Friday, September 23, 2011
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Ninth Circuit Blocks Gang Member’s Deportation, Citing Fear of Torture Over Tattoos
By a MetNews Staff Writer
A gang member who said he fears he will be tortured if returned to his native Honduras is entitled to a new hearing, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel remanded the case of Hubert George Cole to the Board of Immigration Appeals, saying the board “failed to give reasoned consideration to potentially dispositive testimony by Cole’s expert witnesses and did not address all of Cole’s claims.”
Cole, the court explained, is an Afro-Honduran who came to the United States with his family at age 11. He has an extensive criminal history and has a number of tattoos associating himself with the Crips.
Cole said he joined the gang in prison in order to protect himself from Hispanic gangs. He presented evidence of a history of discrimination against blacks of African descent in Honduras.
Various sources estimate that between two and 10 percent of Hondurans are black.
Code was severely injured in a drive-by shooting in 2007. He was hospitalized for several months and needs ongoing medical care for a brain injury. The Department of Homeland Security instituted removal proceedings in 2008, saying he was subject to removal because he was undocumented and was convicted of possession of cocaine for sale.
He conceded removability but asked for asylum, withholding of removal, and relief under the Convention Against Torture. He appealed solely on the CAT claim after the immigration judge denied his claims.
Cole testified that he no longer belongs to a gang, but has not removed his tattoos because removal is a long and painful process. If returned to Honduras, he told the IJ, he will be killed by gangs, police, or death squads, because of his race and tattoos.
He also said he feared that he would be detained by police, exposed to tortuous conditions in custody, and denied needed medical care.
Experts testifying on behalf of Cole said large Hispanic gangs now operate in both the United States and Central America, their influence having been spread by deportees from this country. The Central American members, they said, are aware of who the Crips are, despise them, and would kill a person wearing Crips tattoos.
One expert, who had worked with gang members in Honduras, testified that police in that country do not investigate murders of gang members or suspected members, and that wearing gang tattoos is a crime that can lead to six to 12 years in prison.
Suspected gang members, he added, are routinely subjected to physical abuse by police and dozens have been killed by police or prison guards. Gang members are held in such disrepute, he said, that a person with gang tattoos would likely die without being treated if taken to a hospital.
Cole also presented evidence in the form of State Department reports saying government officials use or condone torture despite its being banned by the Honduran Constitution.
In denying relief, the BIA held that the expert testimony was insufficiently corroborated, and that Cole—while demonstrating that having gang tattoos might subject him to harsh treatment—failed to show that the mere sight of the tattoos would lead to his being tortured.
But Judge Marsha Berzon, writing for the Ninth Circuit, said the board’s decision was unsupported by the record.
The BIA, she noted, found the expert testimony unpersuasive in light of what the State Department has reported. But the State Department “corroborates rather than contradicts many aspects of both experts’ testimony,” she noted, in reporting that Honduran authorities frequently ignore their country’s constitutional ban on torture.
In a footnote, Berzon said a constitutional ban on torture “does not establish that the country does not torture people,” citing a Ninth Circuit opinion noting that the former government of Iraq routinely tortured detainees in violation of the country’s constitution.
The board, the judge added, also ignored testimony about specific incidents, including one in which police shot 68 jailed suspected gang members and another in which they set fire to a jail and killed 104 gang members.
Berzon also found fault with the BIA’s conclusion that a denial of medical care does not amount to torture. Such denial would be torture if the denial of needed care was unintentional.
Senior Judge John Noonan, in a concurring opinion, suggested that the board consider delaying deportation so as to enable Cole to have his tattoos removed. Once the tattoos are removed, or if Cole refuses to have them removed, he may be deported, Noonan said.
Judge Consuelo Callahan argued in dissent that the majority lacked a legal basis for reweighing the evidence considered by the BIA, was relying on “a series of hypothetical events” to support its belief that Cole might be tortured because of his tattoos, failed “to appreciate the lack of evidence that Cole would be intentionally deprived of medical care if he were returned to Honduras,” and erred in granting relief based on the presence of tattoos that Cole willingly allowed to be applied.
The last issue is “problematic,” she said, because it is contrary to Ninth Circuit precedent holding that being a tattooed ex-gang member does not constitute membership in a social group for asylum purposes, and because it would encourage aliens to get offensive tattoos in order to avoid deportation.
“Would this lead an individual who did not want to return to China to obtain a Falun Gong tattoo?,” she asked rhetorically. “Would a prominent swastika tattoo compel CAT relief against repatriation to Israel?”
Los Angeles attorney Fatma E. Marouf represented Cole on appeal. The government was represented by lawyers from its Office of Immigration Litigation in Washington, D.C.
The case is Cole v. Holder, 09-73625.
Copyright 2011, Metropolitan News Company