Ortiz v. Barr

• Citation: 959 F.3d 10
• Decision Date: 15 May 2020
• Docket Number: No. 19-1620,19-1620
• Parties: Cristian Josue DIAZ ORTIZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

959 F.3d 10

Cristian Josue DIAZ ORTIZ, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 19-1620

United States Court of Appeals, First Circuit.

May 15, 2020

Kristin M. Beale, Boston, MA, with whom Ellen Scordino, Gemma Seidita, Boston, MA, and Cooley LLP were on brief, for petitioner.

Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Paul Fiorino, Senior Litigation Counsel, were on brief, for respondent.

Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) denial of his claims for asylum, withholding of removal, and protection under Article 3 of the United Nations Convention Against Torture (CAT). See 8 U.S.C. §§ 1158, 1231(b)(3) ; Pub. L. No. 105–277, § 2242, 112 Stat. 2681 (1998).

The IJ found that Diaz Ortiz did not meet his burden to show eligibility for any of the grounds for relief he sought and ordered Diaz Ortiz removed. The IJ found that Diaz Ortiz was not credible and gave several reasons, including inconsistencies in his testimony and contradiction of his testimony through other evidence.

This lack of credibility finding was based in part on field reports, gathered by Boston-area law enforcement and summarized in a government database, that concerned Diaz Ortiz's association with alleged MS-13 gang members and contradicted aspects of his testimony. In part, the finding was also based on an inconsistency in his testimony. That inconsistency undercut his attempt to give an innocent reason to his possession of a padlock and chain, which the government says are weapons used by MS-13 gang members. His response to the IJ's request that he explain the inconsistency was itself not credible. The IJ noted a lack of corroborative evidence.

The BIA affirmed the IJ's decision in a careful opinion. After this court denied a stay of removal, Diaz Ortiz was removed. The parties agree the petition is not moot. See Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002).

Diaz Ortiz argues that the IJ's adverse credibility determination was not supported by substantial evidence. He argues that introduction of law enforcement gang database records violated his due process rights, and that his testimony was not inconsistent. From this, he argues that the finding that he had not met his burden was error. He also argues that the IJ applied the wrong legal standard to his withholding of removal and CAT claims. Because all of these arguments lack merit, we deny his petition for review.

I.

On July 21, 2015, Diaz Ortiz, then sixteen years old, entered the United States near Rio Grande City, Texas. Immigration officials quickly arrested him, initiated removal proceedings against him, and released him into the custody of his uncle, who lived in East Boston, an area within the City of Boston. Diaz Ortiz started living in East Boston in August 2015.

Throughout 2017 and 2018, while Diaz Ortiz lived in East Boston, he had eleven interactions with law enforcement that were documented in field reports gathered by the Boston Police Department and the Boston School Police Department and compiled by the Boston Regional Intelligence Center ("BRIC") in the BRIC Gang Assessment Database. The interactions included four occasions between March 2017 and May 2018 of police finding Diaz Ortiz with marijuana, both alone and with others; four occasions between September 2017 and June 2018 of police observing Diaz Ortiz with people identified as members of the MS-13 gang, including one member for whom police had information there was an active arrest warrant; one occasion on June 1, 2018, of police observing Diaz Ortiz outside a "known hangout" for MS-13 members; one occasion on June 21, 2018, of police observing Diaz Ortiz trespassing with four others; and one occasion on August 1, 2018, when Diaz Ortiz was with two others identified as MS-13 gang members and, on questioning, told officers he had a metal chain and padlock for his bicycle in his bag, though he had no bicycle with him. The government asserts that MS-13 gang members frequently use a metal chain and lock as a weapon. Police seized the items. The observations included that Diaz Ortiz frequented areas known for MS-13 gang activity.

On August 20, 2018, Homeland Security Investigations ("HSI") and Enforcement and Removal Operations ("ERO") arrested Diaz Ortiz in East Boston along with two MS-13 gang members as part of an MS-13 gang arrest operation. On August 21, 2018, because of Diaz Ortiz's earlier law enforcement interactions, HSI labeled Diaz Ortiz "a VERIFIED and ACTIVE member of the MS-13 gang in the Boston metro area." After his arrest, Immigration and Customs Enforcement ("ICE") detained Diaz Ortiz under 8 U.S.C. § 1226(a), which provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States."¹

On October 1, 2018, Diaz Ortiz filed an application for asylum, withholding of removal, and CAT protection. He alleged that in El Salvador in 2015 the MS-13 gang had attacked him and threatened his life because he was a practicing evangelical Christian and that he feared the gang would kill him if he returned to El Salvador.

On December 4, 2018, at the merits hearing on his asylum application, Diaz Ortiz testified with an interpreter's help as follows. He is an evangelical Christian, attended church "three or four times a week" while in El Salvador, but only a few times while in the United States, and he served in El Salvador as a "youth leader" in his faith. In El Salvador, MS-13 gang members often approached him on his way to school to ask him to join the gang, and he refused. On one occasion in 2015, gang members beat him, robbed him, and threatened to kill him if he did not leave his Christian beliefs to join the gang. He did not produce medical records of any injury. 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.

Diaz Ortiz also testified MS-13 gang members murdered his aunt in El Salvador. He said he feared that MS-13 gang members would kill him if he returned to El Salvador.

When asked about his time in Boston, Diaz Ortiz testified that he had attended church in Boston "a few times" but not very often. When the IJ asked him what his method of transportation in Boston was, Diaz Ortiz responded that he took the train. The IJ clarified: "Always?" Diaz Ortiz responded: "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." The IJ asked again: "So, you never traveled anywhere except by train, correct?" Diaz Ortiz responded: "Yes, yes, only in train."

The government later asked Diaz Ortiz about the occasion, after he had been frequently seen with MS-13 members, on which the police found a metal chain and padlock on him while he was with two gang members (and no bicycle). He was asked: "And you told the officer that it was a chain and lock that you use for your bicycle." Diaz Ortiz responded: "Yes, several times they stopped me." The government then asked: "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 responded: "Well, when I lived in East Boston, of course, I had the bicycle there to go around and, and do things around there, but when I lived in Boston and I took the train, I couldn't bring the bike anymore."

On cross-examination of Diaz Ortiz, the government sought to introduce the field reports from the BRIC Gang Assessment Database, described earlier. Diaz Ortiz objected through counsel, arguing that the evidence was "not reliable and fundamentally unfair." He argued that the reports contained mistakes and inconsistencies and did not comply with 28 C.F.R. Part 23. He did not ask that the officers who summarized the data or the officers who made the observations be called to testify or be made available for cross-examination. The IJ overruled the objection.

As to the evidence from the BRIC Gang Assessment Database of his five interactions with MS-13 members in Boston over the period from March 2017 to August 2018, Diaz Ortiz testified that he did not know that the other people he was with were MS-13 members or that the areas he had been in were known for gang activity, but he did not otherwise contest the observations as inaccurate.

An expert on conditions in El Salvador also testified at the hearing for Diaz Ortiz, saying that MS-13 members in El Salvador target evangelical Christians because the gang views them as competition for recruitment. Diaz Ortiz supplemented his asylum application with supporting documentation, including a personal declaration; declarations from his mother and his pastor in El Salvador; his aunt's death certificate; an affidavit from Thomas Nolan, a Boston University professor who criticized the reliability of the information in the BRIC Gang Assessment Database about Diaz Ortiz's interactions with gang members; and others. Diaz Ortiz also submitted further briefing about the BRIC Gang Assessment Database evidence, arguing that the IJ should "give minimal weight" to the reports because they were "uncorroborated hearsay" and that many of the behaviors described in the reports are "innocuous."

On December 19, 2018, the IJ denied Diaz Ortiz's application in a written nine-page opinion. As to the finding that Diaz Ortiz was not credible, the IJ found that his claim that he was not an MS-13 gang member was contradicted by "the plethora of evidence ... in the record" about his associations with MS-13 gang members. The IJ highlighted Diaz Ortiz's testimony...