Board erred in requiring proof applicant under cartel’s physical control at all times

Federal court | Immigration

INADMISSIBLE AND REMOVABLE CLASSES

Board erred in requiring proof applicant under cartel’s physical control at all times

Application for judicial review of inadmissibility finding. Applicant was citizen of Mexico who began using drugs at age 12, and was addicted to crystal meth by age 18. Applicant’s drug dealers began beating him and forcibly recruited him into Sinaloa Cartel. Applicant was taken to house each day to package and sell drugs and occasionally deliver protection money to police. Applicant was not paid and was frequently beaten and his life and his mother’s life were threatened. Applicant was given more drugs to feed his addiction. House applicant was working in was raided so applicant told police what was happening in effort to escape cartel. Police instead delivered applicant to cartel members, who severely beat and stabbed him and threatened to kill him for talking to police. Applicant overdosed and was thrown from truck outside rehabilitation facility. Applicant’s mother moved him to another facility under assumed name and he overcame addiction. Applicant and mother moved to another town for two years and assumed it was safe to return to hometown, but cartel members shot at applicant, so he fled to Canada. Board accepted applicant’s entire story but did not accept applicant’s claim he was acting under duress. Applicant conceded he was involved in criminal organization. Application allowed. Board found applicant did not establish imminent peril because he was able to return to mother’s house each night. Board erred in requiring the applicant to establish he was under the cartel’s physical control at all times. Board failed to consider applicant’s experiences and documentary evidence of cartel violence in assessing imminence of peril. This error tainted board’s findings on second part of test as it noted the elements blended together. Board further erred in failing to address impact of applicant’s drug addiction on his ability to find safe avenue of escape. Board essentially blamed harm that befell applicant on fact that he began to take drugs.

Gayton v. Canada (Minister of Public Safety and Emergency Preparedness)
(Sep. 11, 2012, F.C., Mactavish J., File No. IMM-836-12) 221 A.C.W.S. (3d) 935.

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