Cole v. Holder

Inc., 36, Munsingwear, States v. U.S. (1950).

39, 104, 95 L.Ed. 36 S.Ct. argument September

The oral set for

20, Francisco, San California

vacated. George COLE, Petitioner,

Hubert Jr., Attorney

Eric H. HOLDER

General, Respondent.

No. 09-73625.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. Sept.

Filed

OPINION BERZON, Judge: Circuit application We consider the of Hubert (Cole), George Cole citizen and national for deferral of removal under (CAT). Against the Convention Torture (BIA) Immigration Appeals The Board of application, concluding denied the Cole had not established he would more if than not be tortured removed to Honduras. Because the BIA failed give reasoned potentially consideration to dis- positive testimony by wit- nesses and did not all address of Cole’s claims, grant petition we and remand to the BIA.

I. Cole, black, 40-year-old, former member, was born in Honduras and en- age tered the United States at eleven with his mother and two sisters. Cole has a lengthy criminal history in the United States, beginning juvenile. when he awas in prison, joined Crips, While Marouf, Fatma E.' Group, Marouf Law African American gang, way pro- as a CA, Angeles, petitioner. Los for the Hispanic tect himself from gangs. While a West, Tony General, Attorney Assistant Crips, member of the he was tattooed with Division, Fatouros, B. Civil Thomas Senior gang-related symbols and letters on his Counsel, Litigation Pegah Vakili and 2007, body. face and In August Cole was Cohen, Yedidya Attorneys, Trial Office drive-by the victim of a shooting; he was Division, Immigration Litigation, Civil U.S. seriously injured and needs ongoing medi- Justice, D.C., Department Washington, cal care. respondent. for the Department Security of Homeland commenced removal proceedings against July Cole on 2008. The Notice to Appear charged that Cole was removable because he entered without admitted convicted, paroled or- and was on June NOONAN, Before: JOHN T. MARSHA 1999, for possession of cocaine for salе. BERZON, S. and CONSUELO M. removability Cole conceded applied CALLAHAN, Judges. Circuit removal, asylum, withholding of and relief BERZON; Opinion Judge immigration judge under CAT. After the (IJ) NOONAN; by Judge relief, Concurrence Dissent all denied his claims for Cole by Judge only BIA, CALLAHAN. appealed the CAT claim to the quickly Monica and his friend got Whether the 13. Cole appeal. which dismissed only But, relief is the their car. denied CAT back into before his Mend properly started, us. car get issue before could the other car side, pulled up passenger on the where Background A. Factual sitting, Hispanic and a man start- incarcerated as that while shooting Cole testified ed Cole. man, by His- he felt threatened young in the head and Cole was shot abdomen. members, joined Crips for

panic gang part Half his liver and of his skull had to Crips tat- acquired several protection, shooting. Hos- be removed because toos, eye, a including teardrop under his months, pitalized for five or six Cole was ear, calves, on his his and tattoos G behind experiencing problems still related to his pris- Once released from arms and back. injury testimony. brain at the time of his associating Crips with the stopped on Cole declaration, In his Cole stated that he now agency. worked at a homeless services defective, fragile has a skull and that he Nevertheless, identi- gangs rival could still injure if easily can his brain he is not fy Crips gang him as a member because careful. A letter from his con- doctor Cole, Hispanic According tattoos. his firmed that he has a “sizable skull defect Crips gang kill Crips hate the gangs protection with no of his brain” and assert- has not had the tattoos members. Cole that, reason, ed for this incarceration could a pain- tattoo removal is removed because high injury. him at a risk of put serious long process. ful and him pain doctor told he will be in disassociating from the Despite himself likely long time and will have seizures continued to feel Crips, Cole threatened future, necessitating ongoing medical August In Hispanic gang members. care. drive-by shooting of a was the victim that if Hon- Cole maintains returned to He was out- by Hispanic gang members.1 duras, possibly will be tortured a car with a store with a friend when side police, squads, or death gangs, killed by; the Hispanic people or five drove four gang-related race and because of his his at him and occupants pointing were car’s race,3 He testified that his his gang them affiliation—Santa tattoos.2 yelling out Rather, Crips specific in Honduras. he claims—and also testified about one other 1. Cole (1) Hispanic gang Hispanic presented evidence—that in which he encountered instance the United gang released from members removed from States and members after he was Once, bring likely to their were returned to Honduras are prison: while he and his friends pier, recognize watching rivalries with them and to Cole's fireworks at the Santa Monica (2) gang; of a Honduran gang approached and tattoos as those rival 18th Street members gangs likely they Crips. to see Cole as threat be- them if were Cole testified asked police regardless they cause of his tattoos of whether there was a lot of tension until identify Street can with which he was appeared and took some of the 18th affiliated; (3) govеrnment, jail. that he the Honduran gang members to He testified terrible,” police, personnel tat- "something some- and medical associate such as believes stabbed, gang membership, regardless happened toos with of the would have if one tattoo,, are not nature of the police had not arrived. meaning inquire as to the of the tattoo further person or whether a tattooed maintains emphasizes that there is no evi- 2. The dissent membership. suggest Crips that the dence in record is, argues there operate in Honduras. It therefore, racial 3.The record includes documentation of to think that Cole will no reason inequality and discrimination in Honduras Crips tattoos. But harm because of his suffer against rely presence of Afro-Hondurans. not on the Cole's claim does tattoos, beaten, general appearance, and even or killed in Central America him an his accent will mark outsider either MS-13 or 18th Street mem- that, Honduras, and that he believes even bers. themselves, if harm him police do not expert, Cole’s second Elmer Javier Ca- they think a gang will he is member and so (Canales), nales Mesa had about nine protect him. Cole also fears years experience working mem- police will detain him and that he will be bers and former gang members Hondu- n intentionally exposed to torturous ras. Canales biggest testified the two Finally, conditions because his tattoos. gangs in Honduras are MS-13 and 18th intentionally Cole contends that he will be Street and that gangs members of these necessary denied public medical care kill people with tattoos from rival heаlth officials Honduras because of his Crips. such as the experience, Canales’

tattoos, and that intentional denial of the Honduran investigate do not qualifies medical care also as torture. murders of or suspected Cole’s sister and mother testified that gang members. they are also afraid Cole will be tortured Canales also testified that it illegal is to or killed if returned to Honduras and will be a gang member of a in Honduras and not be able to receive the medical care that that having gang-related tattoo can lead he needs. prison to a years. sentence of six to twelve According Canales, suspected gang Expert Testimony members in the area where he works are supported Cole claim CAT with testi- by each detained police two or three times mony experts. from two Luis Javier Rod- per week jailed. and sometimes Hondu- riguez (Rodriguez) testified as an ran police physically suspected abuse on the dynamics “structure and of U.S. gang by members throwing them on the and gangs, including Central American the ground beating them weap- with their racial rivalries among gangs.” those He of, ons.4 In one police case he knew discussed the origins large Hispanic of two officer gang tortured two members to (MS-13) gangs, Mara Salvatrucha officer, chief, death. That police a former Street, 18th and how gangs spread those jail is in as a investigation result of an by America, primarily Central through organization for which Canales works. gang members deported from the U.S. Generally, however, police are not held Rodriguez explained Crips gang is harming accountable for gang members. enemy by viewed an Hispanic gangs, as. Street, including MS-13 and 18th whose Canales also testified specific about inci- members attack members of African dents in police which guards American gangs. According to Rodriguez, suspected killed gang prison. members in Hispanic easily can spot Crips an incident that occurred three four tattoos. He Hispan- years also testified that the before hearing, suspected ic gang brought gang members their “anti-black members died after being by shot culture” down to prison guards. testified, Central America when year he they were deported and that someone with suspected more than 20 gang members threatened, Crips tattoos would had jail day been killed in on the they first 4. Canales also testified that defending youth he had been with whom he worked. punched by police the back and chest for and, there; non-emergency in a Canales attributed needed situa- arrived tion, if get only accompa- He also treatment “police negligence.” slaughter in which 104 nied the Commissioner for Human about incident testified Rights. died in a fire in their cell gang members escape by guards blocked their

block. The high Given the risk of harm former gate, it was later opening face from members Honduras rival was set fire determined groups, most gangs, police, vigilante police. the former with whom members statistics, opinion, attempt works remove their tattoos to In Canales’ based studies, experiences and his over make themselves less identifiable. There years, being programs in Honduras to help has 90% chance some tattoos, but, and a remove police former detained Honduran reported, cannot meet greater they 75% killed Canales than chance of demand,5 process long, and the of his extreme- gang members Honduras because ly painful, often results visible scar- Crips tattoos. Canales also testified about declaration, ring. In his written Canales from Cole would face Honduras risk explained because such “scars are of- aimed at squads cleansing and social death ... ten visible these individuals remain According to eliminating gang members. members, target squads, death Canales, groups power- and other police.” and the they kill find ful citizens torture and those undesirable, including suspected Documentary Evidence that such reported Canales members. complete in Hon- and groups impunity government act with Both Cole submit- evidence, documentary ted extensive duras. in- cluding reports by government the U.S. inabili- Finally, spoke Canales about the by Many agencies. and United Nations suspected gang get members to med- ty of reports aspects corroborated of Cole’s public hospitals in in Honduras. ical care testimony. experts’ personally accompanied gang He had example, and former members to For State gang members the 2008 U.S. De- report recognized refuse to hospitals partment and had seen doctors several human man, Honduras, in young rights problems them. One wounded such as “un- care for bleeding, waiting killings police died in the room lawful members of the and government agents; arbitrary treat him. and because doctors refused to and stated, killings summary by vigilantes in Canales committed Most doсtors to treat individual with and former of the security would refuse members forces; they against him suspect violence detainees tattoos because secu- forces; Also, conditions; reported, rity prison harsh being gang member. [and] corruption hold and government nothing impunity to within the securi- sit- The confirmed ty report workers accountable such forces.” healthcare more, uations, organi- membership, despite demands from his without ille- Canales, by up in Honduras According gal punishable to Cole would and to zation. emergency years prison, police care if he and that be denied medical arrested go desperation, mem- metal cleaners. Former 5. Out of some former lengths using attempt to tattoos such extreme to remove their tattoos bers remove their burns, cigarette mosquito young people great because with tattoos run methods such as creams, acid, being battery and repellent, car acid risk of killed. tat- in Honduras noted that the Hondu- on factors such as their people based approach ran private government’s noted strict includes report toos. The also vigilante groups rounding up individuals security companies put- tattooed and acted, complicity police, for ting membership. with the them squads “supposed death to kill habitual report The also noted when criminals.” in prisons, members were killed died punished. often no one was

Moreover, the Honduran con- although torture, prohibits there were in- stitution An August report High the UN officials em- government stances which (UNHCR) Refugees Commissioner for including ployed praсtices, beatings such accountability profes- counted “lack of detainees; and other abuse of The 2008 police,” frequent sionalism within the “the Department report stated that State detainees,” and “a culture of im- abuse Defense of Human Committee punity rights for violations human in- reported Rights po- Honduras had cluding extrajudicial among executions” as arbitrarily lice and sometimes detained rights biggest problems. Honduras’ human tortured more than two dozen individuals report anti-gang The discussed during government program Oper- called 30,000 for recruiting initiative that called Depart- ation National. 2007 State 60,000 private security personnel join report placed ment the number of individ- 10,000 the efforts of armed services and, sometimes, uals arbitrarily arrested personnel 8,000 officers, Operation tortured under National at more granting security personnel the private 34,000 than that a and noted number of right any necessary “the to use means prisoner deaths been attributed to had deter committing assailants from criminal security members of the forces. report policy acts.” The noted that arrests, had led to hand, mass there

On the other the 2008 State De- reports were of excessive and even lethal partment acknowledged that report private force used these security had undertaken some investi- report forces. gations The UNHCR also dis- illegal by security activities death 6, 2008, squads cussed evidence that were forces. For on example, June a members, executing gang noting court “the guilty found sentenced 21 of the widespread [the conviction unlawful implicated 43 officials in a killings] by committed jail 2003 massacre. security of the existing or former forces.” Other documentary evidence confirmed expanded Finally, in newspaper on the information numerous articles Department State A 2007 also reports. problems govern- Con- discussed the gressional report squads, extrajudicial Research Service ment-linked noted death by killings, increased violence level of high has led and the violence in vigilantism, corresponding prisons. Particularly in- Honduran disturbing creasing extrajudicial killings. reports It also ac- were fires in regarding prison, knowledged July legislation reportedly deliberately by 2003 in some set securi- forces, ty Honduras in making membership which have killed around 200 punishable by years prisoners, 12 up prison mostly gang members. One ar- prison independent and confirmed that a fire in ticle report noted that an inmates, mostly killed commissioned President of members. Hondu- fire, Similarly, Agency prison 2006 U.S. Inter- ras found that one 51 of the (USAID) national Development report people killed had who were been “exe- shot, stabbed, on the or burned to hood that Cole would be tortured beaten cuted — the state sol- police, ground expert give spe- death a force of failed to diers, working guards prisoners prison examples corroborating opinion. cific ‍​‌​‌‌​​‌‌​​​​​​‌​​​​‌‌​‌​​‌​​​​‌​​‌‌‌‌​​‌​‌​‌​‌‌‍IJ, guards.” held, with the as The Board did sufficient evi- Cole had established and BIA Decisions B. IJ in the chain of events that dence each link application for de- The IJ denied Cole’s by police, could result in his torture death CAT, finding that ferral of removal under BIA squads, or other members. The “str[ung] together series Cole’s evidence recognize did that evidence the record but did not show suppositions,” suggested presence that “the of a tattoo hypothetical in the chain of step each can cause an automatic association with than not to occur.6 was more events suspected gang gangs, and that tattoo or (1) faulted the particular, IJ equate affiliation can to harsh treatment.” testimony about the likelihood Cole nothing But the BIA found in the record lacking as would be tortured why could not have his explaining Cole similarly to Cole had individuals situated being perceived tattoos removed avoid (2) tortured; noted incarcerated and been Finally, the BIA as a member. de- that, according Department to the State termined that lack of medical treatment is against the law Hon- report, torture not tantamount to torture. The did duras, prosecuted police state has and the any finding regarding govern- not make abuses, other in- officers for torture and acquiescence ment in torture death massacres; jail cluding for one of the squads members. (3) lack characterizing arguing Cole timely petition filed this for re- Cole poor prison care and conditions of medical view.7 torture, held that in Honduras amount had failed to meet the standard Cole II. intent to cause harm established specific (9th Villegas Mukasey, 523 F.3d 984 regard review issues of law We Cir.2008). that he Although argued Holder, ing claims de novo. Edu v. CAT medical care intentionally would be denied (9th Cir.2010). 1137, 1142 624 F.3d intentionally and that officials have the BIA conducts its own review “Where conditions, the dangerous prison created law, panel only of the evidence and this arguments. did not address these IJ decision, except the BIA’s to the reviews IJ, expressly adopts the IJ’s deci Like the the BIA discounted Cole’s extent Holder, 943, 601 F.3d 946 testimony witness about the likeli- sion.” Eneh v. asylum longed applications and with- detention of aliens absent a bond hear- 6. Cole's for 1226(a). holding removal were also denied. ing § is not authorized 8 U.S.C. Dep’t See Casas-Castrillon v. Homeland note that Cole has been detained We 942, Sec., (9th Cir.2008); 535 F.3d 950-51 see proceedings, throughout these which have Clark, 1053, v. 534 F.3d Prieto-Romero years, seemingly lasted more than three for Cir.2008) (9th (holding three-year that a 1062 so, then, hearing. If did without a bond as prolonged by any “qualifies as detention Holder, Aguilar-Ramos v. 594 the court measure”). encourage to chal- [Cole] "We (9th Cir.2010), express grave “we F.3d 701 lenge by filing petition his detention a habeas detention,” three]-year [Cole’s concerns over by requesting § U.S.C. 2241 or pursuant to 28 3, particularly given Cole's testi- id. at 704 n. hearing.” Aguilar-Ramos, 594 F.3d a bond detention, mony that while in at 704 n. permitted he needed to con- the medications injury. pain Pro- trol from his brain 770

(9th Cir.2010). “The un- findings sufficiently likely, BIA’s where torture is “CAT derlying appli- its determination that an permit any ‘does not provide discretion or ” eligible Edu, cant is not for relief under the any exceptions.’ for 624 at F.3d CAT are for substantial evi- (Feb. reviewed 8478, (quoting Fed.Reg. 1145 64 8481 Arteaga dence.” v. Mukasey, 511 F.3d 1999)). 19, Instead, provision for de- (9th Cir.2007). 940, 944 “Under the sub- applies ferral of removal under CAT all standard, up- stantial evidence the court applicants, who, Cole, even those like holds the BIA’s determination unless the former members convicted of an ag- contrary evidence in the compels record gravated felony. 208.17(a); § See 8 C.F.R. conclusion.” Id. Mukasey, 1081, Lemus-Galvan v. 518 F.3d (9th Cir.2008) (holding 1083 if “even “Because neither the nor the an alien has been ‘particu- convicted of a an credibility finding, IJ made adverse ‘we crime,’ larly serious is ineligible for must assume that factual conten [Cole’s] ” withholding CAT, of removal under the Aguilar-Ramos, tions are true.’ 594 F.3d required grant IJ is deferral of removal INS, 646, 704(quoting Navas F.3d if the alien can establish the likelihood of (9th Cir.2000)). result, n. “As return”). upon torture explained As we facts to which [he] testified are ‘deemed Edu, “the true, words of CAT ... reach out question and the remaining to be facts, protect answered even the most vile of against becomes whether these actors inferences, Indeed, and their reasonable state vileness.” satisfy the 624 F.3d at 1146. ” Edu, elements of the claim for relief.’ “in adopting the regulations, [CAT] 624 F.3d at 1143(quoting Nuru v. Gon agencies recognized themselves that even zales, (9th Cir.2005)). 404 F.3d those who persecutions, assisted Nazi engaged in genocide, pose a danger to

III. security our own are not excluded from the protections Further, of CAT.” Id. at 1145. Principles A. General CAT foreign] government “[a exempt cannot qualify relief, To a petitioner CAT torturous acts from prohibition CAT’s must establish that likely “it is more than merely by authorizing them permissible not that he or she would be tortured if Nuru, punishment,” forms of 404 F.3d at removed to proposed country of re- 1221, nor do other provide circumstances 208.16(c)(2). § moval.” 8 C.F.R. In oth- justification for denying deferral of remov- words, er only Cole must “show a chance al where sufficiently torture is likely. greater fifty than percent that he bewill tortured if removed to” Honduras. words, In other policy against pro- Ashcroft, Hamoui v. 389 F.3d 827 viding “sanctuary for universal outlaws” (9th Cir.2004). In determining whether that led this court to conclude that an individual will more than not be members or former members are not tortured, “all evidence relevant to the a social group purposes for the asylum possibility of future torture shall be con- removal, and withholding of Arteaga, see 1208.16(c)(3). sidered.” § 8 C.F.R. 946, 511 at preclude F.3d does not deferral of removal under

Importantly, CAT. Both the application governing for regulations CAT relief need not show the case law of this circuit that he will be tortured “on any members, account of’ dictate that even particular both cur- ground. INS, former, See Kamalthas v. 251 rent and F.3d cannot be returned to a (9th 1279, Cir.2001). Moreover, 1283 country in they which will likely more than

771 208.17(a); documentary § as well as the mony, 8 evidence See C.F.R. not tortured. in the record. F.3d at 949. Arteaga, 511 implementing regulations so re CAT’s un torture” constituting “Acts decision, making In a the reg CAT quire: varied, beatings include “are der CAT state, “all relevant to ulations evidence Mukasey, 543 v. killings.” Bromfield of future torture shall be possibility consid (9th Cir.2008). 1071, imple The 1079 F.3d ered, including gross, ... [e]vidence as: define torture menting regulations rights mass of human flagrant or violations or suffer pain act which severe any country of removal ... and ... within mental, is inten physical or ing, whether regarding relevant information con [o]ther on for such tionally person inflicted a country in the of removal.” 8 ditions him or her obtaining from purposes 1208.16(c)(3) added). § (emphasis C.F.R. a con person information or or a third grant review petitions We therefore for an act fession, him or her for punishing where BIA not CAT cases did consider a third has commit person she or he or country conditions in the evidence record. committed, having or is suspected ted (re at 705 Aguilar-Ramos, 594 F.3d See or him or her or intimidating coercing or manding for BIA to determine based any or for reason person, a third Country Report first instance whether the kind, any when such on discrimination torture); a demonstrates likelihood of see inflicted suffering or at the or pain 1077, 1079; Bromfield, at 543 F.3d or consent or instigation of with the (9th INS, 1143, v. F.3d 1147 Al-Saher 268 public or other official acquiescence Cir.2001). Indeed, “country conditions capacity. in an acting official person play can role in granting alone decisive 1208.18(a)(1). Acquiescence § 8 C.F.R. Kamalthas, relief under Convention.” only that “requires officials government at 1280. 251 F.3d torture but ‘re were aware [they] example, Aguilar-Ramos, In it, willfully simply stood blind to mained argued that “the Board is unwilling inability of their because explicitly every to cite and required refute ” Bromfield, it.’ 543 F.3d oppose ness appeal”; of evidence piece offered this v. (quoting Ornelas-Chavez Gon 1079 responded regulations im- “[t]he court Cir.2006)). (9th 1052, zales, 458 F.3d 1060 explicitly require CAT plementing IJ torturer, whether a official or public ‘all relevant to consider acting government’s with the private party torture,’” of future and also possibility must have the acquiescence, consent or country reports noted that accorded inflict specific harm. See intent severe weight proceedings. special removal Mukasey, v. 523 F.3d Villegas (citations omitted). at 705 n. 594 F.3d (9th Cir.2008). say that the That is not to Testimony Expert B. each of еvidence piece must discuss sub depends heavily on the in the record or nothing CAT claim mitted. When a failure to experts, Rodriguez two BIA’s decision indicates consid testimony of evidence, statement Canales, documentary “general evi- all the as well as on er testimony. agency] all the corroborating considered evi [the their dence may be sufficient. See determining [it]” had established dence before whether Cole Gonzales, F.3d Almaghzar more than not be he would Cir.2006). (9th But, any there is the BIA where if returned tortured not consider all testi- BIA did to evaluate the indication required 772 it, obliged to in phrase a catchall reasons the record “state[]

of the evidence before suffice, was es- why testimony the decision cannot the insufficient to does not necessary include tablish the of torture misstating probability Such indications stand. highly grant Aguilar-Ramos, record to mention CAT relief.” failing the dispositive 594 n. 7. It did not that. potentially evi- F.3d at 706 do probative 594 Aguilar-Ramos, See F.3d at dence. sole stated rationale for The BIA’s Eneh, 948-49; 6; & n. F.3d at 601 rejecting expert’s opinion ‍​‌​‌‌​​‌‌​​​​​​‌​​​​‌‌​‌​​‌​​​​‌​​‌‌‌‌​​‌​‌​‌​‌‌‍is the one entire 1076-77;

Bromfield, Kamal- 543 F.3d at the record rea ly unsupported by for two thas, 251 F.3d at 1283-84. First, although opined sons. the Board In particular, potentially where testimony expert’s “unpersua the was documentary dispositive testimony and evi evidence,” light specifi sive in of other the submitted, give BIA must dence is cally Department report, the State in fact to that evidence. reasoned consideration report rather than con corroborates Eneh, grant 948-49. We See F.3d at of tes many aspects experts’ tradicts both Kamalthas, in' petition ed the for review timony. example, although For the 2008 example, because the did not “con for report in illegal noted that torture was probative evidence the record of sider Honduras,8 it also stated that human country conditions which tor confirm[ed]” rights problems in “un Honduras included of characteristics sim ture individuals with lawful killings members of the petitioner. to the 251 F.3d at ilar agents; government arbitrary Here, the BIA asserted that neither summary killings by vigilantes committed had considered all of the evidence nor security and former of opinion evidenced its reasoned consider- forces; against violence detainees secu dispositive ation of the potentially testimo- forces; rity conditions; harsh prison [and] Instead, ny of Cole’s experts. two corruption and within impunity the securi only BIA stated testimony of one ty Department forces.” report The State experts unpersuasive of Cole’s “was also noted that there are instances evidence, light including the other the which government officials beat and abuse ... Department report, State because [he] detainees, rights groups and that human to give specific examples failed to corrobo- reported had two over dozen instances opinion.” stating, rate his In so 'the BIA torture due to one initiative.9 clarify not experts did to which Cole’s it Additionally, report acknowl referring; nor did it address the other edged that police arrest individuals words, expert’s testimony at In other all. Thus, having certain types tattoos. Board did not evidence reasoned con- while the report indicated that some offi testimony sideration of Cole’s two investigated cials and convicted experts. for abusing authority, their it also noted Further, as to ongoing problems whichever the BIA serious and so corrobo reference, Further, opinion testimony. did rated experts’ Board was country’s prohibits Department That a report, 9. The 2007 constitution tor- State record, country ture does not establish placed the number of individuals Al-Saher, See people. torture F.3d at 26.8 arbitrarily arrested sometimes tortured (stating country report noted 34,000. more than Iraqi prohibited Constitution torture reported security routinely but forces tor- detainees). tured

773 above, documentary alongside Rodriguez’s testimony, noted other which fo- cused the the testimony Crips their as well. on rivalries between corroborated Honduras, two dominant gangs the Moreover, contrary to the Board’s asser- MS-13 and 18th Street. Because BIA the tion, particular Canales, experts, did testimony only of acknowledged one of police testify specific incidents of about experts, Cole’s that it appears never torturing killing gang mem- suspected considered Cole’s CAT claim of light example, For Canales discussed bers. presented by experts. the evidence both gang suspected incident in which 68 mem- Because mischaracterized jail of by shot in “members bers were regard the expert’s record with to one of police guard”; an incident which police consistency Department with the re- State jail fire and killed 104 mem- set to a testimony ports, expert’s criticized bers; involving police incident and an record, and failed basis belied officer tortured two members who acknowledge expert even to other Cole’s also testified that had death. Canales witness, give it failed to reasoned consider- experienced police brutality, personally potentially dispositive ation to the testimo- personally witnessed tattooed individ- ny experts. of two We must there- Cole’s public care at being uals denied medical agency fore remand for the to reconsider Finally, attempted to hospitals. Canales light claim in of the expert CAT if quantify the risk Cole faced returned testimony corroborating and the documen- his placing risk of detention tary Ventura, evidence. See INS 537 being of at 90% and his risk 16, U.S. 123 S.Ct. 154 272 L.Ed.2d at killed other members 75%. (2002) curiam); Aguilar-Ra- (per see acknowledge The Board did not these ex- mos, Eneh, 705; F.3d at F.3d amples and estimates. 948-49. The argues Canales’ testimony should discounted because C. Intentional Denial of Medical Care he did not work with former of to its regarding addition errors Crips very little had first- witnesses, testimony of Cole’s how knowledge regarding hand former BIA also failed consider Cole’s claim particular gang are members of face torture in Honduras as he would in Honduras. treated Canales’ lack a result of denial of intentional medical knowledge Crips about care. mean, however, testimony inap- his recognized, applicable The

plicable regula to Cole. As the BIA CAT require evidence in the record demonstrates that tions the torturer have the specific tattoos cause an intent to severe harm. “can automatic associa- inflict 1208.18(a)(5). “equate merely § tion with can to C.F.R. Acts that gangs,” which inflicting harsh is no have treatment.” There record evi- the foreseeable result sufficient; harm suggesting experi- dence Cole would are not “the actor[must] consequences ence different treatment because tat- intend the actual con his Thus, Crips Villegas, duct.” at 989. toos affiliated rather F.3d conditions lack of than with the with which Canales inhumane access not, Moreover, medical do primarily appropriate Canales’ tes- care works. Id.; Eneh, themselves, timony constitute torture. perpetrated about violence they suspect at 948. IJ and BIA gang members on those of 601 F.3d were correct that a claim made- rivals should have been evaluated therefore Honduras, feasibly health without not quate care assumed tattoos could more, CAT relief. is insufficient to warrant timely be removed manner.11 But assumption if falters the record evi- recognized, This court has howev dence on the issue is credited: There is er, that the intentional medical denial evidence that the tattoo is process removal could punishment care as form of suffice quite long extremely painful. More- Eneh, 601 establish a CAT claim. F.3d to over, process can leave permanent Here, the consider at at 948. BIA did not scarring. Canales also there testified that all claim that medical care would be Cole’s greater is a far demand for tattoo removal intentionally withheld because his places in Honduras than there can are tattoos, he, specifically, likely and that was services, provide tat- lеading many such to need medical care due to brain tooed individuals to resort to dangerous injury.10 There is at least some evidence home remedies such burning as them- Canales supporting contentions: cigarette selves with acid. battery butts or personally testified he had witnessed public hospitals likely staff a victim bleed lengthy delay beginning let Added to opin- because His to death he had tattoos. is length tattoo removal of time it Cole, tattooed, was that ion would process takes to remove tattoos once the similarly emergency be denied medical begins. As result of these circum- only care Honduras have and would stances, likely Cole would be unable contingent, restricted access to other med- remove his tattoos until well his ar- after ical care. The BIA should have consid- rival in and thus face would so, whether that particularly giv- ered being perceived as a gang member for as en evidence in the record that Cole will long likely quite a while—to took— medical need care in to deal Honduras get get- them removed. And even after complications injury. from his brain removed, ting his tattoos indi- record cates, scarring visible could mean that he Tattoo D. Removal be a targeted by would still rival gangs, Additionally, the BIA’s conclusion that police, death squads. did not Cole meet his under burden CAT The BIA’s statement concerning tattoo in part rested its assertion Cole removal not any discuss evi- this could “have his tattoos so that removed explain why dence or it is not dispositive. not perceived would as a member Thus, again, upon give return to once thе BIA did Honduras.” Given that not statement, we cannot tell the BIA reasoned consideration to dis- potentially whether would have reached the same result had it positive testimony with regard prob- to the detained, argues 10. Cole also inadequately police that the BIA of the and be it should ad- prison considered his claim that officials dress his claim inten- officials will intentionally would allow him to be tortured tionally subject dangerous him to conditions prison by and killed in rival members. amounting torture. agency found that failed Cole had establish that he would more than not whether, It unclear is also if it were feasi- to the come attention of and be de- sufficiently ble for Cole remove his tattoos prison, tained and so did not consider what torture, to reduce his risk of could If, happen were he detained. after deny relief CAT on that basis. The issue disposi- potentially reasoned consideration of us, not, squarely before so we need evidence, testimony tive and documentary not, do it. address regarding BIA reconsiders its conclusion likelihood that Cole will come to attention exercise this discretion If the BIA does torture, must and we remand ability of removed, or if and the tattoos explanation. consideration further tattoos, I removal of seek declines Aggregation of Risk E. in his any delay further deny vote to Cole not If the BIA does exercise deportation. BIA not consider Finally, the did if tattoos are not discretion or its from would face risk that Cole aggregate removed, Judge opin- Berzon’s I concur squads, and if returned police, death ion. not prove Cole need to Honduras. individually, would group, treated

each Rather, CALLAHAN, dissenting: than not torture him. Judge, more Circuit that, taking into account he must establish majority, in re- I dissent because the torture, is more of he possible all sources that he will be viewing Cole’s assertion tortured, with not to or likely than if returned to Honduras because tortured acquiescence govern- of the or the consent tattoos, substitutes improperly of his ment, The BIA Honduras. if returned to the BIA. judgment Specifi- its for of of treating potential each source erred (1) majority: cally, the manufactures individually, assessing never Cole’s torture by deciding for remand procedural basis being risk of tortured. overall give the BIA failed to “reasoned con- (2) evidence; to Cole’s fails to sideration” IV. un- granting for relief follow standard not reasoned consider- give The BIA did Against Torture der Convention testimony dispositive potentially ation to (“CAT”), Arteaga Mukasey, see v. witnesses, corroborating by Cole’s (9th Cir.2007), by reweighing F.3d evidence, con- documentary evidence stringing together a ser- the evidence did it cerning of tattoos. Nor removal justify its ies of events hypothetical the in- argument regarding address Cole’s if may that Cole be tortured conclusion of or assess medical care tentional denial he to Honduras because would be returned aggregate. in the of torture Cole’s risk as member misidentified petition, VA- therefore GRANT Cole’s We (3) tattoos; to appreciate on fails based his decision, and BIA’s REMAND CATE the lack that Cole would be of evidence proceedings consistent for further care if he intentionally deprived medical opinion. this (4) Honduras; ac- wеre returned and REMANDED. VACATED argument that he cepts problematic Cole’s may be entitled to CAT relief the basis NOONAN, concurring: Judge, Circuit deny I gang-related his tattoos. possession from his peril Cole’s comes petition on the basis that substantial peril, him exposing to that tattoos. Before BIA’s supported the decision given the chance to remove he should be petition com- nothing presented Cole Immigration Board the tattoos. contrary result. pels a discretion, in these ex has the Appeals circumstances, de to defer his traordinary I removed. until the tattoos are

portation 1100, 1113 nor BIA Reno, Neither the IJ made v. 225 F.3d Barapind See we Cir.2000). credibility finding, therefore (9th I to re adverse Accordingly, vote true. allegations factual discre take Cole’s exercise this mand to the Holder, 594 F.3d Aguilar-Ramos tion. Cir.2010). (9th placed proceedings Because of his criminal removal where withholding removal, sought asylum, the IJ and BIA concluded background, asylum either CAT that Cole is not entitled to relief. The IJ determined that aggravated withholding removal. Cole does removable as an felon Rather, ineligible asylum challenge decisions. and therefore these withholding is his of removal. Cole did not con- only issue before this court assertion under test those decisions before the BIA. protection that he is entitled to CAT. immigration At his hearing, Cole testi- fied that he feared he would be tortured or

A if he returned to killed were Honduras. police, that gangs, He asserted death Background Testimony 1. Cole’s and squads, or his neighbors may even torture is a of Cole native and citizen Honduras race, or kill him of his gang because tat- who entered the United with his States toos, gang membership, former demeanor family years when he was eleven old accent, that or killing torture and acquired lengthy has a criminal rec- since with acquiescence would be done of the family ord. He has no extended in Hondu- government.2 Cole’s sister and mother ras. Cole is African-American and has they also testified that feared he would be arms, legs gang numerous tattoos on his tortured or killed if returned to Honduras acquired and face that he while on the his basis of race and tattoos. In joined he an Crips, after African- addition, Cole claimed that he would be gang. American After his release from intentionally denied medical care public prison, apparently Cole left the gang health officials and that this denial of worked a homeless services agency. health care would constitute torture. He not get gang states he did tattoos

removed long because tattoo removal is a Experts 2. Cole’s process. and painful supported testimony Cole his claim with In drive-by Cole was shot a purported experts: from two Luis Javier shooting.1 As a result of the he shooting, Rodriguez (“Rodriguez”) and Javier Ca- from ongoing prob- suffers certain medical (“Canales”). Rodriguez nales Mesa was defective, fragile lems and has a skull. expert offered as an on Central American of a because 1999 conviction for gangs. Rodriguez testified that was a he sale, possession of cocaine for was self-employed Cole author had who not written Although majority gang asserts that "rival mention was made his race or his gangs identify Crips gang could still a him as tattoos. tattoos,” member because his Cole never any gang testified that rival ever identified factor, Although race a Cole’s there is member, gang him as a whether because of proceedings, little discussion race in the his tattoos or not. Cole testified a about majority and neither Cole nor the contend gang confrontation rival with members at the he be tortured based race that on his friends, Santa Monica Pier while was with Rather, alone. Cole’s race is raised as an did but he of the any assert rival members, way Hispanic gang additional recognized Crip members a him as or squads, police, death or medical authori- anyone Similarly, noticed his tattoos. when may recognize Crip. only Cole ties as It is shot, Cole was he was with a friend in car of Cole combination an African- although people he claimed who Crips American with tattoos would make shot him identified themselves as members (former) Crip. him identifiable as Hispanic gang, any Cole state does not wanting get their backlog people specific had no edu- Honduras and about tattoos removed. cation, background, expertise or on in Hondu- gangs subject of Honduras accepted expert, IJ second not convinced that Rodri- ras. The IJ was Canales, expert an on the issue of the as an on American guez expert was Central suspected gang treatment of members on specialized knowledge had any gangs rival Honduran members. Honduran former the interaction between had worked former Canales authori- members and Honduran He in Honduras. testified that ties, testify as permitted Rodriguez but tattoos indicatе his because Cole’s gangs on and on narrow may Crips, membership Los An- dynamics racial between issue of Honduran His- seen a threat to some gangs. Central American geles and accordingly panic gang members and there major “big possibility” Cole could be Rodriguez testified However, cross-examination, Hispanic gangs, Mara killed. in Honduras are MS-13, Salvatrucha, he not worked and the admitted that had also known as Canales Street, any Crips. as 18th Canales testified for- Mara also known try mer members often gang that have Honduran which are American He their tattoos because of the risk of to Central America. stated remove spread police, and Crips gangs, an African-American violence from rival “civil are that, groups.” He stated some individuals Angeles. from Los He testified gang themselves, try are to remove tattoos al- Angeles, Crips in viewed Los Rodriguez though there three tattoo removal Hispanic gangs. rivals to that, States, will gang professionally Honduras that places in the United asserted claims that it may rival mem- remove tattoos.3 He takes recognize gang members tattoos, to six to remove a tattoo and can to violence. four sessions which lead bers’ painful process may which rivalry is a speculated He between ‘ scarring. result Hispanic gangs Crips and the would exist Crips that someone with in Honduras and illegal that it is Hon- Canales stated “threatened, beaten, or might tattoos be a member or to have a gang duras if rival Hispanic gangs killed” there He asserted that the tattoo. gang-related Rod- Crips tattoos. gangs were see investigate the mur- government does not “very is riguez also testified that there police and that the ders members anti-black culture” Honduras. strong at suspected will violence .direct members, may kill them. or even addi- Rodriguez testified that members tion, about incidents in identifying Canales testified obtain tattoos as means guards He Honduran particular gang. which them affiliation with prison. removing expen- suspected is an killed tattoos stated government-sanc- He also testified that painful process that could take sive and squads torture and kill unde- scarring. leave tioned death sessions and could several sirables, including suspected gang mem- possi- He that tattoo removal was testified opined that of his only knew Canales because but that he bers. ble in tattoos, greater has a than 75% they adequate lacked two facilities and by Hispanic gang he will be killed so there was chance personnel equipment, They typi- States. program of months from the United appears It the third is run cally four couple of a tattoo in sessions. every remove 90% who come to Honduras doctors members and a 90% probability that he The IJ concluded that although there would by police. be detained arrests, abuse, “evidence that and kill- occur, ings the evidence does not show Finally, Canales testified that most that it is more likely than not to happen health professionals care in Honduras the respondent.” The that, noted IJ ac- would refuse to treat an individual with cording to the Country Report, torture is they tattoos because suspect would is a illegal in Further, Honduras. “neither the gang member. provided Canales one ex- witnesses [n]or the documentary evidence ample in which he stated that he accompa- presented in the case establishes that a nied a bleeding tattooed to a member majority of deported gang members are in hospital and that this individual died in the fact arrested police, held in custody, waiting room because the staff and tortured or killed.” treat the man on account his tattoos. rejected The IJ Cole’s assertion that Canales government asserted “the lack of medical care and poor prison “negligent” because it does not hold doc- conditions are specifically intended to in- tors accountable and “these events occur physical flict severe pain mental very often.”

suffering,” or that intend- ed consequences. ‍​‌​‌‌​​‌‌​​​​​​‌​​​​‌‌​‌​​‌​​​​‌​​‌‌‌‌​​‌​‌​‌​‌‌‍those IJ, citing Vil- B legas v. Mukasey, (9th 523 F.3d 984 Cir. 2008), found that Cole was “unable to show 1. The IJ’s Decision that Honduras has a specific intent to in- The IJ denied Cole’s application for re- suffering flict on prisoners patients or or lief under CAT. The IJ considered both suspected gang members creating the the documentary evidence and witness tes- conditions in jails their or medical facili- timony and discussed arguments the ties.” raised by both Cole and government. the Finally, the IJ that: concluded The IJ recognized that torture is The respondent also has not shown form punishment extreme “an the government of Honduras will alien cannot establish eligibility for [CAT acquiesce in his torture the hands of relief] stringing together a series gang other members or the death suppositions to show that it is more likely squads nor has he established that it is than not that torture will result where the likely more than not to occur to him. It evidence does not establish each step is not enough to show that gang mem- the hypothetical chain of events is more bers have killed other gang or than likely not to happen.” The IJ found that death squads have tortured and that Cole was attempting just that, to do killed members. by asserting: ... The evidence does not establish it is likely more than not that he government that the acquiesces in such will be arrested in Honduras and that fact, conduct reflects the oppo- arrested, once he is he will be detained site. government The trying is to han- for a substantial amount time if dle the huge gang problem they face and detained, so he will then be killed are attempting to specialized receive tortured security the forces or he will training. They are taking steps pros- to receive no medical care or the gangs will ecute officers for abuse of power. kill or him torture with the govern- Accordingly, the Court finds that the acquiescence. ment’s respondent is unable to establish a likeli- not that death than likely is more either in Honduras of torture hood any members, or other rival govern- squad, or with of his return aware become entity would acquiescence.... ment’s it more is Honduras and to Decision BIA’s 2. The groups these any of than not BIA, single in a Additionally, the re- him. In October then torture the IJ. The decision, affirmed articles numerous judge submitted spondent IJ that Cole: with agreed of a tattoo presence that the which detail proving his burden to meet failed association an automatic can cause will be that he not likely than more suspected it is a tattoo and that gangs, race and his based tortured to harsh equate can affiliation member and former tattoos related However, no indica- there treatment. 8See Honduras. return upon status not have could respondent tion that 1208.16-18; v. Mu- Arteaga §§ C.F.R. would not so that removed his tattoos Cir.2007). (9th F.3d kasey, 511 upon gang member as a perceived concluded Judge properly Immigration Finally, we cannot to Honduras. return claim that witness’s expert treat- lack medical conclude unper- tortured will be respondent is tantamount respondent ment to evidence, other light of the suasive has respondent Although torture. report, Department including the State risks of harm some that he faces shown re- because record in the contained Honduras, the Immi- returned when specific give failed spondent’s determined that properly Judge gration opinion; to corroborate examples not es- does testimony contrary con- compel record likely than will “more that he tablish F.3d Filip, Dukuly v. See clusion. tortured. not” be Cir.2009); v. Gon- (9th Shehu [8th] Cir.2006). (5th He zales, 435 443 F.3d re- this court timely petitioned Cole ev- that determined properly further that the alleged petition, his view. In event that each establish does not idence (a) proper give failing to erred by the proposed of events the chain (b) find- testimony; experts’ his weight to not to likely than is more respondent a clear to failed establish he had ing that J-F-F-, I. & N. 23 Matter occur. of police, by the torture of future probability (A.G.2006); C.F.R. 8 912 Dec. (c) members, squads; or death rival the evi- example, For §§ 1208.16-.18. conditions consider failing to blaсk, that, aas establish does not dence (d) claims; and care medical of and denial member, more it is tattooed, ex-gang evi- weight to Cole’s give proper failing to would police not likely than the BIA tortured because will be dence re- respondent’s aware of become tattoos. his could remove found Cole becoming upon to turn not likely than him, more it is of aware him, and detain II that, once not likely than more it is single- BIA’s focuses on review Our detained, they would respondent IJ’s to the we look decision but member respon- against force physical use behind lay to what guide “as a decision of tor- level to the would rise dent Holder, 563 v. Delgado conclusion.” BIA’s Likewise, respondent Id. toe. Cir.2009) (9th (quoting Ave- 863, 866 F.3d proving meet burden failed

780 INS, 1192, 1208.18(a)(1); INS, F.3d 1197 tova-Elisseva v. 213 Kamalthas v. 251 F.3d (9th Cir.2000)). 1279, (9th Cir.2001). 1282 The “consent or acquiescence” requirement means that the sup- We review factual determinations alleged- must be aware porting the denial CAT relief under conduct, ly willfully tortuous or least deferential substantial evidence standard. Zheng Ashcroft, blind to it. v. F.3d 332 (“[t]he Arteaga, See 511 F.3d at BIA’s 944 (9th Cir.2003) (citation 1186, 1188-89 omit- findings underlying its determination ted). applicant eligible an is not for relief under the CAT are reviewed for substantial evi- applicable regulation, 8 C.F.R. dence”). standard, Under this “the admin- 1208.18(a)(1) § states: un- findings istrative fact are conclusive any Torture act which is defined as any adjudicator less reasonable would be pain suffering, physi- or severe whether compelled to conclude the contrary.” 8 mental, cal or is intentionally inflicted on 1252(b)(4)(B) added); § (emphasis U.S.C. ..., person pain when such or suffer- Elias-Zacarias, see also INS v. 502 U.S. ing is instigation inflicted or at the 478, 1, 812, & n. 481 112 S.Ct. 117 L.Ed.2d acquiescence or with the consent or of a (“To (1992) 38 finding reverse the BIA we person public acting official other only sup- must find that the not official capacity. it.”). conclusion, ports that compels but Kamalthas, 1282; See 251 F.3d at uphold This court “must the IJ’s determi- Holder, (9th 1015, Sinha v. 564 F.3d 1026 by reasonable, nation if it supported is Cir.2009). “[tjorture addition, anis ex substantial, probative evidence in the treme form of cruel and inhuman treat Holder, record.” Halim 590 F.3d ment and does include lesser forms of (9th Cir.2009) (quoting 975 Zehatye v. cruel, degrading inhuman or treatment or Gonzales, (9th F.3d Cir. punishment that do not amount tor 2006)). 1208.18(a)(2). § ture.” 8 C.F.R. Further haveWe held that strict “[t]his standard “[tjorture more, pain not include reviewing bars the indepen court from from, suffering arising only in or inherent dently weighing the holding evidence and incidental lawful sanctions.” C.F.R. petitioner eligible for asylum, 1208.18(a)(2); I.N.S., § Al-Saher v. except cases where compelling evidence (9th Cir.2001). 1143, 1147 F.3d I.N.S., 847, is shown.” 31 Kotasz F.3d (9th Cir.1994). Ill 851 “We are not to free testimony look anew at the and then meas Applying applicable the of re- standard ure the of agency’s soundness the decision view, majority the commits four errors in by what we would have found. Nor does First, granting petition. major- Cole’s the compel opposite the conclusion ity procedural manufactures a basis for just support because it would also a differ remand concluding that the BIA failed ent result.” Mukasey, Donchev v. 553 to give “reasoned consideration” to Cole’s 1206, 1213(9th Cir.2009). F.3d experts’ testimony and evidence to related eligible To for be deferral of ability get removal Cole’s to his tattoos removed. CAT, Second, (a) under the applicant the must majority estab- the impermissibly re- lish likely evidence, see, Kotasz, that he more than not be weighs e.g., the of, (b) at instigation 851; tortured the or with the at strings F.3d a together of, or acquiescence public consent a events, offi- of hypothetical series related to 1208.16(c)(2), cial. §§ See 8 C.F.R. claim that he will be misidentified as to, but concludes referring and then tortured was a member being was, expert it the BIA ob- was police, squads, or death whichever gangs, rival “ ‘why to state the reasons ligated than not to of is more none which to J-F-F-, testimony I. insufficient establish the 23 & N. See Matter occur. (A.G.2006). Third, necessary grant to majority probability torture Dec. 912 Aguilar-Ra- (quoting relief.’” Id. concluding CAT misreads the record 7). mos, not a F.3d at n. This is consider whether adequately not BIA did intentionally reading fair of the record. deprived be Cole would to were returned Hon- care if he medical Immigration The BIA stated that “[t]he Fourth, majority decision al- duras. Judge concluded that properly CAT to obtain relief petitioner lows respondent claim that the will be witness’s voluntarily obtained a having the basis light of the unpersuasive tortured was is problematic tattoo. This gang-related evidence, including Depart- other State reasons, not the least number of report, ment contained the record be- to undermine our appears which is that it respondent’s expert failed to cause holding Arteaga, 511 F.3d examples to give specific corroborate member being ex-gang tattooed Only experts opinion....” two testified— particular belonging constitute social primarily Rodriguez, who testified about grouр. dynamics Angeles gangs the racial of Los America, spreading to than Central rather A about tortured in Cole majority procedural The manufactures a Canales, extensively who testified by deciding for remand basis ways various might about the give “reasoned consideration” failed to context, it is clear that the tortured. dispositive testimony” of potentially “the specifically referring BIA was to Canales’s Maj. experts. Op. at both of Cole’s testimony.4 majority’s Contrary per- 774-75. the BIA and IJ considered all of spective, Furthermore, we do not review vacuum, Cole’s evidence. in a BIA’s decision but rather guide decision “as a look to IJ’s 1. The BIA Both Ex- Considered lay behind the BIA’s conclusion.” what Testimony perts’ Delgado, (quoting 563 F.3d at 866 Aveto va-Elisseva, 1197). BIA’s finds the BIA erred be- 213 F.3d The majority only generally affirmed the IJ’s deci “the BIA stated testi- decision cause explicitly experts un- and the IJ discussed both mony of one of Cole’s ‘was sion evidence, Rodriguez’s testimony, of the other Canales’s and be persuasive light Department report, concluding fore “neither the witnesses including State documentary presented give failed to the evidence specific [n]or ... because [he] ” opinion.’ majority in the ease establishes that a of examples to corroborate his fact majority deported gang the BIA failed arrest The claims that by police, and expert custody, at all. ed the held to address Cole’s other is that Maj. majority pro- at The tortured or killed.” It clear the IJ Op. 772-73. of experts’ to know which BIA considered both Cole’s testimo- fesses not the "witness”, writing possibility, by the "witness’s” when it actual- 4. Another not сonsidered ” ly render majority, typo- is meant "witnesses’ which would is that the BIA’s statement pluralize majority’s argument graphical the the moot. error: BIA failed but ny, compel- port found other evidence more for Honduras reflects that torture is law,” ling, equally and it is clear that the BIA against the and observed that: IJ’s and affirmed considered the decision report public The reflects the that minis- on the same basis. try charges has offi- against police filed cers for torture majority illegal The asserts that the “ra- and detention and BIA’s of rejecting expert’s for office internal affairs been opinion tionale one is has created. There entirely special prosecutor the two is a unsupported record for (1) rights Department charges for human report against reasons”: the State and police the have been “corroborates rather than contradicts found to mer- have many both it. of the aspects experts’ testimony”; government, Members includ- (2) ing police the experts testify spe- the chief of Lasaba and the “did about police police commissioner torturing killing prosecut- cific incidents of have been ed and suspected gang Maj. members.” sentenced the Porvener Jail Op. majority prosecuted The massacre examples 773. cites from the and authorities report testimony police and from officers for from ranging Canales’s offenses support authority drug trafficking, of these 772- abuse of contentions. Id. at rape, Furthermore, homicide. the evidence reflects that Honduras is one however, majority, The overlooks thе poorest the countries in the hemisphere documentary testimony sup evidence and therefore, a lack of resources re- porting opposite conclusion.5 The a problem. mains stated: that, Country A review of the Report evidence does not establish as a (the black, tattooed, member, most current at time ex-gang it is of Cole’s hearing) likely supports more than con- IJ’s BIA’s police clusions. report would become That noted respondent’s aware of the Honduran upon return to constitution and becoming prohibit law him, addition, arbitrary aware of it is torture. likely more than not arrest and him, prohibited detention are would detain the Honduran that, is constitution and Regarding more than not other laws. once arrests, detained, respondent they Department State Human physical Rights report against respon- use force states that: dent that would rise to the level tor- The police may law states that arrest a ture. Id. person only order, with a court unless “[njeither IJ found that the wit- the arrest prosecutor, is order of a documentary pre- nesses[n]or the crime, made during the commission of a sented in this case establishes ma- that a made when there strong is suspicion jority of deported gang members are in a person has committed a crime and fact police, arrested in custody, may held try to prosecution, evade criminal and tortured or killed.” The IJ noted or made the person caught when that, “[hjere, Department of State re- evidence related to a crime. must Police ras, testimony, In addition to Department Cole's оver Rights State Human Re- pages of documents by were submitted 2008, ports Country Reports and 2007 for and parties, including newspaper regard- articles summary a proceedings against of criminal ing gang violence in the United States and Cole, as history well as Cole’s medical related Honduras, general research articles related to gunshot to his wound. gang issues in the United States and Hondu-

783 gang efforts to crack down on grounds ment’s clearly person inform the of a bring that arrest. Police must de- and noted Honduras had for the members authority competent a before in its efforts from tainee received assistance sev- 24 prosecutor The has within 24 hours. agencies. eral U.S. probable if to there is hours decide sum, that BIA’s appears ratio- indictment, a judge an and cause rejecting sup- nale for Cole’s evidence is whether to has hours ‍​‌​‌‌​​‌‌​​​​​​‌​​​​‌‌​‌​​‌​​​​‌​​‌‌‌‌​​‌​‌​‌​‌‌‍to decide then by presented ported record. When temporary detention order that issue containing conflicting with a record evi- days, by to which time up can last six dence, only we are restrained determine pretrial hearing must hold a judge agency’s supported decision is whether cause and make de- probable examine See, by e.g., 8 substantial evidence. U.S.C. pretrial detention on whether cision 1252(b)(4)(B); Elias-Zacarias, § see should continue. 812; n. at 481 & S.Ct. U.S. Further, reports document in- while the Halim, 590 F.3d at 975. police by abuses committed

stances of authorities, they also document the B investigate prison government’s efforts their author- allegedly officials who abused majority’s The above discussion of the twenty-one of ity, note that alleged procedural implicates errors police of government, including a chief fundamental issue: there is no more com- commissioner, had been con- police and a that be pelling evidence Cole will tortured part jail in a “massacre” in for their victed by squads, police or the gangs, rival death Department’s The Human State being on the basis of misidentified as a Office of Rights report noted “[t]he of gang member because his tattoos. investigates allegations of Internal Affairs majority suggests may The that Cole be of illegal activities committed members gangs identified rival because of his force. The Preventive Police police tattoos, and if he identified as a were of pro- DGIC each have office member, peril rival he would be of inter- responsibility fessional conducts them. tortured or killed See police.” nal Other evidence also reviews 766, 772-75, Maj. 775. This Op. supports the that the Honduran conclusion that a assumes Honduran would rec- investigates prosecutes ognize tattoos and consider him a wrongdoing. police officers accused But no rival.6 there is sought And Honduras has assistance Crips majority The operate in Honduras. training military: its law enforcement and gangs also assumes that Honduran will organi- donors and international “Foreign even against though direct violence rights training human provided zations he is a former member There military officials.” Furthermore, operate Honduras. government actively also evidence that the were con- possibilities even if all these prosecuted gang mem- investigated and probabilities, only it is “torture” Congressional Research sidered bers. if the govern- purposes for the of CAT relief Hon- report Service documented knowledge experts specific he had testified Hon- no about Neither Cole's Canales, gangs gangs in who assault Cole because of Honduras. worked duran Rodriguez former members in tes- his tattoos. testified rival tattoos, Cole, "may may recognize tified that because of his in the United States tattoos,” gang. as a a Honduran and admitted seen threat rival members’ 784 government

duran or acquiesces prisoners, including condones acts directed at gang gang activity. 766, such 767-69, members. Id. at 772. How- ever, there was also evidence in the record is There evidence in the record that the tended to that show the Honduran government Honduran does not condone instigates neither nor ac- activity. gang example, For Canales testi- quiesces by police such behavior officers gang fied that a member of a is a prosecutes police and that it police crime Honduras and that the will officers who gang Moreover, detain and arrest There members. violate the law. evidence that documentary po- is also evidence that the government opposes gangs the Honduran investigated lice prosecuted suspected and is not evidence that would condone vio- gang members. against lence a person misidentified as a gang member or would such torture a

This, however, is not evidence that Cole person. will by police prison be tortured or because officials he is misidentified as be- argument that he will be tortured ing gang a member based on Crips squads, death government’s Although tаttoos. there was acquiescence, compelling also lacks evi- gang-related having tattoos can lead govern- dence. Cole show must imprisonment in Maj. Op. see ment “is or unwilling unable to control 766, 767, Cole is a member of a former society responsible those elements of its gang that operate does not —a targeting particular for a class of individu- Honduras —and is there no evidence that INS, als.” See Avetova-Elisseva v. police prison or authorities would con- (9th Cir.2000) (citation F.3d and tinue to detain a person they who mistak- omitted). quotation internal marks The

enly identified as a member.7 Even majority testimony notes Canales’s if police and officials detain did squads, death comprised “police Cole, imprison neither these acts citizens,” powerful other See, suspected kill e.g., themselves constitute torture. 1208.18(a)(3) (“Torture § C.F.R. “complete impunity,” members with does not pain suffering from, include arising documentary as only well killings evidence of inherent or incidental to sanc- lawful committed “vigilantes.” Maj. Op. at tions.”); INS, Prasad v. 47 F.3d 339- 766, 767. But than possibility other (9th Cir.1995) (no past persecution recognizing someone Cole’s tattoos as petitioner once, where the was arrested tattoos, majority explain does not beaten). for four detained to six hours and might how Cole come the attention of Furthermore, groups. these because Cole majority testimony The cites Canales’s a is not of a documentary gang, member Honduran evidence that Honduran police is no physically there evidence that suspected gang groups— abuse such Maj. See Op. Similarly, government’s members. with or without acquies- majority discusses evidence of violent cence—would torture Cole once the mis- questionable It having gang- seems prosecutor determining a there whether tattoo related probable was obtained in another cause for indictment and a re- country relationship quirement suspect has no brought before are active in judge probable Honduras would be considered for a cause determination. illegal to be and would lead to Accordingly, unlikely Cole's deten- it is that Cole would be arrested, detained, tion and torture. State Department Hu- processed by prosecutor Rights report man procedures judge, sets forth the then tortured arresting suspect, which include the basis of his American tattoos. CAT). Also, he known.8 there that would be tortured under became identification prosecut- cannot, not, government majority that the The and does to point is evidence its who violated officials ed any compelling evidence that Cole will be laws. as misidentified member on of or this basis his tattoos misidentifi- sum, majority point not to does In likely to to his cation is lead tortured individuals compelling evidence that any of, instigation at the or the acquies- with ex-gang are tattooed such as Cole—who of, government. cence to Honduras —have deportees member come, come, likely more than not to or are gangs, police, of rival or the attention

to C squads and are then tortured at death of, of, acquiescence or with the instigation majority The concedes that for Cole’s only by taking It is government. mаy claim that he be denied care medical hypothetical and then number of events of to rise to level torture for CAT inexorably assuming each of them one purposes, he must show that the is denial event in the hypothetical to the next leads Maj. Op. (citing, intentional.9 at 773-74 that one can reach conclu- sequence, alia, 1208.18(a)(5); § Ville inter 8 C.F.R. likely is than not that sion it more 989). gas, at majority 523 F.3d The then if he is returned to Cole will be tortured concludes that the BIA failed to consider Honduras. claims be that would tortured as It majority just strings that. The intentional denial of medi a result of hypothetical events to together a series of Maj. Op. cal care. at Again, 773-74. thoroughly speculative conclusion. reach majority the record. misconstrues J-F-F-, Matter I. & N. Dec. at 917— of majority Although specifi- does not (“The not establish that evidence does cally identify language the relevant in the of step hypothetical in this chain any BIA’s decision to related Cole’s denial likely happen, is than not to events more claim, it to appears medical care be refer- will come alone that the entire chain let encing the statement that it “cannot BIA’s probability to result in the together lack treat- conclude of medical see also Sav- respondent.”); torture to respondent ment to the is tantamount Mukasey, chuck 123-24 518 F.3d majority interprets this torture.” (2d Cir.2008) a series of (holding failing specifically the BIA to consider petition- related to the hypothetical events intentionally de- whether Cole would be hardship if to the er’s economic returned Maj. speculative Op too to nied health care. at were establish Ukraine Indeed, adequate consideration to this the facts that Cole is African- contention. However, Maj. Op. do not indicate 774 n. 10. American and his tattoos ap- membership ain the IJ's decision and the IJ Honduran affirmed —which primarily Hispanic ethnicity— pear specifically to found that Cole was “unable to suggest target be a specific that he has to show that Honduras intent squads vigilantes. suffering prisoners patients death or inflict suspected gang by creating the con- jails ditions in their or medical facilities.” majority appears have 9. The conclud- addition, there is evidence authorities specifically the BIA did not ed because doing prison their best limited resources will intention- refer whether officials laws, against police ally dangerous enforce the even officers subject Cole to conditions torture, give amounting to the BIA failed to officials. However, the majority overlooks the Cole will allegedly be exposed to is based decision. Delgado, IJ’s See 563 F.3d on being misidentified as a belonging to 866. The BIA affirmed IJ’s determi- gang. The majority appears to assume nation that Cole was “unable to show that that because tattoos, Cole has gang he is Honduras a has specific intent to inflict like every effect gang tattooed suspect, suffering on prisoners or patients or sus- member, gang or former gang member. pected gang by members the con- creating The majority’s apparent acceptance of jails ditions their or medical facilities.” an undifferentiated class of tattooed gang A rеview of the IJ’s decision confirms that members and tattooed gang former mem the IJ specifically rejected conten- bers as being eligible for CAT relief tion that he would be tortured a result tattoos, account of their appears to be of intentional denial of medical care. contrary to our Arteaga, decision in Furthermore, there appears to be but a F.3d at 944. In Arteaga, in the context of single provided by anecdote Canales to a withholding claim, of removal reject we support the contention that may ed the petitioner’s contention that intentionally denied medical care. Canales part particular of a social group based on described an incident in which he wit- his status as a tattooed member, nessed staff at a hospital let a tattooed member, former gang tattooed gang member that he brought had to the member. Id. at 945-6. We stated: death, hospital to bleed allegedly on ac- We cannot conclude Congress, count of his gang Maj. tattoos. at 774. Op. offering refugee protection for individu- Even assuming that the events occurred as facing als potential persecution through Canales them, described this is too slender social group status, intended to include a compel reed to the conclusion that Cole violent street gangs who assault people will more than not be intentionally and who traffic drugs and commit denied medical care because of his gang theft. Following in analytical foot- tattoos. It is more than offset steps of Lincoln, President calling a evidence in the 2008 Country Report of the street a “social group” as meant efforts undertaken gov- Honduran our humane and accommodating law ernment to combat gangs and gang vio- does not fact, make it so. In the outlaw lence. group to which the petitioner belongs is sum, BIA, in affirming the IJ’s best described as an “antisocial group[.]” decision, agreed that Cole was “unable to Id. at Further, 945-46. show that Honduras has a specific intent To do as Arteaga requests would tobe to inflict suffering on prisoners or patients pervert the manifest humanitarian pur- or suspected gang creating pose statute in question and to jails conditions their or medical create a sanctuary for universal outlaws. facilities,” and the evidence does not com- Accordingly, we hold that participation pel contrary a result.

in such activity is not fundamental to D gang members’ individual identities or consciences, they are therefore ineli- While the majority is careful not to ex- gible for protection as members of a plicitly hold that tattooed social group 1231(b)(3). under § 8 U.S.C. member or tattooed ex-gang member is a particular social group for the purposes of Id. at 946. We rejected Arteaga’s obtaining relief, CAT all of the harm that claim that he belonged to particular so- who did not want former lead individual tattooed group comprised cial stated, “Arteaga’s Gong tó Falun return China obtain members. Id. We himself as a former tat- present prominent tattoo? Would a swastika attempt no better. group against of a fares compel repatriation member social too CAT relief from Disassоciating group oneself Israel? group put one another automatically

not Fortunately, present case this does not in the law.” Id. group is meant as Still, I not extreme situations. would such course, CAT is not de- relief under Of an because grant CAT relief to individual part of upon individual pendant cause the allegedly may tattoos that of Kamalthas, see, e.g., protected group, a member to misidentified as individual be Nonetheless, I can- F.3d at 251 1283-84. disap- a violent which is of street for the majority’s concern square not government. of proved to on allegedly exposed will harm Cole belonging as to a being misidentified CONCLUSION Arteaga. our decision with Moreover, to grave I have doubts disagree majority I on several with tattoos, tattoo, at least Cole’s First, majority whether manufactures counts. for relief under CAT. form a basis should case by to remand the mischarac- reasons innate to something that is A tattoo is not terizing reweighing and BIA’s decision control. beyond his or her Second, an individual or majority con- the evidence. “tattooing purely is have that held We necessary that is because cludes remand by the activity, fully protected expressive give BIA “reasoned consider- failed to City Anderson First Amendment.” may to that Cole be tor- ation” evidence (9th Beach, F.3d 1055 Hermosa rival gangs, tured Honduras Cir.2010). Nonetheless, limits to there are tat- squads, account of his death on under First speech Amendment toos, compelling when is no evidence there speech to that is consti- consequences even torture, there is likelihood Furthermore, there tutionally protected. in- neither tattoos disagreement that to be no seems аny nor in torture stigates acquiesces removable, may if this process even Third, majority incor- groups. these pain. some entail necessary remand is rectly asserts that the BIA failed to consider wheth- because on a tattoo Basing CAT relief intentionally denied er Cole would be who encourage an appear to individual to a of torture. rising care level medical home deported to his does not want to be af- the BIA But the record shows offensive country get a tattoo is (even factual determination firmed IJ’s if it not neces- country home is his States) intentionally denied would not be and Cole sarily in the United offensive care, this medical determination it removed.10 Would refuse have Rather, remand, might appears to on the BIA ascertain Judge Noonan's concurrence any remove Cole made effort to whether has desires. misconceive Cole’s tat- has not removed his his tattoos. If Cole Accordingly, he to Honduras. want to return is other- and declines to do so—and Cole toos his no to remove tattoos —which has incentive be removable —the wise determined to thing appear delaying removal to be the immediately, or be free remove him should Furthermore, is doubtful Honduras. period possibly time in which after a short Cole to his tat- the BIA force remove could in the could have the tattoos removed Anderson, F.3d See toos. United States. adequately supported by the Fi- evidence.

nally, majority’s tat- reliance

toos as a basis for relief under CAT is

problematic appears to be inconsistent Arteaga, our decision F.3d ‍​‌​‌‌​​‌‌​​​​​​‌​​​​‌‌​‌​​‌​​​​‌​​‌‌‌‌​​‌​‌​‌​‌‌‍particular do not constitute so- groups immigration purposes.

cial Be- majority I

cause believe the erred as to matters,

each of these I find because BIA’s is supported decision evidence,

substantial I dissent. America,

UNITED STATES

Plaintiff-Appellee, FITCH,

David Kent Defendant-

Appellant.

No. 07-10607. States of Appeals,

United Court

Ninth Circuit.

Argued April and Submitted

Filed Sept.

Case Details

Case Name: Cole v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 22, 2011

Citation: 659 F.3d 762

Docket Number: 09-73625

Court Abbreviation: 9th Cir.