                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-2551
MARTIN MENDOZA-SANCHEZ,
                                                        Petitioner,

                                v.

LORETTA E. LYNCH, Attorney General of the United States,
                                               Respondent.
                    ____________________

               Petition for Review of an Order of the
                  Board of Immigration Appeals.
                         No. A038-780-186.
                    ____________________

   SUBMITTED JULY 22, 2015 — DECIDED DECEMBER 23, 2015
                  ____________________

   Before WOOD, Chief Judge, and POSNER and HAMILTON,
Circuit Judges.
    POSNER, Circuit Judge. The petitioner, a citizen of Mexico,
asks us to vacate an order of the Board of Immigration Ap-
peals affirming an immigration judge’s denial of his applica-
tion, based on the Convention Against Torture (an interna-
tional convention to which the United States belongs), for
deferral of removal. He contends that removal (which would
mean returning him to Mexico) would result in his death—a
2                                                 No. 15-2551


form of torture within the meaning of the Convention, see
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Senate
Treaty Doc. No. 100–20, p. 20, 1465 U.N.T.S. 85, Art. 1(1); 8
C.F.R. § 1208.18(a)(4)(iii)—at the hands of the notorious
Mexican drug cartel La Linea.
    We recruited counsel for the petitioner (who had filed his
petition in our court pro se) and directed briefing on wheth-
er the Board had been justified in concluding that Mendoza-
Sanchez had not presented sufficient evidence to establish
that if he were returned to Mexico “a Mexican public official
would acquiesce in (or be willfully blind to)” his being mur-
dered by La Linea.
    After the petitioner’s opening brief was filed, the gov-
ernment, before filing its brief in response, filed a motion
asking us to remand the case to the Board for “reconsid-
er[ation] of Mendoza’s eligibility for deferral of removal un-
der the CAT.” The motion does not confess error, but instead
recommends remand to enable the Board to “conduct an ad-
ditional investigation of the record evidence and attempt to
issue a fuller explanation concerning issues presented by …
Mendoza’s request for deferral of removal.”
    He opposes the motion but we’ve decided to grant it, as
we think a sound resolution of this case will be promoted by
our giving the Board an opportunity to reconsider the stand-
ard for acquiescence articulated by it and the immigration
judge in this and other cases, and, more broadly, to recon-
sider the Board’s approach (and that of immigration judges)
to requests for deferral of removal on the basis of the Con-
vention Against Torture and its implementing regulations.
No. 15-2551                                                 3


    Mendoza-Sanchez came to the United States at the age of
18, in 1983, and became a lawful permanent resident. But
somewhere along the line he became a cocaine dealer, and
some of the cocaine that he sold he’d obtained from mem-
bers of the La Linea cartel, which is known to be violent and
to work with corrupt Mexican police officers. In 2010 he was
convicted in an Indiana court of dealing in cocaine and sen-
tenced to 12 years in prison. A fellow prisoner who was a
member of La Linea—a man whom Mendoza-Sanchez knew
as “Pelon”—attacked him when he was standing in line at
the prison cafeteria, broke two of his teeth, and explained to
him that several members of the cartel, who had been arrest-
ed, believed that he had snitched on them. As he testified at
the immigration hearing, “I was facing a lot more time than
what I actually got and this gave them another reason to be-
lieve that I snitched on them to get less time.” For though
sentenced to 12 years, he had been released after only 5.
    Pelon told him that the cartel would have him killed if he
returned to Mexico, and that it knew where in the country
he had grown up (the city of Matamoros) and presumably
would want to return to. At his immigration hearing, Men-
doza-Sanchez presented evidence that La Linea is “not con-
fined to a State or a small area but its reach is nationwide,”
and that the “law enforcement agencies are infiltrated by the
Cartels.” The State Department’s human rights report on
Mexico, which he also submitted, details the widespread
corruption of Mexican police and their routine participation
in the activities of drug organizations.
    Having been placed in removal proceedings at the end of
his prison term, Mendoza-Sanchez was found to be remova-
ble to Mexico on the basis of his drug conviction. He does
4                                                 No. 15-2551


not question his removability, but seeks only a deferral of
removal under the Convention Against Torture. We summa-
rized the evidence that he introduced at the hearing on his
motion for deferral. Counsel for the Department of Home-
land Security conducted only a brief cross-examination. He
did not dispute the bulk of Mendoza-Sanchez’s testimony
and with his questioning elicited only a few pieces of poten-
tially relevant information: that he did not know Pelon’s full
name (only his nickname), hadn’t spoken to him since the
incident in the prison, had learned only from people in pris-
on that Pelon had returned to Mexico, and had been threat-
ened by no one other than Pelon. Asked whether there was
any place in Mexico where he would not be menaced by La
Linea, Mendoza-Sanchez responded that although La
Linea’s name (“The Line”) was derived from its control of
the Mexican border, members of the cartel are “all over Mex-
ico” and “work everywhere.”
    The immigration judge’s decision describes Mendoza as
“a credible witness” whose “testimony is generally con-
sistent internally and with the limited documentary evi-
dence in the record,” but concluded that the evidence did
not “establish [his] eligibility for deferral of removal.” The
Board of Immigration Appeals affirmed, without rejecting
either the immigration judge’s credibility finding or Mendo-
za-Sanchez’s contention that he would more likely than not
be killed by La Linea if he returned to Mexico. The Board
based its affirmance on Mendoza-Sanchez’s not having “pre-
sented sufficient evidence to establish that … a Mexican
public official would acquiesce (or be willfully blind) to such
harm.” The Board did this in the face of evidence, apart from
what we’ve already discussed, that police officers routinely
collaborate with and protect drug cartels in Mexico and La
No. 15-2551                                                   5


Linea specifically, and that according to the State Depart-
ment’s Mexico 2013 Human Rights Report “despite some ar-
rests for corruption, widespread impunity for human rights
abuses by officials remained a problem in both civilian and
military jurisdictions … . Security forces, acting both in and
out of the line of duty, arbitrarily and unlawfully killed sev-
eral persons, often with impunity,” and “[t]here were multi-
ple reports of forced disappearances by the … police”; “au-
thorities routinely failed to conduct thorough and expedi-
tious searches and investigations in disappearance cases”;
“there were credible reports of police involvement in kid-
nappings for ransom” and “ frequent reports of citizens …
beaten, suffocated, tortured with electric shocks, raped, and
threatened with death in the custody of arresting authori-
ties.”
    The report emphasizes police involvement in the activi-
ties of drug organizations, explaining that “police, particu-
larly at the state and local level, were involved in kidnap-
ping, extortion, and providing protection for, or acting di-
rectly on behalf of, organized crime and drug traffickers. …
Local forces in particular tended to be poorly compensated
and directly pressured by criminal groups, leaving them
most vulnerable to infiltration.” The report describes an in-
cident in which “members of a Mexico City drug gang kid-
napped and killed … victims in retaliation” for violence
committed against a member of the gang, and the suspects
“includ[ed] four police officers.”
   And contrary to what the Board thought, the presence of
the Mexican army in Matamoros supports rather than un-
dermines Mendoza-Sanchez’s claim that local police will ac-
quiesce in his torture; had the police been protecting the city,
6                                                   No. 15-2551


the army would have had no reason to be there. And so, the
State Department report tells us, “Despite some arrests for
corruption,” Mexico continues to be plagued by “wide-
spread impunity for human rights abuses by officials.”
    We discussed the “acquiescence” element of a claim for
deferral of removal under the Convention Against Torture at
some length in our very recent decision in Rodriguez-
Molinero v. Lynch, a decision that can provide some useful
guidance for the immigration judge and the Board on re-
mand of the present case. We noted that the immigration
judge had erred in saying that in order to be a ground for
deferral of removal the infliction, instigation, consent, or ac-
quiescence in torture must be by the Mexican government ra-
ther than just by Mexican police officers or other govern-
ment employees. Rodriguez-Molinero v. Lynch, No. 15-1860,
2015 WL 9239398, at *4–5 (7th Cir. Dec. 17, 2015). Deferral is
warranted by severe pain or suffering “inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1). “Acquiescence of a public official re-
quires that the public official, prior to the activity constitut-
ing torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to prevent
such activity.” Id., § 1208.18(a)(7). Evidence that Mexican po-
lice participate as well as acquiesce in torture is found in
abundance in this case as it was in Rodriguez-Molinero.
   Nor does it matter if the police officers who will torture
Mendoza-Sanchez if he’s forced to return to Mexico are
“rogue officers individually compensated by [a gang mem-
ber] to engage in isolated incidents of retaliatory brutality,
rather than evidence of a broader pattern of governmental
No. 15-2551                                                  7


acquiescence in torture.” Rodriguez-Molinero v. Lynch, supra,
2015 WL 9239398, at *5. It is irrelevant whether the police are
“rogue” (in the sense of not serving the interests of the Mexi-
can government). A petitioner for deferral of removal under
the Convention Against Torture need not prove that the
Mexican government is complicit in the misconduct of its
police officers. It’s simply not enough to bar removal if the
government may be trying, but without much success, to
prevent police from torturing citizens at the behest of drug
gangs. See id. at *5–6; N.L.A. v. Holder, 744 F.3d 425, 440–42
(7th Cir. 2014); Madrigal v. Holder, 716 F.3d 499, 509–10 (9th
Cir. 2013). The petitioner in Avendano-Hernandez v. Lynch, 800
F.3d 1072 (9th Cir. 2015), “provided credible testimony that
she was severely assaulted by Mexican officials on two sepa-
rate occasions: first, by uniformed, on-duty police officers,
who are … ‘public officials’ for the purposes of CAT. … [The
court] reject[ed] the government’s attempts to characterize
these police … officers as merely rogue or corrupt officials.
… The BIA erred by finding that Avendano-Hernandez was
not subject to past torture by public officials in Mexico.” Id.
at 1079–80.
    We explained in Rodriguez-Molinero that if the Mexican
government could be expected to protect the petitioner from
the drug cartel that wanted to kill him, if he were returned to
Mexico, the risk that he would be tortured or killed might be
too slight to entitle him to deferral of removal. The immigra-
tion judge in that case had remarked that the Mexican gov-
ernment was trying to control the drug gangs, but it is suc-
cess rather than effort that bears on the likelihood of a per-
son’s being killed or tortured if removed to Mexico. Rodri-
guez-Molinero v. Lynch, supra, 2015 WL 9239398, at *6. In the
present case, as in Rodriguez-Molinero—unsurprisingly since
8                                                  No. 15-2551


it too is about deferral of removal to Mexico of a Mexican
citizen who appears to be in the sights of one of the powerful
Mexican drug cartels—no evidence has been presented that
the Mexican government can protect the citizen from torture
at the hands of local public officials or to which local public
officials are willfully blind. As we said earlier in this opin-
ion, “acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her
legal responsibility to intervene to prevent such activity.” 8
C.F.R. § 1208.18(a)(7).
    Mendoza-Sanchez appears to have a strong case for de-
ferral of removal. But as explained at the beginning of this
opinion, at the government’s request we have decided to
remand the case to the Board of Immigration Appeals—
which we trust will pay careful heed to the analysis in this
opinion and in Rodriguez-Molinero.
                                                    REMANDED
