Juan Castillo v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MAURICIO CASTILLO, No. 19-72745

Petitioner,

Agency No.

v. A073-244-050

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 1, 2020

San Francisco, California

Filed November 18, 2020

Before: J. Clifford Wallace and Michelle T. Friedland,

Circuit Judges, and Robert S. Lasnik, * District Judge.

Opinion by Judge Wallace

*

The Honorable Robert S. Lasnik, United States District Judge for

the Western District of Washington, sitting by designation.

2 CASTILLO V. BARR

SUMMARY **

Immigration

Granting Juan Mauricio Castillo’s petition for review of

the Board of Immigration Appeals’ denial of his application

for protective status pursuant to the Convention Against

Torture, and remanding, the panel held that the Board erred

in giving reduced weight to the testimony of Dr. Thomas

Boerman, a specialist in gang activity in Central America

and governmental responses to gangs.

Castillo is a former gang member with tattoos who fears

torture by gangs and/or Salvadoran officials because of his

former gang memberships, his criminal conviction, and his

later cooperation with law enforcement against La Mara

Salvatrucha or MS-13. In a prior petition, the same panel

concluded that the immigration judge and the Board

improperly discounted Dr. Boerman’s testimony.

The panel addressed two initial matters. First, the panel

stated that the Board’s rejection on remand of the panel’s

prior interpretation of the immigration judge’s decision was

ill-advised, explaining that its prior disposition was not an

advisory opinion, but a conclusive decision not subject to

disapproval or revision by another branch of the federal

government. Second, the panel rejected the Board’s reliance

on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to

support its conclusion that Dr. Boerman’s testimony should

be given reduced weight, because Vatyan addressed an IJ’s

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CASTILLO V. BARR 3

discretion to weigh the “credibility and probative force” of

an authenticated document, whereas the issue in this case

involved the testimony of an expert that the agency had

ostensibly concluded was fully credible.

Even assuming the agency could accord reduced weight

to Dr. Boerman’s testimony and declaration, the panel

disagreed with the Board’s new justifications. First, the

panel rejected the Board’s reliance on alleged

inconsistencies regarding Dr. Boerman’s familiarity with

Castillo’s prison gang, where Dr. Boerman explicitly wrote

in his declaration that his comments on Castillo’s prison

gang were based on facts provided by Castillo, and the Board

did not cite any reason to doubt Castillo’s testimony

regarding rival gangs.

Second, the panel disagreed with the Board’s conclusion

that Dr. Boerman’s testimony did not warrant full weight

because he did not submit a copy of a video referenced in his

testimony, where the video was neither the sole nor primary

basis for his opinion, and the Board failed to explain why the

absence of one video diminished the weight of Dr.

Boerman’s expert opinion, when his opinion had an

independent factual basis.

Finally, the panel concluded that the Board’s decision to

give Dr. Boerman’s opinion reduced weight, because it was

not corroborated by other evidence in the record, was

erroneous. The panel observed that the country report did

provide support for Castillo’s claim, and it noted that Dr.

Boerman’s expert testimony was itself evidence that could

support Castillo’s claim.

The panel remanded to the Board, directing it to give full

weight to Dr. Boerman’s testimony regarding the risk of

4 CASTILLO V. BARR

torture Castillo faces if removed to El Salvador. The panel

explained that if the Board determines once again that

Castillo is not entitled to relief, it must provide a reasoned

explanation for why Dr. Boerman’s testimony is not

dispositive on the issue of probability of torture. The panel

further explained that once it gives full weight to Dr.

Boerman’s testimony, the remaining issue for the Board is

to determine whether Castillo has established the

government acquiescence element of his CAT claim.

COUNSEL

Michael Kagan (argued), Attorney; Edgar Cervantes, Law

Student; Thomas & Mack Legal Clinic, University of

Nevada, Las Vegas, Nevada; for Petitioner.

John F. Stanton (argued), Trial Attorney; Jessica E. Burns,

Senior Litigation Counsel; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

WALLACE, Circuit Judge:

Juan Mauricio Castillo appeals from the Board of

Immigration Appeals’ (Board) denial of his application for

protective status pursuant to the Convention Against Torture

(CAT). Castillo is a native citizen of El Salvador. He snuck

into the United States when he was 12 years old with the

assistance of a family friend. He then murdered a 12-year-

old girl when he was a teenager during a gang-related

CASTILLO V. BARR 5

shooting, and he was convicted in 1996 for first-degree

murder with the use of a firearm during gang-related activity.

Upon his parole from state prison, the Department of

Homeland Security sought Castillo’s removal. Castillo

applied for withholding of removal and CAT status. The

Immigration Judge (IJ) concluded that Castillo was not

eligible for withholding of removal because his murder

conviction was a bar as a particularly serious crime.

To support his application for CAT status, Castillo called

an expert to testify on his behalf about gang activity in

Central America and governmental responses to gangs.

Ultimately, the IJ did not find the expert credible and

discounted his testimony on the risks posed to Castillo

because of his gang membership and murder conviction.

The Board affirmed, but we remanded the petition to the

Board. Castillo v. Barr, No. 17-72544, 765 F. App’x 256

(9th Cir. Mar. 28, 2019) (unpublished). We reasoned that

the IJ’s disagreement with portions of the expert’s testimony

ignored the record and relied on incorrect reasoning. Id.

at 257. On remand, the Board re-affirmed the IJ’s denial of

Castillo’s application for CAT protection for reasons like

those we had rejected. Castillo again petitions for review of

the denial of his application for CAT status.

We have jurisdiction pursuant to 8 U.S.C. § 1252.

Reviewing the Board’s findings for substantial evidence,

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007), we

grant the petition for review and remand.

I.

Castillo is a former gang member who has belonged to

various violent gangs, including La Mara Salvatrucha,

commonly known as MS-13. He joined MS-13 as a

teenager, a few years after arriving in the United States. His

6 CASTILLO V. BARR

underlying murder conviction stemmed from his gang

activity. Upon his incarceration, he joined a rival gang

known as Mi Raza Unida (MRU) rather than MS-13.

Castillo eventually tried to leave MRU, and he was debriefed

by law enforcement about both MRU and MS-13. Both

gangs responded by ordering a hit, or greenlight, on Castillo.

The MS-13 hit applies in both the United States and El

Salvador.

Castillo testified before the IJ that he feared for his life if

removed to El Salvador because of his former gang

memberships, his criminal conviction, and his later

cooperation with law enforcement against MS-13. He also

feared persecution from Salvadoran officials. Castillo

contended he would be easily identified as a former gang

member because of (1) his criminal record, (2) his

deportation from the United States, and (3) his visible gang

tattoos.

Castillo called Dr. Thomas Boerman as a specialist in

Central American gang response strategies to testify on his

behalf. Dr. Boerman has consulted on Central American

gang issues for the U.S. Agency for International

Development, the World Bank, and the United Nations High

Commissioner for Refugees. Dr. Boerman opined in his

testimony and declaration that Castillo faced a risk of torture

or harassment from four different sources if he were

deported to El Salvador.

The first is Castillo’s status as a tattooed former gang

member would make him a target for Salvadoran

immigration officials, particularly because his United States

conviction would have to be disclosed to the Salvadoran

government, which could lead to his torture. The second is

the ongoing risk from local police wherever he settles in El

Salvador, which could lead to his imprisonment, torture, or

CASTILLO V. BARR 7

extrajudicial killing based on his former gang member

status. The third is Castillo’s status as a former MS-13

member who turned on his gang would make him a target

for both MS-13 and other gangs in El Salvador, which would

likely lead to his torture and death because of the

“greenlight.” The fourth is the alleged vigilante groups,

which include Salvadoran government officials, engaged in

“extermination squads” as a strategy to rid the country of

gang members.

The IJ decided that Dr. Boerman’s testimony should be

given reduced weight and implied he was not a credible

expert. The IJ held that Dr. Boerman’s statements were not

supported by the record, and his testimony proposed “linking

together a series of suppositions and without ‘establishing

that each step in the hypothetical chain [was] more likely

than not to happen.’” The IJ also discounted Dr. Boerman’s

testimony regarding the “extermination strategy” as

“exaggerated,” and the IJ observed that Dr. Boerman “was

not able to consistently identify which of [Castillo’s] tattoos

were gang-related.” The IJ concluded that Castillo could not

establish that it was more likely than not that Salvadoran

immigration officials would collude with police and torture

him because the documentary evidence did not mention such

collusion.

The Board held that the IJ did not commit clear error in

concluding that the record was “devoid of any mention of

immigration officials and police colluding to apprehend

returning gang members.” We disagreed in Castillo, 765 F.

App’x at 257, and held that the IJ and the Board

(collectively, the Agency) improperly discounted Dr.

Boerman’s testimony because the IJ relied on faulty

reasoning and the Board failed to provide any other

sufficient reason why his testimony and report should be

8 CASTILLO V. BARR

discounted. We granted Castillo’s petition and remanded to

the Board. Id. at 258.

Despite our direction to reconsider Dr. Boerman’s

testimony and its effect on Castillo’s CAT claim, the Board

has once again similarly discounted Dr. Boerman’s

testimony and did not consider the entire record. The Board

also rejected our interpretation of the IJ’s decision, and it

held that the IJ had not made an explicit credibility finding.

The Board also continued to give Dr. Boerman’s testimony

“reduced weight.”

The Board listed three reasons in support of its decision

to discount Dr. Boerman’s testimony. The first are

purported inconsistencies between Dr. Boerman’s testimony

and his written declaration with respect to his familiarity

with Castillo’s prison gang. The second are Dr. Boerman’s

references to video evidence depicting Salvadoran

immigration officials beating gang members at an airport

despite not submitting the underlying video into evidence.

The third is the dearth of corroborating evidence to support

Dr. Boerman’s testimony and declaration regarding the

extermination strategy of the Salvadoran government and

vigilante groups. The Board concluded that Castillo failed

to meet his burden because it held that Dr. Boerman’s

testimony was insufficient evidence, alone or in aggregate,

to establish that Castillo’s torture was more likely than not

to occur.

Castillo argues two issues in his current petition for

review. The first is that the Board’s holding that

Dr. Boerman’s testimony was not corroborated misconstrues

the record. The second is the Board did not properly

aggregate Castillo’s risks because it incorporated the IJ’s

chain-of-events analysis by reference.

CASTILLO V. BARR 9

II.

Under the Immigration and Nationality Act, even

individuals convicted of aggravated felonies are eligible for

CAT relief. See Bromfield v. Mukasey, 543 F.3d 1071, 1075

(9th Cir. 2008). To receive CAT status, Castillo must show

that he would “more likely than not” be tortured if so

removed. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). Castillo

must demonstrate “a chance greater than fifty percent that he

will be tortured” if removed to El Salvador. Hamoui v.

Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). Castillo must

also establish that he would experience torture with the

“acquiescence” of the Salvadoran government. Cole v.

Holder, 659 F.3d 762, 771 (9th Cir. 2011).

The Board’s factual findings are reviewed for substantial

evidence. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.

2007). Substantial evidence means the Board’s holding is

supported by “reasonable, substantial, and probative

evidence on the record.” Ornelas-Chavez v. Gonzalez,

458 F.3d 1052, 1056 (9th Cir. 2006) (citation omitted). As

such, we must uphold the Board’s decision unless the record

compels a contrary conclusion. Where the Board does not

consider all the evidence before it, either by “misstating the

record [or] failing to mention highly probative or potentially

dispositive evidence,” its decision cannot stand. Cole,

659 F.3d at 772. If the Board rejects expert testimony, it

must state “in the record why the testimony was insufficient

to establish the probability of torture.” Id. (citation omitted).

Improperly rejected expert testimony is a legal error and,

thus, per se reversible. See id. at 773.

There are two initial matters. First, the Board’s defiance

of our previous decision in this matter and disagreement with

our holding that the IJ did not find Dr. Boerman credible was

ill-advised. Our prior disposition was not an advisory

10 CASTILLO V. BARR

opinion, but a conclusive decision not subject to disapproval

or revision by another branch of the federal government.

Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020).

“Once we reached [our] conclusion, both the Constitution

and the statute required the Board to implement it.” Id.

Second, we reject the Board’s reliance on Vatyan v.

Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its

conclusion that Dr. Boerman’s testimony should be given

reduced weight. Vatyan addressed an IJ’s discretion to

weigh the “credibility and probative force” of an

authenticated document. Id. at 1185 n.4 (citation omitted).

The issue here is the testimony of an expert that the Agency

has ostensibly concluded is fully credible.

However, even assuming the Agency can accord reduced

weight to Dr. Boerman’s testimony and declaration, we

disagree with the Board’s new justifications. We first turn

to the alleged inconsistencies regarding Dr. Boerman’s

familiarity with Castillo’s prison gang. Dr. Boerman

explicitly wrote in his declaration that his comments on

Castillo’s prison gang were based on facts provided by

Castillo. The Board did not cite any reason to doubt

Castillo’s testimony that MRU and MS-13 are rival gangs.

In the end, Dr. Boerman’s testimony was not undermined by

his reliance on facts about gang rivalries that have not been

disputed. See also Aguilar-Ramos v. Holder, 594 F.3d 701,

706 n.7 (9th Cir. 2010) (observing that “[a]n expert is

permitted to base his opinion on hearsay evidence and need

not have personal knowledge of the facts underlying his

opinion”).

Second, we disagree with the Board’s conclusion that

Dr. Boerman’s testimony did not warrant full weight

because he did not submit the underlying evidence to the IJ.

Our circuit has held that the underlying facts or data forming

CASTILLO V. BARR 11

the basis of an expert’s opinion in an immigration

proceeding “need not be admissible in evidence in order for

the opinion or inference to be admitted.” Malkandi v.

Holder, 576 F.3d 906, 916 (9th Cir. 2009) (citation omitted).

In addition, Dr. Boerman’s testimony about a video of

extrajudicial violence by Salvadoran immigration officials

against gang members at an airport was neither the sole nor

primary basis for his opinion that Castillo would be at risk

from Salvadoran immigration officials. Dr. Boerman swore

in his declaration that he was familiar with “numerous

instances in which gang members and other tattooed

individuals have been physically abused by [Salvadoran]

immigration officials and/or turned over to police at the

airport who subjected them to threats, beatings and/or

torture.” Accordingly, the Board failed to explain why the

absence of one video diminished the weight of

Dr. Boerman’s expert opinion when it had an independent

factual basis.

Finally, the Board’s decision to give Dr. Boerman’s

opinion reduced weight because it was not corroborated by

other evidence in the record was erroneous. The Board

reasoned that Dr. Boerman’s testimony about the Salvadoran

government’s alleged extermination strategy was not

supported by other record evidence because the U.S. State

Department’s country report did not cite extrajudicial

killings to a level that could justify such a characterization

and said police are investigating misconduct. However, the

country report also mentions extermination groups

containing police officers. In any event, Dr. Boerman’s

expert testimony was itself evidence that could support

Castillo’s claim. See Velasquez-Banegas v. Lynch, 846 F.3d

258, 262 (7th Cir. 2017) (holding that an IJ erred in

disregarding an expert’s opinion on the basis that the expert

did not cite data, reports, or examples as support for the

12 CASTILLO V. BARR

opinion, because the testimony was accepted by the IJ as

truthful and was uncontradicted evidence). If an expert’s

opinion could only be relied upon if it were redundant with

other evidence in the record, there would be no need for

experts. The Board therefore erred in giving Dr. Boerman’s

testimony reduced weight.

We reject Castillo’s second argument that the Agency

erred by applying the chain-of-events analysis rather than

aggregation of risks. The IJ discussed both analyses, and the

Board assessed the aggregate risk.

III.

We grant Castillo’s petition and remand to the Board.

Based on the record now before us, we further direct the

Board to give full weight to Dr. Boerman’s testimony

regarding the risk of torture Castillo faces if removed to El

Salvador. If the Board determines once again that Castillo

is not entitled to relief, it must provide a reasoned

explanation for why Dr. Boerman’s testimony is not

dispositive on the issue of probability of torture. Once it

gives full weight to Dr. Boerman’s testimony, the remaining

issue for the Board is to determine whether Castillo has

established the government acquiescence element of his

CAT claim.

GRANTED and REMANDED.