Estrada-Martinez v. Lynch

809 F.3d 886

Rufino Antonio ESTRADA–MARTINEZ, Petitioner,

v.Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 15–1139.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2015.

Decided Dec. 31, 2015.

HAMILTON, Circuit Judge.

Rufino Antonio Estrada–Martinez faces removal to Honduras, a country that he fled in 1994 after police there detained and tortured him. An immigration judge granted Estrada relief from removal, finding that he will more likely than not face torture if he is removed to Honduras. The Board of Immigration Appeals disagreed regarding the likelihood that Estrada will be tortured, so it reversed the judge's grant of relief. Estrada has petitioned for review. He claims both eligibility for "withholding of removal" under the Immigration and Nationality Act ("the Act") and the United Nations Convention Against Torture ("the Convention") and eligibility for "deferral of removal" under only the Convention.

Estrada is not eligible for withholding of removal because he was convicted in an Illinois state court of statutory rape in 1996, and the Board has characterized his conviction as "particularly serious." Committing a crime that the Attorney General deems "particularly serious" bars withholding of removal under the Act and the Convention. We do not have jurisdiction to review that discretionary judgment unless a petitioner presents a legal or constitutional question, and Estrada's attempt to frame his challenge to the "particularly serious crime" determination as a legal issue is not persuasive.

Estrada may well be eligible, however, for deferral of removal under the Convention. As noted, the immigration judge found it more likely than not that Estrada will be tortured if he is removed to Honduras. The Board was required to review that factual finding only for clear error, not de novo. 8 C.F.R. § 1003.1(d)(3)(i) ; Matter of Z–Z–O–, 26 I. & N. Dec. 586, 590 (BIA 2015). In this case the Board failed to apply the clear error standard of review, so we reverse the Board with respect to Estrada's request for deferral of removal. We remand for reconsideration of the immigration judge's decision under the correct standard of review.

I. The Legal Framework

A brief explanation of the relevant statutes and regulations will be helpful before we lay out the facts of Estrada's case. Estrada seeks relief from removal under three provisions of law: (1) withholding of removal under the Act, 8 U.S.C. § 1231(b)(3)(A) ; (2) withholding of removal under the Convention, 8 C.F.R. § 1208.16(c) ; and (3) deferral of removal under the Convention, 8 C.F.R. § 1208.17(a).

Commission of a crime that the Attorney General finds to be "particularly serious" bars withholding of removal under both the Act and the Convention. 8 U.S.C. § 1231(b)(3)(B)(ii) ; 8 C.F.R. § 1208.16(d)(2). Aggravated felonies punished by at least five years of imprisonment are automatically "particularly serious." The Attorney General also has authority to determine that other criminal convictions are "particularly serious." 8 U.S.C. § 1231(b)(3)(B). In finding that a crime is "particularly serious," immigration authorities may examine "the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction." In re N–A–M–, 24 I. & N. Dec. 336, 342 (BIA 2007). In some cases, however, the Board has instead "focused exclusively on the elements of the offense, i.e., the nature of the crime." Id.

Even where an unauthorized immigrant has committed a "particularly serious crime," however, deferral of removal under the Convention remains available if he will "more likely than not" be tortured if removed to the particular country. 8 C.F.R. §§ 1208.16(c)(4) & 1208.17(a), In making this determination, immigration authorities must consider all relevant evidence including: (1) "Evidence of past torture inflicted upon the applicant;" (2) "Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;" (3) "Evidence of gross, flagrant or mass violations of human rights within the country of removal," and (4) "Other relevant information regarding conditions in the country of removal." Id., §§ 1208.16(c)(3) & 1208.17(a).

II. Factual Background

In 1993, Estrada led a peasant land takeover in Honduras. The land that he and his comrades occupied belonged to a retired military colonel, Avilio Martinez. Honduran police arrested Estrada and thirteen of his comrades, holding Estrada for two months. During that time, Estrada was tortured. His jailers beat him severely, sometimes to the point of unconsciousness. They suffocated him by putting a bag over his head, pushed his head under water to simulate drowning, subjected him to electric shocks, and threatened the lives of his family, including his two young children.

Shortly after his release from police detention and torture, a friend warned Estrada about a suspicious vehicle near Estrada's home, and his home was ransacked while he was away. Fearing for his safety, Estrada at first relocated within Honduras but then fled to Mexico and later to the United States. The United States granted him asylum in 1995.

Estrada settled in Chicago. He initially found work at a window and door company, and since 2005 he has worked as a flooring installer. He received services, including psychological care and help transitioning to life in the United States, from the Heartland Alliance, an organization dedicated to helping individuals recovering from torture.

In 1996, however, Estrada was charged with statutory rape for sexual acts with a sixteen-year-old girl with whom he worked at a restaurant. He was thirty-three years old at the time, and their relationship continued over a period of weeks or months. On the advice of his attorney, Estrada pled guilty. He was unaware of the potential immigration consequences of his plea. The judge sentenced Estrada to only four years of probation and also required him to register as a sex offender for ten years. Estrada successfully completed this sentence.

In December 2006, however, Estrada was ordered removed from the United States due to his conviction. Upon his arrival in Honduras in 2007, police at the airport detained him, beat him, found some paperwork referring to his conviction, and threatened to create a file on him if he did not pay them. Estrada paid the extortion, and the police freed him. He spent a week in the city where his parents lived, then returned illegally to the United States because he continued to fear for his safety in Honduras.

Estrada has not heard directly from the retired Colonel Martinez since leaving Honduras in 1994, but in 2006 he received a letter from his father telling him that Martinez had continued to make threats against him and would kill him if he returned to Honduras. A 2014 letter from one of Estrada's comrades in the land invasion also reported that Martinez was still looking for Estrada. Estrada's wife and children remained in Honduras safely for three or four years after Estrada fled, but they have since come to the United States. His parents remain in Honduras. Estrada's comrades in the land invasion continue to farm the land they invaded, apparently without trouble. Estrada believes that if he returns to Honduras he will be specially targeted because he was the leader of the land invasion.

In 2013, U.S. immigration agents arrested Estrada. The government reinstated his earlier order of removal, but Estrada expressed a fear that he will be tortured if he is removed to Honduras. These proceedings for withholding of removal under the Act and the Convention and deferral of removal under the Convention followed.

In 2014, an immigration judge granted Estrada relief from removal. She held that Estrada's statutory rape conviction was not "particularly serious," citing his lenient sentence and his testimony that he believed his victim was eighteen years old. The judge also found that Estrada was eligible for withholding of removal under the Act and the Convention because he established that it is more likely than not that he will be tortured if he is removed to Honduras. The judge credited Estrada's testimony regarding his treatment in Honduras. She relied on his past torture, his continued fear of arrest and torture after he relocated within Honduras in 1993 and 1994, the 2006 letter indicating that Martinez had made continued threats against Estrada, Martinez's continuing connections to the Honduran police and military, and Estrada's 2007 arrest, beating, and extortion at the airport in Honduras.

The judge also referred to U.S. State Department and United Nations High Commissioner for Refugees reports on political violence in Honduras.¹ She noted that Honduras continues to suffer from violence surrounding peasant land disputes. These disputes can involve detention, torture, and even killing of peasant leaders and human rights activists. The police are sometimes involved in or complicit with this violence. Police detainees in Honduras are sometimes tortured and denied due process of law.

The Board of Immigration Appeals reversed the judge's decision both as to the "particularly serious crime" determination and the likelihood that Estrada will be tortured if he returned to Honduras. With regard to the likelihood of torture, the Board labeled only one of the judge's specific factual findings clearly erroneous: the finding that Estrada was not free from ongoing torture after he relocated within Honduras in 1993 and 1994 immediately after he was released from custody and torture. After identifying this one instance of clear factual error, the Board proceeded to reweigh the evidence considered by the judge. The Board said it was "not persuaded" that Estrada will likely be tortured if he is removed to Honduras. It noted that Estrada has not received any threats directly from Martinez since coming to the United States and that the other peasant...