House of Death Live: US Government and Its Ex-Informant Present Their Arguments in Federal Court

Narco News today will take you inside the U.S. 8th Circuit Court of Appeals, where oral arguments were heard yesterday in St. Louis concerning the pending deportation case involving the House of Death informant, Guillermo Eduardo Ramirez Peyro.

The transcript of that hearing is reproduced below – transcribed by Narco News from a recorded version of the hearing that can be heard at this link.

To set the context for this hearing, we must first provide a refresher on the background of the case.
The Department of Homeland Security (DHS), which is implicated in the cover-up of their agents’ complicity in the House of Death murders, initiated the deportation proceedings against the informant and is seeking to send him back to Mexico. DHS is arguing that the informant faces no danger in Mexico despite the fact that he betrayed powerful members of the Vicente Carrillo Fuentes Juárez drug organization.

This is a curious position for DHS officials to take, given that the informant could expose the full extent of the role played by DHS agents in the House of Death murders — so it could be argued that DHS might have a motive to see the informant out of the picture, permanently.

However, according to the court records, the immigration judge in the informant’s case disagreed with DHS’ contention and granted him relief from deportation under Article III of the United Nations Convention Against Torture — after concluding that the informant would likely be tortured and murdered by the narco-traffickers he betrayed while working for DHS if he was returned to Mexico.

DHS was not happy with that outcome and appealed the judge’s decision to the Board of Immigration Appeals, which is part of the Department of Justice (DOJ). The DOJ, too, has been implicated in the House of Death cover-up. An Assistant U.S. Attorney in El Paso, Juanita Fielden, and the U.S. Attorney in San Antonio, Johnny Sutton, have been accused of turning a blind eye to the informant’s participation in the House of Death murders because they were more interested in making a drug case against the Carrillo Fuentes organization.

The Board of Immigration Appeals, perhaps predictably, overturned the immigration judge’s ruling, which forced the informant to take his case to the U.S. Court of Appeals for the Eighth Circuit in an effort to forestall his deportation. The transcript below is from the oral hearing before the appeals court. A final decision by that court is still pending.

But now, you, kind readers, can read what the two judges at that hearing heard. The arguments advanced by the attorneys in the hearing (Jodi Goodwin for Ramirez Peyro and Anthony Payne for the government) turn on one major technicality.

Both Goodwin and Payne are arguing that Ramirez’ case should be returned (or remanded) back to the Bureau of Immigration Appeals (BIA) for further review. Both Goodwin and Payne agree that the BIA committed an error in its ruling by making a finding of fact as part of its decision. Findings of fact, under current regulations, must be left to the immigration court. The BIA can only make a determination as to whether the finding of facts made by the immigration judge were done so in “clear error.”

The finding of fact at the “crux” of this matter is the BIA’s determination, without finding “clear error,” that it disagreed with the immigration court’s assessment that narco-trafficking organizations and Mexican law enforcement are so interwoven that Ramirez would certainly face the prospect of torture and death if returned to Mexico.

This informant Ramirez (also known as “Lalo” and by the alias Jesus Contreras) had infiltrated a narco-trafficking organization in Ciudád Juárez that was overseen by Heriberto Santillan-Tabares, whom U.S. prosecutors claim was a top lieutenant in Carrillo Fuentes organization. Between August 2003 and mid-January 2004, while under the watch of DHS agents, Ramirez helped to operated a House of Death in a residential neighborhood in Juárez where a dozen people were tortured and murdered by Mexican police who were working under the direction of Santillan.

Oral Argument before the U.S. 8th Circuit Court of Appeals 1/12/2007

PLAYERS:

Appeals Court Judge Diana Murphy

Appeals Court Judge David R. Hansen

Attorney Jodi Goodwin for Guillermo Eduardo Ramirez Peyro

Attorney Anthony Payne for the U.S. Government

Goodwin: I represent Guillermo Eduardo Ramirez Peryo. He is Mexican national who worked for Immigration [U.S. Immigration and Customs Enforcement, or ICE, which is part of DHS] for about four years and is now being removed from the United States by that very same agency.

Judge Murphy: Can we leap frog a little bit … . When the respondent [the U.S. government] first move to remand to the board [the BIA], you opposed that, but now your position seems to have changed in your briefing where you indicate that you ask for a remand  [to the BIA] to issue a decision consistent with the … the petitioner’s [Ramirez’] legal arguments. What do you mean by that?

Goodwin: … Essentially both parties are asking this court to remand, as Mr. Ramirez did in his initial brief. The issue is, and I think this is the crux that the court needs to decide, is whether to send the case back to the Board of Immigration Appeals simply for the board to make a determination or add to the decision that they’ve already made where there’s clear error with respect to the factual findings; or for this court to review the administrative record and make a decision as to whether the BIA violated their own regulation in reviewing the case de novo [as though it were a brand new case], as opposed to simply reviewing the [immigration court’s] case for clear error.

Judge Murphy: Did you see the supplemental submission of respondent [the U.S. government] with respect to this recent case from another circuit with a very similar kind of thing with the torture claim, and the circuit [appeals court] there did remand it to give the board [BIA] another shot at things?

Goodwin: Yes judge. … It’s almost as if what’s good for the goose is good for the gander. In [that] case, … it was Mr. Tran  [ Qang Ly Tran, an ethnic Chinese individual convicted of a felony who the government sought to deport to Vietnam] who was making the argument that it violated due process for the board [BIA] to not have stated specifically in the decision that they found clear error, using those specific words.

Interesting enough, the board had ruled against Mr. Tran. And in our case, the board ruled for the government, and the government is asking for the case to be remanded because the board didn’t use the appropriate standard by not stating in the decision the words “clear error.”

By making factual findings, overturning the immigration judge’s factual findings, there is no doubt the BIA reviewed the record de nova and did not review the record for clear error, because they made their own factual findings, and that is what is prohibited by the regulations.

I believe that you’re right Judge Murphy with respect to the case that we both agree the case should be remanded. But it’s Mr. Ramirez’ position that the case should be remanded after this court makes a review of the administrative record and makes a determination if those factual findings made by the BIA were correct or not. And its Mr. Ramirez’ position that they were not correct.... [This] is very clear, very specific, supported by substantial evidence that was used by the immigration judge to make his decision. The BIA can’t substitute fact-finding

Judge Hansen: You want to remand with directions in your favor.

Goodwin: Exactly. I want to remand in directions after review… Practicality is that this is what will happen if there is a remand as the government is requesting — for the board to write a decision and use the words clear error justifying its prior decision. We’ll be back here again because we will come and again make the exact same arguments with respect to the correctness of the BIA’s findings that there was clear error.

Judge Murphy: Isn’t that the proper way to proceed, though, because clearly, if it goes back to the board [BIA], the board issues another opinion, you have the right to appeal it?

Goodwin: Of course. I would remind the court my client is detained at government expense and the government has gone through great expense to get to this point where we are now. And as a matter of practicality and judicial economy, I would suggest to the court that the proper approach would be to review the judicial record. In fact, in the decisions that the government cited in their brief, there are two 8th circuit decisions where it talks about the facts that the cases were remanded to the BIA. But in both of those cases … this court reviewed the administrative record first, then remanded the case to the BIA.

Judge Hansen: What you’re really seeking … is a remand to the board with our imprimatur on the immigration judge’s fact findings, so that when it gets back to the board, the board’s hands are pretty well tied. Is that right?

Goodwin: The standard of review is that you would have to, this court would have to look at whether or not there was substantial evidence to support the immigration judge’s fact-findings.

Judge Hansen: You just don’t want a remand from us saying, “Look, it looks to us like you used de novo review instead of clear error, take another shot at it.” You don’t want that kind of remand?

Goodwin: In my opinion, and I may be too practical for my own profession, but, in my opinion, I’ll be flying back up here and making the same arguments in the brief I’ve already submitted to this court — which, I don’t mind doing.

I believe in a sense of practicality and, in a time when some people would rather be creators rather than consumers, I think we’ll just be back in the exact same position where we are today.

Judge Murphy: You’ve got some rather unusual circumstances here. I mean … both the asylum officers and the immigration judge regarded your client’s situation with favor.

Goodwin: Yes ma’am.

Judge Murphy: It’s not necessarily cut and dry is it? That the board [BIA], if there was a remand for it to use the correct standard that they should have used in the first place, that they would take another look at it … because you got some findings that are in your favor.

Goodwin: Being a person of faith, I do believe miracles can happen and the board could change their mind. Unbeknownst to the court and not in the record, there have been many events surrounding my client’s case and cases he worked with Immigration and Customs Enforcement on since the time we had [a previous] hearing, so that there’s additional information that further supports his claim that he would be tortured and killed if he is returned to Mexico.

In the event that the case is sent back to BIA, I would certainly have to jump at the chance to be able present that further evidence in an attempt to try to further convince them, even though the evidence we have already presented, as the asylum officer found, as the supervising asylum officer found, and as the immigration judge found, made it very clear that he would be subjected to torture or worse if he were returned to Mexico.

Judge Murphy: Well the situation changes form time to time in Mexico. Would you be able to bring in new circumstances?

Goodwin: Only if the BIA agreed to remand the matter to the immigration judge for the submission of new evidence. … I see that I’m running out of time. If you have any questions, I’d be happy to take them, and if not, I’d reserve my time for rebuttal.

Judge Murphy: Why don’t you reserve your time then. Mr. Payne.

Payne: Good morning, If it may please the court. Anthony Payne on behalf of the United States Attorney General.

When a court reviews a judgment that an administrative agency [like BIA] is alone authorized to issue, it judges that decision solely for the reasons invoked by the agency. The reason we requested remand in this instance is it’s not clear from the board’s decision that it followed its scope of review.

It’s scope of review changed in 2002. Prior to that, it [the BIA] could conduct de novo review of facts. After that, it effectively became an appellate body. In so doing, it could only review the immigration judge’s finding of fact for clear error.

Here, the immigration judge essentially made one finding of fact with respect to torture. He found that the law enforcement officials of Mexico are so engrained with the drug cartels that, if Mr. Ramirez would go back to Mexico, there is a clear probability of torture. The board disagreed with that. However, in so doing, it’s not clear from the decision that they reviewed it under the “clearly erroneous” standard.

What the government is requesting is that this court send it back to the board so that it can clarify its decision. The board may very well find that,  “Yes, we made an impermissible fact finding; therefore, we have to review under the clearly erroneous standard and possibly send it back to the immigration judge.”

For example, the immigration judge never made a finding with respect to relocation. The board did so in its decision. The board should be given the opportunity to determine whether or not that decision was within its scope of review.  

If it [the BIA] finds that the immigration judge was clearly erroneous in not making that relocation decision, it must send it back to the immigration judge for further proceedings. Essentially, the board should be given the opportunity to state with specificity whether or not it applied its standard of review correctly. And if not, what happens then. It probably goes back to the immigration judge or he [Ramirez] is granted deferral of removable. So it’s not guaranteed that this case will come back to this court.

Judge Murphy: Just out of curiosity … as I recall the immigration judge ordered him deported to any country other than Mexico. I was a little bit curious why the board wasn’t satisfied with that. Is this some kind of comity [courtesy] between countries … because it wasn’t saying he can’t be deported.

Payne: Well, I think if DHS is able to find a country that is willing to take Mr. Ramirez, then they would have to issue a deportation order at that point, and he could seek relief or protection from that country. What deferral of removal allows for, it simply says you face a clear probability of being persecuted in this particular country. Therefore, you cannot be sent back to that country. It doesn’t preclude you from being sent back to a different country, if DHS is able to find that country.

Judge Murphy: And not everybody would want to get someone who had been a drug dealer, perhaps.

Payne: Right. But that issue is not before the court.

Judge Murphy: I understand. I’m just curious about it.

Payne: And in closing … the Supreme Court … indicated that this court [the appeals court] can’t make a decision in the first instance. In other words, when Congress grants the Attorney General [Alberto Gonzales] the discretion to make a decision first, the Attorney General should be given the opportunity to make that decision. Here it is not clear that the board issued its decision under the proper scope of review; therefore, the court should remand proceedings so that the board may do so.

Judge Hansen: Is there an interdepartmental dispute going on here that we’re not advised about? I mean the DOJ uses this petitioner in its prosecutorial efforts and ICE says get out of town, get out of Dodge, you’re not welcome in this country anymore. Is there a dispute between the two departments that’s sort of sub-rosa [secret] here?

Payne: Well I’m not aware of all of the facts underlying the criminal proceedings and his [Ramirez’] assistance to the government. However, on this record the only issue before the court certainly is whether or not he is subject to removal.

Judge Hansen: I understand. But my interest is in this area and the presiding judge’s interest was in the other area. It just looks to me like the Attorney General is in a position to resolve this matter.

Payne: Well, I am sure there are ongoing discussions about this case as counsel has indicated there are ongoing proceedings in the district court I believe [referring presumably to the pending civil case filed by the family members of the victims of the House of Death]. However, with respect to this finite issue, it is the government’s position that the board [DOJ-controlled BIA] should be given further opportunity to either clarify … and at that point the Attorney General [Alberto Gonzales] may speak. The Attorney General may say he [Ramirez] is entitled to deferral of removal if it [the BIA] employs the proper scope of review.

Judge Hansen: Thank you sir

Goodwin: I would cede my time except for the fact to entertain the interest of Judge Hansen with respect to the interdepartmental dispute, if I could relay some of those facts.

Judge Hansen: No, I just perceived what I thought I perceived, and I think my perception has been confirmed.

Goodwin: And I believe the administrative record would show that as well, given the documents that were produced by ICE for the record. I believe that all of the arguments have already been presented, and I would cede my time. Thank you.

Judge Murphy: Thank you very much counsel. It’s an unusual … we get so many immigration cases. This is an unusual one. Thank you very much.

That last comment by Judge Murphy pretty much says it all.

Stay tuned…..

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