FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY STUART AGUILAR-RAMOS,
Petitioner, No. 07-70240
v.
Agency No.
A036-330-584
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 4, 2009—Pasadena, California
Filed February 4, 2010
Before: Harry Pregerson and Ronald M. Gould,
Circuit Judges, and Myron H. Bright,*
Senior Circuit Judge.
Opinion by Judge Pregerson
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
2071
AGUILAR-RAMOS v. HOLDER 2073
COUNSEL
Jeffrey S. Renzi, Squires, Sanders & Dempsey L.L.P., Los
Angeles, California for the petitioner.
Timothy Bo Stanton and Regan Hildebrand, United States
Department of Justice, Washington D.C., for the respondent.
2074 AGUILAR-RAMOS v. HOLDER
Judy Rabinovitz, American Civil Liberties Union Foundation,
Immigration Rights Project, New York, New York, for the
amicus.
OPINION
PREGERSON, Circuit Judge:
Gregory Stuart Aguilar-Ramos (“Aguilar”), a thirty-eight
year old citizen of El Salvador, has been a permanent legal
resident of the United States since he was seven years old.
Aguilar petitions for review of the Board of Immigration
Appeals’s (“BIA”) order dismissing his claim of ineffective
assistance of counsel and denying his applications for relief
under former Immigration and Nationality Act (INA)
§ 212(c), 8 U.S.C. § 1182(c) (repealed effective April 1,
1997) and the Convention Against Torture (“CAT”).1 We
have jurisdiction under 8 U.S.C. § 1252(a)(5). We grant the
petition in part, deny it in part, and remand.
I
In 1990, when Aguilar was nineteen years old, he pled
guilty to second degree robbery. In 2003, Aguilar pled guilty
to petty theft with priors. In 2005, the Department of Home-
land Security (“DHS”) charged Aguilar with removability on
two grounds: (1) conviction of an aggravated felony based on
the 1990 robbery conviction, and (2) conviction of two crimes
of moral turpitude, based on his 1990 robbery conviction and
1
Aguilar also petitions for review of his asylum claim. The IJ deter-
mined that Aguilar’s asylum application was barred because he failed to
apply for asylum within one year of arrival pursuant to 8 U.S.C.
§ 1158(a)(2)(B). Because Aguilar does not contest this finding or allege
that any exception applies, he has waived the issue. See Martinez-Serrano
v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that
are not supported by argument are deemed abandoned.”).
AGUILAR-RAMOS v. HOLDER 2075
2003 petty theft with priors conviction. In 2006, Aguilar filed
applications for various forms of relief from removal.2
At his merits hearing, Aguilar testified about his fear of
being killed if he returns to El Salvador. Specifically he
expressed fear that police and gangs will harass, persecute,
and kill him because his multiple tattoos and status as a
deportee from the United States will mark him as a gang
member, even though he is not. Alfonso Gonzales
(“Gonzales”), an expert witness on policing and gangs in El
Salvador, testified about El Salvador’s war on gangs and the
multiple threats that tattooed criminal deportees from the
United States potentially face upon arrival, including: (1)
imprisonment for two to six years under El Salvador’s broad
anti-gang legislation; (2) death or serious bodily harm in
prison; (3) harassment by police and military patrols who rou-
tinely force young men to remove their shirts for tattoo
inspections; and (4) death at the hands of death squads, which
are comprised of off-duty police and military personnel and
operate with the awareness of the government. The govern-
ment introduced the 2005 State Department Human Rights
Country Report on El Salvador (“Country Report”) into the
record. Aguilar’s counsel did not submit any documentary
evidence.
The Immigration Judge (“IJ”) found Aguilar removable on
both charges and denied all applications for relief. Aguilar
appealed pro se to the BIA, asserting that his counsel before
the IJ was ineffective and challenging the IJ’s denial of his
applications for relief. The BIA affirmed the IJ, adopting, for
the most part, the IJ’s reasoning. Aguilar timely filed this peti-
2
Aguilar timely applied for cancellation of removal and relief under sec-
tion 212(c) of the INA. He also applied for asylum, withholding of
removal, and relief under CAT. Aguilar does not petition for review of the
IJ’s denial of his applications for cancellation of removal or withholding
of removal. Aguilar waived his asylum claim by failing to advance any
argument to overcome the one-year bar. See supra note 1.
2076 AGUILAR-RAMOS v. HOLDER
tion for review. We note that Aguilar has been detained
throughout these proceedings—which have lasted more than
four years—without a bond hearing.3
II
Where, as here, the BIA incorporates parts of the IJ’s rea-
soning as its own, we treat the incorporated parts as the
BIA’s. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th
Cir. 2002). We review factual findings for substantial evi-
dence. Id. The BIA’s interpretation of purely legal questions
is reviewed de novo. Id.
III
[1] To obtain relief under CAT, a petitioner must prove
that it is more likely than not that he or she will be tortured
in the country of removal. 8 C.F.R. § 1208.16(c)(2). The tor-
ture must be “inflicted by or at the instigation of or with the
3
Upon review of the record, we express grave concerns over Aguilar’s
four-year detention. The parties do not dispute that the government’s cur-
rent authority to detain Aguilar derives from 8 U.S.C. § 1226(a), which
provides discretionary authority to detain an alien pending a final removal
decision. Section 1226(a), however, does not authorize prolonged deten-
tion of aliens absent a bond hearing before an IJ. See Casas-Castrillon v.
Dep’t of Homeland Sec., 535 F.3d 942, 950-51 (9th Cir. 2008). Because
Aguilar has been detained for over four years without a bond hearing, his
detention “qualifies as prolonged by any measure.” Prieto-Romero v.
Clark, 534 F.3d 1053, 1062 (9th Cir. 2008) (noting that petitioner’s three-
year detention “qualifies as prolonged by any measure.”) Accordingly,
there is no question that Aguilar is entitled to a bond hearing under Casas-
Castrillon.
Nonetheless, we are not convinced that we have authority to sua sponte
release Aguilar on bail or to order a bond hearing in a petition for review.
We encourage Aguilar to challenge his detention by filing a habeas peti-
tion pursuant to 28 U.S.C. § 2241 or by requesting a bond hearing. If he
makes such a request, we remind the IJ that the government bears the bur-
den of establishing that Aguilar-Ramos is a flight risk or a danger to the
community. See Casas-Castrillon, 535 F.3d at 952.
AGUILAR-RAMOS v. HOLDER 2077
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Two
forms of relief are available under CAT: (1) withholding of
removal under 8 C.F.R. § 1208.16(c) for aliens who are not
barred from eligibility due to enumerated types of criminal
convictions, and (2) deferral of removal under 8 C.F.R.
§ 1208.17(a) for aliens entitled to protection but subject to
mandatory denial of withholding. See Hosseini v. Gonzales,
471 F.3d 953, 958-61 (9th Cir. 2006).
The IJ denied Aguilar’s application for deferral of removal
under CAT, and the BIA affirmed.4 Because neither the BIA
nor the IJ made an adverse credibility finding, “we must
assume that [Aguilar’s] factual contentions are true.” Navas v.
INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000). “[T]he question
remaining to be answered becomes whether these facts, and
their reasonable inferences, satisfy the elements of the claim
for relief.” Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.
2005).
[2] The IJ concluded, and the BIA agreed, that Aguilar’s
testimony did not meet his burden of proving that it is more
likely than not that he will be tortured if removed to El Salva-
dor. The government urges us to accept this conclusion, but
we need not reach this issue.5 Even if the IJ correctly con-
4
The IJ denied Aguilar’s application for withholding of removal under
CAT because the IJ determined that Aguilar’s 1990 robbery conviction
was a particularly serious crime that barred relief. The BIA did not address
the withholding claim and Aguilar does not contest this denial in his peti-
tion for review.
5
Although we need not reach this issue, we note that the IJ made certain
conclusions about the reliability of Aguilar’s testimony that were unwar-
ranted. For example, the IJ stated that Aguilar failed to mention the spe-
cific names of the detainees he spoke with about the conditions in El
Salvador. The record clearly demonstrates that Aguilar identified both of
the detainees that he mentioned during his testimony as Maricio Guzman
Sanchez and a Mr. Lopez. He even stated that he could get the address of
Sanchez in El Salvador.
2078 AGUILAR-RAMOS v. HOLDER
cluded that Aguilar’s testimony, by itself, was insufficient to
meet his burden under CAT, this conclusion would not be dis-
positive because a CAT applicant may satisfy his burden with
evidence of country conditions alone. See Kamalthas v. INS,
251 F.3d 1279, 1284 (9th Cir. 2001) (holding that a negative
credibility finding for the purposes of an asylum claim does
not preclude relief under CAT where documented country
conditions corroborate a claim of torture).
[3] Here, it is undisputed that the Country Report on El
Salvador was included in the record without objection and
that Aguilar attached it to his pro se brief to the BIA. Yet, nei-
ther the IJ nor the BIA considered the Country Report in
denying Aguilar relief under CAT.6
[4] The failure of the IJ and BIA to consider evidence of
country conditions constitutes reversible error. See, e.g.,
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (hold-
ing that the BIA abused its discretion when it denied petition-
er’s motion to reopen by failing to consider evidence of
country conditions); Al-Saher v. INS, 268 F.3d 1143, 1147-48
(9th Cir. 2001) (“The BIA must take [country reports] into
consideration when assessing whether an applicant qualifies
6
The government does not dispute that the BIA failed to mention the
Country Report in its decision. The government, however, argues that “the
Board is not required to cite and refute explicitly every piece of evidence
offered on appeal.” The one case cited by the government to support this
proposition, Wang v. BIA, 437 F.3d 270 (2d Cir. 2006), is inapposite. In
Wang, the Second Circuit held that the BIA did not abuse its discretion
when it denied petitioner’s motion to reopen asylum proceedings without
explicitly mentioning an immigration expert’s affidavit. 437 F.3d at 275.
But this case involves a CAT claim. The regulations implementing CAT
explicitly require the IJ to consider “all evidence relevant to the possibility
of future torture.” 8 C.F.R. § 208.16(c)(3). Wang is also distinguishable
because the IJ and BIA in this case failed to consider a country report,
rather than an affidavit. Country reports are accorded special weight in
removal proceedings. See, e.g., Kazlauskas v. INS, 46 F.3d 902, 906 (9th
Cir. 1995). Accordingly, the BIA erred in not considering the Country
Report on El Salvador.
AGUILAR-RAMOS v. HOLDER 2079
under the Convention [Against Torture].”). The government
argues that the Country Report fails to demonstrate a likeli-
hood of torture by the government or with the government’s
acquiescence. Such an argument is premature. Because the
BIA failed to consider the Country Report at all, the proper
course of action is to remand with instructions that the BIA
reconsider Aguilar’s CAT claim in light of the Country
Report. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam).
[5] In addition to his failure to consider the Country
Report, the IJ and BIA erred by construing “government
acquiescence” too narrowly. Government acquiescence does
not require actual knowledge or willful acceptance of torture;
awareness and willful blindness will suffice. Zheng v. Ash-
croft, 332 F.3d 1186, 1194-95 (9th Cir. 2003). There is evi-
dence in the record that suggests that gangs and death squads
operate in El Salvador, and that its government is aware of
and willfully blind to their existence. Therefore, we grant
Aguilar’s petition for review and remand for the BIA to
reconsider his application for deferral of removal under CAT.
On remand, we expect the BIA will consider the Country
Report and other relevant documents and apply the appropri-
ate “awareness and willful blindness” standard to determine
whether the government acquiesced in torture.7
7
We note that the IJ did not err by failing to consider the expert witness
testimony of Alfonso Gonzales. The IJ permitted Gonzales to testify and
admitted his testimony into the record. The IJ listened to the testimony and
stated reasons in the record why the testimony was insufficient to establish
the probability of torture necessary to grant CAT relief.
An expert is permitted to base his opinion on hearsay evidence and need
not have personal knowledge of the facts underlying his opinion. See Gu
v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006) (“[H]earsay [evidence]
is admissible if it is probative and its admission is fundamentally fair
. . . .”). See also 8 C.F.R. § 1240.7(a) (“The immigration judge may
receive in evidence any oral or written statement that is material and rele-
vant to any issue in the case previously made by the respondent or any
other person during an investigation, examination, hearing, or trial.”)
(emphasis added).
2080 AGUILAR-RAMOS v. HOLDER
IV
[6] In 2006, Aguilar applied for waiver of removal under
former Immigration and Nationality Act (INA) § 212(c), 8
U.S.C. § 1182(c) (repealed effective April 1, 1997). Section
212(c) allowed certain long-time permanent residents to peti-
tion the Attorney General for a discretionary waiver of
removal for certain enumerated grounds of inadmissibility.
See INS v. St. Cyr, 533 U.S. 289, 294-97 (2001) (providing
history of section 212(c) relief). Section 212(c) was repealed
in 1996, but individuals who entered guilty pleas prior to
April 1, 1997, who otherwise would have been eligible for
section 212(c) relief at the time of their pleas, remain eligible
for relief. See 8 C.F.R. § 1212.3(h). For a petitioner such as
Aguilar to qualify for section 212(c) relief, the ground of
removal must have a statutory counterpart among the grounds
of inadmissibility. 8 C.F.R. § 1212.3(f)(5).
[7] The first ground for Aguilar’s removal—conviction of
a “crime of violence” aggravated felony—does not have a
statutory counterpart with a ground of inadmissibility; there-
fore the Attorney General does not have authority to waive
the first ground for Aguilar’s removal. See Abebe v. Mukasey,
554 F.3d 1203, 1208 n.7 (9th Cir. 2009) (en banc), adopting
the analysis of Abebe v. Gonzales, 493 F.3d 1092, 1101-05
(9th Cir. 2007) (upholding In re Brieva-Perez, 23 I. & N. Dec.
766, 772 (BIA 2005)). The Attorney General also does not
have authority to waive the second ground for Aguilar’s
removal—conviction of two crimes involving moral turpitude
Nevertheless, the IJ was not required to adopt as true all of the facts on
which Gonzales based his opinion, nor was the IJ required to find that
Gonzales’s unrebutted testimony made it more likely than not that Aguilar
would be tortured upon returning to El Salvador. Although we hold that
the IJ did not err by failing to consider Gonzales’s testimony, we expect
that the BIA will reconsider Gonzales’s testimony on remand in the con-
text of reviewing all the record evidence under the proper “awareness and
willful blindness” standard for government acquiescence.
AGUILAR-RAMOS v. HOLDER 2081
—because Aguilar did not plead to the second crime involv-
ing moral turpitude until after Congress repealed section
212(c). See 8 C.F.R. § 1212.3(h). Accordingly, we affirm.
V
Aguilar’s sole ineffective assistance of counsel argument
on appeal is that his immigration court attorney rendered defi-
cient performance by failing to submit documents to corrobo-
rate the testimony of expert witness Gonzales regarding the
likelihood that Aguilar will experience persecution and torture
if removed to El Salvador. Because we grant the petition for
review of Aguilar’s CAT claim, we need not reach his inef-
fective assistance claim, as we expect that on remand Aguilar
will be permitted to introduce the omitted documentary evi-
dence that formed the basis of the ineffective assistance claim.
In conclusion, we grant the petition for review as to Agui-
lar’s application for CAT relief, deny the petition as to Agui-
lar’s application for relief under section 212(c), and remand
to the BIA for proceedings consistent with this opinion.8
PETITION GRANTED IN PART, DENIED IN PART,
AND REMANDED.
8
We do not mean to suggest that a gang member can never be deported
to El Salvador. On remand, we merely hold that the BIA and IJ must con-
sider all the evidence presented by Aguilar and state their conclusions in
the record.