Cole v. Eric H. Holder Jr.

• Decision Date: 22 September 2011
• Docket Number: No. 09–73625.,09–73625.
• Parties: Hubert George COLE, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

659 F.3d 762

11 Cal. Daily Op. Serv. 12,108

2011 Daily Journal D.A.R. 14,427

Hubert George COLE, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 09–73625.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 2010.Filed Sept. 22, 2011.

Fatma E. Marouf, Marouf Law Group, Los Angeles, CA, for the petitioner.Tony West, Assistant Attorney General, Civil Division, Thomas B. Fatouros, Senior Litigation Counsel, and Pegah Vakili and Yedidya Cohen, Trial Attorneys, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092–817–988.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

BERZON, Circuit Judge:

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.¹ 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.² He testified that his race,³ 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.⁴ 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 Honduras. 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...