Cole v. Holder
2011 U.S. App. LEXIS 19402
| 9th Cir. | 2011Background
- Cole, Honduran national, entered U.S. at age 11; holds a criminal record including 1999 cocaine-for-sale conviction; suffered a gunshot wound in 2007 causing brain injury and skull defect; applied for CAT deferral and was denied by IJ and BIA; relied on two expert witnesses (Rodriguez, Canales) and documentary country-conditions evidence; BIA did not explicitly address all expert testimony and tattoo-removal evidence; this court grants petition and remands for reasoned consideration and aggregate-risk analysis.
- Cole relies on expert testimony about gang dynamics, tattoo-based persecution risk, and medical-care denial in Honduras; documentary evidence corroborates some country-condition concerns; BIA deemed one expert unpersuasive and did not address the other expert; issues include whether tattoos can cause misidentification leading to torture and whether medical-care denial constitutes torture.
- The IJ rejected CAT relief, finding no likelihood of torture per Villegas and noting Honduras bans torture; BIA affirmance relied on lack of specific examples and tattoo-removal feasibility; petition for review followed.
- The court reviews BIA for substantial evidence with de novo law on CAT; country-conditions evidence must be considered; agency must address potentially dispositive expert testimony and consider aggregate risk.
- Remand instructed: BIA must reconsider CAT claim with full consideration of expert testimony, documentary evidence, tattoo-removal timelines and risks, and aggregate risk, addressing intentional denial of medical care and removal feasibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA failed to give reasoned consideration to expert testimony | Cole argues BIA ignored dispositive expert testimony | Cole argues BIA relied on mischaracterizations of the record | Remand for reasoned consideration |
| Whether BIA erred by not addressing aggregate risk | Cole contends multiple sources of harm aggregate to torture risk | BIA treated sources separately; no single likelihood shown | Remand for aggregate risk analysis |
| Whether intentional denial of medical care constitutes torture | Cole claims deliberate medical denial due to tattoos | Lack of medical care alone not torture; must be intent | Remand to assess intentional denial claim on record |
| Tattoo-removal feasibility impacts CAT determination | Tattoo removal is long, painful, may leave scarring; affects risk | Tattoo removal possible; timing may mitigate risk | Remand to evaluate removal feasibility and timing proper impact on risk |
| Whether country-conditions evidence supports likelihood of torture | Record corroborates specialist testimony and country reports | State Dept. reports show some law and enforcement against torture | Remand to integrate country-conditions evidence with expert testimony |
Key Cases Cited
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (rejected tattoos-based social-group theory in withholding CAT context; informs treatment of social grouping and torture standards)
- Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010) (CAT evidence must be considered; country reports carry weight in relief determinations)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (requires consideration of country-conditions evidence and potential torture corroboration)
- Eneh v. Holder, 601 F.3d 943 (9th Cir. 2010) (requires reasoned consideration of probative evidence in CAT cases)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (extensive discussion of CAT standards and government acquiescence)
- Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (torture definitions; government acquiescence standard applied in CAT context)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (agency must evaluate evidence and not rely on mere conclusory statements)
- INS v. Ventura, 537 U.S. 12 (198?) (per curiam on CAT review emphasizing need for proper consideration)