R. R. D. v. Holder, No. 13-2141 (7th Cir. 2014)

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While R. was an investigator for Mexico’s Federal Agency of Investigation, he arrested hundreds of suspects and repeatedly testified against drug traffickers. Drug organizations tried to kill him. The Agency repeatedly transferred him, but threats soon resumed. He was wounded twice while on duty and eluded capture several times. Assassins shot at him, missed, and wounded his father. He quit the Agency, opened an office-supply business, and tried to conceal his former job. Strangers continued looking for him. He sought asylum in the U.S., contending that he had been persecuted as a member of the social group of honest police officers. The IJ denied the application. The Board of Immigration Appeals agreed, distinguishing between honest police and effective honest police, reasoning that only if criminal organizations target all honest officers would R. be entitled to asylum, 8 U.S.C. 1101(a)(42)(A). The Seventh Circuit vacated. The law calls for assessments of causation and risk. That R. is at more risk than that most “honest police” is a poor reason to disqualify him. The Board did not consider whether Mexico’s more-than-400,000 officers are willing and able to protect former colleagues. Nothing R. can do will erase his employment history. The court questioned why DHS wants to remove R. He appears to have led an exemplary life in the U.S. since entering (lawfully) and applying for asylum.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13- 2141 R.R.D., Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals ____________________ ARGUED MARCH 5, 2014 DECIDED MARCH 19, 2014 ____________________ Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. While R.R.D. was an investi- gator for Mexico s Federal Agency of Investigation, he ar- rested hundreds of suspects and repeatedly testified against drug traffickers. Drug organizations offered bribes to get him out of their hair and, when he refused, tried to kill him under their plata o plomo policy silver or lead, collo- quially money or bullets. The Agency repeatedly trans- 2 No. 13- 2141 ferred him to places where it thought that he would be safer, but testimony exposed him to public view and threats soon resumed. He was wounded twice while on duty and eluded capture several times. Once assassins shot at him, missed, and wounded his father. His superiors recommended that he quit for his own safety. He opened an office- supply busi- ness and tried to conceal his former job, but when strangers continued looking for him he sought asylum in the United States. He contended that he had been persecuted as a mem- ber of the social group of honest police officers. An immigra- tion judge concluded that R.R.D. had been threatened re- peatedly and remained at risk but concluded that the drug traffickers had targeted him because he hampered their or- ganizations, not because he was in the social group of honest cops. The IJ denied the application for asylum, and the Board of Immigration Appeals agreed. A motions panel al- lowed R.R.D. to proceed in court under these initials to avoid what may be an ongoing risk to his safety. Both the IJ and the BIA distinguished between risks to all honest police and risks to effective honest police, such as R.R.D.; they thought that only if criminal organizations tar- get all honest law- enforcement officers would R.R.D. be enti- tled to asylum. It is far from clear to us that drawing such a distinction is permissible under 8 U.S.C. §1101(a)(42)(A), which defines the category of persons eligible for asylum as those who seek refuge here because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or po- litical opinion . Effective honest police (or honest police good enough to impose substantial costs on criminal organi- zations ) is a subset of all honest police, to be sure, but why is that not a social group, if honest police is a social No. 13- 2141 3 group? Anyway, the statute makes eligible a person perse- cuted because of his membership in a protected category; it does not require that all members of that category suffer the same fate. The law calls for assessments of causation and risk; that R.R.D. is at more risk than that faced by honest po- lice generally is a poor reason to disqualify him from asy- lum, if he otherwise is eligible. The otherwise is a potentially important qualifier, be- cause persecution means adverse action by government; criminal deeds by private persons come to be treated as per- secution, on the Board s view, only when the government is unwilling or unable to protect targets from private violence. See Matter of Eusaph, 10 I&N Dec. 453, 454 (1964). See also Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005); Bitsin v. Holder, 719 F.3d 619, 628 31 (7th Cir. 2013). Mexico has more than 400,000 police officers; the Board did not consider whether they are willing and able to protect their current or former colleagues. (R.R.D. contends that so many officers have tak- en the criminals silver that the force as a whole does not protect honest police; the Board did not address this possi- bility.) Nor did the Board try to decide how much risk of harm shows that a government is unable to protect its citi- zens. Given the Chenery doctrine (SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)), we must proceed for the purpose of R.R.D. s petition as if private violence equates to official per- secution. Likewise we must treat honest police as a social group, because the Board did not question its propriety. Cf. Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (en banc). The Board cited Pavlyk v. Gonzales, 469 F.3d 1082 (7th Cir. 2006), for the proposition that honest law- enforcement agents targeted for their official work cannot use their risks 4 No. 13- 2141 as a basis of asylum (technically, in Pavlyk, withholding of removal). That is not, however, what Pavlyk holds. Pavlyk was a fugitive from justice; Ukraine wanted him for solicit- ing bribes. Nor was he a member of the social group he de- fined, having quit his law- enforcement job years before leav- ing Ukraine and he did not claim to be at risk as a member of the group of former law- enforcement officers. 469 F.3d at 1088. We wrote in Pavlyk that being a prosecutor (Pavlyk s law- enforcement role) is not an immutable characteristic, or one that no government should be allowed to manipulate (governments can choose whom to hire as prosecutors), so Pavlyk s proposed social group was inadequate and he was left only with a contention that some criminals had a per- sonal vendetta against him. Like Pavlyk, R.R.D. was no longer a member of his pro- posed social group by the time he sought asylum. But unlike Pavlyk, R.R.D. asserts that he faces persecution as a member of the social group of honest former law- enforcement agents in Mexico. Being a former agent is an immutable characteris- tic; nothing R.R.D. can do will erase his employment history. See Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011); Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th Cir. 2006); Matter of Fuentes, 19 I&N Dec. 658, 662 (1988). All the BIA had to say about this possibility is: Nor has [R.R.D.] established a well- founded fear of persecution on account of his status as a former police officer where [he] did not experience persecution after leaving the police force, the record does not show persecution of former police officers, and eight years have now passed since [R.R.D.] left Mexico. (Internal citation omitted.) The Board did not mention R.R.D. s testimony, which the IJ believed, that people came No. 13- 2141 5 looking for him in Mexico after he quit the police force. The IJ also believed R.R.D. s testimony that drug gangs use un- armed scouts to locate targets, and that R.R.D. reasonably believed that these men were scouts for assassins. The IJ did not believe the testimony of R.R.D. s wife that these scouts had R.R.D. s picture, but that does not affect the nature of the risk R.R.D. faced. He and his wife testified that unknown men continued trying to find him even after he left Mexico. Threats can imply a risk of future persecution if they are suf- ficiently menacing and credible. Escobar, 657 F.3d at 544. And the record contains evidence that drug organiza- tions have tried to locate and kill other officers who resigned from the police and left the country. Punishing people after they are no longer threats is a rational way to achieve deter- rence; indeed, the United States itself does this. A perpetra- tor of securities fraud who leaves the financial profession, and no longer poses a threat to investors, still faces criminal prosecution, the better to deter other fraudsters. There s nothing implausible about R.R.D. s testimony that drug or- ganizations in Mexico share this view of deterrence. Yet although the record contains evidence that drug- dealing organizations in Mexico target former police officers in general, and R.R.D. in particular, the Board did not men- tion it. That won t do. The Board must analyze rather than ignore material evidence. Escobar, 657 F.3d at 544. Perhaps the Board thinks that the risk R.R.D. faces as a former officer is too slight to satisfy the standard for asylum, but it did not say this. Chenery requires us to return this matter to the Board. We have said enough to show why the order of removal cannot stand without further proceedings. We also wonder 6 No. 13- 2141 why the Department of Homeland Security wants to remove R.R.D. and his family. The IJ found that R.R.D. was an hon- est and effective police officer in Mexico, willing to bring criminals to justice at substantial risk to himself. He appears to have led an exemplary life in the United States since en- tering (lawfully) and applying for asylum. He appears to be someone who should be hired and put to work by the De- partment of Homeland Security itself, rather than sent pack- ing. We do not supervise the exercise of prosecutorial discre- tion, but those who do have that power should review R.R.D. s situation before renewing any effort to remove him. The petition is granted, the order of removal is vacated, and the case is remanded to the Board of Immigration Ap- peals for proceedings consistent with this opinion.

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