The House of Death Is Now in the Obama Administration's Court

U.S. Appeals Court Hearing Raises Unsettling Questions "Under Color of Law”

The informant at the center of the House of Death carnage was the subject of a high-stakes court hearing this past Tuesday, March 10.

The informant’s attorney, Jodilyn Goodwin, appeared before the U.S. Court of Appeals for the Eighth Circuit, arguing her client’s case, fighting to prevent his deportation to Mexico, where the informant claims he will become another victim of the House of Death.

The recent hearing before the U.S. Court of Appeals in St. Paul, Minn., is particularly noteworthy because it provides us with a first insight into how the Obama Justice Department views the informant’s case, and by extension, the House of Death murders and the subsequent cover-up of the U.S. government’s complicity in those murders.

The Department of Homeland Security (DHS) initiated deportation proceedings against the informant, Guillermo E. Ramirez Peyro, in 2005 and his case has been tied up in the courts ever since — with an immigration judge twice ruling in favor of granting him deferral from deportation under the United Nations Convention Against Torture and the Justice Department-controlled Board of Immigration Appeals twice ruling against Ramirez Peyro.

Ramirez Peyro, a former Mexican law enforcer, argues that if returned to Mexico, he will be tortured and murdered with the assistance of Mexican officials, specifically law enforcers, as a payback for his snitching on drug-cartel activities.

According to the government's attorney, Tiffanny Walters Kleinert, the facts of the case, as established by the immigration judge who heard the case originally, are not in dispute and the government does not contest that Ramirez Peyro will, in all likelihood, be murdered, if deported to Mexico, probably with the assistance of Mexican law enforcers.

However, in a twist that seems out of sync with the human rights rhetoric coming out of the Obama White House, Kleinert also argues before the Appeals Court that even though Ramirez Peyro faces an almost-certain gruesome death if returned to Mexico, he is not entitled to relief from the court under the Convention Against Torture — which prohibits the U.S. from deporting an individual to a country where he faces imminent risk of being tortured by individuals acting on behalf of the government.

Kleinert argues that even if Mexican law enforcers participate in Ramirez Peyro’s murder, as expected, and as they did with the victims of the House of Death, they would not be acting officially "under color of law."

Kleinert contends that because the Mexican government, and its president, Felipe Calderon, do not officially condone such corruption and are allegedly working to eliminate it, then any participation by Mexican government officials, including law enforcers, in Ramirez Peyro's expected murder would not constitute a homicide “under color of law."

In other words, because any Mexican law enforcer (or soldier) involved in torturing and killing Ramirez Peyro would be acting without the “official” permission of the Mexican government, Ramirez Peyro is precluded, according to Kleinert's argument, from seeking protection under the Convention Against Torture.

If the U.S. Court of Appeals agrees with Kleinert, then the U.S. government will provide Ramirez Peyro with a one-way ticket to Mexico — where even the attorney representing the U.S. government in this case agrees he will most likely face the same fate as the House of Death murder victims — whose corpses were found buried in the backyard of a middle-class home in Ciudad Juarez, Mexico, in various states of decay, covered in lime ("milk" in narco-trafficker parlance) to speed decomposition.

“When you see them doing this, then the fact there's a cover up of the other murders [in the House of Death] should come as no surprise,” says former DEA Special Agent in Charge Sandalio Gonzalez, who blew the whistle on the U.S. government’s complicity in the House of Death murders. “There is no Department of Justice. There is a government law firm that defends government officials, and in this case, they're going the extra step. They're trying to get rid of the witness [Ramirez Peyro]. Wow!”

Narco News sent an e-mail to the Department of Justice, seeking comment on Ramirez Peyro’s case, just to assure that the new Attorney General, Eric Holder, is on board with the “under color of law” reasoning.

From the e-mail:

I am interested in confirming that a case now before the U.S. Circuit Court of Appeals for the Eighth Circuit is, in fact, on the Attorney General's radar and that the position of the government's attorney (Tiffany Walters Kleinert) arguing that case is supported by the Attorney General.

As of press time, the Department of Justice had not responded to Narco News’ query.

 Bloodshed and Cover-up

The House of Death murders, which occurred between August 2003 and mid-January 2004, took place in Juarez under the watch of the Bush administration, as did the cover-up of the U.S. government’s complicity in those murders — orchestrated at the highest levels of the Department of Justice, the Drug Enforcement Administration and U.S. Immigration and Customs Enforcement (ICE). [See link]

The informant, Ramirez Peyro, a former Mexican police officer, while working as an informant for ICE, assisted a cell of the Vicente Carrillo Fuentes drug organization in carrying out those murders. That cell was headed by an individual named Heriberto Santillan-Tabares, who was eventually arrested in the U.S. on murder and drug-trafficking charges, but later negotiated a plea deal with the U.S. Attorney overseeing the case, Johnny Sutton. The plea bargain resulted in the murder charges against Santillan being dropped, and he was handed a 25-year prison sentence.

After participating in the first murder and informing his ICE handlers of that fact, the informant Ramirez Peyro was authorized by ICE and the Department of Justice, including Sutton’s office, to continue on his mission — resulting in at least 11 more murders and the near assassination of a DEA agent and his family.

This all played out despite the fact that U.S. Attorney Sutton (a “dear friend” of former President Bush who remains in office as of now under the Obama administration) had enough evidence to close out the investigation against Santillan several months prior to the first House of Death murder. Instead, Sutton chose to allow the informant to continue his bloody work — for which the U.S. government paid Ramirez Peyro some $220,000.

And when Gonzalez, at the time the chief of DEA’s office in El Paso, Texas, sought to expose the U.S. government’s complicity in the needless carnage, via a memo drafted and delivered to Sutton in February 2004, rather than investigate the charges, U.S. Attorney Sutton chose instead to use his connections within the Department of Justice to retaliate against the whistleblower and assure his message was silenced. And to this day, the cover-up continues — with the silencing of the informant Ramirez Peyro one of the few remaining loose strings.

The hearing before the U.S. Court of Appeals this past Tuesday, March 10, is the most recent development in the case, which has been pending in the U.S. immigration court system since 2005 (while Ramirez Peyro sits in prison “locked up in solitary protective custody,” according to his attorney, Goodwin).

An immigration judge has twice ruled that Ramirez Peyro should be allowed to stay in the U.S. under the Convention Against Torture. And twice, the DOJ-controlled Board of Immigration Appeals has reversed the immigration judge’s rulings.

The panel of three U.S. Court of Appeals judges who heard arguments in Ramirez Peyro’s case earlier this week will issue a decision in the coming weeks or months. A number of legal outcomes are possible for Ramirez Peyro in the short-term, but ultimately, and likely sooner rather than later, the courts will decided if he can be set free to live in a neighborhood near you.

In the alternative, the court also could set the wheels in motion for Ramirez Peyro to become a dead man walking — waiting on his ticket to be punched permanently across the border with the assistance of Mexican officials and law enforcers who, somehow, will be able to snuff out his life without acting “under color of law.”

If there is any indication as to how the U.S. Court of Appeals’ judges view the U.S. government’s argument in this case, the following question raised during the March 10 hearing by Judge Michael J. Melloy — directed at Kleinert — could be that oracle:

Let me ask you a question. … Do you know going back to our own unfortunate history in civil rights, were police officers not prosecuted under actions taken under color of law when they would stop civil rights workers in the deep South and turn them over to the Ku Klux Klan or participate in murders? I’m thinking of the famous three murders in Mississippi where the police stopped the people under pretense of a speeding violation and then turned them over to the Klan. Do you know, were they prosecuted on the theory that they were performing their duties under color of law?

But you can judge for yourself, kind readers. The March 10 Appeals Court hearing can be heard at this link, or you can read it below, as transcribed by Narco News.

The Players

Guillermo E. Ramirez-Peyro  vs.  Eric H. Holder, Jr.

[appeals court case No. 08-2657]

Hearing before the United States Court of Appeals for the Eighth Circuit, St. Paul, Minn., Tuesday, March 10, 2009, beginning at 9 a.m.

Judges

Diana E. Murphy

Michael J. Melloy

Bobby E. Shepherd

Attorneys

For Ramirez Peyro: Jodilyn Marie Goodwin

For the U.S. government: Tiffany Walters Kleinert,

 Court in Session

Goodwin

May it please the court. Your honors today I stand here representing the embodiment of Guillermo Eduardo Ramirez Peyro, an individual who is a Mexican citizen whose fate is not disputed. The facts in the case have basically all been agreed to at this point. Everyone, from his original ICE handlers to which he reported when he worked as an informant, to the U.S. Attorney’s Office, to the asylum officers who reviewed his case, to the supervisors who reviewed his case, the immigration judge who reviewed his case twice now, the Board of Immigration Appeals [BIA, which is controlled by the Department of Justice and its members appointed by the Attorney General] now in its second decision in this case, and eventually the government even in their briefs to this court, have all agreed that Mr. Ramirez Peyro will be tortured and die if he is returned to Mexico.

And with that in mind….

Judge Murphy

What country is the government thinking of sending him to if you don’t prevail?

Goodwin

My understanding, your honor, is that they will be sending him to Mexico. There has been no talk of a third country to which they would deport him.

Judge Murphy

How can that be when everyone agrees that he wouldn’t be safe in Mexico?

Goodwin

That’s a question I can’t answer, your honor. … Once everyone agrees that he will not be safe in Mexico, why would they send him into a country where they know he will be killed? According to the Board’s [BIA’s] most recent decision, they opined that they believe he would not be tortured under “color of law.” And the government is arguing that the Board’s interpretation in using the terminology in civil rights law “under color of law” to be analogous to government acquiescence under the [United Nations] Convention Against Torture [CAT]. I believe that interpretation is incorrect.

[Under the federal Civil Rights Act, an individual can sue government agents who use their official power, or the “color of law,” to violate federally or Constitutionally protected rights.]

Judge Shepherd

Can I ask a question? As I read this case … perhaps you can direct me to something in the record that would explain. This person was a paid informant for the Customs Service [U.S. Immigration and Customs Enforcement, or ICE, which is part of the Department of Homeland Security] apparently under some hostile dangerous kinds of circumstances. Is there anything in the record to explain the hostility of the government towards permitting this person to remain in the United States in view of the service that was performed? In other words, is there a rest of the story that would explain the positions of the parties? It seems somewhat unusual.

Goodwin

It is unusual, I would agree with you, your honor. There is some reference in the record, particularly in the immigration judge’s second decision, where the immigration judge refers to some evidence that the government perhaps has an agenda to rid themselves of Mr. Ramirez Peyro because of the fact he has information that would implicate that the government knew of and was aware of several murders that took place in Ciudad Juarez while Mr. Ramirez was acting in his capacity as an informant. … The immigration judge in his second decision does make reference to some evidence that that is the possible reason the government has shifted its focus. … Also prior to Mr. Ramirez Peyro being placed in expedited removal proceedings, which led him to seek protection in the United States, the government had previously made promises to Mr. Ramirez as well as to his family to protect them in the United States and to provide them with documentation to allow them to live and reside safely in the U.S. None of the those promises were ever fulfilled and instead Mr. Ramirez was forced to seek protection under the Convention Against Torture [an international human rights agreement put into effect by the United Nation’s General Assembly in 1987].

Judge Murphy

And where is his family now?

Goodwin

Judge, his wife and two children are currently in Albuquerque, New Mexico.

Judge Melloy

So they were bought to the United States because of the danger to them because of his cooperation?

Goodwin

Precisely judge. At the same time that Mr. Ramirez Peyro was given what’s called a public benefit parole, basically a small card that’s a permit to allow him to come to the United States, shortly after his arrival, the ICE handlers who worked on this case made arrangements to provide that same small card, which is an I-94, to his wife and his two children.

Judge Melloy

Does the government dispute that they offered him protection and had offered him permanent residency status under an S-Visa, is that correct?

Goodwin

They never offered him an S-Visa. They had offered him permanent residence through his ICE handlers, that was the understanding that he had, that he would be given permanent residency in the United States and be allowed to remain safely in the United States and not be deported. There was no written offer of that protection, if you will, of permanent residence.

Judge Melloy

… The government doesn’t’ dispute that he will almost certainly be murdered when he goes back to Mexico as I understand it, and it probably will be done with the acquiescence of corrupt Mexican police. And now they are saying that’s not going to be official government action, and the whole issue seems to revolve around this immunity grant. What is the record on this immunity offer that he purportedly received?

Goodwin

The only record that exists with respect to a presumed offer of immunity is the statement he made with his ICE handlers when he was taken to the Mexican consulate in Dallas, Texas, to provide a written statement to the attaché of the Mexican consulate who worked for the Attorney General’s office of the Mexican Republic. It’s only mentioned in his statement [Ramirez’ statement]. There is nothing in writing from the PGR, the Mexican Attorney General’s Office, nothing would show that the Mexican government has affirmatively granted him any type of immunity, no testimony in the record that he has been granted immunity. There was testimony consistent with the statement he gave at the consulate in Dallas that there had been an offer of such immunity. Interestingly enough, judge, the immigration judge in his findings, which the Board of Immigration Appeals states this time [its second hearing of the case] specifically are not erroneous, the immigration judge finds that there is no such grant of immunity, that it does not exist.

Judge Murphy

There’s a lot of evidence in the record about Mexican police or other officials tipping off the drug cartel about people who are taking their drugs or also being involved in carrying out executions. The government doesn’t deny there is such evidence, but rather says these officials weren’t acting in their official capacity, so this can’t be regarded as something that will help your client [under the Department of Justice’s interpretation of the Convention Against Torture]. You mentioned that before, about borrowing that notion from the civil rights law “under color of law.” This seems to be the toughest issue for you. How do you…

Goodwin

I believe that this court has already expressed its opinion with respect to what is the appropriate standard under [state or government] acquiescence. I’ll just quote briefly from the first decision in this case, actually written by your hand, your honor. In that decision it states:

Although it is not enough that a government is aware of torture but powerless to stop it, a government official may be responsible for torture under the Convention Against Torture if he knows that it will occur and thereafter breaches his or her legal responsibility to intervene to prevent such activity.

I believe that’s the appropriate standard. … The fact that the BIA has chosen to ignore not only this court’s decisions in Ramirez Peyro 1 [this is the second time Ramirez Peyro’s case has come before the Eighth Circuit] … but also other decisions from other circuit courts that I cited in my brief … in which all of those decisions go back to the same notion that if the government breaches its legal duty and responsibility to intervene and prevent torture, that is enough for government acquiescence. The Board [BIA] has extended and brought out case law that has not previously existed, which they still recognize in their decision. In this case, it is very clear, the record of evidence is supported … no one is disputing the facts of what will happen to Mr. Ramirez Peyro, that the cartel will be tipped off by government authorities if he is deported, and his torture and execution will more than likely be brought forth by government actors themselves, the Mexican police officials. And because the government of Mexico has a duty to protect and a responsibility to prevent that torture, they can’t do that when it’s their own actors that are torturing.

Judge Murphy

The government’s response to that is that the current administration [Mexican President Felipe Calderon’s administration] is trying to weed out the corruption. It recognizes there are these corrupt officers and they’re doing their best to weed them all out, so they’re not acquiescing.

Goodwin

The immigration judge very meticulously and carefully went through the record, not just the documents I presented to the court, but the documents the government presented to the court, that shows that even though there is the announcement of this policy to have this drug war, that it is completely ineffective. The judge, page by page almost, went through the record and pointed to evidence that despite the announcement of this policy, there is no real weeding out of this corruption and that it has not happened and will not happen in the near future.

Judge Murphy

In the United States, let’s take the DEA, where officers may be operating undercover and get involved in some things unwittingly that they are acting then under color of law because that’s their obligation to be undercover. Is there any analogy there?

Goodwin

I don’t know if there’s an analogy judge, especially given the fact that the operations my client undertook for the most part occurred in Ciudad Juarez [Mexico].

Judge Murphy

I’m not talking about your client. I’m talking about the so-called corrupt officers in Mexico. … Is there any possibility that in their activities working with the cartel they are actually working for higher authorities in Mexico?

Goodwin

I think there is a possibility of an analogy, but I think the analogy is inappropriate with respect to the notion of acquiescence under the Convention Against Torture. Sure, we can make the analogy that we can compare civil rights law with what the UN charter states in the CAT. But I don’t believe what is required under the Convention Against Torture is the same as required under liability under Section 1983 for civil rights purposes. I believe that’s where the Board of Immigration Appeals has gone awry of what the spirit and letter of the statute and the regulations implementing the CAT is.

Judge Shepherd

If the court agreed with your arguments, you’ve asked that this matter be remanded to the Board of Immigration Appeals. Is that correct?

Goodwin

I believe that the matter does not necessarily have to be remanded to the BIA. All of the factual findings are done and there is no dispute with respect to the factual findings. The only issue would be is that it would need to be remanded for a decision granting the deferral under the Convention Against Torture.

Judge Shepherd

That’s my question. Are you asking the matter to be remanded for further findings, or are you asking that it be remanded for the granting of relief?

Goodwin

I’m asking that the case be remanded for the granting of the relief. I don’t’ believe that there is any need for further factual findings, and as I stated and the board agreed, there was no clear error with respect to the factual findings of the immigration judge.]

Goodwin’s time is elapsed; Department of Justice attorney Kleinert now begins her argument.

Kleinert

May it please the court. My name is Tiphany Walters Kleinert and I represent the respondent, the U.S. Attorney General [Eric Holder]. In this case, the court has before it the petitioner’s application for deferral of removal [preventing deportation]. The Board’s interpretation of torture convention regulation as requiring torture be inflicted by or with the acquiesce of an individual acting under color of law is controlling as it is not plainly erroneous or inconsistent with the regulation. Moreover, Mr. Ramirez has conceded that this court’s jurisdiction is limited to questions of law and constitutional issues.…

Judge Shepherd

Does the government concede that if the petitioner is returned to Mexico that he will be murdered?

Kleinert

The Board found that the petitioner faces a serious risk of severe harm if returned to Mexico. The question in this case is really whether or not petitioner [Ramirez Peyro] has demonstrated that it’s more likely than not that the government of Mexico will acquiescence or act under color of law in inflicting this torture.

Jude Melloy

…The immigration judge never really made a finding about the immunity. We really don’t know anything about the immunity do we?

Kleinert

The immigration judge found that Mr. Ramirez testified credibly, and in his discussion of Mr. Ramirez’ testimony, he recounts that Mr. Ramirez testified that Mr. Ramirez conceded that he was offered immunity.

Judge Melloy

Is one [Mexican] government official in Texas saying you’re given some kind of immunity, does that carry any more weight than the purported promise by the U.S. government that he [Ramirez Peyro] be given permanent residence status?

Kleinert

Well, in this case, he [Ramirez] made a statement that it was the equivalent of the Attorney General [of Mexico offering the immunity]

Judge Melloy

Did the United States offer him permanent residency status?

Kleinert

That is not before this court on this record. Neither the immigration judge or the Board of Immigration Appeals had any jurisdiction to offer …

Judge Melloy

Why is that offer by one person orally made that we don’t even know what the parameters of the immunity are? … Should we give that any weight, when it wasn’t in writing? … We don’t give any weight to a government official in the United States giving an oral offer of immunity [to Ramirez], so why should we give any weight to a Mexican official, assuming it was even made?

Kleinert

In this case, Mr. Ramirez is applying for protection under CAT, for deferral of removal, and he bears the burden of coming forward with evidence. He came forward with testimony that he was offered immunity.…

Judge Melloy

But only for acts [committed] under ICE protection.

Kleinert

He was offered immunity by the Attorney General in Mexico for acts regarding his statements that he provided to the Attorney General.

[The statements included descriptions of murders that he was aware of, and, in some cases, was arguably complicit in facilitating, and that occurred when he was operating as a member of a Juarez-based narco-trafficking cell — including some murders carried out while he was working simultaneously as an ICE informant].

Judge Melloy

That’s not what the immigration judge said. …

Kleinert

If you read the actual transcript of the proceedings….

Judge Melloy

The Board accepted the immigration judge’s findings, so whatever the immigration judge said is what I’m going to going on. Now maybe you want to do something different. But if the Board accepted the immigration judge’s findings, then that’s the findings. Now you may want to change those findings.

Kleinert

Well the board accepted the immigration judge’s findings as fact. As an initial matter, I would raise the issue that the petitioner did not raise the scope of review issues in her opening brief, so the government would argue that they are waived. Nonetheless, the board had jurisdiction to review matters of mixed questions, questions of judgment regarding the probability of future events. The immigration judge’s factual findings were regarding what actually happened with regard to Mr. Ramirez.

Judge Murphy

Everyone concedes that he’s not safe if he’s exported, deported, removed, whatever, to Mexico. Does the United States still intend to send him off to Mexico?

Kleinert

Mr. Ramirez still has the ability to request additional relief from Immigration and Customs Enforcement [ICE]. He can request deferred action from ICE. The question before this court is really whether or not he is eligible under the [CAT] regulations for deferral of removal. That’s a specific form of relief. And for that form of relief, he has to show that the Mexican government would acquiesce in this torture.

Judge Melloy

Well, you’ve already denied him the relief. So I mean he can ask. And he’s asked, and he’s been denied.

Kleinert

Well he’s not been denied deferred action [from ICE]. He hasn’t requested deferred action.

Judge Murphy

Yeah, but if it’s the same standard, he wouldn’t get it….

Kleinert

No, it’s not the same standard. It’s a different form of relief entirely. It’s within the discretion of ICE, but it can consider factors such as the concerns before this court regarding the welfare of Mr. Ramirez.

Judge Melloy

Then why don’t you just give it to him?

Kleinert

He needs to request it from ICE.

Judge Melloy

I don’t understand the difference. Either he’s deferred under one regulation or he’s deferred under CAT. Why don’t you just give it to him?

Kleinert

That is a question of discretion before the agency [ICE] and Mr. Ramirez would have to request it. The question before this court is really the Board’s interpretation of the regulations under the torture convention.

Judge Murphy

And he [Ramirez Peyro] wouldn’t be able to, if he requested it [ICE deferral], if he didn’t get it, the courts wouldn’t have any jurisdiction over that decision?

Kleinert

No. the courts do not.

Judge Murphy

You know, in reading these things, its real serious issues here I realize, but it occurred to me this CAT, the holocaust was one of the things that triggered some of these [torture] convention [rules], that a Jew who was rounded up by the Vichy police because the Vichy government [of France, which collaborated with the Nazis during World War II] was ordered by the Germans to round up the Jews, there wouldn’t be any relief against that if you were the Jew there. You couldn’t raise this CAT [deferral of deportation claim] because it wouldn’t fit your standard.

Kleinert

… In that case, the persecution is on account of Jewish ethnicity, and that standard is the standard of whether the government is unwilling or unable to protect the applicant from the harm. So in that case the government might be unwilling or unable. That’s an entirely different standard than the standard [in play with the Ramirez Peyro case] before the torture convention. Congress and the Agency were well aware of that standard when they created and adopted these regulations.

Judge Murphy

How do you know that the drafters of CAT had in mind U.S. civil rights law about this “under color of law” interpretation?

Kleinert

The drafters of the convention [against torture] included language indicating that the torture must be inflicted by or acquiesced to by a public official acting in an official capacity. In the adoption of the torture convention here in the U.S., in the message by the president of the United States transmitting the convention, the president cites a Senate report as well as a Department of State report explaining the “in an official capacity” language. And in the Department of State report, they interpret that language in terms most familiar to U.S. law as being under color of law. So that is the path we get to the “under color of law” in understanding it in terms of U.S. laws. The civil rights law….

Judge Melloy

Let’s assume he [Ramirez Peyro] returns to Mexico and he’s arrested under color of law. And because he’s obviously committed many, many crimes in Mexico, he can be arrested absent a full grant of immunity. If you’re going to rely on that, I personally think it [this case] has to go back [to the BIA]. But assuming there’s no full grant of immunity, and he’s arrested for some crime, and a corrupt police officer then tells the cartel where he’s at and he’s killed. You’re saying that would not be under color of law?

Kleinert

As an initial matter, Mr. Ramirez has the burden of showing that it is more likely than not to happen.

Judge Melloy

Just follow my hypothetical. … I think the whole immunity issue is so amorphous that if that’s what you’re hanging your hat on, then it’s got to go back [to the BIA] and we have to find out what he was given immunity for and by whom and for what crimes. That’s a whole other ball of wax.

Kleinert

Your hypothetical, just so I understand, is if he was lawfully arrested, whether an individual notified the cartel?

Judge Melloy

Right, a police officer then notifies the cartel, and that’s probably going to happen. Everyone concedes that will happen and he will be murdered at that point.

Kleinert

If the police officer is basically on the payroll of the cartel and he’s been specifically precluded by his superiors [in the cartel] from informing anyone about this, and as a rouge police officer engages in actions that despite the Mexicans best effort they have been unable to completely weed out all corrupt officers, then in that situation, I think it would be difficult to say that individual going off on his own personal pursuit for which he is being paid by the cartel would be acting under color of law. … But what we have in the record before us, there is no indication that the government of Mexico acquiesces in any actions taken by rogue police officers.

Judge Murphy

The petitioner contends that if he would … cooperate in the successful prosecution of Santillan [the leader of the Juarez narco-trafficking cell that was responsible for the House of Death murders] that he would be able to stay in the United States.

[Santillan was eventually arrested with the help of Ramirez Peyro and later U.S. Attorney Johnny Sutton dropped all murder charges against him as part of a plea deal and he was sentenced to 25 years in a federal prison in the United States.]

Kleinert

Mr. Ramirez testified that before the immigration [court case] that he had never heard of the S-Visa. … An S-Visa is a particular form of a nonimmigrant visa that essentially the individual must be recommended by the law enforcement agency and it’s designed specifically for people who cooperate with the U.S. government in various capacities to allow them to stay in the Untied States for a particular period of time. Now Mr. Ramirez has not testified that he has ever been offered an S-Visa. In fact, the S-Visa regulations require that the U.S. attorney involved in the case actually certify that no promises have been made regarding permanent residency and regarding the S-Visa itself. The record does not indicate clearly what promises have been made. Mr. Ramirez has not established that, and the issue of the S-Visa is something the immigration judge didn’t have jurisdiction to consider and the Board [BIA] did not.

Judge Murphy

Whether a Mexican would know what an S-Visa is or not. … Did he ever testify that he was offered the ability to live in the United States if he participated [in helping to snare Santillan]?

Kleinert

He testified that he believed he was offered permanent residency.

Judge Murphy

And what did the immigration judge find about that, was it credible?

Kleinert

The immigration judge found Mr. Ramirez generally credible. I don’t believe he made any specific finding about that because it wasn’t something that was relevant to his determination under CAT.

Judge Melloy

Did the government deny that if he cooperated with ICE he would be given permanent resident status?

Kleinert

I can’t speak to that issue. It’s not in the record. … I’d have to consult with my client about that. The record does not contain that information.

Judge Melloy

The immigration judge’s opinion references a number of newspaper articles, which I’m always a little hesitant to rely upon newspaper articles. But the newspaper articles indicate that the corruption in the Mexican police goes all the way to the very highest levels, including captains, colonels, chiefs of police. Does that make any difference in the official capacity analysis, the fact that we’re talking about people at the very highest level?

Kleinert

In this case, we also have evidence that large numbers of military have been deployed to certain regions to take over police duties. There’s no question that corruption is a serious concern in Mexico and that it’s not limited to solely the foot soldiers, shall we say, of police. However, the record also indicates the Mexican government has taken extreme measures to bring the situation under control, so …

Judge Melloy

Where is that in the record?

Kleinert

There’s ample evidence … there’s reports indicating …

Judge Murphy

Are they country reports from the state department?

Kleinert

There actually cited in the Board [BIA] decision. … I believe that the report that was relied on was from the U.S. government. I don’t remember if it was specifically from the State Department.

Judge Shepherd

So is the distinction you would make that the kind of corruption we’re talking about that would lead to the petitioner coming to harm is not the official position of the Mexican government? Is that the distinction?

Kleinert

Correct. The distinction would be that the individuals who would harm Mr. Ramirez would be the cartel or police officers who were essentially on the payroll of the cartel. It would not be any officers under direction by the Mexican government that would seek to harm.

Judge Shepherd

What about the definition of acquiescence in the regulations that talk about the public official having awareness of certain activity and then breeching a legal responsibility to intervene or prevent the activity? Now wouldn’t that be perfectly applicable here, regardless of what the official position of the Mexican government might be?

Kleinert

Mr. Ramirez has not established that the Mexican government would not take steps to protect him.

Judge Shepherd

But what about a public official, an officer, whatever rank, is that not a public official?

Kleinert

That would be a public official, but actually …

Judge Shepherd

I thought the assumption here that everyone seems to have bought into that low-level police officials in Mexico there will be some that will not protect the petitioner, and perhaps will even hand him over to the cartel. Why does not that fall into the definition of a public official who has awareness of the activity and breeches a legal opportunity to intervene or prevent?

Kleinert

The section that you’re quoting is the regulatory definition of the term acquiesce. If you look a little higher in the regulation the requirements for eligibility for torture convention relief incorporate that definition and require that the torture be inflicted by or with the acquiescence of a public official acting in an official capacity. So while that’s one component of that requirement, and that’s defined under acquiescence in the regulations, the regulations require that the applicant show something more, that the acquiescence be by a public official or other person acting in an official capacity. And that language, “official capacity,” comes directly from the torture convention itself. The torture convention relief was designed to be limited in nature. It was designed to be limited to situations where the government itself would actively seek to torture the person or would acquiesce in the harm. This court has interpreted that as willful blindness. It requires something more than just the public officials not being able to control the activities of rogue public or other corrupt individuals. ....

Judge Murphy

We’ll give you one minute [Ms. Goodwin]

Goodwin

If I could briefly clarify one thing. There’s discussion … about the grant of immunity and what possible promises have been made and the government has argued that there is other relief available to Mr. Ramirez. Just to be clear, deferred action [from ICE] is something we cannot ask for until there is a final order of removal, and given the fact that this removal order is still in litigation, there has not been any request for that. However, I question whether or not Mr. Ramirez can rely on the discretion of the agency [ICE] at this point, given their position on his case. And the same thing goes for the S-Visa. He [Ramirez] was never certified by any law enforcement officer, which is required to do that certification to give him the S-Visa

Judge Murphy

What’s your best way of getting around this problem about the official conduct?

Goodwin

Judge, even if you accept that you have to use the concept of color of law from the … case law, those cases indicate that it is a highly factual determination as to whether or not an official is working under color of law. Given that, this court would review using the substantial evidence standard. The BIA has already decided that the factual findings of the immigration judge were not clearly erroneous. But then in doing there legal/factual analysis using the under color of law standard, they make their own factual findings again, which is something this court has already warned the BIA that they should not do unless they make findings with respect to clearly erroneousness. And this case they specifically found that immigration judge did not make any erroneous factual findings. To the extent that I would use that argument to get around the under color of law … it’s not to get around it judge, its to show that the facts show that. Even if you accept the fact that you have to use an under color of law standard, which I do not believe is the appropriate standard as set forth in CAT, but even you accept that, the facts show that the Mexican government and those officials working even at low levels in the Mexican government will torture Mr. Ramirez under color of law. The facts are not disputed with that respect.

Judge Melloy

Let me ask you a question. … Do you know going back to our own unfortunate history in civil rights, were police officers not prosecuted under actions taken under color of law when they would stop civil rights workers in the deep South and turn them over to the Ku Klux Klan or participate in murders? I’m thinking of the famous three murders in Mississippi where the police stopped the people under pretense of a speeding violation and then turned them over to the Klan. Do you know, were they prosecuted on the theory that they were performing their duties under color of law?

Goodwin

They were prosecuted, and they were convicted, and eventually families were issued money damages with respect to that. … And, in fact, even to this day, judge, individuals that performed such actions 30 or 40 years ago are still being prosecuted under that same theory.

 Arguments concluded

 Stay tuned….