Walter Coto Ortiz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2020
• Docket: 18-70084
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 17 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALTER COTO ORTIZ, AKA Jorge No. 18-70084 Contreras Padilla, AKA Walter Jeovany Coto, Agency No. A074-337-674

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Argued and Submitted November 5, 2019, Submission Withdrawn November 7, 2019 Re-Submitted July 15, 2020

Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lee H. Rosenthal, United States Chief District Judge for the Southern District of Texas, sitting by designation. Petitioner Walter Coto Ortiz is a native and citizen of Honduras. He

petitions for review of the Board of Immigration Appeals’ (BIA) denial of relief

under the Convention against Torture (CAT). He contends that the evidence

compels the conclusion that he will more likely than not suffer severe pain and

suffering with government acquiescence if returned to Honduras. Because he

challenges the BIA’s contrary factual conclusion, we deferred submission of the

case pending the Supreme Court’s decision in Nasrallah v Barr, 140 S. Ct. 1683

(2020). The Supreme Court had granted certiorari in that case to review whether

the courts of appeals lack jurisdiction to review factual determinations underlying

denials of CAT relief with respect to noncitizens who have committed an offense

specified in 8 U.S.C. § 1252(a)(2)(C). Nasrallah v. Barr, 140 S. Ct. 428 (2019)

(mem.).

The Supreme Court has now decided that judicial review of the agency’s

factual determinations is not precluded by § 1252(a)(2)(C) and that such review is

deferential. The agency’s factual findings must be upheld unless a reasonable

adjudicator would be compelled to reach a contrary conclusion. Nasrallah, 140

S.Ct. at 1692. We therefore have jurisdiction to decide the question petitioner

presents.

2 The evidence Coto Ortiz presented demonstrated that were he to return to

Honduras he would have multiple targets on his back. Because of his family

membership, he would be a target for gangs. As many as seven members of his

family in Honduras have suffered gang attacks, including rape, brutal beatings and

shootings. As a result of his own prison gang membership petitioner bears tattoos

that would make him a target not only for gangs but also for police and death

squads in Honduras. Dr. Boerman, an expert witness, concluded the chances of

petitioner’s escaping serious harm on his return were “virtually nonexistent.” This

evidence compels the conclusion—and the BIA appeared to agree—that petitioner

would more likely than not face severe pain and suffering if returned. See

Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015) (“CAT claims must

be considered in terms of the aggregate risk of torture from all sources, and not as

separate, divisible CAT claims.”).

The evidence also compels the conclusion that a public official would

acquiesce in the torture. The record contains overwhelming evidence of police

corruption and evidence that efforts by the Honduran government to control gang

violence and police corruption have been largely ineffective. The record belies the

agency’s finding that due to the government’s anti-corruption efforts, petitioner

had failed to make the requisite showing of acquiescence. The corruption

3 remained rampant. See Parada v. Sessions, 902 F.3d 901, 916 (9th Cir. 2018)

(holding that “[e]vidence showing widespread corruption of public officials” is

“highly probative” as to government acquiescence);Madrigal v. Holder, 716 F.3d

499, 507 (9th Cir. 2013) (the BIA errs when it considers “only the [federal]

government’s willingness to control the cartel and not its ability to do so.”)

The evidence compels the conclusion that petitioner would be targeted for

torture and that the government would acquiesce in it. He is entitled to CAT relief.

We therefore grant his petition for review and remand for the agency to grant him

deferral of removal under the CAT. See Avendano-Hernandez v. Lynch, 800 F.3d

1072, 1082 (9th Cir. 2015).

PETITION GRANTED.