47 F.4th 971
9th Cir.2022Background
- Oscar Gonzalez-Castillo, a Salvadoran national, testified he fled El Salvador in 2014 because of repeated gang violence and police abuse; he denied gang membership.
- Removal proceedings began in 2020; Gonzalez-Castillo proceeded pro se and sought asylum, withholding, and CAT relief.
- The government’s sole evidence that he committed a serious nonpolitical crime was an INTERPOL Red Notice identifying him as an MS-13 member “responsible for strikes,” and listing an incident date of January 1, 2015.
- The IJ found Gonzalez-Castillo credible on much of his testimony but credited the Red Notice, applied the serious nonpolitical crime bar, denied asylum (one-year bar), and denied CAT relief; the BIA affirmed.
- Gonzalez-Castillo appealed, arguing the Red Notice alone did not establish the statutory “serious reasons to believe” (probable cause) standard and that the agency failed to consider all CAT evidence.
- The Ninth Circuit granted the petition in part (withholding and CAT remanded for further consideration), dismissed the challenge to the one-year asylum bar as waived, and taxed costs to the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Serious nonpolitical crime bar for withholding ("serious reasons to believe") | Red Notice is unreliable and insufficient to show probable cause; petitioner denies gang membership. | A Red Notice is documentary evidence that, as "some evidence," shifts burden and supports the bar. | Red Notice alone did not provide probable cause; substantial evidence lacking; remand for merits of withholding claim. |
| Burden-shifting under 8 C.F.R. § 1240.8(d) | Statutory "serious reasons" requires probable cause; regulatory "some evidence" cannot satisfy statute. | Government: producing "some evidence" (Red Notice) shifts burden to petitioner to disprove. | Court agrees with petitioner and Eighth Circuit: regulation cannot supplant statutory probable-cause requirement. |
| One-year asylum filing bar | Late filing excused by (a) the Red Notice as changed circumstances and (b) sexual identity record-development; should be considered. | IJ reasonably rejected the late-file excuses raised before the agency; arguments raised for first time on appeal are unexhausted. | Claims regarding new bases to excuse the one-year bar were not exhausted before the BIA and are waived; petition dismissed in part. |
| CAT (Convention Against Torture) claim and record consideration | Agency failed to give reasoned consideration to credible testimony and documentary evidence showing past torture and future risk. | IJ/BIA concluded harms did not rise to torture and government acquiescence was not shown. | Agency misstated the record and omitted highly probative evidence; remand for fuller consideration of CAT claim. |
Key Cases Cited
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (interpreting "serious reasons to believe" as equivalent to probable cause)
- Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021) (Red Notice may be probative with corroborating evidence; Red Notice alone not previously held sufficient)
- Silva-Pereira v. Lynch, 827 F.3d 1176 (9th Cir. 2016) (probable cause satisfied where indictment alleges specific facts connecting petitioner to crime)
- Barahona v. Garland, 993 F.3d 1024 (8th Cir. 2021) (rejecting W-E-R-B- approach that "some evidence" suffices; statutory probable-cause requirement controls)
- Radiowala v. Attorney General United States, 930 F.3d 577 (3d Cir. 2019) (observing a Red Notice alone is not sufficient for arrest or probable cause)
- Hernandez-Lara v. Barr, 962 F.3d 45 (1st Cir. 2020) (same: Red Notice alone insufficient for arrest/probable cause)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (remand required where agency misstates record and fails to consider dispositive testimony)
- Martinez v. Clark, 36 F.4th 1219 (9th Cir. 2022) (agency need not recite every piece of evidence but must give reasoned consideration; omission of highly probative evidence is error)