LEON LOPEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-24No. No. 19-72004

Summary · law.co

Holding. The petition for review was granted and the case was remanded to the BIA for reconsideration of all evidence relevant to the Convention Against Torture claim.

A Guatemalan national challenged a Board of Immigration Appeals decision denying his request for protection under the Convention Against Torture. The court identified multiple errors in the BIA's analysis, including mischaracterizations of the petitioner's arguments and failure to address significant evidence in the record. Specifically, the BIA incorrectly described the petitioner's claim about police follow-up, ignored an eyewitness declaration, overlooked evidence of official acquiescence and corruption, and mischaracterized the petitioner's reliance on country conditions by failing to acknowledge expert testimony about both general conditions and the petitioner's specific torture risk.

The court established that when there is any indication a tribunal did not consider all relevant evidence before it, a generic statement that the decision was based on the full record is insufficient to sustain the ruling. The court concluded that the BIA's errors and omissions prevented a proper evaluation of whether the petitioner faced a likelihood of torture.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the BIA properly considered all relevant evidence in a Convention Against Torture determination
Standard for evaluating adequacy of tribunal decisions that cite generic conclusions about considering the record
Significance of evidence regarding official acquiescence, police corruption, and eyewitness testimony in torture risk assessments

Procedural posture

The petitioner sought judicial review of a BIA decision denying Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Ladislao Bernabe De Leon-Lopez, a native and citizen of Guatemala, seeks review of a Board of Immigration Appeals (“BIA”) decision denying relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a), and remand to the BIA for proper consideration of all evidence in the record.

“In determining whether an individual will more likely than not be tortured, ‘all evidence relevant to the possibility of future torture shall be considered.’ ” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.16(c)(3)). In some cases, where there is nothing in the record to suggest otherwise, a generalized statement that the BIA considered all evidence may be sufficient. Id. at 771. “But, where there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase does not suffice, and the decision cannot stand. Such indications include misstating the record and failing to mention highly probative or potentially dispositive evidence.” Id. at 771-72.

Here, as the government conceded, the BIA misstated the record when it based its CAT determination on the “lack of police follow–up with [Petitioner] regarding the alleged 2016 assault.” Petitioners argument relied on the lack of police follow-up with an eyewitness to the assault, not with Petitioner himself. The BIA, however, made no mention of the eyewitness’ declaration that police never interviewed him. Nor did the BIA mention other evidence pertinent to officials’ acquiescence or willful blindness, including officials’ failure to act on Petitioners specific identifications of suspects, Petitioners relatives’ warnings that it was not safe to go to the police, and expert opinion and testimony regarding the corruption of police officers at the neighborhood level.

The BIA also misstated the record insofar as it based its conclusion on Petitioners “reliance on general country conditions.” Only one of the four pages of Petitioners brief cited by the BIA included references to country condition reports, and then only as parenthetical “see also” citations in support of statements made by Petitioners expert. The BIA made no mention of the experts declaration or testimony as to both country conditions in Guatemala and Petitioners specific likelihood of being tortured.

In light of these errors and omissions, the BIAs generic statement that its conclusion was “[b]ased on the evidence of record” does not demonstrate that the BIA considered all evidence relevant to the possibility of future torture. Accordingly, we remand to the BIA for further proceedings consistent with this disposition.

PETITION FOR REVIEW GRANTED AND REMANDED.