Lopez v. Garland
| Decision Date | 21 October 2022 |
| Docket Number | 20-71529 |
| Parties | RISVIN VALDEMAR DE LEON LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted September 13, 2021 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-569-789
Karla L. Kraus, Kraus Law Corporation, San Diego, California, for Petitioner.
John B. Holt, Juria J. Jones, and Scott M. Marconda, Trial Attorneys; Claire L. Workman, Senior Litigation Counsel Leslie McKay, Assistant Director; Jeffrey B. Clark, Acting Attorney General; Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.
Before: Ronald M. Gould, Marsha S. Berzon, and Daniel P Collins, Circuit Judges.
SUMMARY [*]
Granting Risvin Valdemar De Leon Lopez's petition for review of a decision of the Board of Immigration Appeals upholding the denial of protection under the Convention Against Torture and remanding, the panel concluded that the record in this case compelled the conclusion that two of De Leon's attackers during his first attack were police officers, that the police officers' participation in the incident showed acquiescence on the part of the Guatemalan government, and that the agency disregarded several important circumstances in concluding that De Leon would not likely be subjected to future torture.
The agency found that De Leon's belief that some of his attackers during his first incident were police officers was based on speculation, and that the two individuals wearing police uniforms did so only to make themselves look like police officers. The panel concluded that the agency's assessment was not based on substantial evidence. The panel explained that De Leon presented four significant pieces of evidence showing that the two individuals were police officers: first, De Leon had known the two men for about twenty years before the incident, and had been told by people in his small town that they were in fact police officers; second, the two individuals were wearing police uniforms at the time of the attack; third, they were armed with visible handguns that De Leon recognized as of the kind, and in the holstered position, typical of national police officers; and fourth, the Public Ministry to which De Leon reported the attack indicated that the two individuals had left the police force shortly after the attack, thus confirming that they were members of the police during the incident. The panel concluded that the agency's reasons for doubting that the individuals were police officers was not supported by substantial evidence.
Because the record compelled the conclusion that the two individuals involved in De Leon's attack were police officers, the panel concluded that the agency's determination that De Leon did not establish government acquiescence could not stand. The panel explained that government acquiescence is not required when instances of past torture are directly inflicted by a public official, even if that official has gone "rogue" by acting outside his or her authority. Moreover, the panel noted that the two individuals not only participated in De Leon's beating, but also acquiesced during that incident in the actions of the other assailants by failing to use their official authority to prevent De Leon from being repeatedly stabbed.
In light of the ambiguity in the BIA's conclusion with respect to the question whether De Leon was subjected to past torture and the absence of any explanation for a conclusion on that question, if made, the panel remanded that issue for further consideration. The panel also concluded that the agency's analysis of the probability that De Leon would be subjected to future torture disregarded several critical factors, including myriad contextual considerations pertinent to the likelihood of future torture, and so must be redone.
First, by taking as credible every detail in De Leon's testimony, even though the IJ found only that De Leon testified in a "generally" or "essentially" credible manner, the majority disregarded the principle that the agency is free to credit part of a witness' testimony without necessarily accepting it all. Second, even if the majority were right in thinking that every detail of De Leon's testimony should be deemed credible, the majority further erred by effectively reviving the "deemed true" rule. And third, the majority disregarded the Supreme Court's clear instruction that the court may not overturn a factual finding if the record contains contrary evidence of a kind and quality that a reasonable factfinder could find sufficient.
OPINION
Risvin Valdemar De Leon Lopez ("De Leon"), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals ("BIA") decision dismissing his appeal of an Immigration Judge's ("IJ") order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon's attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials- namely, the two police officers-directly participated in the incident; and (3) the record indicates that the IJ and BIA's conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon's application for relief.
De Leon entered the United States without inspection in 2003 and stayed until the middle of 2007. He returned to Guatemala then because his oldest daughter was sick and stayed until the end of the year. De Leon next entered the United States, again without inspection, in 2008. He stayed until he pleaded guilty to driving under the influence and was removed, in 2011. De Leon entered the United States without inspection once more on January 5, 2012. He testified that on his return to Guatemala in 2011, he experienced two episodes of violence at the hands of the Guatemalan police.
De Leon testified as to what happened to him in Guatemala as follows:
1. De Leon was attacked in July 2011, two days after he arrived back in Guatemala. Earlier that day, De Leon had left his home in Aldea Galvez, a small village that is part of a larger town, Flores Costa Cuca, to visit a park with two friends. The three of them returned on a bus that afternoon. As they stepped off the bus, De Leon and his friends were approached by Melvin Baten and Elder Ramos. Baten and Ramos knew De Leon had just returned from the United States and so asked him for money. When De Leon refused, he was attacked by Baten and Ramos; Israel Augustin Alvarado, Oljoel Pascual Gomez,[1] and Minor Rojas also participated in the attack. At the time of the attack, Alvarado and Gomez were dressed in the uniform of the National Civil Police ("PNC"), carried handguns consistent with those of PNC officers, and were known by the Aldea Galvez community to be police officers.
The assailants started by "throwing rocks at [De Leon] with slingshots." De Leon was hit in the chest and legs. When he bent down from pain, the attackers came towards De Leon and "stepped on [his] right hand." They beat him with their fists and kicked him. Baten then "stabbed [De Leon] with a knife on the hand" and Ramos stabbed De Leon "with a machete on [his] right arm" and his "left shoulder." The assailants took De Leon's money and told him "we are going to kill you." Alvarado and Gomez never tried to stop the other men from stabbing De Leon and actively participated in the beating. De Leon tried to defend himself, but Gomez hit him on the head with either a gun or baton, making De Leon lose consciousness. De Leon was later told by a relative that he was unconscious for half an hour.
De Leon knew all five men before the incident and, according to the IJ, "identified [them] in great detail" in his testimony. The men lived in the same small town as De Leon; some had gone to school or worked with him. With respect to Alvarado and Gomez, De Leon had known each of them for around twenty years before the incident. De Leon testified that he knew Alvarado and Gomez worked for the police in the Flores Costa Cuca station because of "conversations [De Leon] had with people" in his small town, where "everybody knows what's going on."
De Leon's friends, who had run away, returned to the scene of the incident along with De Leon's aunt and uncle; the relatives thereafter witnessed part of the attack. De Leon's aunt called the police. By the time the police arrived, the five assailants had left. The summoned police officers spoke with several witnesses at the scene of incident and later filed a report detailing the location of the incident and the names of De Leon's attackers. The names were given to the police by persons at the scene, who "didn't give [their own] names for fear of [retaliation]."
The police report said that the witnesses had identified "the individuals" who attacked De Leon as members of the 18th Street Gang. De Leon clarified in his testimony that three of the men (Ramos, Baten, and Rojas) were members of that gang. He also stated that he heard from the neighbors...
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