RISVIN DE LEON LOPEZ V. MERRICK GARLAND
20-71529
9th Cir.Oct 21, 2022Background
- Risvin Valdemar De Leon Lopez, a Guatemalan national, testified he suffered two attacks by police in 2011: a July beating by five men (two in police uniforms) and an October extortion/beating by officers at a police station.
- In the July 2011 incident De Leon identified Israel Agustín Alvarado and Oljoel (Joel) Pascual Gomez as wearing National Civil Police (PNC) uniforms, carrying holstered handguns, and known locally as police; he suffered severe injuries requiring many stitches and ongoing psychological trauma.
- De Leon reported the July attack to local police and the Public Ministry; the Public Ministry opened an investigation and, according to De Leon, indicated the two uniformed men left the police shortly after the attack.
- The IJ found De Leon “essentially” credible but concluded the uniformed attackers were imposters and denied relief under the Convention Against Torture (CAT); the BIA affirmed.
- The Ninth Circuit majority held the record compelled the conclusion that two attackers were police officers, that their participation/acquiescence satisfied the government-acquiescence element for CAT, and that the agency failed adequately to assess past-torture severity and the likelihood of future torture (including country-conditions evidence); the case was remanded.
- Judge Collins dissented, arguing the majority improperly reweighed evidence, revived discredited standards addressed in Garland v. Ming Dai, and failed to respect the substantial-evidence/clear-error framework.
Issues
| Issue | De Leon's Argument | Garland (Gov't) Argument | Held |
|---|---|---|---|
| Whether two attackers in July 2011 were police officers | De Leon: he personally knew the men for ~20 years, they wore PNC uniforms, carried PNC-style holstered guns, and Public Ministry said they left the force after the attack | Gov't/BIA: IJ’s finding that they were imposters was supported by the police report and inconsistencies; De Leon’s belief speculative | Court: Record compels conclusion they were police officers; IJ/BIA lacked substantial evidence to find otherwise; reversal on this fact |
| Whether government acquiescence is established | De Leon: officers directly participated and failed to stop stabbings, so acquiescence exists (no separate acquiescence required when public officials inflict harm) | Gov't: even if officers involved, agency reasonably concluded no acquiescence or torture shown | Court: If officers participated, acquiescence established as a matter of law for CAT; agency erred |
| Whether the July 2011 beating constituted past torture | De Leon: injuries and threats ("we are going to kill you") and prolonged harm qualify as torture | Gov't/BIA: ambiguous below; BIA suggested record did not show torture or acquiescence | Court: Agency did not adequately state whether it found the incident met the severity requirement; remand for explicit consideration |
| Whether agency properly assessed likelihood of future torture | De Leon: agency ignored country-conditions evidence, October 2011 incident, threats, and aggregation of risks; relocation to Guatemala City not realistically safe | Gov't/BIA: IJ/BIA found De Leon could relocate safely and that future torture was not more likely than not | Court: Agency failed to consider key evidence (country conditions, October threats, aggregate risk, relocation feasibility); remand required for proper analysis |
Key Cases Cited
- Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (Supreme Court clarifying standard of review and limits on deeming testimony true)
- Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (no acquiescence required when public official directly inflicts torture)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (rogue-official rule: liability/acquiescence may attach even if official acted outside authority)
- Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020) (aggregate-risk analysis and consideration of all sources for CAT claims)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (past torture ordinarily central to CAT claims)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (failure of officials to prevent harm can constitute acquiescence)
- Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (beatings can rise to level of torture)