Raul Barajas-Romero v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAUL BARAJAS-ROMERO, No. 13-70520

Petitioner,

Agency No.

v. A017-190-075

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 7, 2014

Withdrawn from Submission August 19, 2014

Resubmitted July 30, 2015

San Francisco, California

Filed January 18, 2017

Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Kleinfeld

2 BARAJAS-ROMERO V. LYNCH

SUMMARY*

Immigration

The panel granted a petition for review, holding that the

Board of Immigration Appeals erred in applying the REAL

ID Act’s “one central reason” nexus standard, rather than the

“a reason” standard, to an application for withholding of

removal, and improperly placed the burden on petitioner to

prove that he could not safely relocate within Mexico for

purposes of Convention Against Torture protection relief.

Declining to afford deference to the Board’s precedential

decision in Matter of C-T-L, 25 I. & N. Dec. 341 (BIA 2010),

the panel held that by amending the asylum statute to include

the REAL ID Act’s “one central reason” nexus standard, but

not similarly amending the withholding of removal statute,

Congress did not intend for the “one central reason” standard

to apply to withholding of removal claims. The panel

explained further that the “a reason” standard applicable to

withholding of removal claims requires weaker motives than

the “one central reason” standard.

The panel held that there is no “rogue official” exception

for CAT relief, and that an applicant need show a likelihood

of torture at the instigation of or with the consent or

acquiescence of either a public official, or some other person

acting in an official capacity. The panel explained that CAT

relief may be based on the actions of off-duty police officers,

even where they were not acting in an official capacity, so

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BARAJAS-ROMERO V. LYNCH 3

long as they carried out the acts or knowingly acquiesced in

the acts.

The panel held that although petitioner bore the ultimate

burden to prove a likelihood of torture, the Board erred by

placing the burden on petitioner to establish that he could not

safely relocate within Mexico to avoid future harm.

The panel remanded for the Board to reconsider the

withholding claim applying the correct nexus standard, and

to reconsider the CAT claim under the no-burden-shifting

relocation standard.

COUNSEL

Katherine Cheng (argued), Certified Law Student, UCLA

School of Law, Los Angeles, California; Michael W.

Reynolds (argued), and Carlos M. Lazatin, O’Melveny &

Myers LLP, Los Angeles, California; for Petitioner.

Tim Ramnitz (argued), Attorney; Shelley R. Goad, Assistant

Director; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

4 BARAJAS-ROMERO V. LYNCH

OPINION

KLEINFELD, Senior Circuit Judge:

We address the “principal reason” standard for

withholding of removal, and also the acquiescence and

relocation standards for Convention Against Torture relief.

At issue is why Raul Barajas-Romero was tortured and

whether he can be returned to Mexico without likely being

tortured again.

I. Facts.

Barajas-Romero came to the United States legally from

Mexico as a little boy. He grew up in San Pedro, California.

His mother, brothers, children, and grandchildren are

American citizens, but he never became naturalized, and he

remains a citizen of Mexico. Barajas-Romero was deported

in 1998 because of convictions for felony methamphetamine

possession and receiving stolen property.

After he was removed from the United States in 1998,

Barajas-Romero got a house in Santa Clara, a village in the

State of Michoacan, where he had relatives. Two years after

he moved to the village, men attacked him and demanded his

gold watch and everything in his pockets. He refused to hand

them over, so the men hit him on the head, kicked him in the

face, and threw him off a bridge. The assault left him with a

broken nose, broken teeth, and a wound on his head requiring

more than a dozen stitches and leaving a two- or three-inch

scar. The men identified themselves by announcing: “Hey,

puto, no one messes with the Familia Michoacana.” Barajas-

Romero’s political opinion did not come up in this first

BARAJAS-ROMERO V. LYNCH 5

attack, just the Familia Michoacana drug cartel’s pride in its

power.

Barajas-Romero reported the assault to the police when he

got out of the hospital. He told them La Familia Michoacana

were the attackers. The police did nothing. His cousin was

kidnaped by La Familia the following year. A couple of

years after that, his next door neighbor, who had built a grand

house, was murdered when he refused to pay extortion.

In 2006, Barajas-Romero was doing construction work on

his house in Santa Clara when the incidents directly giving

rise to this case occurred. Four off-duty local police officers

arrived at his home. Barajas-Romero recognized them

because he got off the bus daily at the police station stop, saw

them frequently, and had frequently seen them following him.

When he opened the door, the policemen forced him inside,

locked the door behind them, and asked him for his money.

Barajas-Romero said he had none, but they did not believe

him, especially because they saw all the building materials he

had purchased for his home.

The four policemen then locked Barajas-Romero in his

own bathroom for two days while they deliberated about what

to do with him. On the third day they took him out, told him

to call his family for money, and began burning him with

cigarettes. His leg was permanently scarred, and he later

showed the twenty or so scars to the Immigration Judge.

Barajas-Romero called his mother, who was in the United

States, but she said she had no money she could send. The

four policemen thought he could get money if they were more

persuasive, so one of them began hitting him all over his body

with the blunt side of a machete blade. Barajas-Romero

6 BARAJAS-ROMERO V. LYNCH

begged them to stop and said his mother was going to try to

get money from his brothers.

However, Barajas-Romero did not merely beg. He also

made a remark that annoyed the four policemen and could be

construed as expressing or manifesting an anti-corruption

political opinion. Barajas-Romero testified that he “got a

little bold and told them even if I had the money I wouldn’t

give it to you guys because you guys are getting paid for the

job, I don’t pay no corrupt cops, nothing.”

The torture became much worse after Barajas-Romero’s

“corrupt cops” remark. The four policemen threw him back

in the bathroom, but this time they did not just leave him

there. They lifted his pants and put two scorpions on his legs.

Both scorpions stung. Barajas-Romero became feverish,

swollen, and had trouble breathing.

While the policemen tortured him with scorpions, they

also rubbed a dried corncob back and forth on his forehead to

make him bleed and cause a permanent scar. They told him

that if he told anyone what happened, they would put a bullet

through his permanent scar. When Barajas-Romero begged

for mercy, the policemen responded by threatening to cut his

head off with a machete and slashed his leg, causing a deep

laceration. Then they locked him in the bathroom again.

Barajas-Romero could not move and passed out from pain,

fever, and difficulty breathing.

The next morning the four policemen were gone, and

Barajas-Romero stumbled out of his house. His neighbors

tried to help him. A police officer arrived and asked what

happened, and Barajas-Romero told him that his colleagues

had done this. The police officer stopped preparing his

BARAJAS-ROMERO V. LYNCH 7

report, stopped talking to Barajas-Romero, and dropped him

off him at the local clinic without saying a word. The police

never asked Barajas-Romero to come in to identify the

officers who had attacked him or for any other information

regarding their identities. The local clinic where he had been

dropped off refused to treat him once they learned that his

torturers were police officers. A second medical facility

likewise refused to treat him out of fear. Fortunately, a third

hospital, one about an hour away from Santa Clara, did treat

his injuries. He was hospitalized for two weeks.

Approximately a month after his release, Barajas-Romero

fled Mexico for the United States because he felt that he

could not trust the police anywhere in Mexico, and the mark

on his forehead would be, as his torturers had told him, where

a bullet would go if he returned.

Barajas-Romero reentered the United States with a false

passport and was eventually caught in 2010. Barajas-Romero

was charged, convicted, and imprisoned for illegal reentry,1

and then turned over to Immigration and Customs

Enforcement (“ICE”). ICE commenced proceedings to

reinstate his prior deportation order. These proceedings are

the subject of the petition before us. Barajas-Romero was

found statutorily eligible for withholding of removal and

Convention Against Torture relief.

At his hearing before the Immigration Judge in 2012,

Barajas-Romero provided medical evidence to support his

claims. As one example, when Barajas-Romero’s lawyer

showed the Immigration Judge Barajas-Romero’s leg, she

said “may the record reflect . . . close to 20 cigarette burns or

more on respondent’s left leg.” Government counsel

1

8 U.S.C. § 1326.

8 BARAJAS-ROMERO V. LYNCH

conceded that he saw perhaps 15 circular scars of some sort.

Barajas-Romero’s counsel then pointed to an exhibit, a

physician’s report saying that the scars were “typical

purposeful cigarette burns . . . resemb[ling] the cigarette

burns caused by torture.” Similarly, a physician’s report also

confirmed a 12 centimeter (4 3/4 inches) scar on his leg

consistent with a deep laceration, with consequential damage

to the veins and chronic swelling of the leg. Barajas-Romero

remains on medication for his physical injuries, and for the

post-traumatic stress disorder caused by his torture. The

Immigration Judge found Barajas-Romero to be credible, and

none of the horrendous facts concerning Barajas-Romero’s

torture are in question. The issues in this case have to do with

Barajas-Romero’s right to remain in the United States

because of his torture, not whether torture occurred.

The Immigration Judge denied Barajas-Romero’s

withholding of removal claim on the ground that the

persecution “was solely an effort to extort money by rogue

police officers and not because of an expressed or implied [or

imputed] political opinion” and the threat came “solely from

the off-duty, rogue officers themselves and not the

government.” He noted that Mexico has laws against torture

and corruption, and thousands of police officers have been

dismissed for violating them. As for the Convention Against

Torture claim, the Immigration Judge determined that

Barajas-Romero had the ability to find someplace “acceptable

to his standards” of safety to live in Mexico.

The BIA agreed. While the BIA did not disagree that

Barajas-Romero’s testimony was credible, the BIA held that

Barajas-Romero’s withholding of removal claim failed

because he failed to prove that the harm he suffered “was

fueled by any political motives, even though . . . [Barajas-

BARAJAS-ROMERO V. LYNCH 9

Romero] expressed to his attackers that he was against police

corruption. Rather, the attacks were designed to extort

money.” As for the Convention Against Torture claim, the

BIA held that Barajas-Romero did not show “that any

particular officer’s actions or acquiescence would not be that

of a rogue official.” The BIA also held that “the country is

aggressively targeting corrupt government elements” and that

Barajas-Romero “could relocate out of the area.”

Barajas-Romero petitions for review. First, he argues that

the BIA applied an erroneous standard to his withholding

claim. Second, he argues that the BIA failed to consider the

Mexican government’s lack of success in its war on gangs,

and corruption and the nationwide danger facing him if he

returned to Mexico.

II. Analysis

A. Withholding of removal.

The Attorney General must, in general, withhold removal

of an alien if the alien’s life or freedom would be threatened

“because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.”2 Barajas-

2

8 U.S.C. § 1231(b)(3)(A):

(A) In general

Notwithstanding paragraphs (1) and (2), the Attorney

General may not remove an alien to a country if the

Attorney General decides that the alien’s 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.

10 BARAJAS-ROMERO V. LYNCH

Romero argues that his life and freedom would be threatened,

at least in part, because of his anti-corruption political

opinion. There is ample evidence in the record that the local

police and the local drug cartel targeted him without knowing

anything about his political opinion, merely because they

thought they could get money from him. There is also ample

evidence that the police escalated their torture considerably,

from confinement, beatings, and cigarette burns, to scorpions,

slashing with a machete, and permanent conspicuous facial

disfigurement, after he voiced his opposition to police

corruption. The parties dispute the extent to which political

opinion must be the basis for the threat for the threat to be

“because” of the political opinion.

For purposes of asylum or withholding of removal, it is

not enough that a person comes from a wretched place, where

life will most probably be far worse than if he remains in the

United States. For asylum, a person generally needs to face

persecution in his home country “on account of race, religion,

nationality, membership in a particular social group, or

political opinion.”3 The person seeking asylum has the

3

8 U.S.C. § 1101(a)(42):

The term “refugee” means (A) any person who is

outside any country of such person’s nationality or, in

the case of a person having no nationality, is outside

any country in which such person last habitually

resided, and who is unable or unwilling to return to, and

is unable or unwilling to avail himself or herself of the

protection of, that country because of persecution or a

well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social

group, or political opinion, or (B) in such special

circumstances as the President after appropriate

consultation (as defined in section 1157(e) of this title)

BARAJAS-ROMERO V. LYNCH 11

burden of proving not only the prospective persecution, but

also that it would be “on account of” one of the five listed

reasons.4 A person seeking withholding of removal must

prove not only that his life or freedom will be threatened in

his home country, but also that the threat is “because of” one

of the five listed reasons.5 The list of reasons for which relief

may be granted is identical for both asylum and withholding

of removal.

may specify, any person who is within the country of

such person’s nationality or, in the case of a person

having no nationality, within the country in which such

person is habitually residing, and who is persecuted or

who has a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion. The term “refugee”

does not include any person who ordered, incited,

assisted, or otherwise participated in the persecution of

any person on account of race, religion, nationality,

membership in a particular social group, or political

opinion. For purposes of determinations under this

chapter, a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization, or

who has been persecuted for failure or refusal to

undergo such a procedure or for other resistance to a

coercive population control program, shall be deemed

to have been persecuted on account of political opinion,

and a person who has a well founded fear that he or she

will be forced to undergo such a procedure or subject to

persecution for such failure, refusal, or resistance shall

be deemed to have a well founded fear of persecution

on account of political opinion.

4

8 U.S.C. § 1158(b)(B)(1); 8 U.S.C. § 1101(a)(42).

5

8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b).

12 BARAJAS-ROMERO V. LYNCH

The words “on account of” and “because of” address the

persecutor’s motive for persecuting the victim.6 For example,

if the persecutor has no idea what the victim’s political

opinion is and does not care what it is, then even if the victim

does reasonably fear persecution, it would not be “on account

of” the victim’s political opinion. But what if the persecutor

does have some idea of the victim’s political opinion and

feels quite hostile to that opinion, but also has other reasons

for persecuting the victim? People, including persecutors,

often have mixed motives. When is the persecution,

motivated only in part by hostility to the victim’s political

opinion, “because of” or “on account of” that opinion?

We adopted the Second Circuit’s position in our 1999 en

banc decision in Borja v I.N.S., holding that persecution “on

account of” political opinion did not mean persecution solely

for that reason.7 The victim in that case sought asylum

because Communist guerrillas in the Philippines had pointed

a gun at her and threatened to kill her when she said she was

pro-government, but were also upset that she could not pay

the increased amount of monthly protection money they

demanded.8 They persecuted her partly because she was pro-

government and partly just for the money.9 We held that

6

I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Navas v. I.N.S.,

217 F.3d 646, 656–57 (9th Cir. 2000).

7

Borja v. I.N.S., 175 F.3d 732, 735 (9th Cir. 1999).

8

Id. at 734–35.

9

Id. at 737.

BARAJAS-ROMERO V. LYNCH 13

persecution was “on account of” political opinion if it was so

motivated “at least in part.”10

Our “at least in part” standard is no longer the law with

regard to asylum applicants. Congress amended the statute,

so that for asylum, the victim’s political opinion has to be

“one central reason.”11 When we decided Borja, the statute

did not indicate the appropriate burden of proof for

establishing that persecution was “because of” (or “on

account of”) a protected ground.12 However, the asylum

statute now states:

the applicant must establish that race, religion,

nationality, membership in a particular social

group, or political opinion was or will be at

least one central reason for persecuting the

applicant.13

But Congress did not similarly amend the withholding of

removal statute, and Barajas-Romero seeks withholding of

removal, not asylum. The withholding statute just says “a”

reason, not “at least one central reason:”

10

Id. at 735–36.

11

Antiterrorism and Effective Death Penalty Act of 1996, PL

104–132, April 24, 1996, 110 Stat 1214; Emergency Supplemental

Appropriations Act for Defense, the Global War on Terror, and Tsunami

Relief, 2005, PL 109–13, May 11, 2005, 119 Stat 231; 8 U.S.C.

§ 1231(3)(A).

12

8 U.S.C. § 1158 (1996) (current version at 8 U.S.C. § 1158 (2009).

13

8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).

14 BARAJAS-ROMERO V. LYNCH

In determining whether an alien has

demonstrated that the alien’s life or freedom

would be threatened for a reason described in

subparagraph (A) [race, religion, political

opinion, etc.], the trier of fact shall determine

whether the alien has sustained the alien’s

burden of proof, and shall make credibility

determinations, in the manner described in

clauses (ii) and (iii) of section 1158(b)(1)(B)

of this title.14

Congress’s decision to adopt the “one central reason”

standard for asylum but not withholding of removal claims

appears to have been the product of a deliberate choice, rather

than a mere drafting oversight. When Congress amended the

withholding of removal statute to clarify the applicable

burden of proof, it cross-referenced clauses (ii) and (iii) of the

asylum statute’s burden-of-proof provision, but not clause

(i).15 Clause (i) is the provision that imposed the “one central

reason” standard for asylum claims. Congress’s express

incorporation of two of the three asylum burden-of-proof

provisions into the withholding of removal statute, but not the

provision including the “one central reason” language,

indicates that Congress did not intend for the “one central

reason” standard to apply to withholding of removal claims.

See Kucana v. Holder, 558 U.S. 233, 249 (2010) (“Where

Congress includes particular language in one section of a

14

8 U.S.C. § 1231(b)(3)(C) (emphasis added). Clauses (ii) and (iii)

discussed in the quote refer to the credibility rules for asylum applicants

located directly after the subsection requiring “one central reason.”

8 U.S.C. § 1158(b)(i)–(iii).

15

8 U.S.C. § 1231(b)(3)(C).

BARAJAS-ROMERO V. LYNCH 15

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”).

The government argues that “one central reason” and “a

reason” mean the same thing. Barajas-Romero argues that

the different words used in each statute mean different

things.16 We agree with Barajas-Romero. The phrase “a

reason” includes weaker motives than “one central reason.”

A person may have “a reason” to do something that is not

his “central” reason or even “one central reason.” Ordinary

English usage, and the ordinary canon of statutory

construction reflecting “the same common-sense premise that

when people say one thing, they do not mean something else”

indicate that we should attribute some operative meaning to

the congressional decision to use the phrase “at least one

central reason” in one statute but not the other.17 Sometimes

omission of a phrase implies a negative pregnant, and

sometimes it does not.18 Considering how controversial the

reason for persecution has been in the immigration law

community, the express congressional narrowing of one

statute but not the other to “one central reason” cannot

reasonably be read so to narrow both.

16

Kucana, 558 U.S. at 249 (2010).

17

2A Sutherland Statutory Construction § 47:23 (7th ed.).

18

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.

1992).

16 BARAJAS-ROMERO V. LYNCH

The BIA in this case followed its own precedent in Matter

of C-T-L-.19 C-T-L- held that the “one central reason” test for

asylum applies to withholding, even though the withholding

statute says merely “a reason.”20 The BIA came to this

conclusion because: (1) the withholding statute is silent on

whether the “one central reason” standard applies, (2) the

general intent of the REAL ID Act was to correct what

Congress saw as an anomaly created by Borja v. I.N.S.21 and

Briones v. I.N.S.22 in mixed motive cases, and (3) before the

REAL ID Act the Immigration and Naturalization Service

(“INS”) applied the same standard to asylum and

withholding.23 This analysis starts with a false premise that

Congress was “silent.” It was not. It explicitly said “at least

one central reason” for asylum, and “a reason,” an expressly

different standard, for withholding.

The government argues that we should accept the BIA’s

view in C-T-L- because we assumed in Zetino v. Holder24 that

the “one central reason” standard applies to withholding as

well as asylum claims. Zetino does not so hold. The alien in

that case sought asylum and withholding, but submitted no

evidence that the feared persecution had anything to do with

19

Matter of C-T-L-, 25 I. & N. Dec. 341 (2010).

20

Id. at 344.

21

Borja, 175 F.3d 732.

22

Briones v. I.N.S., 175 F.3d 727 (9th Cir. 1999).

23

C-T-L-, 25 I. & N. Dec. at 344–48.

24

Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010).

BARAJAS-ROMERO V. LYNCH 17

actual or imputed political opinion.25 His evidence was that

masked gunmen murdered his family members to steal his

grandfather’s land and that his home country, El Salvador,

was infested with violent gangs.26 We drew no distinction

between the “one central reason” phrase in the asylum statute

and the “a reason” phrase in the withholding statute, because

there was no nexus at all between the feared persecution and

political opinion.27

We hold that “a reason” is a less demanding standard than

“one central reason.” The statutory language is

unambiguously different, with different meanings, so there is

no ambiguity justifying deference to the administrative

agency’s contrary view.28 The different language should not

be treated as though it means the same thing.29 The

withholding statute differs from the asylum statute in various

ways, not just this one, so there is no reason to assume that

Congress meant for them to be the same in this respect. The

withholding statute requires applicants to prove that it is more

likely than not they will be persecuted30, while the asylum

25

Zetino, 622 F.3d at 1015–16.

26

Id. at 1010.

27

Id. at 1016.

28

Cf. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837 (1984).

29

See Kucana, 558 U.S. at 249.

30

8 C.F.R. § 208.16.

18 BARAJAS-ROMERO V. LYNCH

statute requires only a “well-founded fear” of persecution31,

so the lighter standard for the strength of the nexus is offset

by the more demanding standard of proof in the withholding

statute. Since in withholding the petitioner must show a

probability, not just a well-founded fear, of persecution,

Congress may have diluted the nexus requirement in order to

afford more protection against mistaken deportations where

a protected ground played into that likelihood.

That is not the end of the withholding issue, though. The

government argues that the police kidnaped and tortured

Barajas-Romero to extort money, so his voicing of a political

opinion on the third day of his kidnaping and torture could

not mean that the torture was because of or on account of his

previously unknown and irrelevant (to the persecutors) anti-

corruption opinion. The evidence, though, is not

unambiguous. The torture became much worse after Barajas-

Romero voiced his anti-corruption opinion. Because the BIA

accepted the government’s view under the wrong standard,

we remand to the BIA to decide the case under the correct

standard: “a reason” rather than “one central reason.”

B. Convention Against Torture.

Congress provided that “it shall be the policy of the

United States not to expel, extradite, or otherwise effect the

involuntary return of any person to a country in which there

31

Under 8 U.S.C. § 1158(a), an applicant “is eligible for asylum if he

is a ‘refugee,’ i.e., if he is unable or unwilling to return to his home

country ‘because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social

group, or political opinion.’ Lim v. I.N.S., 224 F.3d 929, 934 (9th Cir.

2000) (quoting 8 U.S.C. § 1101(a)(42)(A)).

BARAJAS-ROMERO V. LYNCH 19

are substantial grounds for believing that the person would be

in danger of being subjected to torture.”32 It directed that the

appropriate agencies should adopt regulations to implement

the provisions of the Convention Against Torture (“CAT”).33

The implementing regulations are at 8 C.F.R. §§ 208.16–.18.

For CAT relief, the alien must prove that it is “more likely

than not that he or she would be tortured if removed to the

proposed country.”34 The torturers’ motivations need not

relate to the five protected classifications for asylum or

withholding of removal, so Barajas-Romero can establish

entitlement to relief under CAT even if he cannot establish

motivation related to his political opinion.35 What matters is

the probability of future torture, which under circuit law

32

Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”),

Pub.L. No. 105–277, Div. G, Title XXII, § 2242, 112 Stat. 2681–822

(1998) (codified as a note to 8 U.S.C. § 1231 (1999)).

33

Id.:

(b) Regulations. - Not later than 120 days after the date

of enactment of this Act [Oct. 21, 1998], the heads of

the appropriate agencies shall prescribe regulations to

implement the obligations of the United States under

Article 3 of the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman or

Degrading Treatment or Punishment, subject to any

reservations, understandings, declarations, and provisos

contained in the United States Senate resolution of

ratification of the Convention.

34

8 C.F.R. § 208.16(c)(2).

35

The five protected classifications for asylum are “race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(42); 8 U.S.C. § 1231(3)(A).

20 BARAJAS-ROMERO V. LYNCH

includes killing,36 carried out or knowingly acquiesced in by

a public official.37 All evidence relevant to the probability of

future torture must be considered, including past torture and

country conditions.38

Neither the BIA, the Immigration Judge, nor the

government’s brief, puts at issue whether Barajas-Romero’s

ordeal amounted to torture. The issue is that to be entitled to

CAT relief, the torture must 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.”39

36

Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011).

37

Id.

38

8 C.F.R. § 208.16:

(3) In assessing whether it is more likely than not that

an applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

future torture shall be considered, including, but not

limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part

of the country of removal where he or she is not likely

to be tortured;

(iii) Evidence of gross, flagrant or mass violations of

human rights within the country of removal, where

applicable; and

(iv) Other relevant information regarding conditions in

the country of removal.

39

8 C.F.R. § 208.18(a)(1).

BARAJAS-ROMERO V. LYNCH 21

“Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have

awareness of such activity and thereafter breach his or her

legal responsibility to intervene to prevent such activity.”40

The BIA rejected Barajas-Romero’s claim on the grounds

that the police who tortured him were “rogue officials” and he

had not proved that he could not avoid the threat by

relocating. Here is the entire portion of the opinion

explaining rejection of the claim:

We find no clear error in the Immigration

Judge’s finding that there are insufficient facts

in this case to support the legal determination

that Mexican officials, acting under “color of

law,” will more likely than not torture the

applicant (or acquiesce in his torture) if he

returns to Mexico. The facts here are simply

inadequate to show such pervasive corruption

that any particular officer’s actions or

acquiescence would not be that of a rogue

official (I.J. at 6–7). As noted by the

Im m igrat i on J udge, the Mexican

government’s laws and enforcement policies

make it clear that the country is aggressively

targeting corrupt government elements. The

Immigration Judge also observed that the

respondent could relocate out of the area

where the 2006 attack occurred (I.J. at 7).

Accordingly, the applicant has not met his

burden of demonstrating eligibility for

protection under the CAT.

40

8 C.F.R. § 208.18(a)(7).

22 BARAJAS-ROMERO V. LYNCH

The portions of the Immigration Judge’s opinion to which the

BIA refers say, regarding the “rogue official” issue, that

although drug cartel violence and police corruption do exist

in Mexico, the national government aggressively seeks to

eliminate them:

Here there is evidence in the country report of

both drug cartel violence and police

corruption. As mentioned, police corruption

has been identified and targeted by Mexican

authorities. There are laws on the books and

verifiable efforts to root out corruption in

government. Still, rogue elements do operate;

however, the Mexican government’s laws and

enforcement policies make it clear the country

is aggressive against such groups. The

evidence does not establish that it is more

likely than not if the Respondent was returned

to Mexico he would suffer torture at the hands

of the government or persons acting in an

official capacity or aiding or acquiescing in

his torture by others. Wakkarv v. Holder,

558 F.3d 1049 (9th Cir. 2009).

Regarding relocation, the Immigration Judge says that both

California and Mexico have dangerous communities, and

Barajas-Romero could relocate to “any region where he feels

safe” and that is “populated by individuals, businesses, and

employers acceptable to his standards”:

Respondent has painted the entire country of

Mexico as a potential threat to him from a

2006 incident. The Court is not persuaded that

is the case. Respondent has the ability to

BARAJAS-ROMERO V. LYNCH 23

locate in any region where he feels safe or

where he has access to authorities should he

be threatened or attacked. Whether in

California or Mexico, each region has

communities that are both dangerous and

secure. The key for Respondent would be to

locate in an area populated by individuals,

businesses and employers acceptable to his

standards.

The statute and regulations do not establish a “rogue

official” exception to CAT relief. The regulations say that

torture, for purposes of relief, has to be “at the instigation of

or with the consent or acquiescence of a public official or

other person acting in an official capacity.”41 The four

policemen were “public officials,” even though they were

local police and state or federal authorities might not

similarly acquiesce.42 Since the officers were apparently off-

duty when they tortured Barajas-Romero, they were evidently

not acting “in an official capacity,” but the regulation does

not require that the public official be carrying out his official

duties, so long as he is the actor or knowingly acquiesces in

the acts. The regulation uses the word “or” between the

phrases “inflicted by . . . a public official” and “acting in an

official capacity.” The word “or” can only mean that either

one suffices, so the torture need not be both by a public

official and also that the official is acting in his official

capacity. An “and” construction would require that the

conjunction be “and.” The record leaves no room for doubt

41

8 C.F.R. § 208.18(a)(1).

42

Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013).

24 BARAJAS-ROMERO V. LYNCH

that the four policemen were public officials who themselves

inflicted the torture.

CAT relief is forward-looking, requiring the applicant

prove that it is more likely than not that he would be tortured

if he were removed to the proposed country, not that he was

tortured in the past. The alien must prove not only that

torture will more likely than not occur, but also that there is

sufficient state action involved in the torture.43 Public

officials acquiesce in torture if they: “(1) have awareness of

the activity (or consciously close their eyes to the fact it is

going on); and (2) breach their legal responsibility to

intervene to prevent the activity because they are unable or

unwilling to oppose it.”44 CAT relief is unavailable, despite

a likelihood of torture, without evidence that the police are

unwilling or unable to oppose the crime, not just that they are

unable to solve it, as when the torturers cannot be identified.45

Police ineffectiveness is not enough to establish an

entitlement to relief, “absent evidence of corruption or other

inability or unwillingness to oppose criminal organizations.”46

State involvement may be established, though, where “police

officials were corrupt, and worked on behalf of criminals or

gangsters.”47

43

Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

44

Id. at 1034.

45

Id.

46

Id.

47

Id. at 1035.

BARAJAS-ROMERO V. LYNCH 25

The BIA’s “rogue official” rationale is inconsistent with

circuit law. The BIA held that the danger Barajas-Romero

faced from the drug cartel and corrupt police did not establish

government involvement because Mexican law, and national

policy to root out the corruption, established the absence of

official acquiescence. But we held in Madrigal v. Holder that

“if public officials at the state and local level in Mexico

would acquiesce in any torture [petitioner] is likely to suffer,

this satisfies CAT’s requirement that a public official

acquiesce in the torture, even if the federal government in

Mexico would not similarly acquiesce.”48 The four police

who tortured Barajas-Romero and told him he would be

killed if he returned to Mexico were themselves government

officials. As we held in Madrigal, the “efficacy of the

government’s efforts to stop the drug cartels’ violence,” not

just the willingness of the national government to do so, must

be examined.49 Here, the BIA focused only on the national

government’s efforts and not their efficacy, which was

mistaken under Madrigal.50

The other part of the BIA’s rationale was that Barajas-

Romero could relocate “to any region where he feels safe or

has access to the authorities” in some “area populated by

individuals, businesses and employers acceptable to his

standards.” The BIA did not articulate what standard of proof

it applied when considering relocation, nor why it rejected

Barajas-Romero’s evidence to the contrary. The policemen

had marked his forehead with a permanent scar to make him

48

Madrigal, 716 F.3d at 510.

49

Id. at 509

50

Id.

26 BARAJAS-ROMERO V. LYNCH

recognizable, and they told him that “that is where the bullet

would be” if he was seen anywhere in Mexico or if he

reported the incident, which he did. The State Department

Human Rights Report on Mexico, while recognizing the

national government’s efforts to eliminate corruption and

police entanglement with drug cartels, said that “corruption

remained a problem at all levels of government,” and some

“public officials continued to perpetrate . . . some criminal

acts with impunity.” The State Department cited with

approval reports that “police, especially at the state and local

level, were involved in kidnapping, extortion, and in

providing protection for, or acting directly on behalf of,

organized crime and drug traffickers.” The State Department

mentioned a member of Mexico’s national congress, at large

as a fugitive, who according to prosecutors was in charge of

providing institutional protection to La Familia, the drug

cartel who, along with the police, acted against Barajas-

Romero.

We recently held in Maldonado v. Lynch that, although a

petitioner bears the ultimate burden to prove he would be

tortured if returned to his country, the petitioner does not bear

the burden under 8 C.F.R. § 1208.16(c)(3) to show that it is

impossible to avoid torture by internally relocating within a

country.51 In doing so en banc, we overruled our earlier line

of authority which had established that the petitioner bore the

burden of proving that he would be unable to live safely

elsewhere in the country. We held that “[t]he regulations

governing CAT deferral, unlike the asylum regulation, do not

51

Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en

banc).

BARAJAS-ROMERO V. LYNCH 27

call for any burden shifting.”52 The regulation, rather than

imposing a burden of proof, says that all evidence bearing on

the likelihood of future torture should be “considered,”

including but not limited to past torture, possibility of safe

relocation, country evidence of flagrant human rights

violations, and other evidence regarding country conditions.53

The BIA ruled in this case before Maldonado came down,

so it doubtless applied what was then the applicable law, that

Barajas-Romero had the burden of proving that he could not

safely relocate. The State Department country report says

that the national government in Mexico is trying to eliminate

widespread police corruption and police cooperation with

drug cartels, but it is very much an ongoing effort rather than

52

Id.

53

8 C.F.R. § 1208.16:

(3) In assessing whether it is more likely than not that

an applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

future torture shall be considered, including, but not

limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part

of the country of removal where he or she is not likely

to be tortured;

(iii) Evidence of gross, flagrant or mass violations of

human rights within the country of removal, where

applicable; and

(iv) Other relevant information regarding conditions in

the country of removal.

28 BARAJAS-ROMERO V. LYNCH

a completed reform. Past evidence of torture is

uncontradicted and substantial. There was not much evidence

presented on relocation beyond Barajas-Romero’s testimony

that the police who tortured him told him that if he returned

to Mexico, not just the village of Santa Clara, a bullet would

go where they had scarred his forehead, and the State

Department country report, which does not identify a safe

place for individuals who have become targets of drug cartels

and the police.

Because the BIA did not evaluate relocation under the no-

burden-shifting standard, and applied the incorrect standard

in assessing Barajas-Romero’s withholding claim, we remand

pursuant to INS v. Ventura54 so that the BIA may conduct

such proceedings as may be appropriate to evaluate the

factors for CAT relief under the standard we set out in

Maldonado and review Barajas-Romero’s withholding claim

under the proper legal standard of “a reason.”

PETITION GRANTED.

54

I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).