Diaz Ortiz v. Garland

• Decision Date: 10 January 2022
• Docket Number: No. 19-1620,19-1620
• Citation: 23 F.4th 1
• Parties: Cristian Josue DIAZ ORTIZ, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

23 F.4th 1

Cristian Josue DIAZ ORTIZ, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 19-1620

United States Court of Appeals, First Circuit.

January 10, 2022

Kristin M. Beale, with whom Ellen A. Scordino and DLA Piper LLP were on brief, for petitioner.

Benjamin Mark Moss, Senior Litigation Counsel, Office of Immigration Litigation, with whom Brian M. Boynton, Acting Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Sameer Ahmed, with whom Philip L. Torrey and the Crimmigration Clinic/Harvard Immigration and Refugee Clinical Program were on brief, for amici curiae Constitutional and Immigration Law Professors.

Kirsten V. Mayer, Ezra D. Geggel, and Ropes & Gray LLP on brief for amicus curiae Political Asylum/Immigration Representation Project.

Before Howard, Chief Judge, Lynch, Lipez, Thompson, Kayatta, Barron, and Gelpí, Circuit Judges.

Opinion En Banc

LIPEZ, Circuit Judge.

Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals ("BIA") affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). The Immigration Judge's ("IJ") rejection of Diaz Ortiz's petition for relief rested on an adverse credibility determination that primarily drew its support from a "Gang Assessment Database." Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment -- and, in turn, the rejection of Diaz Ortiz's request for relief -- is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.

I.

A. Factual Background

In July 2015, when he was sixteen, Diaz Ortiz entered the United States at the Texas border. Immigration officials quickly arrested him, initiated removal proceedings, and released him into the custody of his uncle, who lived in East Boston. Three years later, on August 20, 2018, Diaz Ortiz and two others were arrested in East Boston by agents of Homeland Security Investigations ("HSI") and Enforcement and Removal Operations ("ERO") as part of an operation to arrest members of the notorious Mara Salvatrucha ("MS-13") gang, a dangerous criminal organization known for committing violent crimes in the United States and Central America. See United States v. Pérez-Vásquez, 6 F.4th 180, 187-89 (1st Cir. 2021) (describing the operation and criminal activities of MS-13).¹ Although he had no prior arrests and had not been observed participating in any gang activity, Diaz Ortiz was thereafter detained by Immigration and Customs Enforcement ("ICE"). See 8 U.S.C. § 1226(a) (providing that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States").²

On October 1, 2018, Diaz Ortiz filed an application for asylum, withholding of removal, and CAT protection, basing his request on multiple grounds, including persecution because of his evangelical Christian religion. He also reported that an aunt had been murdered in 2011 by members of MS-13, and he feared that the gang would kill him as well if he returned to El Salvador. In a subsequently filed affidavit, Diaz Ortiz stated that, while he was living in El Salvador, MS-13 had threatened his life "on multiple occasions" because he was a practicing evangelical Christian. He said he repeatedly refused the gang's demands that he join MS-13, but gang members continued to follow him and issue threats. In 2015, the gang physically attacked him and warned "that they would kill [him] and [his] family if [he] did not stop saying [he] was a Christian and living and preaching against the gang way of life." Diaz Ortiz explained that, because he would not give up his evangelical Christian beliefs, he and his parents decided he should leave El Salvador and "seek the safety and protection of [his] aunt and uncle" in the United States.

In elaborating on his Christian practice in El Salvador, Diaz Ortiz stated in the affidavit that he had attended church with his family three to four times a week, and he became a youth leader in the church at the age of thirteen. The family sometimes hosted vigils and prayer sessions in their home. Diaz Ortiz also reported that his family owns a store that sells religious items, including Bibles, crosses, and Christian music. In Boston, he only occasionally went to church with his aunt, noting that it was difficult to find the time to go because he was in school during the day and working at night. However, he would often read the Bible, and he spoke with his mother "almost every day and [they] always prayed together and would sometimes sing hymns."

Among the other supporting documents submitted by Diaz Ortiz were affidavits from his mother and his pastor in El Salvador, and a letter from the instructor of the Army Junior Reserve Officers' Training Corps ("JROTC") at East Boston High School describing Diaz Ortiz as "an excellent student and also a leader." Diaz Ortiz also submitted an expert declaration describing gang violence in El Salvador and confirming that gangs target evangelical Christians, particularly visible youth leaders such as Diaz Ortiz.

B. Diaz Ortiz's Testimony at the Merits Hearing

On December 4, 2018, an IJ presided over a hearing in which Diaz Ortiz testified with the help of an interpreter. His testimony reiterated much of the information that he had reported in his affidavit, sometimes with slight variation or elaboration. Diaz Ortiz stated, inter alia, that: (1) he is an evangelical Christian who regularly attended church in El Salvador and served as a youth leader; (2) he worked at his family's store, where religious items were sold; (3) MS-13 gang members often approached him on his way to school to ask him to join the gang, which he repeatedly refused to do; (4) on one occasion in 2015, gang members beat him with a baseball bat, stole his phone and bicycle, and threatened to kill him if he did not give up his Christian beliefs and join the gang. Diaz Ortiz also testified that a person cannot be both an evangelical Christian and a member of MS-13, that he would not join a gang, and that he was opposed to gangs because of his faith.

With respect to his religious practice in the United States, Diaz Ortiz testified that, since arriving in Boston, he had attended church only "a few times" because, not knowing anyone, he "felt alone." Instead, he prayed at home and, during daily video calls, his mother would read Bible verses to him. He recounted that, while living in his aunt and uncle's home, he had been helping care for a cousin with special needs. He attended school for tenth and eleventh grades, and he participated in the school's JROTC program until he took a part-time job to cover his personal expenses.

C. The IJ's Questioning

During the hearing, the IJ questioned Diaz Ortiz on two subjects that the IJ later referenced in finding that Diaz Ortiz was not credible. The first inquiry focused on his family's store:

IJ : Mr. Diaz, the photographs that you were presented earlier, are those photographs of your store on the street?

Diaz Ortiz : Yes, of course, that's my mother and father's store.

IJ : My question is, are those pictures of the store that you said was yours in El Salvador?

Diaz Ortiz : Yes, they are, yes.

IJ : Are you in any of these pictures?

Diaz Ortiz : No.

IJ : When were these pictures taken?

Diaz Ortiz : Well, this was sent by my mother as evidence from my country.

...

IJ : So, these are pictures of the store that belongs to your mother and your father, correct? It's not a picture of ...

Diaz Ortiz : Yes, yes, they are.

IJ : ... a store that belongs to you, correct?

Diaz Ortiz : No, not, not to me. It's the family's, it belongs to the family.

The IJ then directed Diaz Ortiz's counsel to continue her questioning.

The second inquiry occurred after Diaz Ortiz's counsel completed her questioning. The IJ briefly asked Diaz Ortiz about his admitted use of marijuana, and the following exchange then occurred:

IJ : What is your method of transportation, meaning how do you get from one place to the other?

Diaz Ortiz : What do you mean, what do you mean? I don't understand the question.

IJ : When you, when you travel in your community, what transportation do you use?

Diaz Ortiz : Train.

IJ : Always?

Diaz Ortiz : Yes. Well, when I lived in, in my house where I lived in, in East Boston, I didn't because it was close, but when I lived in Boston, I, I had to use the train.

IJ : Do you have a car?

Diaz Ortiz : No.

IJ : So, you never traveled anywhere except by train, correct?

Diaz Ortiz : Yes, yes, only in train.

At that point, the government began its cross-examination. After other questioning, the government attorney referred to an encounter between Diaz Ortiz and the police on August 1, 2018, in which officers seized a chain with a padlock that Diaz Ortiz was carrying in his backpack. The questioning then proceeded as follows:

Government : And you told the officer that it was a chain and lock that you use for your bicycle.

Diaz Ortiz : Yes, several times they stopped me.

Government : And why would you tell the officers --

IJ : ... The question is not whether they stopped you on various occasions, the question is whether you told the officer that you had the bicycle and the padlock -- that you had the chain and the lock for your bicycle, that's the question.

Diaz Ortiz : I told them that I had ... that because I changed it. ...

...

Government : Why did you tell the police that you had the chain and the padlock for a bicycle, yet you told the Court today that you only traveled around by train?

Diaz Ortiz's Attorney ("Attorney"): Objection, mischaracterizes the testimony.

IJ : Overruled, it's not misstating the testimony.

IJ to Diaz Ortiz : Go ahead.

Diaz Ortiz : Well, when I lived in East

...