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Hubert George Cole v. Eric H. Holder Jr

September 22, 2011

HUBERT GEORGE COLE, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,
RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-817-988

The opinion of the court was delivered by: Berzon, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 7, 2010-Pasadena, California

Before: John T. Noonan, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Noonan;

Dissent by Judge Callahan

OPINION

We consider the application of Hubert George Cole (Cole), a citizen and national of Honduras, for deferral of removal under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) denied the application, concluding that Cole had not established he would more likely than not be tortured if removed to Honduras. Because the BIA failed to give reasoned consideration to potentially dispositive testimony by Cole's expert witnesses and did not address all of Cole's claims, we grant the petition and remand to the BIA.

I.

Cole, a 40-year-old, black, former gang member, was born in Honduras and entered the United States at age eleven with his mother and two sisters. Cole has a lengthy criminal history in the United States, beginning when he was a juvenile. While in prison, he joined the Crips, an African American gang, as a way to protect himself from Hispanic gangs. While a member of the Crips, he was tattooed with gang-related symbols and letters on his face and body. In August 2007, Cole was the victim of a drive-by shooting; he was seriously injured and needs ongoing medical care.

The Department of Homeland Security commenced removal proceedings against Cole on July 11, 2008. The Notice to Appear charged that Cole was removable because he entered without being admitted or paroled and was convicted, on June 18, 1999, for possession of cocaine for sale. Cole conceded removability and applied for asylum, withholding of removal, and relief under CAT. After the immigration judge (IJ) denied all his claims for relief, Cole appealed only the CAT claim to the BIA, which dismissed the appeal. Whether the BIA properly denied CAT relief is the only issue before us.

A. Factual Background

Cole testified that while incarcerated as a young man, he felt threatened by Hispanic gang members, joined the Crips for protection, and acquired several Crips tattoos, including a teardrop under his eye, a G behind his ear, and tattoos on his calves, arms and back. Once released from prison Cole stopped associating with the Crips and worked at a homeless services agency. Nevertheless, rival gangs could still identify him as a Crips gang member because of his tattoos. According to Cole, Hispanic gangs hate the Crips and kill Crips gang members. Cole has not had the tattoos removed because tattoo removal is a painful and long process.

Despite disassociating himself from the Crips, Cole continued to feel threatened by Hispanic gang members. In August 2007, Cole was the victim of a drive-by shooting by Hispanic gang members.*fn1 He was outside a store with a friend when a car with four or five Hispanic people drove by; the car's occupants were pointing at him and yelling out their gang affiliation - Santa Monica 13. Cole and his friend quickly got back into their car. But, before his friend could get his car started, the other car pulled up on the passenger side, where Cole was sitting, and a Hispanic man started shooting at Cole.

Cole was shot in the head and abdomen. Half his liver and part of his skull had to be removed because of the shooting. Hospitalized for five or six months, Cole was still experiencing problems related to his brain injury at the time of his testimony. In his declaration, Cole stated that he now has a defective, fragile skull and that he can easily injure his brain if he is not careful. A letter from his doctor confirmed that he has a "sizable skull defect with no protection of his brain" and asserted that, for this reason, incarceration could put him at a high risk of serious injury. Cole's doctor told him he will be in pain for a long time and will likely have seizures in the future, necessitating ongoing medical care.

Cole maintains that if returned to Honduras, he will be tortured and possibly killed by gangs, police, or death squads, because of his race and his gang-related tattoos.*fn2 He testified that his race,*fn3 his tattoos, his general appearance, and even his accent will mark him as an outsider in Honduras, and that he believes that, even if the police do not harm him themselves, they will think he is a gang member and so not protect him. Cole also fears that the police will detain him and that he will be intentionally exposed to torturous prison conditions because of his tattoos. Finally, Cole contends that he will be intentionally denied necessary medical care by public health officials in Honduras because of his tattoos, and that the intentional denial of medical care also qualifies as torture.

Cole's sister and mother testified that they are also afraid Cole will be tortured or killed if returned to Honduras and will not be able to receive the medical care that he needs.

1. Expert Testimony

Cole supported his CAT claim with testimony from two experts. Luis Javier Rodriguez (Rodriguez) testified as an expert on the "structure and dynamics of U.S. and Central American gangs, including the racial rivalries among those gangs." He discussed the origins of two large Hispanic gangs, Mara Salvatrucha (MS-13) and 18th Street, and how those gangs spread to Central America, primarily through gang members deported from the U.S. Rodriguez explained that the Crips gang is viewed as an enemy by Hispanic gangs, including MS-13 and 18th Street, whose members attack members of African American gangs. According to Rodriguez, the Hispanic gangs can easily spot Crips tattoos. He also testified that the Hispanic gang members brought their "anti-black culture" down to Central America when they were deported and that someone with Crips tattoos would likely be threatened, beaten, or killed in Central America by either MS-13 or 18th Street gang members.

Cole's second expert, Elmer Javier Canales Mesa (Canales), had about nine years experience working with gang members and former gang members in Honduras. Canales testified that the two biggest gangs in Honduras are MS-13 and 18th Street and that members of these gangs kill people with tattoos from rival gangs such as the Crips. In Canales' experience, the Honduran police do not investigate the murders of gang members or suspected gang members.

Canales also testified that it is illegal to be a member of a gang in Honduras and that having a gang-related tattoo can lead to a prison sentence of six to twelve years. According to Canales, suspected gang members in the area where he works are each detained by police two or three times per week and sometimes jailed. Honduran police also physically abuse suspected gang members by throwing them on the ground and beating them with their weapons.*fn4 In one case he knew of, a police officer tortured two gang members to death. That officer, a former police chief, is in jail as a result of an investigation by the organization for which Canales works. Generally, however, police are not held accountable for harming gang members.

Canales also testified about specific incidents in which police or prison guards killed suspected gang members in prison. In an incident that occurred three or four years before the hearing, 68 suspected gang members died after being shot by prison guards. The year he testified, more than 20 suspected gang members had been killed in jail on the first day they arrived there; Canales attributed the slaughter to "police negligence." He also testified about an incident in which 104 gang members died in a fire in their cell block. The guards blocked their escape by not opening the gate, and it was later determined that the fire was set by the police.

In Canales' opinion, based on statistics, studies, and his experiences over the years, Cole has a 90% chance of being detained by the Honduran police and a greater than 75% chance of being killed by gang members in Honduras because of his Crips tattoos. Canales also testified about the risk Cole would face in Honduras from death squads and social cleansing aimed at eliminating gang members. According to Canales, groups of police and other powerful citizens torture and kill those they find undesirable, including suspected gang members. Canales reported that such groups act with complete impunity in Honduras.

Finally, Canales spoke about the inability of suspected gang members to get medical care in public hospitals in Hon-duras. He had personally accompanied gang members and former gang members to hospitals and had seen doctors refuse to care for them. One young man, wounded and bleeding, died in the waiting room because doctors refused to treat him. Most doctors in Honduras, Canales stated, would refuse to treat an individual with tattoos because they would suspect him of being a gang member. Also, he reported, the government does nothing to hold healthcare workers accountable in such situations, despite demands from his organization. According to Canales, Cole would be denied emergency medical care if he needed it and, in a non-emergency situation, would get treatment only if accompanied by the Commissioner for Human Rights.

Given the high risk of harm former gang members in Honduras face from rival gangs, police, and vigilante groups, most of the former gang members with whom he works attempt to remove their tattoos to make themselves less identifiable. There are some programs in Honduras to help former gang members remove tattoos, but, Canales reported, they cannot meet the demand,*fn5 and the process is long, extremely painful, and often results in visible scarring. In his written declaration, Canales explained that because such "scars are often visible . . . these individuals remain a target for gang members, death squads, and the police."

2. Documentary Evidence

Both Cole and the government submitted extensive documentary evidence, including reports by the U.S. government and by United Nations agencies. Many of the reports corroborated aspects of Cole's experts' testimony.

For example, the 2008 U.S. State Department report recognized several human rights problems in Honduras, such as "unlawful killings by members of the police and government agents; arbitrary and summary killings committed by vigilantes and former members of the security forces; violence against detainees by security forces; harsh prison conditions; [and] corruption and impunity within the security forces." The report confirmed that gang membership, without more, was illegal in Honduras and punishable by up to 12 years in prison, and that police arrested people based on factors such as their tattoos. The report also noted that private security companies and vigilante groups acted, with the complicity of police, as death squads to kill "supposed habitual criminals."

Moreover, although the Honduran constitution prohibits torture, there were instances in which government officials employed such practices, including beatings and other abuse of detainees. The 2008 State Department report stated that the Committee for the Defense of Human Rights in Honduras had reported that police arbitrarily detained and sometimes tortured more than two dozen individuals during a government program called Operation National. The 2007 State Department report placed the number of individuals arbitrarily arrested and, sometimes, tortured under Operation National at more than 34,000 and noted that a number of prisoner deaths had been attributed to members of the security forces.

On the other hand, the 2008 State Department report acknowledged that the government had undertaken some investigations of illegal activities by security forces. For example, on June 6, 2008, a court found guilty and sentenced 21 of the 43 government officials implicated in a 2003 jail massacre.

Other documentary evidence confirmed and expanded on the information in the State Department reports. A 2007 Congressional Research Service report noted that increased violence by gangs has led to corresponding vigilantism, with increasing extra-judicial killings. It also acknowledged the July 2003 legislation in Honduras making membership in a gang punishable by up to 12 years in prison and confirmed that a prison fire in 2004 killed 107 inmates, mostly gang members. Similarly, a 2006 U.S. Agency for International Development (USAID) report on gangs in Honduras noted that the Honduran government's strict approach includes rounding up tattooed individuals and putting them in prison for gang membership. The report also noted that when gang members were killed or died in prisons, often no one was punished.

An August 2008 report by the UN High Commissioner for Refugees (UNHCR) counted "lack of accountability and professionalism within the police," "the frequent abuse of detain-ees," and "a culture of impunity for violations of human rights including extra-judicial executions" as among Honduras' biggest human rights problems. The report also discussed a 2006 anti-gang initiative that called for recruiting 30,000 to 60,000 private security personnel to join the efforts of the 10,000 armed services personnel and 8,000 police officers, and granting the private security personnel "the right to use any means necessary to deter assailants from committing criminal acts." The report noted that the policy had led to mass arrests, and that there were reports of excessive and even lethal force being used by these private security forces. The UNHCR report also discussed evidence that death squads were executing gang members, noting "the widespread conviction that [the unlawful killings] are being committed by members of the existing or former security forces."

Finally, numerous newspaper articles also discussed the problems of government-linked death squads, extra-judicial killings, and the high level of violence in Honduran prisons. Particularly disturbing were reports regarding fires in prison, some reportedly deliberately set by security forces, which have killed around 200 prisoners, mostly gang members. One article noted that an independent report commissioned by the President of Honduras found that in one prison fire, 51 of the 68 people who were killed had been "executed - shot, stabbed, beaten or burned to death by a force of the state police, soldiers, prison guards and prisoners working with the guards."

B. IJ and BIA Decisions

The IJ denied Cole's application for deferral of removal under CAT, finding that Cole's evidence "str[ung] together a series of suppositions," but did not show that each step in the hypothetical chain of events was more likely than not to occur.*fn6

In particular, the IJ (1) faulted the expert testimony about the likelihood that Cole would be tortured as lacking evidence that individuals similarly situated to Cole had been incarcerated and tortured; (2) noted that, according to the State Department report, torture is against the law in Honduras, and the state has prosecuted police officers for torture and other abuses, including for one of the jail massacres; and (3) characterizing Cole as arguing that lack of medical care and poor prison conditions in Honduras amount to torture, held that Cole had failed to meet the standard of specific intent to cause harm established in Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008). Although Cole argued that he would be intentionally denied medical care and that prison officials have intentionally created dangerous prison conditions, the IJ did not address these arguments.

Like the IJ, the BIA discounted Cole's expert witness testimony about the likelihood that Cole would be tortured on the ground that the expert failed to give specific examples corroborating his opinion. The Board also held, as did the IJ, that Cole had not established by sufficient evidence each link in the chain of events that could result in his torture by police, death squads, or other gang members. The BIA did recognize that evidence in the record suggested that "the presence of a tattoo can cause an automatic association with gangs, and that a tattoo or suspected gang affiliation can equate to harsh treatment." But the BIA found nothing in the record explaining why Cole could not have his tattoos removed to avoid being perceived as a gang member. Finally, the BIA determined that lack of medical treatment is not tantamount to torture. The BIA did not make any finding regarding government acquiescence in torture by death squads or gang members.

Cole timely filed this petition for review.*fn7

II.

We review issues of law regarding CAT claims de novo. Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). "Where the BIA conducts its own review of the evidence and the law, this panel only reviews the BIA's decision, except to the extent it expressly adopts the IJ's decision." Eneh v. Holder, 601 F.3d 943, 946 (9th Cir. 2010). "The BIA's findings underlying its determination that an applicant is not eligible for relief under the CAT are reviewed for substantial evidence." Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). "Under the substantial evidence standard, the court upholds the BIA's determination unless the evidence in the record compels a contrary conclusion." Id.

"Because neither the BIA nor the IJ made an adverse credibility finding, 'we must assume that [Cole's] factual contentions are true.' " Aguilar-Ramos, 594 F.3d at 704 (quoting Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000)). "As a result, the facts to which [he] testified are 'deemed true, and the question remaining to be answered becomes whether these facts, and their reasonable inferences, satisfy the elements of the claim for relief.' " Edu, 624 F.3d at 1143 (quoting Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005)).

III.

A. General CAT Principles

[1] To qualify for CAT relief, a petitioner must establish that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). In other words, Cole must "show only a chance greater than fifty percent that he will be tortured if removed to" Honduras. Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). In determining whether an individual will more likely than not be tortured, "all evidence relevant to the possibility of future torture shall be considered." 8 C.F.R. § 1208.16(c)(3).

[2] Importantly, an application for CAT relief need not show that he will be tortured "on account of" any particular ground. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). Moreover, where torture is sufficiently likely, "CAT 'does not permit any discretion or provide for any exceptions.' " Edu, 624 F.3d at 1145 (quoting 64 Fed. Reg. 8478, 8481 (Feb. 19, 1999). Instead, the provision for deferral of removal under CAT applies to all applicants, even those who, like Cole, are former gang members convicted of an aggravated felony. See 8 C.F.R. § 208.17(a); Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (holding that "even if an alien has been convicted of a 'particularly serious crime,' and is ineligible for withholding of removal under the CAT, an IJ is required to grant deferral of removal if the alien can establish the likelihood of torture upon return"). As we explained in Edu, "the words of CAT . . . reach out to protect even the most vile of actors against state vileness." 624 F.3d at 1146. Indeed, "in adopting the [CAT] regulations, the agencies themselves recognized that even those who assisted in Nazi persecutions, or engaged in genocide, or pose a danger to our own security are not excluded from the protections of CAT." Id. at 1145. Futher, "[a foreign] government cannot exempt torturous acts from CAT's prohibition merely by authorizing them as permissible forms of punishment," Nuru, 404 F.3d at 1221, nor do other circumstances provide a justification for denying deferral of removal where torture is sufficiently likely.

[3] In other words, the policy against providing "sanctuary for universal outlaws" that led this court to conclude that gang members or former gang members are not a social group for the purposes of asylum and withholding of removal, see Arteaga, 511 F.3d at 946, does not preclude deferral of removal under CAT. Both the governing regulations and the case law of this circuit dictate that even gang members, both current and former, cannot be returned to a ...


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