Salvador Andrade v. Loretta E. Lynch
798 F.3d 1242
9th Cir.2015Background
- Salvador Andrade, a Salvadoran national, was placed in removal proceedings after a 2008 initiation; he previously entered the U.S. illegally in 1988 and was convicted in Washington of third-degree child molestation.
- Andrade conceded he was ineligible for withholding of removal due to his conviction and sought deferral of removal under the Convention Against Torture (CAT).
- Andrade testified and declared he has two non-gang tattoos (initials on his bicep and neck) obtained around 2000; the record contains no photograph of the tattoos.
- Evidence and country reports showed widespread gang violence, police abuse, vigilante activity, and impunity in El Salvador; Andrade’s relatives warned of gang dangers there.
- The BIA found the Country Report and other materials and concluded Andrade had not shown it was more likely than not he would be tortured on return, noting his tattoos were non-gang and he was not a former gang member.
- Andrade petitioned for review, arguing the BIA failed to give reasoned consideration to country conditions and that his tattoos made torture likely; the Ninth Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Andrade established it was more likely than not he would be tortured in El Salvador (CAT standard) | Tattoos and country conditions make torture by gangs/state likely upon return | Substantial evidence shows deportees with non-gang tattoos are not likely to face torture; Andrade not a gang member | Denied — record does not compel conclusion CAT likelihood met |
| Whether BIA failed to give reasoned consideration to country conditions evidence | BIA did not meaningfully consider Country Report showing risk to deportees and suspected gang members | BIA did consider and discuss Country Report and related evidence | Held for respondent — BIA gave extensive, careful consideration |
| Whether conspicuous tattoos require remand under Cole v. Holder | Andrade: tattoos create analogous risk to Cole and warrant relief/remand | Respondent: Cole limited to gang-affiliation tattoos; Andrade’s tattoos are non-gang decorative initials | Held: Cole applies to gang-affiliation tattoos; does not automatically extend to non-gang tattoos; substantial evidence supports denial |
| Standard and burden of proof/ reviewability | Andrade: evidence compels reversal because country conditions indicate torture risk | Government: petitioner bears burden; BIA findings reviewed for substantial evidence | Held: Petitioner bears burden; court will uphold BIA unless evidence compels contrary conclusion — here it does not |
Key Cases Cited
- Aguilar Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010) (BIA’s failure to address submitted country-condition evidence can be reversible error)
- Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (BIA must consider relevant evidence of persecution and country conditions)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (agency must engage with submitted evidence and explain findings)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (conspicuous gang-affiliation tattoos can establish CAT risk and require reasoned consideration)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (BIA factual findings upheld unless record compels contrary conclusion)