by an officer’s personal objectives are ‘under color of law’ when the officer uses
    his official capacity to further those objectives.” 
    Id. (citing Townsend
    v. Moya,
    
    291 F.3d 859
    , 861-62 (5th Cir. 2002); Harris v. Rhodes, 
    94 F.3d 196
    , 197 (5th
    2Although Marmorato and Ahmed are unpublished and thus non-precedential under
    the rules of this circuit, see 5th Cir. Rule 47.5.4, we find their reasoning persuasive.
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    Cir. 1996)). As the Eighth Circuit has explained, proving action in an officer’s
    official capacity
    does not require that the public official be executing official state
    policy or that the public official be the nation’s president or some
    other official at the upper echelons of power. Rather . . . the use of
    official authority by low-level officials, such a[s] police officers, can
    work to place actions under the color of law even where they are
    without state sanction.
    
    Ramirez-Peyro, 574 F.3d at 901
    (citing Screws v. United States, 
    325 U.S. 91
    ,
    111 (1945)). The “under color of law” inquiry “turns upon the nexus between
    the petitioner, the improper conduct of those officials in question, and the
    officers’ performance of their official duties.” Marmorato, 376 Fed. App’x at
    386.
    The IJ and BIA denied CAT protection because Garcia admitted that he
    could not be sure whether the extortionists were actually police officers, or
    whether they were criminals impersonating police officers, and because Garcia
    did not report the incidents to the police. However, government acquiescence
    in the form of low-level officials acting under color of law could be found even
    if the extortionists were not clearly police officers. There is evidence in the
    record that, regardless of whether the extortionists were police officers, they
    may have been receiving information about Garcia from other public officials,
    who obtained that information in their official capacities. Garcia’s testimony,
    which the IJ specifically found to be credible, reflects that the threats and
    beating came immediately or soon after Garcia had contact with government
    officials, and that he believed the threats and beating were connected to the
    contact with those officials. Garcia was first contacted by someone purporting
    to be from the NRC only after he had submitted documentation to the
    government to obtain a new national identification card. Soon after that call,
    four apparent police officers arrived at his home, demanded $10,000, pointed
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    a gun at his head, and threatened him and his family. Even though he then
    fled to a different town, Garcia was later beaten shortly after being stopped
    and questioned at a police checkpoint.      According to Garcia’s testimony,
    although the men who beat him were dressed in civilian clothes, the men
    specifically referenced his failure to pay the prior extortion demand. Based on
    the sequence of events, one possible conclusion is that the men who threatened
    and beat Garcia on each occasion were either police officers or other men
    working in concert with some other government source, such as an official at
    NRC or the police officers at the checkpoint. If there were public officials
    supplying the perpetrators with information that they obtained as part of their
    official duties, state acquiescence could be shown. See Marmorato, 376 F.
    App’x at 385-86.
    It is true that potential instances of violence committed by non-
    governmental actors against citizens, together with speculation that the police
    might not prevent that violence, are generally insufficient to prove government
    acquiescence, especially if there is evidence that the government prosecutes
    rogue or corrupt public officials.   See 
    Chen, 470 F.3d at 1142-43
    .        Here,
    however, Garcia is not basing his CAT claim on the speculation that
    government officials may be willfully blind to his likely future torture, but on
    an assertion that they were previously actually involved in or enabled the
    extortion and beating and are likely to be involved again in the future. The
    alleged active involvement of public officials acting in their official capacity
    and the close temporal proximity between Garcia’s contact with public officials
    and the subsequent threats and beatings support his assertions and warrant
    further review.
    The BIA denied CAT relief solely because it was not clear that the men
    who threatened and beat Garcia were actual police officers. Neither the BIA
    nor the IJ considered the alternative view of the evidence showing that the
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    extortionists may have received their information about Garcia from other
    government officials acting in their official capacities. Because of this error
    regarding what Garcia was required to show to obtain CAT protection, the BIA
    committed legal error. We vacate the BIA’s decision and remand for the agency
    to properly consider this evidence under the “under color of law” legal standard.
    III. Conclusion
    For the foregoing reasons, Garcia’s petition for review is GRANTED IN
    PART and DENIED IN PART. We DENY the petition for review as to the
    BIA’s denial of Garcia’s petition for § 1231 withholding, GRANT the petition
    for review as to the BIA’s denial of Garcia’s petition for protection under the
    CAT, VACATE the BIA’s decision regarding CAT protection, and REMAND to
    the BIA for further proceedings consistent with this opinion. 3 On remand, the
    BIA should consider whether Garcia will, more likely than not, be tortured by
    or at the instigation of or with the consent or acquiescence of a public official
    at any level of government or other person acting under color of law. See
    Marmorato, 376 Fed. App’x at 387; 8 C.F.R. 208.18(a)(1). The BIA is also
    instructed to remand to the IJ for any additional fact finding that is necessary
    for the BIA to make its determination.
    3  Garcia’s motion to designate a different country of removal is denied, without
    prejudice to his right to file that motion with the IJ or BIA, if appropriate.
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