Cole

Fatma E. Marouf, Marouf Law Group, Los Angeles, CA, for the petitioner.

Tony West, Assistant Attorney General, Civil Division, Thomas B. Fatouros, Senior Litigation Counsel, and Pegah Vakili and Yedidya Cohen, Trial Attorneys, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

Before: JOHN T. NOONAN, MARSHA S. BERZON, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge NOONAN; Dissent by Judge CALLAHAN.

BERZON, Circuit Judge.

We consider the application of Hubert George Cole (Cole), a citizen and national of Honduras, for deferral of removal under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) denied the application, concluding that Cole had not established he would more likely than not be tortured if removed to Honduras. Because the BIA failed to give reasoned consideration to potentially dispositive testimony by Cole's expert witnesses and did not address all of Cole's claims, we grant the petition and remand to the BIA.

Cole, a 40-year-old, black, former gang member, was born in Honduras and entered the United States at age eleven with his…

Opinion by Judge BERZON; Concurrence by Judge NOONAN; Dissent by Judge CALLAHAN.

OPINION

We consider the application of Hubert George Cole (Cole), a citizen and national of Honduras, for deferral of removal under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) denied the application, concluding that Cole had not established he would more likely than not be tortured if removed to Honduras. Because the BIA failed to give reasoned consideration to potentially dis-positive testimony by Cole’s expert witnesses and did not address all of Cole’s claims, we grant the petition and remand to the BIA.

I.

Cole, a 40-year-old, black, former gang member, was born in Honduras and entered the United States at age eleven with his mother and two sisters. Cole has a lengthy criminal history in the United States, beginning when he was a juvenile. While in prison, he joined the Crips, an African American gang, as a way to protect himself from Hispanic gangs. While a member of the Crips, he was tattooed with gang-related symbols and letters on his face and body. In August 2007, Cole was the victim of a drive-by shooting; he was seriously injured and needs ongoing…

concurring:

Cole’s peril comes from his possession of tattoos. Before exposing him to that peril, he should be given the chance to remove the tattoos. The Board of Immigration Appeals has the discretion, in these extraordinary circumstances, to defer his deportation until the tattoos are removed. See Barapind v. Reno, 225 F.3d 1100, 1113 (9th Cir.2000). Accordingly, I vote to remand to the BIA to exercise this discretion.

If the BIA does exercise this discretion and the tattoos are removed, or if Cole declines to seek removal of the tattoos, I vote to deny Cole any further delay in his deportation. If the BIA does not exercise its discretion or if the tattoos are not removed, I concur in Judge Berzon’s opinion.

dissenting:

I dissent because the majority, in reviewing Cole’s assertion that he will be tortured if returned to Honduras because of his gang tattoos, improperly substitutes its judgment for that of the BIA. Specifically, the majority: (1) manufactures a procedural basis for remand by deciding that the BIA failed to give “reasoned consideration” to Cole’s evidence; (2) fails to follow the standard for granting relief under the Convention Against Torture (“CAT”), see Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007), by reweighing the evidence and stringing together a series of hypothetical events to justify its conclusion that Cole may be tortured if returned to Honduras because he would be misidentified as being a gang member based on his tattoos; (3) fails to appreciate the lack of evidence that Cole would be intentionally deprived medical care if he were returned to Honduras; and (4) accepts Cole’s problematic argument that he may be entitled to CAT relief on the basis of his gang-related tattoos. I would deny Cole’s petition on the basis that substantial evidence supported the BIA’s decision and nothing Cole presented in his petition compels a contrary result.

I

Neither…