Juan Castillo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 28, 2019
• Docket: 17-72544
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MAURICIO CASTILLO, No. 17-72544

Petitioner, Agency No. A073-244-050

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

Respondent.

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

Argued and Submitted January 15, 2019 San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge.

Petitioner Juan Castillo petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) denying his request for deferral of withholding

under the Convention Against Torture (“CAT”).

We review the BIA’s decision for substantial evidence, reversing only if

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. “the evidence compels the conclusion” that its decision was incorrect. Gu v.

Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). “[W]here, as here, the BIA

reviewed the IJ’s decision for clear error and provided more than a ‘boilerplate

opinion,’ we may . . . look to the ‘IJ’s oral decision as a guide to what lay behind

the BIA’s conclusion[s].’” Guo v. Sessions, 897 F.3d 1208, 1214 n.4 (9th Cir.

2018) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)). We will

review “the reasons explicitly identified by the BIA, and then examine the

reasoning articulated in the IJ’s oral decision in support of those reasons.” Id.

(quoting Tekle, 533 F.3d at 1051).

1. We have jurisdiction over Castillo’s petition. See Pechenkov v. Holder,

705 F.3d 444, 448 (9th Cir. 2012).

2. The Agency erred in its consideration of Dr. Boerman’s testimony about

the risk of torture faced by Castillo. The IJ “consider[ed] some of Dr. Boerman’s

statements to be exaggerated.” One of the reasons the IJ gave for this conclusion

was: “the notion that [the asserted] multi-agency governmental corruption is

commonplace seems to contradict Dr. Boerman’s written declaration, which states

that ‘[not all] Salvadoran officials are corrupt; there are thousands of public

servants of the highest integrity, skill and professionalism.’” But there is no

inherent contradiction between official corruption being commonplace and the

existence of thousands of dedicated, honest public servants.

2 Petitioner objected before the BIA to this illogical aspect of the IJ’s reasons

for rejecting Dr. Boerman’s testimony.1 But the BIA did not correct this error in

reasoning or otherwise explain why it would deny Castillo’s CAT claim even

without that aspect of the IJ’s reasoning. Seemingly in at least partial response to

Castillo’s arguments about errors in the IJ’s evaluation of Dr. Boerman’s

testimony, the BIA stated that the IJ had found Dr. Boerman “credible.” To the

contrary, the IJ did not appear to find Dr. Boerman credible. The BIA did

recognize that the IJ concluded Dr. Boerman “exaggerated the risk of harm to the

applicant.” But the BIA discussed—and found no clear error in—only one of the

several reasons that the IJ gave for discounting Dr. Boerman’s testimony: that the

record was “devoid of any mention of immigration officials and police colluding to

apprehend returning gang members.”2 In addition to not being responsive to

Castillo’s argument regarding the IJ’s mis-perceived contradiction in Dr.

Boerman’s report, by relying on this reason the Agency ignored the fact that Dr.

Boerman’s own written report identified the problem of collusion between

immigration officials and police regarding treatment of returning gang members—

1 In appealing to the BIA, Castillo argued, among other things, that the IJ erred in finding Dr. Boerman’s opinion that both corruption and a large number of honest officials could coexist was a contradiction, in light of the State Department reporting “say[ing] much the same thing.” 2 In fact, the IJ had stated that “[t]he documentary evidence [was] devoid of any mention of immigration officials and police colluding to apprehend returning gang members.”

3 and, absent a proper reason to discount it, that report was part of the record. See

Cordoba v. Holder, 726 F.3d 1106, 1114-15 (9th Cir. 2013) (discussing “credible

expert testimony” of a professor as record evidence supporting the petitioner’s

claim). The BIA thus relied on incorrect reasoning by the IJ, and did not provide

any other sufficient reason to affirm the IJ’s conclusion that Dr. Boerman

exaggerated the risks to Castillo. We thus remand so the BIA can reconsider Dr.

Boerman’s testimony and its effect on Castillo’s CAT claim.

3. For efficiency, we reject two of Castillo’s remaining arguments.3 The

BIA did not impose an impermissibly high burden of proof on Castillo. “To

qualify for CAT relief, a petitioner must establish that ‘it is more likely than not

that he or she would be tortured if removed to the proposed country of removal.’”

Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.

§ 208.16(c)(2)). Castillo must therefore show there is “a chance greater than fifty

percent that he will be tortured if removed.” Id. (quoting Hamoui v. Ashcroft, 389

F.3d 821, 827 (9th Cir. 2004)). The BIA properly articulated this standard.

The BIA also did not impermissibly require that specific technical

3 Although our holding that the BIA erred is sufficient to resolve this petition, because the other issues raised in Castillo’s petition could arise again on remand and because they have been fully briefed, we review them here. See United States v. Mancuso, 718 F.3d 780, 796 (9th Cir. 2013); United States v. Van Alstyne, 584 F.3d 803, 817 n.14 (9th Cir. 2009); but see United States v. Nickle, 816 F.3d 1230, 1237 n.6 (9th Cir. 2016).

4 terminology be used in evidence supporting Petitioner’s claim. The BIA, and the

IJ, did not discount evidence merely because it did not use the word “torture,” but

because the conduct described in the relevant passages of the reports did not

amount to torture.

GRANTED and REMANDED.