John Doe v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2020
• Docket: 17-71728
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN DOE*, No. 17-71728

Petitioner, Agency No. AXXX-XXX-XXX

v. MEMORANDUM** WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted February 5, 2020 Phoenix, Arizona

Before: GRABER, HURWITZ, and MILLER, Circuit Judges.

John Doe, a native and citizen of Mexico, petitions for review of a Board of

Immigration Appeals order upholding an immigration judge’s denial of his

application for deferral of removal under the Convention Against Torture (CAT).

* We previously ordered that all filings in this case be maintained under seal. See Dkt. No. 10. We grant petitioner’s unopposed motion that any publicly filed disposition refer to him using a pseudonym. See Dkt. No. 2. Any related public filing shall not contain petitioner’s true name or alien registration number. ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. See 8 C.F.R. § 1208.17. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We

grant the petition and remand.

We reject Doe’s argument that the agency lacked jurisdiction because his

initial notice to appear did not include the time and date of his removal

proceedings. The hearing notices that Doe received specified the date and time of

the proceedings, so Doe’s argument is foreclosed by Karingithi v. Whitaker, 913

F.3d 1158, 1159–62 (9th Cir. 2019).

On the merits, we agree with Doe that the Board’s rejection of his CAT

claim was not supported by substantial evidence. See Cole v. Holder, 659 F.3d

762, 770–72 (9th Cir. 2011). The agency assumed that Doe testified credibly, and

we must do so as well. See Barraza Rivera v. INS, 913 F.2d 1443, 1450 (9th Cir.

1990). Doe’s testimony established that he witnessed a gang-related murder, that

he testified for the prosecution, and that he has been repeatedly targeted by

Mexican gangs and their transnational affiliates because they identified him as a

snitch. Although corroboration of his credible testimony is not required, see 8

C.F.R. § 1208.16(c)(2), the record also contains documentary evidence reinforcing

its key factual predicates. In determining that Doe did not show that his

identification as a snitch was the motivation behind past attacks, the Board did not

draw reasonable inferences from Doe’s testimony. See Cole, 659 F.3d at 770–72.

In addition, the Board discounted the uncontradicted testimony of Doe’s

2 expert, who stated, based on his training and experience, that the attacks Doe

suffered were consistent with how gangs would treat a snitch. The expert further

testified that someone perceived as a snitch would be placed on a gang’s kill list

and would remain on the list for an extended period of time. In the expert’s

opinion, there was a 90 percent chance that someone in Doe’s position would be

killed if removed to Mexico.

We have explained that an agency’s decision “cannot stand” when it “fail[s]

to mention highly probative or potentially dispositive evidence.” Id. at 772; see

also Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018); 8 C.F.R.

§ 1208.16(c)(3). Here, the Board concluded that Doe would not likely be tortured

because he had only been the victim of assaults in the United States, and because

Doe’s expert had never personally seen Doe’s name on a kill list. Neither rationale

withstands scrutiny.

Although past harm may be indicative of the likelihood of future torture, a

CAT claim does not require past harm, and the Board erred in assuming that the

harm Doe may face upon removal to Mexico would not rise to the level of torture

because Doe previously suffered only assaults. See 8 C.F.R. § 1208.16(c)(3). The

Board also appears to have attached inordinate significance to the expert’s

statement that he had not personally seen Doe’s name on a kill list. But the Board

may not extract one piece of expert testimony to the exclusion of the remainder of

3 the testimony, without explaining why and supporting its decision with record

evidence. See Cole, 659 F.3d at 771–72. Doe was not required to prove definitively

that he was on a particular kill list; instead, he had to show that it was more

probable than not that he would be tortured if removed to Mexico. See 8 C.F.R.

§ 1208.16(c)(2).

For similar reasons, the Board erred in analyzing whether the Mexican

government would acquiesce in Doe’s torture. 8 C.F.R. § 1208.18(a)(7); see Cole,

659 F.3d at 771. Doe’s expert testified that criminal organizations bribe corrupt

Mexican immigration officials to look for certain names of persons entering the

country, including snitches. He also testified that 25 percent of Mexican

immigration officials have committed known acts of corruption justifying their

removal, but that firing an immigration official even for corruption can take years.

According to the expert, any Mexican immigration official can check on any

person removed to Mexico once per week.

Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board

concluded that Doe could only speculate that he would come to the attention of a

corrupt immigration official. But Doe did much more than that: his expert testified

that a single corrupt official could gain access to Doe’s immigration file on a

weekly basis. For that reason, a 25 percent rate of corruption among officials does

not, as the Board appears to have inferred, translate into only a 25 percent chance

4 that Doe would be detected by a gang. The effect of the Board’s mistake was to

require Doe to prove to a near certainty that he would come to the attention of a

corrupt immigration official in possession of a specific kill list with Doe’s name on

it, and that the corrupt official would also be able to identify Doe. By demanding

such definitive evidence, the Board did not correctly apply the legal standard for a

CAT claim, which requires that the applicant show only that torture is “more likely

than not.” 8 C.F.R. § 1208.16(c)(2).

PETITION GRANTED AND REMANDED.