U.S. Appeals Court sides with House of Death informant - again

Judges find U.S. government’s reasoning lacking in ICE snitch’s deportation case

The U.S. government’s ongoing, four-year effort to deport the House of Death informant back to a certain death in Mexico has once again hit a roadblock in the U.S. Eighth Circuit Court of Appeals.

That court today ruled that the Board of Immigration Appeals (BIA) erred in reversing an immigration court judge’s most recent decision to grant the informant, Guillermo Ramirez Peyro, relief under the United Nations Convention Against Torture (CAT).

The appeals court also issued a sharp rebuke of the Justice Department-controlled BIA’s dismissive attitude toward Ramirez Peyro and his work as a U.S. government informant.

From the opinion issued by the three-judge U.S. Appeals Court panel, published Aug. 4:

Finally, we feel compelled to address the BIA’s statement regarding Ramirez Peyro’s “assumption of the risk,” as it were. Despite its recognition that Ramirez Peyro “faces a high risk of severe harm upon return to Mexico,” and almost certain death, the BIA noted that “violence is an ‘occupational hazard’ of the illicit drug trade” and admonished Ramirez Peyro for “court[ing] this risk through his own actions.”

While Ramirez Peyro may have been involved in illicit actions before becoming an ICE informant, his claim for CAT relief is not based on generalized fears of violence stemming from his involvement in the drug trade, but rather, it is based on the very particularized fear that he will be killed because he worked in concert with the U.S. government to help arrest and convict numerous dangerous international drug traffickers.

In this case, the violence Ramirez Peyro faces, if anything, is an occupational hazard of working on behalf of the U.S. government, and surely, this is not the type of hazard that we would like to encourage would-be informants to avoid for fear of it being used against them when they seek protection.

… We grant Ramirez Peyro’s petition for review, vacate the BIA’s opinion, and remand [the case back to the BIA] for proceedings consistent with this opinion.

The Department of Homeland Security initiated deportation proceedings against 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 CAT and the Justice Department-controlled BIA twice ruling against Ramirez Peyro — to date.

So, with this current opinion issued by the appeals court (which has now heard arguments twice in this matter), Ramirez Peyro’s case once again goes back to the BIA for review, with new instructions.

Specifically, the appeals court is asking the BIA to review its findings with respect to the legal construct of “under color of law” — which the BIA contor ted to justify its most recent ruling against Ramirez Peyro.

In essence, the Eighth Circuit shot down the BIA’s legal rational on that front using rather convincing legal logic, common sense and facts that paint a gruesome picture of the Mexican government’s complicity in narco-violence, including murder.

The Government’s Hand

At a March 10 hearing held in St. Paul, Minn., before the Eighth Circuit Court of Appeals, the government's attorney, Tiffanny Walters Kleinert, conceded that Ramirez Peyro will, in all likelihood, be murdered, if deported to Mexico as the U.S. government seeks — and she also conceded that he will probably be exterminated with the assistance of Mexican law enforcers.

However, Kleinert also argued that Ramirez Peyro is not entitled to relief from the court under the CAT — which prohibits the U.S. from deporting an individual to a country where he or she faces imminent risk of being tortured by individuals acting on behalf of the government. The legal rational, advanced by Kleinert and the BIA, is 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," but rather on their own time as private employees of a narco-trafficking organization.

Kleinert and the BIA also contend 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 be condoned and, as a result, would not represent “acquiescence” on the part of Mexican government officials to the commission of that crime.

In essence, the U.S. government wants us to accept the following: If Mexican police on the payroll of a narco-trafficking group conspire to murder Ramirez Peyro, the Mexican government will be completely off the hook with respect to having any responsibility for that crime.

Needless to say, the appeals court punched some holes in that reasoning.

The House of Death murders occurred between August 2003 and mid-January 2004 in Juarez, Mexico, under the watch of the Bush administration, as did the cover-up of the U.S. government’s complicity in those murders — a cover-up 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 victims were found buried in the backyard of a House at 3633 Parsioneros in Juarez, located just across the Texas border from El Paso.

The informant, Ramirez Peyro, a former Mexican police officer, while working as an informant for ICE, participated in the first murder, which was carried out as part of his assignment to infiltrate the ruthless Vicente Carrillo Fuentes narco-trafficking organization. After informing his ICE handlers of his role in that initial murder, Ramirez Peyro was authorized by ICE and the Department of Justice, including the office of then-U.S. Attorney Johnny Sutton, to continue on his informant assignment — resulting in at least 11 more murders (many of them reported to ICE in advance by Ramirez Peyro) and the near assassination of a DEA agent and his family.

Now, Ramirez Peyro, currently confined in a jail cell in Minnesota, confronts the harsh reality that he himself will be tortured and murdered by the narco-traffickers he betrayed should the U.S. government succeed in its plan to deport him to Mexico. And the Eighth Circuit Court of Appeals, in its recent opinion, is quite clear about the role that Mexican government officials play in the violence perpetrated by the drug organizations.

Some excerpts from the opinion:

Ramirez Peyro alleged that all levels of the Mexican police have illicit connections to drug trafficking and that Mexican authorities, including Mexico’s Federal Agency of Investigation (AFI) regularly reveal the identities of informants to the drug cartels.…

In addition to Ramirez Peyro’s testimony at the 2005 [immigration court] hearing, both parties [the defense and government] submitted extensive documentary evidence confirming (1) the close relationship between Mexican law enforcement, politicians, and drug cartels; (2) the frequent involvement of police officers and military personnel in violent crimes ….

… In its October 11, 2007, opinion, the IJ [immigration judge] outlined all of the documentary evidence both parties had submitted.... It discussed, in particular, the 2007 U.S. State Department Country Report on Mexico (“Report”), which the IJ believed evidenced a “deeply entrenched culture of impunity and corruption in (Mexico’s government) particularly at the state and local level.”

The IJ noted that Mexican “police and security forces” had been involved in “unlawful killings” and that “there were numerous reports of executions carried out by rival drug cartels, whose members allegedly included both active and former federal, state and municipal security forces.” The IJ further indicated that the Report provided support for Ramirez Peyro’s claim that “police were involved in kidnapping, extortion and providing protection for, or acting directly on behalf of, drug traffickers.”

It is in that context that the appeals court took up the government’s contention that Mexican law enforcers who commit murder as part of the drug business are not acting “under color of law.” The court determined that all that is needed to establish “color of law” is that a police or other government official acted under the “pretense” of law.

The appeals court has ordered the BIA to review Ramirez Peyro’s case yet again in light of that broader definition of the term for the purposes of the CAT — and to include “considerations such as whether the officers are on duty and in uniform, the motivation behind the officers’ actions, and whether the officers had access to the victim [in this case, potentially Ramirez Peyro] because of their positions.”

It seems clear, within that frame, that the appeals court is shooting down the U.S. government’s contention that because Calderon and other high-level Mexican officials don’t officially condone murder, then any homicide committed by a Mexican cop cannot be considered an act “under color of law.”

“Given this error,” the appeals court ruled, “we remand the case to the BIA to allow the agency to properly apply the IJ’s [immigration judge’s] factual findings to the correct under-color-of-law standard….”

Acquiescence

And in a brilliant stroke of common-sense logic, wrapped in legal underpinnings, the appeals court also pointed out the huge flaw in the U.S. government’s argument that Mexican law enforcers are not acting “under color of law” if they are aware of a murder being carried out by their narco-employers, but fail to act to prevent that crime.

From the opinion:

The BIA’s discussion of its denial of relief [for Ramirez Peyro] on acquiescence grounds is brief, but, in essence, the BIA concludes that, even assuming law enforcement would consent or acquiesce to torture at the hands of the Cartel, they again “would not be acting under the pretense of law [but] following a purely personal pursuit” by acquiescing to the Cartel’s actions [as opposed to acquiescing to the crime as law enforcement officers].

… The officers Ramirez Peyro alleges will engage in harmful actions against him (whether it be via the performance or the mere observation of torture) are also responsible for stopping such crimes. As such, further inquiry is needed [by the BIA] as to whether the officers would be breaching their “legal responsibility to intervene” under the color of law when they fail to arrest themselves, their co-workers, or others assaulting Ramirez Peyro.

And so, once again, Ramirez Peyro’s case is getting routed back to the BIA for further consideration based on the recent appeals court ruling.

The last time his case was before the BIA, his attorney, Jodi Goodwin, provided the following insight into the potential future course of the litigation:

If the BIA were to rule against us, then we would appeal [again] to the Eighth Circuit [Court of Appeals]. Beyond that, would be a discretionary appeal to the Supreme Court.

And when does it end?

“Good question,” Goodwin said. “The government holds the key to his freedom in my opinion.”

And that government, and the Justice Department now pressing the case, is not showing its cards in this game.

“Unfortunately, there is nothing else we can provide at this moment in regard to the Peyro matter in that it's ongoing,” Charles Miller, spokesman for Justice, said in response to a prior query by Narco News seeking comment on the case.

So, it appears, for the foreseeable future, the Justice Department is intent on assuring the color of law remains opaque in this case.

Still, the cause of justice took a step forward today, according to Goodwin, who provided the following comment to Narco News in the wake of the U.S. Appeals Court opinion:

Indeed this is yet another huge victory for my client as well as the jurisprudence with respect to CAT.  My client and myself were very pleased with the outcome because of the strong language used by the Eighth Circuit.

Stay tuned….

[The full U.S. Eighth Circuit Court of Appeals ruling can be found here.]