Silva-Pereira v. Lynch

• Decision Date: 07 July 2016
• Docket Number: No. 14-70276,14-70276
• Citation: 827 F.3d 1176
• Parties: Roberto Carlos Silva–Pereira, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

827 F.3d 1176

Roberto Carlos Silva–Pereira, Petitioner

v.Loretta E. Lynch, Attorney General, Respondent.

No. 14-70276

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 4, 2016 San Francisco, California

Filed July 7, 2016

Gautam Jagannath (argued), and Emily Abraham, Social Justice Collaborative, Oakland, California, for Petitioner.

Timothy G. Hayes (argued), Trial Attorney; Cindy S. Ferrier, Assistant Director; Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: J. Clifford Wallace and Diarmuid F. O'Scannlain, Circuit Judges and Marilyn L. Huff,^** District Judge.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether substantial evidence supports the determination of the Board of Immigration Appeals that this petitioner is ineligible for asylum and withholding of removal to Nicaragua and whether he qualifies for deferral of removal under the Convention Against Torture.

I

A

Roberto Carlos Silva-Pereira is a Salvadoran citizen and national, and was a professional soccer player in El Salvador until around 2000. Following his retirement, he entered the construction business in El Salvador with his wife. His companies bid for government construction contracts, which regularly yielded 30–40% profit. Earnings from these contracts placed Silva among El Salvador's wealthiest individuals. Silva denied he ever bribed government officials to secure such contracts.

Silva reports that he became involved in Salvadoran politics in 2000, when he became a member of the Frente Farabundo Martí para la Liberación Nacional Party (“FMLN”). In 2006, however, Silva changed parties when he was elected a deputy to Congressman Gonzales Lovo, a member of the Partido de Conciliación Nacional (“PCN”). Silva testified that although some members of the FMLN resented his switch to the PCN, he thought both parties had a shared ideology opposing the then-ruling Alianza Republicana Nacionalista party (“ARENA”), which Silva believed to be corrupt.

Roughly six months after Silva assumed office as Congressman Lovo's deputy, the Salvadoran legislature held hearings about allegations that Silva engaged in money laundering and bribery of government officials through his construction business. At those hearings, the Salvadoran Attorney General presented evidence that Silva acquired approximately $1.6 million in illicit assets between 2004 and 2006 from contracts acquired through bribery. According to Silva, the charges were brought because the Attorney General believed him to be a “stumbling block” to the ARENA party.

Ultimately, 82 out of El Salvador's 84 legislators voted to suspend Silva's legislative immunity. The voting majority included all three parties and 9 out of 10 members of Silva's own PCN party, with the exception of Congressman Lovo who chose to abstain. The legislator who acted as a prosecutor in Silva's case also abstained. Silva claims that the legislature's landslide vote was orchestrated by ARENA and motivated by a desire to secure aid from the United States by demonstrating an active fight against corruption.

After the legislature revoked Silva's immunity, a Salvadoran court held hearings in January 2007 to determine whether the evidence against Silva supported the issuance of a warrant for his arrest. Silva was represented by counsel at these hearings, but submitted a note through his attorneys telling the court that he was too sick to attend. The court issued a warrant for Silva's arrest on January 25, 2007. Silva left El Salvador sometime during this period.

Around the time Silva's legislative immunity was suspended, Silva's wife and mother-in-law were also arrested on corruption charges connected to their role in Silva's construction businesses. His mother-in-law was acquitted. After being convicted of some charges and acquitted of others, Silva's wife was sentenced to seven years in prison. Additionally, authorities successfully prosecuted a former mayor, Mario Osorto, for forging documents that facilitated Silva's government contracts. Osorto was an ARENA party member and also a member of the Central American Parliament (“PARLACEN”). As with Silva, the Salvadoran legislature voted to suspend Osorto's legislative immunity in December 2006. Osorto was sentenced to four years in prison.

B

Subsequently, in the United States, Silva was apprehended by agents of the Federal Bureau of Investigation (“FBI”) near his girlfriend's home in California in October 2007. When investigators knocked on the door, Silva fled on foot, jumping fences and hiding in bushes before being arrested. Following his arrest, Silva conceded removability but sought asylum, withholding of removal, and protection under the Convention Against Torture. He declined to designate a country of removal, so the immigration judge (“IJ”) designated El Salvador, Silva's home country, as the country of removal.

At his initial immigration hearings before the IJ in Florence, Arizona, Silva described several incidents of violence allegedly perpetrated against him by Salvadoran officials. First, he asserted that the leader of ARENA's legislators threatened him at gunpoint for accusing ARENA of corruption. Second, Silva alleged he suffered violence at the hands of Salvadoran police after visiting his wife in prison in El Salvador. According to Silva, he visited his wife in October 2006 and took pictures with his cell phone of injuries she allegedly sustained while incarcerated. Silva testified that upon leaving the prison, police stopped the car in which he was riding with his ten-year-old son and his driver. According to Silva, the police hit him with a rifle, forcibly took the phone, and threatened his son at gunpoint.

Third, Silva testified that roughly one week after this assault, police entered his house without a warrant and again assaulted him and frightened his children. Silva claimed he was unable to attend the arrest warrant hearings in El Salvador as a result of injuries from this incident. When government counsel pointed out that based on Silva's testimony, the alleged encounter in his home took place more than three months before the arrest warrant hearings, Silva claimed he had actually been beaten an additional time by “four people dressed as police” in January 2007.

Silva failed to report any of these incidents in his asylum application to the Department of Homeland Security. When asked why he failed to mention the incidents involving the police outside his wife's prison and in his home, Silva said he forgot to report them to his attorney. He also claimed that “[his] problem is very complex” and he worried that other Salvadoran detainees would “steal [his] declaration” and beat him.

On cross-examination, government counsel also questioned Silva about his alleged departure date from El Salvador. Silva testified that he crossed the Texas border in early January 2007 after spending only six hours or so in Guatemala and a handful of days in Mexico. When government counsel pointed out that this timeline was inconsistent with the entry date to the United States that Silva reported in his asylum application, Silva testified that he actually exited El Salvador several weeks later than he initially indicated. Silva subsequently admitted that he allowed his attorneys to tell a Salvadoran judge that he was too sick to attend the arrest warrant hearings when in fact he was fleeing the country.

Several experts hired by Silva testified that they believed the Salvadoran corruption charges were likely linked to Silva's opposition to the ARENA party. One of these experts, a private investigator named Tom Parker, also presented a tape-recorded conversation in which Adolfo Torrez, a close confidant of the ARENA-affiliated president, told Silva he could make the charges against Silva and his wife disappear for a price of $500,000. When Torrez's offer became public, the ARENA party withdrew its support for the Attorney General because he knew about Torrez's actions but failed to investigate. Torrez subsequently died of a gunshot wound

. Parker speculated that Torrez was murdered, though other reports on the forensic evidence indicate that Torrez committed suicide.

The IJ also heard testimony from Silva's brother, who stated that Silva was protected by two bodyguards during his time as a legislator. Following such testimony, the IJ recalled Silva and asked him whether his bodyguards were present during the incidents he recounted in which police assaulted him outside the prison and at his home. Silva testified that only one bodyguard was present during each incident because they took turns every twenty-four hours. He also asserted that the bodyguard present during both incidents was unarmed and was also beaten by police.

In August 2008, the IJ rendered his first decision, concluding Silva was non-credible and denying his applications. In so finding, the IJ noted discrepancies between Silva's testimony and his asylum application concerning his exit date from El Salvador. The Board of Immigration Appeals (“BIA”) reversed, finding that the IJ's limited discussion—and especially his focus on the date discrepancies—was inadequate to sustain the credibility determination.

C

Following remand, the IJ conducted additional hearings between May and September 2009. During this time, the government introduced evidence that in addition to his crimes in El Salvador, Silva had also been charged with conspiracy to commit murder in Guatemala.

Exhibits and testimony at the second round of hearings established that in February 2007, three Salvadoran representatives to the Central American Parliament were found murdered in a charred van outside Guatemala City. Among the murdered PARLACEN representatives was Eduardo D'Aubuisson, the son of ARENA's founder and the brother of Roberto D'Aubuisson, Jr., one of ARENA's current leaders. Later inquiry by international...