Castellano-Chacon v. I.N.S.

• Citation: 341 F.3d 533
• Decision Date: 18 August 2003
• Docket Number: No. 02-3273.,02-3273.
• Parties: Rolando Augustine CASTELLANO-CHACON, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

341 F.3d 533

Rolando Augustine CASTELLANO-CHACON, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 02-3273.

United States Court of Appeals, Sixth Circuit.

Argued: June 19, 2003.

Decided and Filed: August 18, 2003. Pursuant to Sixth Circuit Rule 206

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Argued: Richard R. Renner, Tate & Renner, Dover, Ohio, for Petitioner.

Linda S. Wernery, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Brief: Richard R. Renner, Tate & Renner, Dover, Ohio, for Petitioner.

Edward C. Durant, John C. Cunningham, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: BOGGS and GILMAN, Circuit Judges; and DOWD, District Judge.^*

BOGGS, J., delivered the opinion of the court, in which GILMAN, J., joined. DOWD, D.J. (p. 554), delivered a separate opinion dissenting in part.

OPINION

BOGGS, Circuit Judge.

Rolando Augustine Castellano-Chacon (referred to as "Castellano" in Petitioner's Brief) petitions for review of a decision rendered by the Board of Immigration Appeals (BIA) ordering his deportation after denying his application for asylum, application for withholding of removal under the Immigration and Nationality Act (INA), and request for withholding of removal pursuant to the legislation implementing Article 3 of the Convention Against Torture.¹ Castellano contends that the BIA did not properly consider his claim, which is founded on a fear of persecution should he return to Honduras, as a result of his former membership in a street gang. Castellano additionally appeals the BIA's decision on two procedural grounds. First, Castellano claims that he was effectively denied a fair hearing in violation of his due process rights because his counsel was not allowed to make an opening and closing statement at his removal hearing. Second, Castellano claims that the BIA erred in not ruling on his motion to correct the transcript of his immigration hearing. For the reasons set forth in this opinion, we deny Castellano's Petition for Review and affirm the BIA's decision.

I Background

Castellano, a native of Honduras, illegally entered the United States in February 1992, when he was sixteen years old. At the age of eighteen, while living in Hempstead, New York, Castellano joined the "MS 13" gang, named after 13th Street in Los Angeles, and received a number of tattoos as part of his initiation process. In his application for asylum, Castellano described and explained the meaning of these tattoos:

About two months after I joined MS 13, I got tattooed. Other MS 13 members did the tattoos. I have a 13 on my chin. This signifies my membership in MS 13. The three dots below the corner of my right eye signify the crazy life. The tear drop below the corner of my left eye signifies the memory of a friend (called "El Mago") who was killed by a rival gang. On my chest, I have tattoos for "M", "S", "Honduras", and "13". These mean that I belonged to MS 13, and I am from Honduras. On my right arm I have "MS" in Roman letters, and "Mi Vida Loca" which means my crazy life. On my right shoulder, I have tattoos of theater masks with sad and happy faces. To me this means that sometimes we are sad, like when somebody dies, and sometimes we are happy, like when we drink, dance, and find girls. On my left shoulder, I have a cross. On my left arm, I have "XIII", Roman numerals for 13. On my back, I have a tattoo that says "sureno", to means [sic] that I come from the South. On the ring and middle fingers of my right hand, I have tattoos of "N" and "Y" to show I was from New York. On the index, middle and ring fingers of my left hand, I have tattoos of "H", "L" and "S". The H means I was from Hempstead. The "L" was for "La Vida Loca", the crazy life. The "S" is for "Salvatrucha," which represents the Salvadoran roots of the gang. On the back of my left hand, near the wrist, I have three dots. They also represent the crazy life. I got the tattoos during one week, a few each day.

Castellano stated that he did not realize what he was getting into when he joined the gang and in July 1998, he decided to leave MS 13, because of the violence of gang life and the fact that so many members were "going to jail for life." Castellano was concerned that the gang would retaliate against him and his family for leaving, so he moved to Baltimore.

After getting into a violent fight with one of his roommates in Baltimore, Castellano moved to North Carolina, where he purchased false identification papers on the black market in order to take a job. After a brief stint in jail in New York in 1999, Castellano returned to North Carolina and then moved to Ohio. In April 2001, Castellano got a job with a nursery in Berlin Heights, Ohio, for which he needed a car so that he could get back and forth to work. However, when Castellano applied for the title, using the identification papers that he had purchased in North Carolina, he was arrested for using false identification and sentenced to a 30-day jail term.

While Castellano was in jail, he was served with a Notice to Appear (NTA) on June 12, 2001, charging him with being removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), since he was "[a]n alien in the United States [who had not been] admitted or paroled." At Castellano's removal proceeding on August 3, 2001, he conceded removability on the basis of the allegations included in the NTA, but sought asylum, based on a "change of country conditions." Castellano claimed that since he had left Honduras, the conditions in his country had changed to the extent that people with gang tattoos were now being persecuted. Castellano admitted that he had been in the United States for at least nine years and had not, until now, requested asylum because he had only recently learned about the extrajudicial executions of gang members in Honduras.

On September 28, 2001, a hearing was held on Castellano's application for asylum. Castellano first presented a statement by expert witness Professor Jeff Stewart, which was admitted into evidence by the Immigration Judge (IJ). Professor Stewart's statement essentially described the deteriorating conditions in Honduras since "Hurricane Mitch" devastated the country in 1998. The professor explained that the economic consequences of this natural disaster led to a general rise in the level of violence in Honduras, and subsequently a steep increase in the number of extrajudicial murders committed by Honduran security forces and/or paramilitary groups, specifically targeting young men with tattoos, who were assumed to be gang members involved in criminal activities. The professor testified that the targeting of gang members is seen by those in power in Honduras as a "form of acceptable `social cleansing.'" Professor Stewart concluded that Castellano "faces the grave probability of death at the hands of government forces due to his previous gang affiliation and numerous tattoos."

A number of sources were cited by Professor Stewart in support of his statements regarding the targeting of gang members. The general theme of these reports was that children who are assumed to be in gangs, because of tattoos or for other reasons, are at grave risk of being killed or tortured in Honduras, either by state security forces or vigilante groups that appear to act with impunity. Furthermore, when arrested, children frequently face the use of excessive force by the State, including extra-judicial executions. For example, Casa Alianza² reported a rapid rise in extrajudicial murders since 1998, including the killing of more than 820 "gang youth and street children" during the period from January 1998 to June 2001. CODEH, the Honduran Committee for the Defense of Human Rights, reported a number of "execution-style" shootings of juvenile delinquents, and Time magazine, along with Casa Alianza, reported on the orchestration of, or at least reckless disregard for, gang on gang violence within the Honduran prison system. The State Department's 2000 report on human rights practices in Honduras, released by the Bureau of Democracy, Human Rights, and Labor, also reported that Honduran government officials have been involved in targeting children suspected of being in gangs. Finally, the Special Rapporteur of the United Nations Commission on Human Rights, Asma Jahangir, reported after visiting Honduras in the summer of 2001 that the Honduran media had contributed to the problem by targeting "tattooed youth," linking them directly to gangs and crime. Jahangir found the government to be involved in at least "some" of the known extra-judicial killings of children. In sum, there is evidence of the Honduran government directly or indirectly persecuting children³ suspected of being in gangs.

In response to the government's contention that Castellano's application for asylum was untimely, Castellano testified to the fact that he had not become aware of the developing violence in Honduras, specifically targeted at gang members, until May 2001 when he saw news reports on television while he was in jail. The jail in which Castellano was housed had cable television, and so Castellano was able to view several Spanish news programs not available to him earlier. In support of Castellano's testimony, Professor Stewart testified at the hearing and explained that it was not surprising that Castellano would have been unaware of the changed conditions in Honduras, since "Central American refugees" have virtually no access to these sorts of news reports "particularly concerning ... gang violence." Nevertheless, on cross-examination, Castellano admitted that he had been afraid of deportation and subsequent prosecution as early as 1998 when he avoided the police after getting into a fight with...