Cruz Garcia v. Eric Holder, Jr.
2014 U.S. App. LEXIS 12468
| 5th Cir. | 2014Background
- Garcia, a native and citizen of El Salvador, was ordered removed in absentia in 2006 and later removed in 2011, then reentered the U.S. illegally in 2012, after which DHS reinstated the removal order.
- Because Garcia feared persecution or torture if removed, an asylum officer referred him to an IJ for relief, who found no reasonable fear of persecution but a reasonable fear of torture, forwarding the case to the IJ.
- Garcia testified about extortion and violent threats in El Salvador after his August 2011 return, including confrontations with individuals who demanded $10,000 and threats to his family.
- He described subsequent police encounters, a October/November 2011 beating, and related concealment/mobility efforts, with concerns that officials or police were involved or informed by public authorities.
- Garcia submitted country reports on El Salvador highlighting corruption, weaknesses of judiciary and security forces, and impunity; the IJ denied withholding of removal and CAT protection, and the BIA later denied unless reconsidered.
- The court grants the petition as to CAT protection, vacates the BIA decision on CAT, and remands for proper analysis under the 'under color of law' standard, while denying withholding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia is eligible for § 1231 withholding | Garcia argues persecution on a protected ground is implied by extortion and threats. | Extortion and wealth are not protected grounds; no protected-ground persecution shown. | Garcia not eligible for withholding. |
| Whether Garcia is eligible for CAT protection | Extortion and threats may involve public officials or acts under color of law. | CAT requires government acquiescence; cannot show officials or official action. | Remand for proper CAT analysis under color-of-law standard. |
Key Cases Cited
- Castillo-Enriquez v. Holder, 690 F.3d 667 (5th Cir. 2012) (economic extortion not a protected ground)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (CAT analysis requires state action; two-part test)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (CAT requires showing state action; more likely torture standard)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (under color of law analysis in CAT context)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (reinstatement of removal order reviewable; de novo questions)