FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MAURICIO CASTILLO, No. 19-72745
Petitioner,
Agency No.
v. A073-244-050
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 1, 2020
San Francisco, California
Filed November 18, 2020
Before: J. Clifford Wallace and Michelle T. Friedland,
Circuit Judges, and Robert S. Lasnik, * District Judge.
Opinion by Judge Wallace
*
The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2 CASTILLO V. BARR
SUMMARY **
Immigration
Granting Juan Mauricio Castillo’s petition for review of
the Board of Immigration Appeals’ denial of his application
for protective status pursuant to the Convention Against
Torture, and remanding, the panel held that the Board erred
in giving reduced weight to the testimony of Dr. Thomas
Boerman, a specialist in gang activity in Central America
and governmental responses to gangs.
Castillo is a former gang member with tattoos who fears
torture by gangs and/or Salvadoran officials because of his
former gang memberships, his criminal conviction, and his
later cooperation with law enforcement against La Mara
Salvatrucha or MS-13. In a prior petition, the same panel
concluded that the immigration judge and the Board
improperly discounted Dr. Boerman’s testimony.
The panel addressed two initial matters. First, the panel
stated that the Board’s rejection on remand of the panel’s
prior interpretation of the immigration judge’s decision was
ill-advised, explaining that its prior disposition was not an
advisory opinion, but a conclusive decision not subject to
disapproval or revision by another branch of the federal
government. Second, the panel rejected the Board’s reliance
on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to
support its conclusion that Dr. Boerman’s testimony should
be given reduced weight, because Vatyan addressed an IJ’s
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CASTILLO V. BARR 3
discretion to weigh the “credibility and probative force” of
an authenticated document, whereas the issue in this case
involved the testimony of an expert that the agency had
ostensibly concluded was fully credible.
Even assuming the agency could accord reduced weight
to Dr. Boerman’s testimony and declaration, the panel
disagreed with the Board’s new justifications. First, the
panel rejected the Board’s reliance on alleged
inconsistencies regarding Dr. Boerman’s familiarity with
Castillo’s prison gang, where Dr. Boerman explicitly wrote
in his declaration that his comments on Castillo’s prison
gang were based on facts provided by Castillo, and the Board
did not cite any reason to doubt Castillo’s testimony
regarding rival gangs.
Second, the panel disagreed with the Board’s conclusion
that Dr. Boerman’s testimony did not warrant full weight
because he did not submit a copy of a video referenced in his
testimony, where the video was neither the sole nor primary
basis for his opinion, and the Board failed to explain why the
absence of one video diminished the weight of Dr.
Boerman’s expert opinion, when his opinion had an
independent factual basis.
Finally, the panel concluded that the Board’s decision to
give Dr. Boerman’s opinion reduced weight, because it was
not corroborated by other evidence in the record, was
erroneous. The panel observed that the country report did
provide support for Castillo’s claim, and it noted that Dr.
Boerman’s expert testimony was itself evidence that could
support Castillo’s claim.
The panel remanded to the Board, directing it to give full
weight to Dr. Boerman’s testimony regarding the risk of
4 CASTILLO V. BARR
torture Castillo faces if removed to El Salvador. The panel
explained that if the Board determines once again that
Castillo is not entitled to relief, it must provide a reasoned
explanation for why Dr. Boerman’s testimony is not
dispositive on the issue of probability of torture. The panel
further explained that once it gives full weight to Dr.
Boerman’s testimony, the remaining issue for the Board is
to determine whether Castillo has established the
government acquiescence element of his CAT claim.
COUNSEL
Michael Kagan (argued), Attorney; Edgar Cervantes, Law
Student; Thomas & Mack Legal Clinic, University of
Nevada, Las Vegas, Nevada; for Petitioner.
John F. Stanton (argued), Trial Attorney; Jessica E. Burns,
Senior Litigation Counsel; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
WALLACE, Circuit Judge:
Juan Mauricio Castillo appeals from the Board of
Immigration Appeals’ (Board) denial of his application for
protective status pursuant to the Convention Against Torture
(CAT). Castillo is a native citizen of El Salvador. He snuck
into the United States when he was 12 years old with the
assistance of a family friend. He then murdered a 12-year-
old girl when he was a teenager during a gang-related
CASTILLO V. BARR 5
shooting, and he was convicted in 1996 for first-degree
murder with the use of a firearm during gang-related activity.
Upon his parole from state prison, the Department of
Homeland Security sought Castillo’s removal. Castillo
applied for withholding of removal and CAT status. The
Immigration Judge (IJ) concluded that Castillo was not
eligible for withholding of removal because his murder
conviction was a bar as a particularly serious crime.
To support his application for CAT status, Castillo called
an expert to testify on his behalf about gang activity in
Central America and governmental responses to gangs.
Ultimately, the IJ did not find the expert credible and
discounted his testimony on the risks posed to Castillo
because of his gang membership and murder conviction.
The Board affirmed, but we remanded the petition to the
Board. Castillo v. Barr, No. 17-72544, 765 F. App’x 256
(9th Cir. Mar. 28, 2019) (unpublished). We reasoned that
the IJ’s disagreement with portions of the expert’s testimony
ignored the record and relied on incorrect reasoning. Id.
at 257. On remand, the Board re-affirmed the IJ’s denial of
Castillo’s application for CAT protection for reasons like
those we had rejected. Castillo again petitions for review of
the denial of his application for CAT status.
We have jurisdiction pursuant to 8 U.S.C. § 1252.
Reviewing the Board’s findings for substantial evidence,
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007), we
grant the petition for review and remand.
I.
Castillo is a former gang member who has belonged to
various violent gangs, including La Mara Salvatrucha,
commonly known as MS-13. He joined MS-13 as a
teenager, a few years after arriving in the United States. His
6 CASTILLO V. BARR
underlying murder conviction stemmed from his gang
activity. Upon his incarceration, he joined a rival gang
known as Mi Raza Unida (MRU) rather than MS-13.
Castillo eventually tried to leave MRU, and he was debriefed
by law enforcement about both MRU and MS-13. Both
gangs responded by ordering a hit, or greenlight, on Castillo.
The MS-13 hit applies in both the United States and El
Salvador.
Castillo testified before the IJ that he feared for his life if
removed to El Salvador because of his former gang
memberships, his criminal conviction, and his later
cooperation with law enforcement against MS-13. He also
feared persecution from Salvadoran officials. Castillo
contended he would be easily identified as a former gang
member because of (1) his criminal record, (2) his
deportation from the United States, and (3) his visible gang
tattoos.
Castillo called Dr. Thomas Boerman as a specialist in
Central American gang response strategies to testify on his
behalf. Dr. Boerman has consulted on Central American
gang issues for the U.S. Agency for International
Development, the World Bank, and the United Nations High
Commissioner for Refugees. Dr. Boerman opined in his
testimony and declaration that Castillo faced a risk of torture
or harassment from four different sources if he were
deported to El Salvador.
The first is Castillo’s status as a tattooed former gang
member would make him a target for Salvadoran
immigration officials, particularly because his United States
conviction would have to be disclosed to the Salvadoran
government, which could lead to his torture. The second is
the ongoing risk from local police wherever he settles in El
Salvador, which could lead to his imprisonment, torture, or
CASTILLO V. BARR 7
extrajudicial killing based on his former gang member
status. The third is Castillo’s status as a former MS-13
member who turned on his gang would make him a target
for both MS-13 and other gangs in El Salvador, which would
likely lead to his torture and death because of the
“greenlight.” The fourth is the alleged vigilante groups,
which include Salvadoran government officials, engaged in
“extermination squads” as a strategy to rid the country of
gang members.
The IJ decided that Dr. Boerman’s testimony should be
given reduced weight and implied he was not a credible
expert. The IJ held that Dr. Boerman’s statements were not
supported by the record, and his testimony proposed “linking
together a series of suppositions and without ‘establishing
that each step in the hypothetical chain [was] more likely
than not to happen.’” The IJ also discounted Dr. Boerman’s
testimony regarding the “extermination strategy” as
“exaggerated,” and the IJ observed that Dr. Boerman “was
not able to consistently identify which of [Castillo’s] tattoos
were gang-related.” The IJ concluded that Castillo could not
establish that it was more likely than not that Salvadoran
immigration officials would collude with police and torture
him because the documentary evidence did not mention such
collusion.
The Board held that the IJ did not commit clear error in
concluding that the record was “devoid of any mention of
immigration officials and police colluding to apprehend
returning gang members.” We disagreed in Castillo, 765 F.
App’x at 257, and held that the IJ and the Board
(collectively, the Agency) improperly discounted Dr.
Boerman’s testimony because the IJ relied on faulty
reasoning and the Board failed to provide any other
sufficient reason why his testimony and report should be
8 CASTILLO V. BARR
discounted. We granted Castillo’s petition and remanded to
the Board. Id. at 258.
Despite our direction to reconsider Dr. Boerman’s
testimony and its effect on Castillo’s CAT claim, the Board
has once again similarly discounted Dr. Boerman’s
testimony and did not consider the entire record. The Board
also rejected our interpretation of the IJ’s decision, and it
held that the IJ had not made an explicit credibility finding.
The Board also continued to give Dr. Boerman’s testimony
“reduced weight.”
The Board listed three reasons in support of its decision
to discount Dr. Boerman’s testimony. The first are
purported inconsistencies between Dr. Boerman’s testimony
and his written declaration with respect to his familiarity
with Castillo’s prison gang. The second are Dr. Boerman’s
references to video evidence depicting Salvadoran
immigration officials beating gang members at an airport
despite not submitting the underlying video into evidence.
The third is the dearth of corroborating evidence to support
Dr. Boerman’s testimony and declaration regarding the
extermination strategy of the Salvadoran government and
vigilante groups. The Board concluded that Castillo failed
to meet his burden because it held that Dr. Boerman’s
testimony was insufficient evidence, alone or in aggregate,
to establish that Castillo’s torture was more likely than not
to occur.
Castillo argues two issues in his current petition for
review. The first is that the Board’s holding that
Dr. Boerman’s testimony was not corroborated misconstrues
the record. The second is the Board did not properly
aggregate Castillo’s risks because it incorporated the IJ’s
chain-of-events analysis by reference.
CASTILLO V. BARR 9
II.
Under the Immigration and Nationality Act, even
individuals convicted of aggravated felonies are eligible for
CAT relief. See Bromfield v. Mukasey, 543 F.3d 1071, 1075
(9th Cir. 2008). To receive CAT status, Castillo must show
that he would “more likely than not” be tortured if so
removed. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). Castillo
must demonstrate “a chance greater than fifty percent that he
will be tortured” if removed to El Salvador. Hamoui v.
Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). Castillo must
also establish that he would experience torture with the
“acquiescence” of the Salvadoran government. Cole v.
Holder, 659 F.3d 762, 771 (9th Cir. 2011).
The Board’s factual findings are reviewed for substantial
evidence. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.
2007). Substantial evidence means the Board’s holding is
supported by “reasonable, substantial, and probative
evidence on the record.” Ornelas-Chavez v. Gonzalez,
458 F.3d 1052, 1056 (9th Cir. 2006) (citation omitted). As
such, we must uphold the Board’s decision unless the record
compels a contrary conclusion. Where the Board does not
consider all the evidence before it, either by “misstating the
record [or] failing to mention highly probative or potentially
dispositive evidence,” its decision cannot stand. Cole,
659 F.3d at 772. If the Board rejects expert testimony, it
must state “in the record why the testimony was insufficient
to establish the probability of torture.” Id. (citation omitted).
Improperly rejected expert testimony is a legal error and,
thus, per se reversible. See id. at 773.
There are two initial matters. First, the Board’s defiance
of our previous decision in this matter and disagreement with
our holding that the IJ did not find Dr. Boerman credible was
ill-advised. Our prior disposition was not an advisory
10 CASTILLO V. BARR
opinion, but a conclusive decision not subject to disapproval
or revision by another branch of the federal government.
Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020).
“Once we reached [our] conclusion, both the Constitution
and the statute required the Board to implement it.” Id.
Second, we reject the Board’s reliance on Vatyan v.
Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its
conclusion that Dr. Boerman’s testimony should be given
reduced weight. Vatyan addressed an IJ’s discretion to
weigh the “credibility and probative force” of an
authenticated document. Id. at 1185 n.4 (citation omitted).
The issue here is the testimony of an expert that the Agency
has ostensibly concluded is fully credible.
However, even assuming the Agency can accord reduced
weight to Dr. Boerman’s testimony and declaration, we
disagree with the Board’s new justifications. We first turn
to the alleged inconsistencies regarding Dr. Boerman’s
familiarity with Castillo’s prison gang. Dr. Boerman
explicitly wrote in his declaration that his comments on
Castillo’s prison gang were based on facts provided by
Castillo. The Board did not cite any reason to doubt
Castillo’s testimony that MRU and MS-13 are rival gangs.
In the end, Dr. Boerman’s testimony was not undermined by
his reliance on facts about gang rivalries that have not been
disputed. See also Aguilar-Ramos v. Holder, 594 F.3d 701,
706 n.7 (9th Cir. 2010) (observing that “[a]n expert is
permitted to base his opinion on hearsay evidence and need
not have personal knowledge of the facts underlying his
opinion”).
Second, we disagree with the Board’s conclusion that
Dr. Boerman’s testimony did not warrant full weight
because he did not submit the underlying evidence to the IJ.
Our circuit has held that the underlying facts or data forming
CASTILLO V. BARR 11
the basis of an expert’s opinion in an immigration
proceeding “need not be admissible in evidence in order for
the opinion or inference to be admitted.” Malkandi v.
Holder, 576 F.3d 906, 916 (9th Cir. 2009) (citation omitted).
In addition, Dr. Boerman’s testimony about a video of
extrajudicial violence by Salvadoran immigration officials
against gang members at an airport was neither the sole nor
primary basis for his opinion that Castillo would be at risk
from Salvadoran immigration officials. Dr. Boerman swore
in his declaration that he was familiar with “numerous
instances in which gang members and other tattooed
individuals have been physically abused by [Salvadoran]
immigration officials and/or turned over to police at the
airport who subjected them to threats, beatings and/or
torture.” Accordingly, the Board failed to explain why the
absence of one video diminished the weight of
Dr. Boerman’s expert opinion when it had an independent
factual basis.
Finally, the Board’s decision to give Dr. Boerman’s
opinion reduced weight because it was not corroborated by
other evidence in the record was erroneous. The Board
reasoned that Dr. Boerman’s testimony about the Salvadoran
government’s alleged extermination strategy was not
supported by other record evidence because the U.S. State
Department’s country report did not cite extrajudicial
killings to a level that could justify such a characterization
and said police are investigating misconduct. However, the
country report also mentions extermination groups
containing police officers. In any event, Dr. Boerman’s
expert testimony was itself evidence that could support
Castillo’s claim. See Velasquez-Banegas v. Lynch, 846 F.3d
258, 262 (7th Cir. 2017) (holding that an IJ erred in
disregarding an expert’s opinion on the basis that the expert
did not cite data, reports, or examples as support for the
12 CASTILLO V. BARR
opinion, because the testimony was accepted by the IJ as
truthful and was uncontradicted evidence). If an expert’s
opinion could only be relied upon if it were redundant with
other evidence in the record, there would be no need for
experts. The Board therefore erred in giving Dr. Boerman’s
testimony reduced weight.
We reject Castillo’s second argument that the Agency
erred by applying the chain-of-events analysis rather than
aggregation of risks. The IJ discussed both analyses, and the
Board assessed the aggregate risk.
III.
We grant Castillo’s petition and remand to the Board.
Based on the record now before us, we further direct the
Board to give full weight to Dr. Boerman’s testimony
regarding the risk of torture Castillo faces if removed to El
Salvador. If the Board determines once again that Castillo
is not entitled to relief, it must provide a reasoned
explanation for why Dr. Boerman’s testimony is not
dispositive on the issue of probability of torture. Once it
gives full weight to Dr. Boerman’s testimony, the remaining
issue for the Board is to determine whether Castillo has
established the government acquiescence element of his
CAT claim.
GRANTED and REMANDED.