FILED
NOT FOR PUBLICATION APR 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO CORDOVA- No. 09-71555
MANZANAREZ,
Agency No. A097-476-196
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2010
Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
Jose Alberto Cordova-Manzanarez (Cordova) petitions for review of a
decision of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of Cordova’s application for asylum and withholding of
removal on credibility grounds and dismissing his appeal from the IJ’s denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cordova’s application for relief under the United Nations Convention Against
Torture (CAT). We grant the petition in part and remand to the BIA.
Asylum and Withholding Claims
The BIA and IJ based their adverse credibility determination on (1) a single
inconsistency in Cordova’s testimony regarding the year he was shot for the first
time and (2) an assertion that Cordova’s claim that he was forcibly tattooed is
inherently implausible.
1. In focusing on one date inconsistency in Cordova’s otherwise consistent
testimony, the IJ and BIA failed to “recognize that the normal limits of human
understanding and memory may make some inconsistencies or lack of recall
present in any witness’s case.” Shrestha v. Holder, 590 F.3d 1034, 1044-45 (9th
Cir. 2010). Further, and critically, neither the IJ nor the BIA took into account
with regard to the credibility finding testimony by Dr. Kuck that Cordova showed
signs of cognitive compromise that had affected his memory and his ability to
understand and answer questions without prompting and redirection. Here, Dr.
Kuck’s testimony indicates that Cordova’s single confusion about one date could
have resulted from either a momentary loss of memory or a misunderstanding of
the question. Neither explanation suggested by the expert testimony concerning
Cordova’s cognitive impairment was considered by the IJ or BIA in making the
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adverse credibility finding. The agency thus failed to take Cordova’s individual
circumstances into account in making its credibility finding, and thereby erred. See
id. at 1041 (holding that adverse credibility determinations under the REAL ID Act
must “take into consideration the individual circumstances of the applicant”).
2. The agency also erred by failing to take into account all of the relevant
factors when concluding that Cordova’s story of forcible tattooing was inherently
implausible. See id. at 1040 (holding that an adverse credibility determination
under the REAL ID Act must take into account “the totality of the circumstances,
and all relevant factors”). The BIA and IJ relied heavily on Deputy Sheriff Mata’s
testimony that it would be too hard to hold someone down and tattoo him, and that
gang members are proud of their tattoos. In doing so, the BIA ignored Dr. Serpas’
testimony that Cordova was embarrassed by his blurry, distorted tattoos. The
agency also ignored Cordova’s testimony that he was involuntarily tattooed at
gunpoint while tied to a chair, obviating as irrelevant the suggestion one could not
involuntarily tattoo someone by just holding him down. Further, there is no
inherent inconsistency between gang members’ pride in gang tattoos and a desire
that all gang members, including those forcibly inducted, wear them.
As BIA’s adverse credibility finding is for these reasons not supported by
substantial evidence, on remand, Cordova is to be deemed credible for the purposes
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of assessing his asylum and withholding claims. See Soto-Olarte v. Holder, 555
F.3d 1089, 1094-95 (9th Cir. 2009) (“the deemed credible rule may apply when it
is evident that the IJ and BIA have both strained to provide reasons properly
supporting an adverse credibility finding, but despite their best efforts have been
unable to do so”).
3. Because the BIA’s decision did not cite Matter of Burbano, 20 I.&N. Dec.
872 (BIA 1994), nor did it expressly adopt the IJ’s alternative findings, this court
cannot presently address the question whether Cordova was persecuted on a
protected ground. See Joseph v. Holder, 600 F.3d 1235, 1239 (9th Cir. 2010)
(holding that this court’s review is limited to the BIA decision and the portions of
the IJ’s decision that it expressly adopted); see also Gonzales v. Thomas, 547 U.S.
183, 185-87 (2006) (per curiam) and INS v. Ventura, 537 U.S. 12, 16-17 (2002)
(per curiam) (holding that this court must remand to the BIA to allow it to address
in the first instance an issue that it has not yet considered). The BIA should
consider the issue on remand.
CAT Claims
Cordova asserts that he will more likely than not be tortured by either
vigilante groups or by the police if returned to El Salvador. We consider each
claim in turn.
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1. Although evidence in the record establishes that Sombra Negra is a
notorious vigilante organization that has claimed credit for murdering gang
members, the record supports the BIA’s conclusion that the Salvadoran
government has prosecuted some members of Sombra Negra and is attempting to
control the group. Thus, the record does not compel a conclusion that Cordova
would more likely than not be tortured by vigilante groups if returned to El
Salvador. See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008).
2. As to torture by police, Cordova testified that police had beaten him with
their batons several times after stopping him and asking him if he was a gang
member. As the government pointed out, however, it was unclear whether the
police in El Salvador beat him because of his tattoos. Cordova had trouble
remembering when these incidents with the police occurred, but he thought they
probably happened between 1996 and 1998. The record supports the BIA’s
conclusion that these were isolated incidents. Moreover, while some documentary
evidence in the record suggests that Salvadoran police commit human rights
abuses, and target and abuse individuals with tattoos, the record dos not compel a
conclusion that Cordova would more likely than not be tortured by the police if
returned to El Salvador.
Cordova’s CAT claim is denied.
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PETITION GRANTED IN PART AND REMANDED.
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FILED
Cordova-Manzanarez v. Holder, No. 09-71555 APR 27 2011
MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, concurring and dissenting: U.S. COURT OF APPEALS
Although I concur in the majority’s holding that Mr. Cordova-Manzanarez
(“Cordova”) is clearly ineligible for relief under the Convention Against Torture
(“CAT”), I dissent from the majority’s decision to reverse the Board of
Immigration Appeals (“BIA”) and Immigration Judge (“IJ”)and remand for further
proceedings to consider Cordova’s asylum and withholding of removal claims.
The BIA and the IJ found that, under the totality of the circumstances,
Cordova’s claims were inconsistent, unpersuasive and not credible. In particular,
the BIA and IJ noted that Cordova had provided contradictory dates as to when he
was shot and that his story about being forcibly tattooed was implausible. Notably,
the IJ devoted fifteen pages of his opinion to detailing Cordova’s claims, the
evidence and testimony – including the testimony of both sides’ experts – before
concluding that “[w]ith due respect to the experts who testified on respondent’s
behalf, I do not find respondent to be a credible or persuasive witness as to the
issues before this Court on the basis of the totality of the circumstances and all
relevant factors.”
In reaching its conclusion that the BIA and IJ erred, the majority fails to
adhere to the deferential substantial evidence standard that is required of us for
reviewing immigration agency decisions. 8 U.S.C. § 1252(b)(4)(B); see also
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2010) (“Under the substantial
evidence standard, the court upholds the BIA’s determination unless the evidence
in the record compels a contrary conclusion.”). “This strict standard bars the
reviewing court from independently weighing the evidence and holding that the
petitioner is eligible for asylum, except in cases where compelling evidence is
shown.” Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994). “We are not free to
look anew at the testimony and then measure the soundness of the agency’s
decision by what we would have found. Nor does evidence compel the opposite
conclusion just because it would also support a different result.” Donchev v.
Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009). Furthermore, while the IJ must
consider the totality of the circumstances, under the REAL ID Act, an IJ does not
need to find that a petitioner’s “inconsistency inaccuracy, or falsehood” go “to the
heart of an applicant’s claim.” See Real ID Act § 101(a)(3)(iii).
Here, Cordova’s inconsistent responses regarding the dates that he was shot
coupled with the BIA and IJ’s finding that his story about being forcibly tattooed
was implausible were more than sufficient, under our deferential standard of
review, to uphold the BIA and IJ’s decisions. Their decisions make clear that
Cordova and his experts’ testimony and evidence was considered, but the
government’s evidence and its experts’ testimony were determined to be more
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compelling. Nothing the majority points to compels a conclusion contrary to that
reached by the BIA and IJ and there is certainly nothing that supports the
majority’s conclusion that the deemed credible rule should apply here. Because I
would find that the BIA and IJ’s asylum and withholding decisions were supported
by substantial evidence, and because I disagree with the majority’s failure to
adhere to our deferential standard of review, I dissent.
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