Torres v. Mukasey

• Citation: 551 F.3d 616
• Decision Date: 23 December 2008
• Docket Number: No. 08-1614.,08-1614.
• Parties: Pedro Flores TORRES, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

551 F.3d 616

Pedro Flores TORRES, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 08-1614.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2008.

Decided December 23, 2008.

Barbara M. Szweda, Attorney (argued), Salt Lake City, UT, for Petitioner.

Hillel R. Smith, Kristina R. Sracic (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents.

Before POSNER, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

Pedro Flores Torres, a native and citizen of Honduras, seeks asylum, withholding of removal, and relief under the Convention Against Torture. Torres claims that he was persecuted while a soldier in the Honduran army because of his membership in a social group—namely, his family, which included four older brothers, three of whom were military deserters. Torres asserts that he was tortured and abused as punishment for his brothers' actions. On May 31, 2006, Immigration Judge Carlos Cuevas declined Torres's primary requests for asylum, withholding of removal, and protection under the Convention Against Torture, granting instead his alternative prayer for voluntary departure. The IJ found that Torres lacked credibility because of, first, inconsistencies and omissions in Torres's written application for asylum and his testimony at a series of immigration hearings, and second, Torres's inability to establish the requisite nexus between Torres's mistreatment and his family's unfavorable reputation in the Honduran military. The Board of Immigration Appeals summarily affirmed the IJ's decision in an order issued February 15, 2008. We find that the IJ's credibility determination was tainted due to the IJ's improper conduct during the hearings and that there was not substantial evidence to support the IJ's conclusions. We vacate the decisions of the BIA and IJ and remand for further proceedings.

I. HISTORY

Pedro Flores Torres entered the United States without inspection in October 2003 and submitted a written application for asylum and withholding of removal one year later. In December 2004, the Department of Homeland Security charged Torres with being removable as an unadmitted alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). At a series of immigration hearings held in April and May 2006, Torres admitted he was removable but renewed his requests for asylum and withholding of removal, as well as relief under the Convention Against Torture. Torres's written application, accompanying affidavits, and testimony by Torres and his brother Juan Carlos provide the following facts.

A. The Flores Torres Family

From 1959 to 1979, Guadalupe Torres gave birth to eight children in Comayagua, a village in Honduras. Five of these children were boys. The oldest son, Mario Noe, was born in 1959. The next three sons—Luis Elias, Gerardo Isaac, and Juan Carlos—were born in 1962, 1969, and 1977, respectively. The youngest child, Pedro Alfredo, is the petitioner in this matter and was born in 1979. The children's father left the family shortly after Pedro's birth.

Pedro's four older brothers were conscripted into the Honduran navy, where each spent at least some time at the naval base in Amapala, near the El Salvadoran border. While serving, each of the four older sons endured brutal mistreatment at the hands of his superiors. Three of the four ultimately deserted the navy to escape these abuses. Because Pedro's claims are based largely on his brothers' experiences within the Honduran military, those experiences merit some discussion.

Mario is the only Torres son not considered a military deserter. Mario served for approximately one year, during which time his arm was broken and his ear punctured, resulting in permanent hearing damage. He escaped, only to be captured and put back into active service. At one point, Mario, Luis, and Gerardo were all serving in the Honduran military at the same time. This prompted the navy, due in part to heavy lobbying by Gerardo, to release Mario pursuant to a Honduran law that prohibited any one family from having more than two members in the military.

The second son, Luis, suffered two broken arms from a severe beating with a baton and fled the navy soon thereafter. Soldiers found him in a hospital and returned him to duty. After enduring further mistreatment, Luis escaped again, this time with a broken leg. When the military found Luis the second time, it determined that his disabled condition rendered him useless to serve and designated him a deserter.

The actions of the third son, Gerardo, were particularly aggravating to the military. In addition to lobbying for Mario's discharge, Gerardo refused to commit war crimes, citing his Christian faith to explain his unwillingness to kill his innocent countrymen. Gerardo was imprisoned for fifteen days, deprived of food, and savagely beaten. As further punishment, his commander made Gerardo walk through a field of land mines while the commander lobbed grenades in his direction, one of which tore away one of Gerardo's legs and ravaged his back with shrapnel. His commander left Gerardo to die in the mine field, but Gerardo's compatriots helped him escape alive. Faced with what he felt was a certain death if he returned to his unit, Gerardo deserted.

Juan Carlos, only two years Pedro's senior, was conscripted into the Honduran navy in 1994 at the age of seventeen, one year before he was of legal age to serve. He was singled out for abuse because of Gerardo's exploits. Once, when Juan Carlos fell during a run, a superior officer slashed his leg with a bayonet, inflicting an injury that required surgery. Following the operation, doctors told Juan Carlos that he needed two months to recover; instead, he was forced back into training after only fifteen days. His unhealed leg made it impossible for him to perform, and the premature exercise reopened his wound. Juan Carlos deserted in 1995.

Today, two of the brothers, Mario and Luis, live secretly in Honduras, afraid of military retribution for their family's history. Gerardo and Juan Carlos both escaped to the United States. Gerardo was granted asylum in 1994 and died one year later, at the age of twenty-five, from brain cancer. Juan Carlos was granted asylum in 1995 and is now a United States citizen. He resides in Elkhart, Indiana, near two of his sisters, both of whom are legal permanent residents.

As a result of these disturbing circumstances, repeated not once but four times, the tale of the Flores Torres brothers has apparently gained some notoriety within Honduran military circles: the Flores Torres clan is known as a family of deserters. Juan Carlos was the first son punished by the military in retribution for his brothers' exploits. His past persecution on account of his family formed the basis of his successful asylum claim. As we will discuss below, Pedro, the youngest son and the last to serve in the military, also was forced to pay for the perceived offenses of his four brothers.

B. Pedro Flores Torres's Tenure in the Honduran Army

Born September 26, 1979, Pedro Alfredo Flores Torres attended school in Comayagua until age eleven. For the next eleven years, he painted automobiles for car repair shops, earning money to help support his mother.

Pedro stated in both his written asylum application and his testimony before the immigration judge that in February 2002, two Honduran soldiers left notice at Guadalupe's home that Pedro had twenty-four hours to report for military duty. Although military service is no longer compulsory in Honduras, Pedro testified that he felt he "did not have any other option" but to enlist. If he did not, Pedro believed that he would be found and beaten, or worse, would simply "disappear." The next day, Pedro reported to the Primer Battalon de Artilleria, an inland army base near the town of Zambrano, where he became a member of the artillery corps.

According to Pedro's testimony, upon reporting for duty he was confronted by his commanding officer, Colonel Luis Martinez. Pedro testified that Martinez said to him, "I was waiting.... You are the last one in the family."

Pedro claimed that he was subjected almost immediately to physical and mental abuse from his superiors—mistreatment above and beyond anything suffered by other soldiers. Pedro stated that officers and other soldiers called him degrading names and violently beat him. According to his affidavit, Pedro's fellow soldiers and a superior officer told Pedro that his mistreatment was "because of [his] brothers."

Pedro mounted two unsuccessful escape attempts during his first six months of service. The first, which came approximately five months into Pedro's tenure, ended with a savage beating at the hands of military guards who apprehended Pedro in the act of fleeing. The second came only a week later and again ended with a beating from a guard's baton. Following the second attempt, Pedro was stripped of his clothing and locked in solitary confinement, a place Pedro called "the hole."

In his affidavit, Pedro said the hole was "what hell must be like." A darkened room measuring one meter on all sides, the hole provided no space for its captive to lie down. There was little ventilation, and the heat was intense. Because he could not leave, Pedro was forced to use the hole to relieve himself. For forty days, Pedro remained trapped, nude, in his own excrement; the stench was overwhelming. During those forty days, Pedro was given beans and tortillas once a day, as well as two small servings of water. When he finally emerged, Pedro had lost forty pounds, one-third of his body weight.

Pedro discussed the name calling, the beatings, the two failed escape attempts, and the forty days of solitary confinement in both his written asylum application and his testimony. During his testimony before the immigration judge, however, Pedro discussed several additional examples of abuse for the first time.

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