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”
How later courts described this case
- 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”
- stating that torture under the CAT must involve “state action”
Written by the judges who cited it.
The opinion
Case: 13-60381 Document: 00512727431 Page: 1 Date Filed: 08/08/2014
REVISED AUGUST 8, 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.
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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
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
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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
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
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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
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
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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
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
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No. 13-60381
problem, reflected by public perceptions of corruption in political
parties, the police, judicial system, Legislative Assembly, and
among public employees.
Id. § 4.
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.
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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
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
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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.
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
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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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.
§ 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
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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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
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
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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
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, government 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
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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
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.
12