CRISTIAN JOSUE DIAZ ORTIZ, Pеtitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
No. 19-1620
United States Court of Appeals For the First Circuit
May 15, 2020
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
Kristin M. Beale, with whom Ellen Scordino, Gemma Seidita, and Cooley LLP were on brief, for petitioner.
Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Paul Fiorino, Senior Litigation Counsel, were on brief, for respondent.
The IJ found that Diaz Ortiz did not meet his burden to show eligibility for any of the grounds for relief he sought and ordered Diaz Ortiz removed. The IJ found that Diaz Ortiz was not credible and gave several reasons, including inconsistencies in his testimony and contradiction of his testimony through other evidence.
This lack of credibility finding was based in part on field reports, gathered by Boston-area law enforcement and summarized in a government database, that concerned Diaz Ortiz‘s association with alleged MS-13 gang members and contradicted aspects of his testimony. In part, the finding was also based on an inconsistency in his testimony. That inconsistency undercut his attempt to give an innocent reason to his possession of a padlock and chain, which the government says arе weapons used by MS-13 gang members. His response to the IJ‘s request that he explain the inconsistency was itself not credible. The IJ noted a lack of corroborative evidence.
The BIA affirmed the IJ‘s decision in a careful opinion. After this court denied a stay of removal, Diaz Ortiz was removed. The parties agree the petition is not moot. See Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002).
Diaz Ortiz argues that the IJ‘s adverse credibility determination was not supported by substantial evidence. He argues that introduction of law enforcement gang
I.
On July 21, 2015, Diaz Ortiz, then sixteen years old, entered the United States near Rio Grande City, Texas. Immigration officials quickly arrested him, initiated removal proceedings against him, and released him into the custody of his uncle, who lived in East Boston, an area within the City of Boston. Diaz Ortiz started living in East Boston in August 2015.
Throughout 2017 and 2018, while Diaz Ortiz lived in East Boston, he had eleven interactions with law enforcement that were documented in field reports gathered by the Boston Police Department and the Boston School Police Deрartment and compiled by
the Boston Regional Intelligence Center (“BRIC“) in the BRIC Gang Assessment Database. The interactions included four occasions between March 2017 and May 2018 of police finding Diaz Ortiz with marijuana, both alone and with others; four occasions between September 2017 and June 2018 of police observing Diaz Ortiz with people identified as members of the MS-13 gang, including one member for whom police had information there was an active arrest warrant; one occasion on June 1, 2018, of police observing Diaz Ortiz outside a “known hangout” for MS-13 members; one occasion on June 21, 2018, of police observing Diaz Ortiz trespassing with four others; and one occasion on August 1, 2018, when Diaz Ortiz was with two others identified as MS-13 gang members and, on questioning, told officers he had a metal chain and pad lock for his bicycle in his bag, though he had no bicycle with him. The government asserts that MS-13 gang members frequently use a metal chain and lock as a weapon. Police seized the items. The observations included that Diaz Ortiz frequented areas known for MS-13 gang activity.
On August 20, 2018, Homeland Security Investigations (“HSI“) and Enforcement and Removal Operations (“ERO“) arrested Diaz Ortiz in East Boston along with two MS-13 gang members as part of an MS-13 gang arrest operation. On August 21, 2018, because of Diaz Ortiz‘s earlier law enforcement interactions, HSI labeled Diaz Ortiz “a VERIFIED and ACTIVE member of the MS-13 gang
in the Boston metro area.” After his arrest, Immigration and Customs Enforcement (“ICE“) detained Diaz Ortiz under
On October 1, 2018, Diaz Ortiz filed an application for asylum, withholding of removal,
On December 4, 2018, at the merits hearing on his asylum application, Diaz Ortiz testified with an interpreter‘s help as follows. He is an evangelical Christian, attended church “three or four times a week” while in El Salvador, but only a few times
while in the United States, and he served in El Salvador as a “youth leader” in his faith. In El Salvador, MS-13 gang members often approached him on his way to school to ask him to join the gang, and he refused. On one occasion in 2015, gang members beat him, robbed him, and threatened to kill him if he did not leave his Christian beliefs to join the gang. He did not produce medical records of any injury. Diaz Ortiz also testified that a person cannot be both an evangelical Christian and a member of MS-13, that he would not join a gang, and that he was opposed to gangs because of his faith.
Diaz Ortiz also testified MS-13 gang members murdered his aunt in El Salvador. He said he feared that MS-13 gang members would kill him if he returned to El Salvador.
When asked about his time in Boston, Diaz Ortiz testified that he had attended church in Boston “a few times” but not very often. When the IJ asked him what his method of transportation in Boston was, Diaz Ortiz responded that he took the train. The IJ clarified: “Always?” Diaz Ortiz responded: “Yes. Well, when I lived in, in my house where I lived in, in East Boston, I didn‘t because it was close, but when I lived in Boston, I, I had to use the train.” The IJ asked again: “So, you never traveled anywhere except by train, correct?” Diaz Ortiz responded: “Yes, yes, only in train.”
The government later asked Diaz Ortiz about the occasion, after he had been frequently seen with MS-13 members, on which the police found a metal chain and pad lock on him while he was with two gang members (and no bicycle). He was asked: “And you told the officer that it was a chain and lock that you use for your bicycle.” Diaz Ortiz responded: “Yes, several times they stopped me.” The government then asked: “Why did you tell the police that you had the chain and the padlock for a bicycle, yet you told the Court today that you only traveled around by train?” Diaz Ortiz responded: “Well, when I lived in East Boston, of course, I had the bicycle there to go around and, and do things around there, but when I lived in Boston and I took the train, I couldn‘t bring the bike anymore.”
On crоss-examination of Diaz Ortiz, the government sought to introduce the field reports from the BRIC Gang Assessment Database, described earlier. Diaz Ortiz objected through counsel, arguing that the evidence was “not reliable and fundamentally unfair.” He argued that the reports contained mistakes and inconsistencies and did not comply with
As to the evidence from the BRIC Gang Assessment Database of his five interactions with MS-13 members in Boston over the
period from March 2017 to August 2018, Diaz Ortiz testified that he did not know that the other people he was with were MS-13 members or that the areas he had been in were known for gang activity, but he did not otherwise contest the observations as inaccurate.
On December 19, 2018, the IJ denied Diaz Ortiz‘s application in a written nine-page opinion. As to the finding that Diaz Ortiz was not credible, the IJ found that his claim that he was not an MS-13 gang member was contradicted by “the plethora
of evidence . . . in the record” about his associations with MS-13 gang members. The IJ highlighted Diaz Ortiz‘s testimony that the lock and chain were for his bicycle, noting that Diaz Ortiz had said he only used the train for transportation and did not ever mention using a bicycle. On that point, the IJ concluded that he was “unpersuaded by [Diaz Ortiz‘s] explanation” for the discrepancy. The IJ stated: “Given the significant evidence that [Diaz Ortiz] is a MS-13 gang member, the Court casts great doubt on whether [Diaz Ortiz] is actually an evangelical Christian,” which was the basis of his asylum claim, but the IJ made no finding on this point. The IJ also noted that he assigned Diaz Ortiz‘s supporting declarations from family members “limited weight as the authors are not present for cross-examination.”
The IJ found that Diaz Ortiz had not established past persecution based on a protected ground or proven that he had a well-founded fear of future persecution based on a protected ground. The IJ also stated as a matter of its discretion:
Even if [Diaz Ortiz] was statutorily eligible for asylum, . . . the Court would deny his application as a matter of discretion.
8 C.F.R. § 1208.14(a) . DHS has filed numerous documents stating that [Diaz Ortiz] is affiliated with a gang or a member of such. He has been stopped by the police several times, and on at least one occasion, he was found with a lock and chain, a weapon frequently used by local gang members. His gang affiliations are also well-documented by local law enforcement agencies. Because gang affiliation is an incredibly dangerous factor,
the Court finds that it is a serious negative inequity that is not offset by [Diaz Ortiz‘s] limited positive equities.
Finally, the IJ found that Diaz Ortiz had not established that it was more likely than not that he would be tortured in El Salvador by or with the acquiescence of a government official.
Diaz Ortiz appealed the IJ‘s decision to the BIA, arguing that the IJ‘s credibility finding was clearly erroneous because it was not based on the record as a whole and mischaracterized Diaz Ortiz‘s testimony. He also argued that the IJ‘s reliance on the police documentation in the BRIC Gang Assessment Database of his interaсtions with gang members was fundamentally unfair and violated his due process rights. He argued that the reports contained “numerous indications of [their] lack of reliability and trustworthiness.” He referred to Prof. Nolan‘s affidavit, which argued
The BIA dismissed Diaz Ortiz‘s appeal on June 5, 2019. Its decision found that the IJ‘s credibility finding was not clearly erroneous given the contradictions in Diaz Ortiz‘s testimony and the contradictions between his testimony and the BRIC Gang Assessment Database evidence. The BIA stated:
When pressed, [Diaz Ortiz] explained that he was not a gang member, and he did not know that the people he associated with were gang members or that the areas they spent time in together were frequented by the gang. He also explained that the lock and chain found on his person were for his bike. The [IJ] did not find these explanations to be reasonable. [Diaz Ortiz] had multiple contacts with law enforcement when he associated with known gang members in areas frequented by the gang, and [Diaz Ortiz] admitted that he previously testified that he “did not use any other means of transportation other than a trаin” in Boston. Considering the totality of the circumstances, we will affirm the [IJ‘s] adverse credibility finding because it is not clearly erroneous.
(footnotes and citations omitted). The BIA also held that, even if Diaz Ortiz‘s explanations were plausible, the IJ‘s conclusions were also plausible and so could not be clearly erroneous.
The BIA found Diaz Ortiz‘s objection to the BRIC Gang Assessment Database evidence was “not borne out by the record” because the “reports consistently indicate that [Diaz Ortiz] associated with known MS-13 gang members in areas of Boston frequented by the gang and carried gang-related weapons.” The BIA also explained its rejection of Prof. Nolan‘s criticism of the gang evidence, stating:
[T]he professor does not explain why [Diaz Ortiz‘s] associations with known MS-13 gang members in areas frequented by the gang, along with the fact that gang-related weapons were found on his person, do not give rise to a reasonable suspicion. Significantly, counsel has not presented evidence that [Diaz Ortiz]
has been removed from the Boston police‘s database because his inclusion was unlawful.
(citation omitted).
The BIA also held that, to the extent that Diaz Ortiz‘s supporting materials were consistent with his testimony, those materials still failed to rehabilitate the inconsistencies in his testimony. It analyzed each declaration in turn, stating:
[Diaz Ortiz‘s] declaration, which claims that he could not join MS-13 because he is a Christian, is not consistent with other evidence in the record. In addition, although the affidavit from [Diaz Ortiz‘s] pastor states that the respondent left El Salvador “to escape the gangs’ threats and attempts to recruit him,” it does not corroborate in any detail [Diaz Ortiz‘s] testimony that he was personally assaulted by MS-13. The aunt‘s death certificate and evidence that [Diaz Ortiz] once participated in Christian activities and distributed religious literature with his family and church also do not corroborate that [Diaz Ortiz] was beaten or threatened by members of MS-13 in El Salvador. [Diaz Ortiz] conceded that he does not appear in the undated photographs in the record, which he claims depict his family‘s Christian bookstore in El Salvador. Finally, although the affidavit from [Diaz Ortiz‘s] mother states
that [he] was “attacked” by the gangs because he was going to church, we agree with the [IJ] that this evidence, which is from an interested person, is insufficient to rehabilitate [Diaz Ortiz‘s] testimony.
(citations omitted). The BIA affirmed the IJ‘s finding that the record did not establish that Diaz Ortiz would be tortured in El Salvador, noting that “the single beating [Diaz Ortiz] allegedly
experienced in El Salvador . . . did not require medical attention.”
II.
“We must uphold the BIA‘s decision ‘unless any reasonable adjudicator would be compelled to conclude tо the contrary.‘” Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) (quoting
To be eligible for asylum, an applicant must show “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
finds that the testimony is not truthful, “that determination strips the testimony of probative force and permits the agency to . . . discount it.” Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). The REAL ID Act permits the IJ to consider inconsistencies in an applicant‘s statements “without regard to whether an inconsistency . . . goes to the heart of the applicant‘s claim.”
Diaz Ortiz argues that the adverse credibility determination was based on a single inconsistency that was not, in fact, inconsistent, and that the use of the BRIC Gang Assessment Database evidence violated his due process rights. From this, he asserts the adverse credibility finding is unsupported. He is wrong for several reasons. We first note that the IJ was permitted to disbelieve Diaz Ortiz‘s testimony about his modes of transport and the padlock and chain. We then affirm the BIA‘s conclusion that the admission of the BRIC Gang Assessment Database evidence was not an error and most certainly not a due process violation.
Diaz Ortiz argues the lack of credibility finding turned on the inconsistency in his explanation for why he had in his possession a metal chain and pad lock, known MS-13 weapons, while he was observed with MS-13 members and he had no bicycle with him. Diaz-Ortiz argues his statements were not inconsistent.2 As the
BIA held,
Diaz Ortiz next argues that the BRIC Gang Assessment Database evidence was collected in violation of
shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.
this claim is not supported by the record. He was asked about the inconsistency. Diaz Ortiz‘s counsel was free to return to the topic on redirect and did in fact ask him why he had a bike lock but not a bicycle. Diaz Ortiz explained that a friend had asked to borrow his bicycle and that police had previously seen him with the lock and chain while he also had his bicycle with him.
We reject Diaz Ortiz‘s challenge to the BIA‘s upholding of the admission of the BRIC Gang Assessment Database evidence, under any standard of review. Diaz Ortiz did not argue to the IJ the information in the field reports was not accurate, or that the persons he was seen with were not in fact MS-13 members. Rather, he denied knowledge that the other people seen with him were MS-13 members, but produced no evidence to support that testimony.3 He also did not ask that the government produce testimony to support the assertions in the database that the other people he was observed with were MS-13 members.
Further, we agree with the BIA‘s conclusion that there was no violation of
“[p]rograms to assist State and local criminal justice agencies to develop, establish, and maintain intelligence-focused policing strategies and related information sharing“). The regulatory prohibition is meant to cabin the information contained in the database, at the risk of losing federal funding. See
Apart from these failings, the argument fails for another reason. “Strict rules
frequent associations with MS-13 gang members, leading to the discovery by police of his possession of a padlock and chain, were highly material to the claimed bases for his asylum eligibility. Given Diaz Ortiz‘s assertions in his testimony that he would never join a gang because of his religious beliefs, the field reports of his associations are clearly relevant to his credibility.
The dissent‘s attack on the BRIC Gang Assessment Database evidence is misleading and irrelevant. The IJ found that Diaz Ortiz‘s testimony lacked credibility because it contained contradictions. Among the contradictions was that Diaz Ortiz was carrying a bike chain and lock but was inconsistent about whether he used a bicycle for transportation. When found with the bike chain and lock, Diaz Ortiz was in the company of two MS-13 members. The dissent argues that the fact of Diaz Ortiz‘s possession of a bike chain and lock arose only from the BRIC Gang Assessment Database evidence, which it would reject as unreliable. But the dissent‘s basis for finding that evidence unreliable focuses on the means by which the database tracks and doсuments gang affiliations. These are irrelevant to and do not undermine the testimonial inconsistency. Diaz Ortiz never denied carrying a bike chain and lock or submitted any evidence to the contrary. We review an IJ‘s evidentiary decisions only for abuse of discretion.
we do not reach the question of whether these reports would have been admissible under those rules.
See Davis v. Lynch, 802 F.3d 168, 177 (1st Cir. 2015). It was not an abuse of discretion for the IJ to admit the evidence that Diaz Ortiz carried a bike chain and lock or to find Diaz Ortiz‘s testimony contradictory on that basis. Nor does the use of that evidence come anywhere close to a due process issue.
Because the dissent‘s further discussion of the BRIC Gang Assessment Database evidence is irrelevant to this finding, we do not address the merits of the dissent‘s objection to the database. It is irrelevant to the outcome of the case given the standards of review which govern this court. There is no need for us to engage in a response pointing out the many inaccuracies and weaknesses in the dissent‘s discussion and its resulting conclusion that any consideration of the database evidence by the IJ was a violation of due process.
Diaz Ortiz also argues that the BIA incorrectly concluded that the record evidence beyond Diaz Ortiz‘s testimony did not corroborate his asylum claim. Not so. The BIA specifically noted that Diaz Ortiz‘s declaration was “not consistent with other evidence in the record,” namely the gang evidence. It also noted that each of Diaz Ortiz‘s other supporting materials was insufficient: the affidavit from Diaz Ortiz‘s pastor did not corroborate his persecution; his mother‘s affidavit had limited value because she was an interested party and because she did not testify; and his aunt‘s death certificate did not
demonstrate a threat to Diaz Ortiz himself. These findings were supported by substantial evidence. Because Diaz Ortiz has not met his burden for asylum, he cannot prevail on the higher burden for withholding of removal. See Li Sheng Wu v. Holder, 737 F.3d 829, 832 & n.1 (1st Cir. 2013).
We will likewise affirm the [IJ‘s] decision to deny [Diaz Ortiz‘s] application for [CAT] protection. Upon de novo review, we conclude that the single beating he allegedly experienced in El Salvador, which did not require medical attention, along with the gang‘s alleged threats dо not rise to the level of past torture. . . . As noted, moreover, the documentary record does not independently establish that it is more likely than not that the respondent will be tortured in El Salvador by the gangs based on his Christian faith. Finally, it has been approximately 5 years since he was allegedly harmed in El Salvador.
(citations omitted). For these reasons, Diaz Ortiz‘s petition for review is denied.
-Dissenting Opinion Follows-
LIPEZ, Circuit Judge, dissenting. At the core of the IJ‘s and BIA‘s rejection of Diaz‘s petition for relief is an adverse credibility determination based on a “Gang Assessment Database” so seriously flawed that reliance upon it by the IJ and BIA violated Diaz‘s due process rights. Hence, I would grant the petition for review and remand for new agency proceedings. I therefore respectfully dissent.
I.
The package of Gang Assessment Database documents introduced by the government at Diaz‘s merits hearing opens with a Department of Homeland Security (DHS) memorandum by HSI Special Agent Sean Connolly6 featuring this provocative subject line: “Verified MS-13 Gang Affiliation of Cristian Josue DIAZ ORTIZ aka Christian DIAZ-ORTIZ.” The memo goes on to state the following:
On August 20, 2018, Cristian Josue DIAZ ORTIZ was arrested with two other MS-13 gang members by Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI)7 as part of an MS-13 gang arrest operation in East Boston, Massachusetts.
Homeland Security Investigations Boston Intelligenсe has determined Cristian Josue DIAZ ORTIZ to be a Risk to Public Safety as a VERIFIED and ACTIVE member of the MS-13 gang in the Boston metro area.
The Mara Salvatrucha (MS-13) gang is a large transnational criminal organization with thousands of members and associates throughout the United States. The MS-13 gang is among the most violent transnational street gangs in the United States, specializing in crimes of violence including murder, attempted murder, violent armed assaults, firearms offenses,
- Cristian Josue DIAZ ORTIZ has been verified as an MS-13 gang member by the Boston Police Department (BPD)/Boston Regional Intelligence Center (BRIC). (See the attached BPD/BRIC MS-13 Gang Member Verification: “CHRISTIAN DIAZ-ORTIZ“.)
- Cristian Josue DIAZ ORTIZ has documented associations with MS-13 gang members by the Boston Police Department and Boston School Police Department (BSPD). (See the attached BPD & BSPD incident/field interview reports and gang intelligence bulletins.)
- Cristian Josue DIAZ ORTIZ has been documented carrying common MS-13 gang related weapons by the Boston Police Department (See the attached BPD incident/field interview reports.)
- Cristian Josue DIAZ ORTIZ has been documented frequenting areas notorious for MS-13 gang activity by the Boston Police Department. These areas are 104 Bennington St. and the East Boston Airport Park/Stadium in East Boston, Massachusetts which are both known for MS-13 gang activity including recent firearms arrests and a homicide. (See the attached BPD incident/field interview reports and MS-13 gang intelligence bulletins.)
This memorandum offers a damning portrayal of Diaz. His active participation in a vicious gang like MS-13 would rightfully doom any request for relief from removal. Hence, the reliability of the report labeling Diaz an active MS-13 gang member is critical to a fair proceeding. But the record reveals that the DHS documents relied upon by the IJ and BIA to determine that Diaz was a gang member are so unreliable that they do not support the provocative characterization of him in the gang package.
The Department of Homeland Security is the final link in a chain of reporting that begins with police officers in Boston conducting stops called “field interrogation observations” -- FIOs for short. FIOs are “interaction[s] in which a police officer identifies an individual and finds out that person‘s business for being in a particular area.” Commonwealth v. Warren, 58 N.E.3d 333, 337 n.5 (Mass. 2016) (quoting Commonwealth v. Lyles, 905 N.E.2d 1106, 1108 n.6 (Mass. 2009)). These “consensual encounters” are considered “constitutionally insignificant, and a police officer may initiate such an encounter without any information indicating that the individual has been or is presently engaged in criminal activity.” Commonwealth v. Narcisse, 927 N.E.2d 439, 443 (Mass. 2010). The officer then documents the FIO.8 If the subject of the FIO is a suspected gang member, the officer submits the documentation to the Boston Regional Intelligence Center (BRIC) for entry into Boston‘s Gang Assessment Database. See Rule 335 - Gang Assessment Database, Boston Police Department Rules and Procedures, 4 (March 23, 2017), https://bpdnews.com/rules-and-procedures (follow “RULE 335 - GANG ASSESSMENT DATABASE” hyperlink). BRIC,
The Boston Police Department uses a point system to identify suspected gang members. See Rule 335 - Gang Assessment Database, at 2-3. The Department has a non-exhaustive list of “conduct that could result in an individual‘s verification for entry into the Gang Assessment Database.” Id. at 2. The conduct is assigned a point value. Id. at 3. For example, having a gang-related tattoo and being the victim of gang violence are each worth eight points. Id. Also included in the list is “Contact with Known Gang Member/Associate (FIO),” which is worth “2 points per interaction.” Id. A person who accrues six points is labeled a gang associate, and a person who accrues ten points is deemed a gang member. Id. at 2.
BRIC generates a “Gang Member Verification Report” for individuals who have been entered into the database. Diaz‘s report identifies him as a primary, active, and “verified” member of MS-13 and indicates that he has accrued “21 points.” All twenty-one points resulted from his contacts with “known” gang members or associates. The Gang Member Verification Report shows that sixteen of the points were assigned for eight instances of “Contact with Known Gang Members/Associates.” The remaining five points were assigned for one incident, described in a Boston School Police “Intelligence Report,” that is listed under “Information Developed During Investigation and/or Surveillance.” The corresponding report, however, simply documents that Diaz was seen with young men who were suspected MS-13 members. It is unclear why he was assigned five points for that interaction, rather than two.
Thus, Diaz was assigned points for nine FIOs. There are sixteen reports and bulletins involving Diaz in the Gang Assessment Database, but some FIOs are documented by both a police report and a gang intelligence bulletin. There is, however, one Boston School Police bulletin in the database for which Diaz was not assigned any points.
These are the nine encounters for which Diaz was assigned points.
- March 8, 2017 (2 points10): Diaz was smoking marijuana in an alleyway with another Hispanic teenager.11 Diaz also had a small amount of marijuana on his person, a civil offense in Massachusetts. See
Mass. Gen. Laws ch. 94C, § 32L (effective July 28,2017).12
- September 13, 2017 (2 points): Diaz was smoking marijuana on the front steps of a building with another Hispanic teenager, who is identified in the police report as a “known MS-13 gang member.”
- November 28, 2017 (5 points): Boston School Police officers saw a student wearing a “full face mask” and spoke with the student, whom they identified as a member of MS-13. That student then walked up to a group of other teenage boys, including Diaz, and “met with” them.
- April 3, 2018 (2 points): Diaz and another Hispanic teenager were found skipping school and smoking marijuana in a park. The police report states that the two teenagers were “known to the officer as verified MS-13 gang members”13 and had a “history of carrying weapons,” but none of the prior reports in the gang package mention Diaz carrying a weapon. The officer did a pat frisk of the two teens and found an aluminum baseball bat in the right pant leg of Diaz‘s companion, which the officer confiscated. The teens were warned about smoking marijuana in a park and released.
- May 28, 2018 (2 points): Diaz was “loitering” with three other Hispanic teenagers whom the officer conducting the FIO “knew” to be MS-13 members.
- June 1, 2018 (4 points assigned for two FIOs): (1) Diaz was seen with a group of teenagers in front of a building where one member of the group lived, which officers noted was “a known hangout and address” for MS-13 members; аnd (2) Diaz was stopped with two other teenagers, one of whom officers believed had a warrant out for his arrest, but when the officers ran their names there were no outstanding warrants.
- June 21, 2018 (2 points): Diaz was sitting on the track benches of the East Boston Stadium after hours with four other teenagers, three of whom were “verified” MS-13 “associates.” Officers told them to leave. A notation on the report made by HSI Special Agent Connolly observes that the East Boston Stadium is “notorious for MS-13 gang activity.”
- August 1, 2018 (2 points): Officers stopped Diaz and two other Hispanic teenagers as they were walking out of a park. Diaz was wearing a backpack and told the officers that he had a metal chain with a padlock in it that he used for his bicycle. A notation made by Special Agent Connolly on a gang intelligence bulletin about the encounter comments that “MS-13 gang members commonly carry large metal chains with locks to be used in gang related assaults.” The officers confiscated the chain and padlock and released the three teenagers. Nothing in the gang package suggests that Diaz ever used the bike chain and lock as a weapon.
II.
In advance of his merits hearing, Diaz submitted to the immigration court his asylum application and supporting evidence, including an affidavit by criminal justice professor and formеr Boston Police Officer Thomas Nolan. Professor Nolan‘s credentials as an expert witness are extensive. He served as an officer in the Boston Police Department for twenty-seven years and as a lieutenant for nine years. Since leaving the Department, he has taught criminal justice courses at six colleges and
shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group . . . unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity.
Professor Nolan emphasizes that Diaz faced no criminal charges for any of the incidents documented in the Boston gang database and that “there was no direct relation between these encounters and any reasonable suspicion of [Diaz‘s] involvement in criminal activity.” Thus, Professor Nolan concludes, the information about Diaz “should not be contained within the database” and is “not reliable.”
Drawing on Professor Nolan‘s critiques, and arguing that the gang package was also unreliable because it contained mistakes and inconsistencies, Diaz objeсted to its introduction at his merits hearing, characterizing the evidence as fundamentally unfair. The IJ overruled Diaz‘s objection without explanation and admitted the gang package. After the hearing, but before the IJ rendered a decision, Diaz submitted a supplemental brief focused specifically on the gang package and reiterating the arguments he made at the hearing. He also described the point system used by the Boston Police Department and argued that it “can criminalize normal teenage behaviors such as associating with others of the same ethnicity.” And he included in his brief a two-and-a-half-page chart detailing the inconsistencies throughout the gang package -- for example, he flagged that the April 3, 2018, police report mentions his “history of carrying weapons” but that no prior entries describe him carrying weapons. Diaz therefore asked the IJ not to consider the gang package or, if the IJ did consider it, to give it “minimal weight” in analyzing his application for relief.
Without addressing Diaz‘s arguments about the unreliability of the gang package, the IJ found that Diaz was “not credible pertaining to his gang membership,” and remarked that Diaz “alleges that he is
[t]roublingly, the Respondent stated that a Christian cannot be a member of MS-13; however, the evidence indicates that he likely is a MS-13 member. Given the significant evidence that the Respondent is a MS-13 gang member, the Court casts great doubt on whether the Respondent is actually an [E]vangelical Christian.
Thus, the IJ used the gang package to find that Diaz‘s asserted Christian faith was not credible.
Then, relying on the adverse credibility determination, the IJ found that Diaz had not met his burden to prove statutory eligibility for asylum. The IJ also found that Diaz did not merit a favorable exercise of discretion because of his gang membership, and that he did not qualify for withholding of removal or relief under the Convention Against Torture.
In his subsequent appeal to the BIA, Diaz argued that the IJ violated his due process rights by relying on the gang package to conclude that he was not credible on the question of his gang membership. Looking at the totality of the evidence, the BIA concluded that the adverse credibility determination of the IJ was not clearly erroneous. In so ruling, the BIA dispatched in a lengthy footnote Diaz‘s legal argument that it was fundamentally unfair, and thus a due process violation, for the IJ to rely on the gang package to undermine his credibility.
Specifically, the BIA rejected as “not borne out by the record” Diaz‘s assertion of inconsistencies in the gang package. Rather, the BIA stated, the reports “consistently indicate that the respondent associated with known MS-13 gang members in areas of Boston frequented by the gang and carried gang-related weapons.” The BIA noted Professor Nolan‘s critique of the gang package, including his assertion that including Diaz in the gang database violates federal regulations because the database does not identify the information giving “rise to a reasonable suspicion that the respondent participated in criminal activity.” In response, without identifying any criminal activity by Diaz, the BIA observed that “the professor does not explain why the respondent‘s associations with known MS-13 gang members in areas frequented by the gang, along with the fact that gang-related weapons were found on his person, do not give rise to a reasonable suspicion.”
However, the BIA did not address Professor Nolan‘s critique that the “known MS-13 members” with whom Diaz was seen associating might themselves have been identified as such based on the same problematic foundation. Nor does the BIA explain why, absent evidence of specific criminal activity by Diaz, his inclusion in the gang database was consistent with the federal regulations governing the collection of intelligence data. Finally, the BIA deemed significant that “counsel has not presented evidence that the respondent has been removed from the Boston police‘s database because his inclusion was unlawful.”
III.
Although “the ‘Federal Rules of Evidence do not apply in [DHS] proceedings[,] . . . the less rigid constraints of due process impose outer limits based upon considerations of fairness and reliability.‘” Toribio-Chavez v. Holder, 611 F.3d 57, 66 (1st Cir. 2010) (first alteration in original) (quoting Yongo v. I.N.S., 355 F.3d 27, 30 (1st Cir. 2004)). The purpose of due process in “the realm of factfinding[] is to
At a minimum, the government must give “a person in jeopardy of serious loss . . . notice of the case against him and opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring)). But “[t]he opportunity to provide reasons . . . why proposed action should not be taken” is meaningless if the decisionmaker dismisses those reasons out of hand, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985), and the risk to accurate decision-making is especially acute when the disregarded challenge goes to the reliability of core facts.
To prevail on a due process claim in the immigration context, a petitioner “must show that a procedural error led to fundamental unfairness as well as actual prejudice.” Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015). Diaz asserts that the agency‘s uncritical reliance on the gang package, despite the obvious flaws demonstrated by Professor Nolan‘s report and Diaz‘s own forceful challenge to the evidence in his post-hearing brief, was both fundamentally unfair and prejudicial.
A. Fundamental Unfairness
Unmistakably, the IJ and BIA both gave the gang package, and in particular the conclusion that Diaz is an “active” member of MS-13, dispositive weight. We previously have rejected a challenge to the agency‘s reliance on similar reports, noting that “[n]othing in the record compels us to find that the police and other government reports were so obviously unreliable as to render the agency‘s reliance on them an abuse of the agency‘s wide discretion.” Miranda-Bojorquez v. Barr, 937 F.3d 1, 7 (1st Cir. 2019); see also Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015) (“[I]t is settled beyond hope of contradiction that . . . immigration courts may consider police reports even when they rest largely on hearsay.“). Although we noted that limits on the use of such materials exist, we observed that “those limits are generally satisfied as long as the trier first determines that the report is reliable and that its use would not be fundamentally unfair.” Arias-Minaya, 937 F.3d at 54.
Here, Diaz submitted abundant evidence to bolster his objections to the gang package, yet the IJ and BIA gave that evidence barely a glance. When the gang package is closely scrutinized in the context of the full record -- as it must be, with the stakes so high -- it does not support the conclusion that Diaz was an “аctive” member of MS-13 with reliable information that meets the regulatory standard for collecting criminal intelligence. The finding of gang involvement is flawed in multiple respects.
First, Diaz‘s reported conduct does not support an inference that he was involved in criminal activity at all, let alone the kinds of violent crimes for which MS-13 is infamous.14 Diaz was entered into the Gang Assessment Database based on the points he accrued from interactions with purported MS-13 members, not for engaging
My colleagues correctly point out that those regulations “are not a rule about admissibility or an exclusionary rule.” But that observation misses the point. Diaz does not argue that the regulations categorically preclude IJs from admitting and relying on BRIC Gang Assessment Database documents. Rather, he argues that, in this case, the gang package does not reliably establish that he is a gang member, in part because it fails to comply with the regulations.
Remarkably, in rejecting Professor Nolan‘s opinion about the unreliability of the gang database information, the BIA found it significant that Diaz‘s counsel had not presented evidence that Diaz‘s name had been “removed from the Boston police‘s database because his inclusion was unlawful.” It was error for the BIA to presume that Diaz could have taken such a step. There is no mechanism through which a person can challenge his designation as a gang member and inclusion in the BRIC Gang Assessment Database.15 See Yawu Miller, Are There Really 160 Gangs in Boston?, Bay State Banner (July 30, 2019), https://www.baystatebanner.com/2019/07/30/are-there-really-160-gangs-in-boston/. Recognizing the lack of any such procedure, the government now suggests on appeal that Diaz should have brought suit under
Second, there is no explanation in this record of the basis for the point system employed by the Boston Police Department. Diaz specifically raised the disconnect between the points assessed and actual gang affiliation. Yet the IJ and BIA accepted the point system uncritically, even though it is unclear how the Department determined what point values should attach to what conduct, or what point threshold is reasonable to reliably establish gang membership. See Rule 335 - Gang Assessment Database, at 2-3. Indeed, scholarly critiques of gang databases that employ similar point systems have recognized their tendency to cast too wide a net. See, e.g., Kevin Lapp, Databasing Delinquency, 67 Hastings L.J. 195, 210 (2015) (“The broad criteria for inclusion in gang databases, and the discretion afforded to law enforcement in deciding whom to
In addition, as this case illustrates, the point system is applied in a haphazard manner. Diaz was assigned points for most, but not all, of his documented interactions with purported MS-13 members. When he was assigned points, he was not always assigned the same number per interaction. Although he was assigned
two points for “contact” with alleged gang members or associates on most occasions, he was assigned five points for one “Intelligence Report” submitted by the Boston School Police.
Furthermore, the people with whom Diaz interacted were likely “verified” as gang members using the same problematic point system. As Professor Nolan points out in his affidavit, “it is unclear from the information provided by the Gang Assessment Database how any other named individuals were verified as members of MS-13. Given the problems with [Diaz‘s] inclusion as a ‘verified member,’ it is possible that these individuals also should not have been included.”
In rejecting Diaz‘s due process challenge, the BIA ignored this basic problem with the government‘s evidence and discredited Professor Nolan‘s views simply because Diaz had “associated with known MS-13 gang members” in areas frequented by gang members and possessed “gang-related weapons,” i.e., a bike chain and lock. In other words, while acknowledging that Professor Nolan had raised serious doubts about the gang reports’ reliability, the BIA responded to those concerns in circular fashion -- relying on the questionable data about Diaz‘s peers to deflect the criticism of the questionable data about Diaz.
Most troubling of all, Professor Nolan‘s critique of the Boston Police Department‘s point system highlights its potential for criminalizing ordinary behaviors of minority youth, such as spending time with peers of the same ethnicity. The system creates a self-perpetuating cycle that is devastating in its application in immigration proceedings. Individuals are assigned points based on their associations, which leads to their classification as a gang member, which results in heightened police attention to their activities, additional observations of their associations, and the assignment of additional points. Although Diaz was never seen engaging in the kinds of violent crime for which MS-13 is notorious -- or any criminal activity, for that matter -- he was labeled an MS-13 gang member based solely on associations with his peers in the East Boston community where he lived. It is just such guilt-by-association -- developed through “violation of the privacy and constitutional rights of individuals” -- that the federal regulations governing criminal intelligence gathering were designed to prevent. See supra Section II (quoting
B. Prejudice
In the context of an immigration appeal, “a ‘due process claim cannot succeed without prejudice; without prejudice, any error that occurred would be harmless.‘” Toribio-Chavez, 611 F.3d at 66 (quoting Hossain v. Ashcroft, 381 F.3d 29, 32 (1st Cir. 2004)). Prejudice is established “when it is shown that an abridgement of due process is likely to hаve affected the outcome of the proceedings.” Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008).
The IJ relied on the gang package to find that Diaz was “not credible pertaining to his gang membership” and that he likely was a member of MS-13. The IJ then expressed “great doubt” as to whether Diaz is an Evangelical Christian, the basis upon which he claimed asylum, because of his gang membership. In doing so, the IJ gave the gang package dispositive weight in assessing Diaz‘s credibility. Based on that adverse credibility determination, the IJ discounted Diaz‘s testimony about the harm he had experienced in El Salvador, found that Diaz had not demonstrated past persecution on account of a statutorily protected ground (his religion), and found that Diaz failed to establish that he had an objectively reasonable fear of future persecution. The IJ also concluded that, even if Diaz was statutorily eligible for asylum, he would have denied Diaz‘s application on discretionary grounds because of Diaz‘s gang affiliation. In short, the gang package permeated every aspect of the IJ‘s decision denying Diaz‘s asylum claim.
My colleagues suggest that, apart from the gang package, the IJ properly relied on two inconsistencies in Diaz‘s testimony when making the adverse credibility determination and, thus, the IJ was entitled to discount Diaz‘s testimony on that basis. But a line of questioning that supposedly produced a major inconsistency in Diaz‘s testimony was anchored in the flawed gang package -- that is, the IJ‘s questions about how Diaz traveled around Boston undoubtedly stemmed from the police report that Diaz‘s backpack held a bike lock and chain, items that authorities say are used as weapons by MS-13 members. More importantly, however, closer examination reveals that Diaz‘s testimony was consistent and the IJ erred in finding otherwise.
After Diaz‘s attorney finished her direct examination, the IJ posed a series of questions to Diaz that included the subject of his transportation: how do you get from one place to the other?
JUDGE TO MR. DIAZ-ORTIZ:
What is your method of transportation, meaning
MR. DIAZ-ORTIZ TO JUDGE:
What do you mean, what do you mean? I don‘t understand the question.
JUDGE TO MR. DIAZ-ORTIZ:
When you, when you travel in your community, what transportation do you use?
MR. DIAZ-ORTIZ TO JUDGE:
Train.
JUDGE TO MR. DIAZ-ORTIZ:
Always?
MR. DIAZ-ORTIZ TO JUDGE:
Yes. Well, when I lived in, in my house where I lived in, in East Boston, I didn‘t because it was close, but when I lived in Boston, I, I had to use the train.
JUDGE TO MR. DIAZ-ORTIZ:
Do you have a car?
MR. DIAZ-ORTIZ TO JUDGE:
No.
Diaz required the assistance of a Spanish interpreter at his hearing, and it is clear that he was confused by this line of questioning. The IJ then concluded with a leading question: “So, you never traveled anywhere except by train, correct?” Diaz responded in the affirmative.
On cross-examination, after the government introduced the gang package, the DHS attorney asked Diaz why he told the police that he had the chain and рadlock for his bicycle when he had told the IJ that he only traveled by train. Diaz responded, in line with his prior testimony: “Well, when I lived in East Boston, of course, I had the bicycle there to go around and, and do things around there, but when I lived in Boston and I took the train, I couldn‘t bring the bike anymore.” The IJ then interrupted the DHS attorney‘s next question to press Diaz on the issue:
JUDGE TO MR. DIAZ-ORTIZ:
Do you remember that I specifically asked you whether you used any other means of transportation, yes or no?
MR. DIAZ-ORTIZ TO JUDGE:
Oh, yes, yes, I remember when you said that.
JUDGE TO MR. DIAZ-ORTIZ:
And you told the Court that you did not use any other means of transportation other than a train? Is that correct?
MR. DIAZ-ORTIZ TO [DHS ATTORNEY]:
[Not translated].
JUDGE TO MR. DIAZ-ORTIZ:
No, I didn‘t ask for a reason why.
MR. DIAZ-ORTIZ TO JUDGE:
Yes, you said that, but --
JUDGE TO MR. DIAZ-ORTIZ:
I‘m just asking you what you told the court.
JUDGE TO [DHS ATTORNEY]:
Next question.
Diaz‘s statement that the train was his only mode of transportation was in response to a leading question by the IJ. In contrast, his responses to open-ended questions posed by both the IJ and the DHS attorney were consistent -- he traveled by train when he lived in Boston, but he did not need the train when he lived in East Boston. And, as Diaz points out in his brief, he was living in East Boston when he was found with the bike chain and lock.16
Another inconsistency identified by the IJ concerned Diaz‘s religion. The IJ found that Diaz varied in his testimony as to whether his family‘s store in El Salvador -- which sold religious objects -- was owned
When Diaz first mentioned the store, he testified that he worked with his parents when he lived in El Salvador and that “we did have a store” that sold Bibles and other merchandise. He never said that the store belonged to him. After Diaz‘s attorney concluded her questioning on that topic, the IJ posed several additional questions:
JUDGE TO MR. DIAZ-ORTIZ:
Mr. Diaz, the photographs that you were presented earlier, are those photographs of your store on the street?
MR. DIAZ-ORTIZ TO JUDGE:
Yes, of course, that‘s my mother and father‘s store.
JUDGE TO MR. DIAZ-ORTIZ:
My question is, are those pictures of the store that you said was yours in El Salvador?
MR. DIAZ-ORTIZ TO JUDGE:
Yes, they are, yes.
. . .
JUDGE TO MR. DIAZ-ORTIZ:
So, these are pictures of the store that belongs to your mother and your father, correct? It‘s not a picture of --
MR. DIAZ-ORTIZ TO JUDGE:
Yes, yes, they are.
JUDGE TO MR. DIAZ-ORTIZ:
-- a store that belongs to you, correct?
MR. DIAZ-ORTIZ TO JUDGE:
No, not, not to me. It‘s the family‘s, it belongs to the family.
(emphasis added). The IJ misinterpreted Diaz‘s prior testimony, in which he consistently reported that the store belonged to his family. Notably, the BIA explicitly did not rely on this purported inconsistency when it upheld the IJ‘s adverse credibility determination. Inexplicably, however, the majority does rely on it, concluding that “both of the indicia used by each of the IJ and the BIA as to lack of credibility were properly considered.” Like the IJ, my colleagues are plainly wrong.
In sum, neither inconsistency identified by the IJ independently supports the adverse credibility determination. Moreover, that credibility determination was inescapably controlled by the gang package, and credibility was the express basis upon which the IJ denied Diaz‘s application for asylum. Thus, it is not reasonably debatable that the IJ‘s reliance on the fundamentally unfair gang package prejudiced Diaz.
IV.
MS-13 is a Central American gang originally created by Salvadorans in Los Angeles that now operates primarily in the “northern triangle” countries: El Salvador, Guatemala, and Honduras. Clare Ribando Seelke, Cong. Research Serv., RL34112, Gangs in Central America 1-4 (2016), available at https://fas.org/sgp/crs/row/RL34112.pdf. MS-13 also recruits members in the United States. See id. at 3. There is unquestionably a need for federal and state law enforcement authorities to monitor and control the activities of MS-13 and other gangs that engage in criminal activity in this country. But that need does not justify intelligence gathering by police that treats the mere proximity of any young Hispanic man to his peers -- even those suspected to be gang members -- as gang-related activity. That inferential leap
This is not a theoretical concern. A 2015 report on the Boston Police Department‘s field interrogаtion observation practices “revealed racially disparate treatment of minority persons in BPD FIO activity.” Jeffrey Fagan, et al., Final Report: An Analysis of Race and Ethnicity Patterns in Boston Police Department Field Interrogation, Observation, Frisk, and/or Search Reports 20 (2015), available at https://s3.amazonaws.com/s3.documentcloud.org/documents/2158964/full-boston-police-analysis-on-race-and-ethnicity.pdf. Indeed, data released by the Boston Police Department last year shows that nearly all individuals tracked in the BRIC gang database are “young black and Latino men.” Philip Marcelo, Inside the Boston Police Gang Database, WGBH News (July 30, 2019), https://www.wgbh.org/news/local-news/2019/07/30/inside-the-boston-police-gang-database. The 2015 report found that “at least some of the racial disparity in FIO encounters” can be attributed to “intense police attention to gang members by Boston Police, including reputed gang members who may have had no criminal history.” Fagan et al., at 12 (emphasis added). Notwithstanding the importance of addressing gang activity, it is simply unacceptable for aggressive policing to single out racial minorities, subjecting them to unfair and unreliable law enforcement practices.
The 2015 report on the Boston Police Department‘s FIO practices was not presented to the IJ during Diaz‘s merits hearing, and, accordingly, it has no bearing on whether the IJ and BIA committed a legal error by crediting the gang package. Nonetheless, the report highlights the fundamental unfairness in the ready acceptance by the IJ and the BIA of the ostensibly damning evidence in the gang package. “The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions.” Greenholtz, 442 U.S. at 13. By accepting at face value the gang package‘s identification of Diaz as a gang member, despite compelling evidence revealing that finding‘s flimsy foundation, the agency neglected its obligation “to guard against the risk of erroneous deprivation.” Allen v. Illinois, 478 U.S. 364, 374 (1986). That cursory acceptance of such facially powerful evidence to deny relief in immigration proceedings is the epitome of fundamental unfairness, and the resulting high likelihood of error is the essence of a due process violation.
Hence, we should vacate the BIA‘s ruling and remand this case for renewed consideration of Diaz‘s application on the basis of reliable evidence. I respectfully dissent.