U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Immigration Asylum Denied: Peru is Over the Whole Torture Thing

When Dario Suarez-Valenzuela (DSV) appeared on a Peruvian talk show in 1997, he was promised compensation by the show's investigator, Jason, and the show's host, Lara Bazzo. He was never paid, and together with Jason, he confronted Bazzo and threatened to report her to a rival station.

As the old saying goes, snitches get stitches. Four men with badges, identifying themselves police officers, approached the men to intimidate them. Officer Luis pistol-whipped Jason, who subsequently died. He also shot DSV in the foot.

After agreeing to testify against Luis, DSV was stabbed. He then fled the country for the U.S. Luis served three months in prison for the murder. He followed that up by trashing DSV's parents' residences and continuing to pay them visits until 2008.

DSV was arrested in 2010 for petit larceny, which led to an order of removal. He applied for protection under the Convention Against Torture (CAT) because he feared that Peruvian government officials (like Luis) would torture him if he returned. The country has a national identification database, so hiding out in another town isn't exactly feasible.

The DHS officer and immigration judge also sided with DSV and found that he had been tortured when he had been shot, stabbed, and threatened. The judge cited the State Department's reports on Peru (corrupt police, human rights violations) and Peru's national identity database in blocking his removal under the CAT.

Like a victim in denial, the Board of Immigration Appeals felt that Peru "had changed" and that the country's attempts to mitigate corruption have provided sufficient protection against officials acquiescence to or participation in torture. (They've stopped drinking and wearing stained undershirts too.) They reversed the immigration judge's decision and ordered DSV's removal.

The Fourth Circuit affirmed the BIA's ruling. In order to qualify for CAT protection, the applicant must show that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." That torture must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official..."

Unfortunately for DSV, though he'll almost certainly be shanked once Officer Luis finds him, he can't meet his burden of proof.

The BIA first noted that conditions in Peru have improved greatly. A change in leadership has led to a culling of corrupt cops and other officials. Furthermore, he can't show that the government acquiesced to his past torture, as they prosecuted and convicted Luis (three whole months in a Peruvian prison is quite the deterrent). Finally, Luis's status as a cop post-release is unclear, so any further torture undertaken by him would not be "by the government."

Finally, though there is a national identification database that has been used by the police to track down criminals, DSV hasn't shown that Luis would have access to the system. And those three other cops from the intimidation/murder definitely won't help him out.

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