Lopez v. Garland
| Docket Number | 20-71529 |
| Decision Date | 21 October 2022 |
| Citation | 51 F.4th 992 |
| Parties | Risvin Valdemar DE LEON Lopez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Karla L. Kraus (argued), Kraus Law Corporation, San Diego, California, for Petitioner.
John B. Holt (argued), 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.
Opinion by Judge Berzon ;
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 in his small town that Alvarado and Gomez were also "involved together with the gangs" in an extortion ring targeting local small businesses. De Leon testified that he never saw the assailants again; he believed they may have gone to Mexico.
That day, De Leon was taken to a hospital in Coatepeque. He received stitches on his right bicep, seven stitches on his left shoulder, eight stitches on his hand, and sixteen stitches on his head. De Leon also had "two tendons cut
from [his] three fingers" that "were stitched internally," and cuts on his neck. The doctors prescribed medication for pain and to prevent inflammation, infection, and tetanus.
De Leon went to a clinic close by Flores Costa Cuca three times afterward for wound treatment. He could not work for the first three months after the attack, and it took approximately one year for him to recover physically from his injuries. De Leon also "consulted with a psychologist," and "complained of having suffered psychological damage, such as difficulty sleeping, memory loss, [and] panic attacks." His psychological trauma persisted at the time of the hearing.
After two months passed, De Leon realized that "nothing was done" about the attack: the police "didn't go after the people that had beaten [him]" and his assailants "were never caught." Convinced that the police would not follow up on the report from July without being prompted, De Leon in September 2011 again reported the attack to the PNC of Flores Costa Cuca, the same office where Alvarado and Gomez worked as police officers. After De Leon told an officer at the Flores Costa Cuca station that two of their own officers had attacked him, the officer stated "[t]hat they couldn't deal with [his] case there," but told De Leon he had "a very strong case, that it was attempted murder, [and] that [he] should go to ... [the] public ministry." De Leon understood the officer's reference to "very strong case" as indicating that the Flores Costa Cuca police "would be incapable of dealing with [his] kind of case[ ]" as it was "too difficult" and required "a deeper investigation." De Leon emphasized his belief that the police were "corrupt," that they "let themselves be bribed very easily," and that he doubted the coworkers of Alvarado and Gomez would be willing to take action against them.
As advised by the local police office, De Leon went to the Public Ministry of Coatepeque, a prosecutorial and investigative government agency semi-independent from the Guatemalan executive branch, to report the incident. His statement was taken and an investigation opened. The Public Ministry informed De Leon that Ramos, Baten, and Rojas were already under investigation because other complaints had been filed against them. The record also suggests that the Public Ministry indicated to De Leon that Alvarado and Gomez left the police force shortly after the attack. Specifically, the following exchange occurred between De Leon and the IJ:
De Leon interacted with officials from the Public Ministry about three times.
In addition, De Leon filed a complaint with the Office of the Attorney General. He believed the Office issued warrants against the five assailants. De Leon met with officials from the Attorney General's Office four times. To De Leon's knowledge, as of January 2018, his assailants had not been tracked down and no one had been taken into custody for his assault.
2. De Leon had a second incident with Guatemalan police. In October 2011, De Leon went with his mother to Mexico, about an hour and a half from his home, to purchase goods for resale in her small store in Guatemala. Their return bus was stopped by police officers. The officers told De Leon and his mother to get out of the bus because "they wanted some money, [or] if not they were going to take the merchandise." When De Leon refused, the officers handcuffed him and took him to the central police station.
At the station, De Leon was brought to a room where three officers took turns beating him with their hands and batons and kicking him with their feet. He was detained...
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