Rigoberto Del Cid Marroquin v. Loretta E. Lynch
2016 U.S. App. LEXIS 9057
9th Cir.2016Background
- Rigoberto Vladimir Del Cid Marroquin, a Salvadoran national, entered the U.S. as a child and later served 18.5 years for two attempted first‑degree murder convictions; upon release DHS initiated expedited removal and he was only eligible to request deferral under the Convention Against Torture (CAT).
- Del Cid asserted fear of torture in El Salvador based on his former U.S. gang membership, gang‑related tattoos, purported threats from rival Salvadoran gangs, and alleged risk from the national police (PNC) or vigilante/death‑squad activity.
- Expert testimony (Dr. Ward) described Mano Dura policing, reports of police abuse and resurfacing vigilante activity, and opined there was a substantial risk of harm though he could not say it was more likely than not for government‑instigated torture.
- The IJ denied CAT deferral as too anecdotal; the BIA affirmed, finding insufficient proof that torture would occur at the instigation of, or with acquiescence by, the government and citing State Department material showing the police do not have a policy of tattoo‑based abuse.
- Del Cid petitioned for review; after denial of a stay he was removed to El Salvador. The government informed the court that ICE has a policy (Directive 11061.1) that may, in some circumstances, facilitate return of removed aliens if the court grants relief on review.
- The Ninth Circuit held (1) Del Cid’s removal did not moot the petition because ICE’s facilitation policy can provide meaningful redress, and (2) substantial evidence supported the BIA’s denial of CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness after removal | Del Cid: removal moots petition because he’s outside U.S. | Govt: ICE facilitation policy can enable return; thus effective relief remains possible | Not moot: ICE policy can provide meaningful relief, so court can grant effective relief |
| Burden for CAT deferral (likelihood of torture) | Del Cid: as a former gang member with tattoos he faces more‑likely‑than‑not torture by police, death squads, or rival gangs | Govt: record lacks proof of government‑instigated torture or acquiescence; State Dept. materials show laws against extrajudicial killings and police policy prohibiting tattoo‑based abuse | Denied: substantial evidence supports BIA that Del Cid failed to show torture more likely than not |
| Government acquiescence standard | Del Cid: government aware of pervasive gang violence and police abuses, implying acquiescence | Govt: awareness alone insufficient; must show government willful blindness or active acquiescence | Held: BIA correctly applied standard—awareness without willful blindness or effective acquiescence insufficient |
| Applicability/effect of ICE Directive 11061.1 | Del Cid: (implicit) a favorable court decision should restore practical ability to return | Govt: directive permits facilitating return in certain outcomes (outright grant, remand requiring presence, or EOIR/DHS relief) but is fact‑dependent | Held: Directive can make a favorable ruling materially affect petitioner’s ability to return; therefore mootness avoided |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (mootness standard — case moot only when no effective relief can be granted)
- Abdala v. INS, 488 F.3d 1061 (9th Cir. 2007) (removed petitioner’s review mooted absent collateral consequence)
- Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009) (reentry ban not a collateral consequence when petition doesn’t challenge its basis)
- Blandino‑Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (removal did not moot where favorable ruling could permit waiver/return)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (government acquiescence requires willful blindness to third‑party torture)
- Garcia‑Milian v. Holder, 755 F.3d 1026 (9th Cir. 2013) (awareness of torture without power to stop it does not alone show acquiescence)
- INS v. Elias‑Zacarias, 502 U.S. 478 (1992) (substantial evidence standard in removal/withholding adjudications)
- Nken v. Holder, 556 U.S. 418 (2009) (stay standards; context for post‑removal litigation policy considerations)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598 (2001) (prevailing party requires judicially sanctioned material alteration of the parties’ legal relationship)
- Carbonell v. INS, 429 F.3d 894 (9th Cir. 2005) (treatment of prevailing‑party analysis in immigration context)
- Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2004) (CAT deferral does not confer lawful permanent status but permits presence in U.S. under CAT regulations)