Unreported / Non-Citable
Background
Eduardo Cortes Rodriguez, a Mexican national, petitioned the Ninth Circuit for review of a Board of Immigration Appeals decision denying asylum, withholding of removal, and deferral of removal under the Convention Against Torture. Cortes Rodriguez had a prior second-degree burglary conviction, which the immigration judge and BIA determined constituted a “particularly serious crime” under immigration law—a finding that bars asylum and withholding of removal, though not Convention Against Torture relief.
Cortes Rodriguez presented credible testimony of severe torture spanning multiple perpetrators and locations. Cartel members held him hostage for a week, beat him, and waterboarded him while boasting of government connections and driving vehicles resembling government cars. After his arrest, Mexican police beat him, suffocated him with a plastic bag until he lost consciousness, shocked him with electricity, and threatened to kill him, with officers telling each other “let him die, and we’ll take him to the ravine.” Cortes Rodriguez testified that the cartel had forced him to sell drugs by threatening to kill him if he refused.
The Court’s Holding
The Ninth Circuit upheld the agency’s determination that Cortes Rodriguez’s burglary conviction constitutes a particularly serious crime, finding no abuse of discretion. The immigration judge had explicitly acknowledged that no one was injured while properly citing burglary’s inherent potential for harm. However, the court granted Cortes Rodriguez’s Convention Against Torture claim, finding that the evidence compelled the conclusion he suffered torture both in cartel and police custody. Beatings, electric shock, threats of imminent death, and suffocation constitute torture under applicable law.
The court rejected the BIA’s reliance on “changed circumstances” to diminish the likelihood of future torture. While changed personal circumstances may reduce recurrence risk, the BIA failed to account for critical facts: the cartel had forced Cortes Rodriguez into drug trafficking through threats, not voluntary association, and maintained operatives throughout Mexico capable of identifying him anywhere. The court noted that Cortes Rodriguez’s post-relocation experience—surveillance by unfamiliar vehicles prompting him and his wife to flee—demonstrated the cartel had located him even within Mexico, contradicting any assumption that relocation would provide safety.
Key Takeaways
- Immigration judges and the BIA must fully consider and weigh credible evidence of past torture in Convention Against Torture claims; summarily discounting such evidence violates the statutory requirement to consider all relevant evidence.
- An applicant’s stated desire to abandon criminal activities does not justify presuming that material circumstances have changed such that prior torture will not recur, particularly when criminal organizations forced participation under threat.
- When a cartel or criminal organization forces an individual into illegal activities under threat of death, relocation within the home country is unreliable protection if the organization maintains operational capacity and reach throughout the country.
Why It Matters
This decision provides essential guidance for California immigration practitioners handling Convention Against Torture claims in the Ninth Circuit. Many clients facing removal have histories of persecution or torture by nongovernmental actors such as cartels, criminal organizations, or politically motivated groups. The court’s holding clarifies that past torture is a strong predictor of future risk and that the government must substantively grapple with evidence of prior abuse rather than dismissing it through assumptions about rehabilitation or relocation.
The decision reaffirms that CAT protection remains available even to noncitizens barred from asylum and withholding by criminal convictions. For clients with disqualifying crimes, establishing past torture through credible testimony continues to provide a viable path to deferral of removal and protection from return to countries where torture is likely.