NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MAURICIO CASTILLO, No. 17-72544
Petitioner, Agency No. A073-244-050
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 15, 2019
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge.
Petitioner Juan Castillo petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying his request for deferral of withholding
under the Convention Against Torture (“CAT”).
We review the BIA’s decision for substantial evidence, reversing only if
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
“the evidence compels the conclusion” that its decision was incorrect. Gu v.
Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). “[W]here, as here, the BIA
reviewed the IJ’s decision for clear error and provided more than a ‘boilerplate
opinion,’ we may . . . look to the ‘IJ’s oral decision as a guide to what lay behind
the BIA’s conclusion[s].’” Guo v. Sessions, 897 F.3d 1208, 1214 n.4 (9th Cir.
2018) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)). We will
review “the reasons explicitly identified by the BIA, and then examine the
reasoning articulated in the IJ’s oral decision in support of those reasons.” Id.
(quoting Tekle, 533 F.3d at 1051).
1. We have jurisdiction over Castillo’s petition. See Pechenkov v. Holder,
705 F.3d 444, 448 (9th Cir. 2012).
2. The Agency erred in its consideration of Dr. Boerman’s testimony about
the risk of torture faced by Castillo. The IJ “consider[ed] some of Dr. Boerman’s
statements to be exaggerated.” One of the reasons the IJ gave for this conclusion
was: “the notion that [the asserted] multi-agency governmental corruption is
commonplace seems to contradict Dr. Boerman’s written declaration, which states
that ‘[not all] Salvadoran officials are corrupt; there are thousands of public
servants of the highest integrity, skill and professionalism.’” But there is no
inherent contradiction between official corruption being commonplace and the
existence of thousands of dedicated, honest public servants.
2
Petitioner objected before the BIA to this illogical aspect of the IJ’s reasons
for rejecting Dr. Boerman’s testimony.1 But the BIA did not correct this error in
reasoning or otherwise explain why it would deny Castillo’s CAT claim even
without that aspect of the IJ’s reasoning. Seemingly in at least partial response to
Castillo’s arguments about errors in the IJ’s evaluation of Dr. Boerman’s
testimony, the BIA stated that the IJ had found Dr. Boerman “credible.” To the
contrary, the IJ did not appear to find Dr. Boerman credible. The BIA did
recognize that the IJ concluded Dr. Boerman “exaggerated the risk of harm to the
applicant.” But the BIA discussed—and found no clear error in—only one of the
several reasons that the IJ gave for discounting Dr. Boerman’s testimony: that the
record was “devoid of any mention of immigration officials and police colluding to
apprehend returning gang members.”2 In addition to not being responsive to
Castillo’s argument regarding the IJ’s mis-perceived contradiction in Dr.
Boerman’s report, by relying on this reason the Agency ignored the fact that Dr.
Boerman’s own written report identified the problem of collusion between
immigration officials and police regarding treatment of returning gang members—
1
In appealing to the BIA, Castillo argued, among other things, that the IJ
erred in finding Dr. Boerman’s opinion that both corruption and a large number of
honest officials could coexist was a contradiction, in light of the State Department
reporting “say[ing] much the same thing.”
2
In fact, the IJ had stated that “[t]he documentary evidence [was] devoid of
any mention of immigration officials and police colluding to apprehend returning
gang members.”
3
and, absent a proper reason to discount it, that report was part of the record. See
Cordoba v. Holder, 726 F.3d 1106, 1114-15 (9th Cir. 2013) (discussing “credible
expert testimony” of a professor as record evidence supporting the petitioner’s
claim). The BIA thus relied on incorrect reasoning by the IJ, and did not provide
any other sufficient reason to affirm the IJ’s conclusion that Dr. Boerman
exaggerated the risks to Castillo. We thus remand so the BIA can reconsider Dr.
Boerman’s testimony and its effect on Castillo’s CAT claim.
3. For efficiency, we reject two of Castillo’s remaining arguments.3 The
BIA did not impose an impermissibly high burden of proof on Castillo. “To
qualify for CAT relief, a petitioner must establish that ‘it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.’”
Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.
§ 208.16(c)(2)). Castillo must therefore show there is “a chance greater than fifty
percent that he will be tortured if removed.” Id. (quoting Hamoui v. Ashcroft, 389
F.3d 821, 827 (9th Cir. 2004)). The BIA properly articulated this standard.
The BIA also did not impermissibly require that specific technical
3
Although our holding that the BIA erred is sufficient to resolve this
petition, because the other issues raised in Castillo’s petition could arise again on
remand and because they have been fully briefed, we review them here. See
United States v. Mancuso, 718 F.3d 780, 796 (9th Cir. 2013); United States v. Van
Alstyne, 584 F.3d 803, 817 n.14 (9th Cir. 2009); but see United States v. Nickle,
816 F.3d 1230, 1237 n.6 (9th Cir. 2016).
4
terminology be used in evidence supporting Petitioner’s claim. The BIA, and the
IJ, did not discount evidence merely because it did not use the word “torture,” but
because the conduct described in the relevant passages of the reports did not
amount to torture.
GRANTED and REMANDED.
5