Jorge Portillo-Orellana v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE RAFAEL PORTILLO- No. 14-70821
ORELLANA,
Agency No. A206-513-042
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2018**
Pasadena, California
Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.
Jorge Rafael Portillo-Orellana is a citizen of El Salvador who has sought
asylum, withholding of removal, and relief from removal under the Convention
Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) denied all
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
relief, and he now petitions for review of that decision. Because the BIA erred in
its determination that Portillo-Orellana had not established a nexus to a protected
ground for purposes of asylum and withholding, and because it failed to issue a
reasoned decision regarding the CAT claim, we grant the petition for review.
Portillo-Orellana is a former member of the Salvadoran National Civilian
Police who, while on the police force, engaged in anti-gang activity. Because the
immigration judge did not find that Portillo-Orellana’s testimony was not credible,
“the facts to which he testified are deemed true.” Cole v. Holder, 659 F.3d 762,
770 (9th Cir. 2011) (alteration and internal quotation marks omitted). In March
2013, while off-duty, Portillo-Orellana observed unusual activity at a
neighborhood house whose residents he knew to be affiliated with the Mara 18
gang. He inferred that gang members were selling drugs and accordingly
determined that an immediate police response was necessary. He called a
coworker, who then arranged for a unit’s response; several gang members were
detained.
Approximately three weeks later, armed members of Mara 18 threatened
Portillo-Orellana at his home. They referred to his status as a police officer and to
his role in triggering a response by the department to gang activity. The gang
members threatened to kill him and remained—as Portillo-Orellana described the
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scene, with “their guns in the air”—for roughly ten minutes. Portillo-Orellana and
his wife gathered up their children and fled from their home. The next day,
Portillo-Orellana determined that he had to leave the country. His wife delivered
his resignation from the police force to headquarters, and he left El Salvador within
the week. Following Portillo-Orellana’s departure, gang members have continued
to search for him. They have threatened both his wife and his daughter with harm
for failing to reveal his whereabouts. Additionally, gang members who threatened
his coworker mentioned Portillo-Orellana’s name; the coworker has since left the
police force and fled as well.
The agency construed the threats that Portillo-Orellana experienced as the
result of a “personal dispute[] with gang members” or, perhaps, “general
conditions of violence”—not a result of Portillo-Orellana’s conduct as a police
officer. A reasonable factfinder is compelled to conclude that this determination is
without substantial evidence in the record. Portillo-Orellana’s status as a
Salvadoran police officer who engaged in anti-gang activity was “one central
reason for the persecution.” Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.
2009) (internal quotation marks omitted). The threats were not due solely, if at all,
to some sort of purely personal grievance.
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Mara 18 members targeted Portillo-Orellana because he, as a police officer,
ensured a police response to gang activity. As the gang members’ statements in
threatening Portillo-Orellana make clear, they viewed his actions not as those of an
ordinary civilian, dissociated from the government, but as those of a police officer.
In Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013), we explained, “If Los Zetas
continued to pursue [the petitioner] even after he left the army, the record compels
the conclusion that such mistreatment was motivated by the cartel’s disapproval of
his anti-drug activites and its hope to intimidate him and others like him.” 716 F.3d
at 506. Here, the record demonstrates continued pursuit of Portillo-Orellana
following his departure from the Salvadoran police and therefore compels an
analogous conclusion: persecution on account of Portillo-Orellana’s status as a
former Salvadoran police officer who had engaged in anti-gang activity. The BIA’s
conclusion that Portillo-Orellana has not established a nexus to a protected ground
was not supported by substantial evidence.
Regarding Portillo-Orellana’s CAT claim, the BIA did not issue any sort of
reasoned decision. It stated only that Portillo-Orellana “did not to show [sic] that
he is more likely than not to be tortured in El Salvador with the consent or
acquiescence of a government official” and cited to the relevant regulatory
sections. Our precedent is clear that this type of boilerplate reasoning by the BIA is
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insufficient. “In order for the court to exercise our limited authority, there must be
a reasoned explanation by the BIA of the basis for its decision.” Pirir-Boc v.
Holder, 750 F.3d 1077, 1086 (9th Cir. 2014) (quoting Franco-Rosendo v.
Gonzales, 454 F.3d 965, 966 (9th Cir. 2006)).
We GRANT the petition for review and REMAND for additional
proceedings consistent with this disposition.
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