Diaz Ortiz v. Barr, 959 F.3d 10

Background:

Petitioner Cristian Josue Diaz Ortiz (Salvadoran) entered the U.S. as a minor and applied for asylum, withholding of removal, and CAT protection, claiming MS-13 persecuted him in El Salvador for being an evangelical Christian.
Local law‑enforcement field reports compiled in the Boston Regional Intelligence Center (BRIC) Gang Assessment Database documented 11 encounters (2017–2018) linking Diaz Ortiz to known or suspected MS‑13 members, including an incident where officers confiscated a metal chain and padlock from his backpack.
At the merits hearing the IJ found Diaz Ortiz not credible, highlighting inconsistencies in his testimony (transportation / bike lock explanation) and the BRIC reports; the IJ also denied relief in the exercise of discretion because of alleged gang affiliation, and rejected CAT relief.
The BIA affirmed the IJ, concluding the adverse‑credibility finding and exclusion of corroboration were not clearly erroneous and that admission/use of the BRIC materials did not violate due process or regulatory limits.
The First Circuit denied review, holding substantial evidence supported the adverse‑credibility determination and that admitting/considering the BRIC reports was not a due process violation; Judge Lipez dissented, arguing the BRIC evidence was unreliable and its use denied due process.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the IJ's adverse‑credibility finding was supported by substantial evidence	Diaz: the supposed inconsistencies (transport and bike lock; store ownership) were not real or material and thus could not support disbelief	Gov't: testimony contradicted by BRIC reports and Diaz's own inconsistent answers; REAL ID Act permits consideration of inconsistencies	Held: Affirmed — substantial evidence supports adverse credibility based on inconsistencies and contradiction by BRIC evidence
Whether admission/use of BRIC Gang Assessment Database violated due process or 28 C.F.R. Part 23	Diaz: BRIC entries are unreliable and likely violate Part 23; admission was fundamentally unfair and deprived him of an opportunity to rebut foundational defects	Gov't: Part 23 is a funding/compliance rule, not an exclusionary rule; IJ reasonably found reports reliable and their admission was not fundamentally unfair	Held: Affirmed — no due process violation; Part 23 noncompliance does not render BRIC entries inadmissible and IJ did not abuse discretion in admitting/considering them
Whether Diaz’s corroborating declarations rehabilitated his testimony	Diaz: affidavits (mother, pastor, etc.) and expert report support his account and challenge BRIC reliability	Gov't: declarations were limited, from interested witnesses, and do not rebut contradictions or the gang evidence	Held: Affirmed — corroboration insufficient to overcome credibility adverse finding
Whether BIA/IJ applied correct standards to withholding/CAT claims	Diaz: BIA added impermissible requirement (that torture be because of faith) and misapplied standards	Gov't: even under correct standards the record lacks proof of likelihood of torture or persecution on protected ground	Held: Affirmed (any error harmless) — withholding fails (higher burden) and CAT denial stands on the record

Key Cases Cited

Silva v. Gonzales, 463 F.3d 68 (1st Cir.) (standard of review for BIA factual findings)
Jianli Chen v. Holder, 703 F.3d 17 (1st Cir.) (IJ may admit evidence if reasonably reliable and fundamentally fair)
INS v. Elias‑Zacarias, 502 U.S. 478 (1992) (burden and proof standards for asylum eligibility)
Mathews v. Eldridge, 424 U.S. 319 (1976) (due‑process balancing framework)
Yongo v. INS, 355 F.3d 27 (1st Cir.) (Federal Rules of Evidence do not strictly apply in immigration proceedings)
Toribio‑Chavez v. Holder, 611 F.3d 57 (1st Cir.) (due process limits in immigration factfinding; prejudice requirement)
Miranda‑Bojorquez v. Barr, 937 F.3d 1 (1st Cir.) (agency may rely on police reports unless they are obviously unreliable)
Arias‑Minaya v. Holder, 779 F.3d 49 (1st Cir.) (admissibility and weight of hearsay police reports in immigration proceedings)
Pulisir v. Mukasey, 524 F.3d 302 (1st Cir.) (prejudice standard for due‑process claims in immigration appeals)
Heller v. Doe by Doe, 509 U.S. 312 (1993) (due process protects against erroneous deprivations of liberty and property)