Gustavo Navichoque v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2020
• Docket: 18-70661
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUSTAVO ADOLFO NAVICHOQUE, No. 18-70661 AKA Arnoldo Morales-Lopez, AKA Geraldo Navichoque, AKA Gustavo Agency No. A088-451-628 Navichoque,

Petitioner, MEMORANDUM*

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 16, 2020 San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and MENDOZA,** District Judge.

Petitioner Gustavo Adolfo Navichoque, a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ (“BIA” or “agency”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation. denial of his claim for withholding of removal and relief under the Convention

Against Torture (“CAT”), including deferral of removal. For the reasons that

follow, the petition is granted and remanded with instructions to grant CAT

deferral relief.

1. The agency’s adverse credibility finding is not supported by substantial

evidence. The government did not address the merits of petitioner’s credibility

argument in its briefing, but instead suggested a remand to the BIA to reconsider

its affirmance of the IJ’s credibility determination. But the government offered no

reason in its briefing or during oral argument why the agency should revisit the

credibility determination. We therefore decline to remand the credibility issue but

instead review it for substantial evidence.

The agency relied on petitioner’s previous use of an erroneous name and

nationality as well as discrepancies between petitioner’s testimony and the factual

basis of his prior nolo contendere plea to a state offense. Neither is sufficient to

establish a lack of credibility. The use of a false name and nationality “does not

detract from but supports [petitioner’s] claim of fear of persecution.” Turcios v.

I.N.S., 821 F.2d 1396, 1401 (9th Cir. 1987). Further, although the BIA

acknowledged at points that Navichoque pleaded nolo contendere, the BIA

analysis treated a nolo contendere plea as if it were a guilty plea. A nolo

contendere plea is “not an admission of factual guilt,” United States v. Nguyen,

2 465 F.3d 1128, 1130 (9th Cir. 2006), so Navichoque’s explanation at his hearing of

the circumstances of his conviction did not contradict any earlier admission of

guilt. Because “it is apparent from the record before us that the IJ and BIA have

listed all possible reasons to support an adverse credibility determination, and they

are inadequate in law or not supported by substantial evidence, then . . . on remand

we can sensibly say that a petitioner should be deemed credible.” Soto-Olarte v.

Holder, 555 F.3d 1089, 1095 (9th Cir. 2009).

We conclude that petitioner is entitled to be deemed credible on remand.

2. The agency’s alternative holding denying CAT relief because petitioner

failed to establish government acquiescence is also not supported by substantial

evidence. “Acquiescence by government officials requires only that they were

aware of the torture but remained willfully blind to it, or simply stood by because

of their inability or unwillingness to oppose it.” Cole v. Holder, 659 F.3d 762, 771

(9th Cir. 2011) (cleaned up) (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079

(9th Cir. 2008). After petitioner reported his kidnapping, “[t]he police told [him] to

stop reporting, because they couldn’t do anything. They said [that] [his] reporting

also put them in danger, and [he] needed to stop.” The IJ, whose reasoning the BIA

adopted, found the petitioner’s testimony insufficient to establish acquiesce. But

the IJ did not acknowledge that, after the kidnapping, the police affirmatively told

petitioner not to make any more reports and that they could not do anything about

3 drug cartel attacks. That the police directly told petitioner not to make reports

compels a finding that there was acquiescence by the local police in petitioner’s

torture. Because “past torture is ordinarily the principal factor on which we rely

when an applicant who has previously been tortured seeks relief under the

Convention,” Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005); see also

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015), the record

compels the conclusion that petitioner will more likely than not be tortured upon

removal to Guatemala, with government acquiescence. In sum, petitioner is

credible and has established entitlement to CAT relief. Thus, the BIA shall grant

such relief on remand. 8 C.F.R. § 1208.17(a).

3. Petitioner did not make any argument as to the particularly serious crime

determination that precluded withholding relief and thus waived the issue. See,

e.g., Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013).

PETITION GRANTED; REMANDED WITH INSTRUCTIONS.