Diaz Ortiz v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1620
CRISTIAN JOSUE DIAZ ORTIZ,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Kristin M. Beale, with whom Ellen Scordino, Gemma Seidita,
and Cooley LLP were on brief, for petitioner.
Timothy Bo Stanton, Trial Attorney, Office of Immigration
Litigation, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Paul Fiorino, Senior Litigation Counsel, were
on brief, for respondent.
May 15, 2020
LYNCH, Circuit Judge. Cristian Josue Diaz Ortiz, a
native of El Salvador, seeks review of a Board of Immigration
Appeals (BIA) decision affirming an Immigration Judge's (IJ)
denial of his claims for asylum, withholding of removal, and
protection under Article 3 of the United Nations Convention Against
Torture (CAT). See 8 U.S.C. §§ 1158, 1231(b)(3); Pub. L. No. 105–
277, § 2242, 112 Stat. 2681 (1998).
The IJ found that Diaz Ortiz did not meet his burden to
show eligibility for any of the grounds for relief he sought and
ordered Diaz Ortiz removed. The IJ found that Diaz Ortiz was not
credible and gave several reasons, including inconsistencies in
his testimony and contradiction of his testimony through other
evidence.
This lack of credibility finding was based in part on
field reports, gathered by Boston-area law enforcement and
summarized in a government database, that concerned Diaz Ortiz's
association with alleged MS-13 gang members and contradicted
aspects of his testimony. In part, the finding was also based on
an inconsistency in his testimony. That inconsistency undercut
his attempt to give an innocent reason to his possession of a
padlock and chain, which the government says are weapons used by
MS-13 gang members. His response to the IJ's request that he
explain the inconsistency was itself not credible. The IJ noted
a lack of corroborative evidence.
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The BIA affirmed the IJ's decision in a careful opinion.
After this court denied a stay of removal, Diaz Ortiz was removed.
The parties agree the petition is not moot. See Leitao v. Reno,
311 F.3d 453, 456 (1st Cir. 2002).
Diaz Ortiz argues that the IJ's adverse credibility
determination was not supported by substantial evidence. He argues
that introduction of law enforcement gang database records
violated his due process rights, and that his testimony was not
inconsistent. From this, he argues that the finding that he had
not met his burden was error. He also argues that the IJ applied
the wrong legal standard to his withholding of removal and CAT
claims. Because all of these arguments lack merit, we deny his
petition for review.
I.
On July 21, 2015, Diaz Ortiz, then sixteen years old,
entered the United States near Rio Grande City, Texas. Immigration
officials quickly arrested him, initiated removal proceedings
against him, and released him into the custody of his uncle, who
lived in East Boston, an area within the City of Boston. Diaz
Ortiz started living in East Boston in August 2015.
Throughout 2017 and 2018, while Diaz Ortiz lived in East
Boston, he had eleven interactions with law enforcement that were
documented in field reports gathered by the Boston Police
Department and the Boston School Police Department and compiled by
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the Boston Regional Intelligence Center ("BRIC") in the BRIC Gang
Assessment Database. The interactions included four occasions
between March 2017 and May 2018 of police finding Diaz Ortiz with
marijuana, both alone and with others; four occasions between
September 2017 and June 2018 of police observing Diaz Ortiz with
people identified as members of the MS-13 gang, including one
member for whom police had information there was an active arrest
warrant; one occasion on June 1, 2018, of police observing Diaz
Ortiz outside a "known hangout" for MS-13 members; one occasion on
June 21, 2018, of police observing Diaz Ortiz trespassing with
four others; and one occasion on August 1, 2018, when Diaz Ortiz
was with two others identified as MS-13 gang members and, on
questioning, told officers he had a metal chain and pad lock for
his bicycle in his bag, though he had no bicycle with him. The
government asserts that MS-13 gang members frequently use a metal
chain and lock as a weapon. Police seized the items. The
observations included that Diaz Ortiz frequented areas known for
MS-13 gang activity.
On August 20, 2018, Homeland Security Investigations
("HSI") and Enforcement and Removal Operations ("ERO") arrested
Diaz Ortiz in East Boston along with two MS-13 gang members as
part of an MS-13 gang arrest operation. On August 21, 2018,
because of Diaz Ortiz's earlier law enforcement interactions, HSI
labeled Diaz Ortiz "a VERIFIED and ACTIVE member of the MS-13 gang
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in the Boston metro area." After his arrest, Immigration and
Customs Enforcement ("ICE") detained Diaz Ortiz under 8 U.S.C.
§ 1226(a), which provides that "an alien may be arrested and
detained pending a decision on whether the alien is to be removed
from the United States."1
On October 1, 2018, Diaz Ortiz filed an application for
asylum, withholding of removal, and CAT protection. He alleged
that in El Salvador in 2015 the MS-13 gang had attacked him and
threatened his life because he was a practicing evangelical
Christian and that he feared the gang would kill him if he returned
to El Salvador.
On December 4, 2018, at the merits hearing on his asylum
application, Diaz Ortiz testified with an interpreter's help as
follows. He is an evangelical Christian, attended church "three
or four times a week" while in El Salvador, but only a few times
1 On December 18, 2018, Diaz Ortiz filed a petition for
writ of habeas corpus under 28 U.S.C. § 2241 in the United States
District Court for the District of Massachusetts. He argued that
his detention was unlawful because the government improperly
placed the burden on him to prove that he was eligible for release
on bond. On January 29, 2019, the court granted the writ and
ordered the government to hold a second custody redetermination
hearing at which that burden was placed on the government. Diaz
Ortiz v. Tompkins, No. 18-12600-PBS, 2019 U.S. Dist. LEXIS 14155,
at *5 (D. Mass. Jan. 29, 2019). At Diaz Ortiz's second hearing,
a different immigration judge again declined to release him. See
Diaz Ortiz v. Smith, 384 F. Supp. 3d 140, 142 (D. Mass. 2019).
Diaz Ortiz then moved to enforce the district court's earlier
order, arguing that his second hearing was also flawed, but the
court denied that motion. Id. at 145.
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while in the United States, and he served in El Salvador as a
"youth leader" in his faith. In El Salvador, MS-13 gang members
often approached him on his way to school to ask him to join the
gang, and he refused. On one occasion in 2015, gang members beat
him, robbed him, and threatened to kill him if he did not leave
his Christian beliefs to join the gang. He did not produce medical
records of any injury. Diaz Ortiz also testified that a person
cannot be both an evangelical Christian and a member of MS-13,
that he would not join a gang, and that he was opposed to gangs
because of his faith.
Diaz Ortiz also testified MS-13 gang members murdered
his aunt in El Salvador. He said he feared that MS-13 gang members
would kill him if he returned to El Salvador.
When asked about his time in Boston, Diaz Ortiz testified
that he had attended church in Boston "a few times" but not very
often. When the IJ asked him what his method of transportation in
Boston was, Diaz Ortiz responded that he took the train. The IJ
clarified: "Always?" Diaz Ortiz responded: "Yes. Well, when I
lived in, in my house where I lived in, in East Boston, I didn't
because it was close, but when I lived in Boston, I, I had to use
the train." The IJ asked again: "So, you never traveled anywhere
except by train, correct?" Diaz Ortiz responded: "Yes, yes, only
in train."
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The government later asked Diaz Ortiz about the
occasion, after he had been frequently seen with MS-13 members, on
which the police found a metal chain and pad lock on him while he
was with two gang members (and no bicycle). He was asked: "And
you told the officer that it was a chain and lock that you use for
your bicycle." Diaz Ortiz responded: "Yes, several times they
stopped me." The government then asked: "Why did you tell the
police that you had the chain and the padlock for a bicycle, yet
you told the Court today that you only traveled around by train?"
Diaz Ortiz responded: "Well, when I lived in East Boston, of
course, I had the bicycle there to go around and, and do things
around there, but when I lived in Boston and I took the train, I
couldn't bring the bike anymore."
On cross-examination of Diaz Ortiz, the government
sought to introduce the field reports from the BRIC Gang Assessment
Database, described earlier. Diaz Ortiz objected through counsel,
arguing that the evidence was "not reliable and fundamentally
unfair." He argued that the reports contained mistakes and
inconsistencies and did not comply with 28 C.F.R. Part 23. He did
not ask that the officers who summarized the data or the officers
who made the observations be called to testify or be made available
for cross-examination. The IJ overruled the objection.
As to the evidence from the BRIC Gang Assessment Database
of his five interactions with MS-13 members in Boston over the
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period from March 2017 to August 2018, Diaz Ortiz testified that
he did not know that the other people he was with were MS-13
members or that the areas he had been in were known for gang
activity, but he did not otherwise contest the observations as
inaccurate.
An expert on conditions in El Salvador also testified at
the hearing for Diaz Ortiz, saying that MS-13 members in El
Salvador target evangelical Christians because the gang views them
as competition for recruitment. Diaz Ortiz supplemented his asylum
application with supporting documentation, including a personal
declaration; declarations from his mother and his pastor in El
Salvador; his aunt's death certificate; an affidavit from Thomas
Nolan, a Boston University professor who criticized the
reliability of the information in the BRIC Gang Assessment Database
about Diaz Ortiz's interactions with gang members; and others.
Diaz Ortiz also submitted further briefing about the BRIC Gang
Assessment Database evidence, arguing that the IJ should "give
minimal weight" to the reports because they were "uncorroborated
hearsay" and that many of the behaviors described in the reports
are "innocuous."
On December 19, 2018, the IJ denied Diaz Ortiz's
application in a written nine-page opinion. As to the finding
that Diaz Ortiz was not credible, the IJ found that his claim that
he was not an MS-13 gang member was contradicted by "the plethora
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of evidence . . . in the record" about his associations with MS-
13 gang members. The IJ highlighted Diaz Ortiz's testimony that
the lock and chain were for his bicycle, noting that Diaz Ortiz
had said he only used the train for transportation and did not
ever mention using a bicycle. On that point, the IJ concluded
that he was "unpersuaded by [Diaz Ortiz's] explanation" for the
discrepancy. The IJ stated: "Given the significant evidence that
[Diaz Ortiz] is a MS-13 gang member, the Court casts great doubt
on whether [Diaz Ortiz] is actually an evangelical Christian,"
which was the basis of his asylum claim, but the IJ made no finding
on this point. The IJ also noted that he assigned Diaz Ortiz's
supporting declarations from family members "limited weight as the
authors are not present for cross-examination."
The IJ found that Diaz Ortiz had not established past
persecution based on a protected ground or proven that he had a
well-founded fear of future persecution based on a protected
ground. The IJ also stated as a matter of its discretion:
Even if [Diaz Ortiz] was statutorily eligible
for asylum, . . . the Court would deny his
application as a matter of discretion. 8
C.F.R. § 1208.14(a). DHS has filed numerous
documents stating that [Diaz Ortiz] is
affiliated with a gang or a member of such.
He has been stopped by the police several
times, and on at least one occasion, he was
found with a lock and chain, a weapon
frequently used by local gang members. His
gang affiliations are also well-documented by
local law enforcement agencies. Because gang
affiliation is an incredibly dangerous factor,
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the Court finds that it is a serious negative
inequity that is not offset by [Diaz Ortiz's]
limited positive equities.
Finally, the IJ found that Diaz Ortiz had not established that it
was more likely than not that he would be tortured in El Salvador
by or with the acquiescence of a government official.
Diaz Ortiz appealed the IJ's decision to the BIA, arguing
that the IJ's credibility finding was clearly erroneous because it
was not based on the record as a whole and mischaracterized Diaz
Ortiz's testimony. He also argued that the IJ's reliance on the
police documentation in the BRIC Gang Assessment Database of his
interactions with gang members was fundamentally unfair and
violated his due process rights. He argued that the reports
contained "numerous indications of [their] lack of reliability and
trustworthiness." He referred to Prof. Nolan's affidavit, which
argued that the database did not comply with 28 C.F.R. Part 23 and
that none of its entries provided evidence of reasonable suspicion
of criminal activity. He did not argue that the events documented
in the database did not occur. From this, Diaz Ortiz argued that
the IJ's conclusion that he was not entitled to asylum was error.
The BIA dismissed Diaz Ortiz's appeal on June 5, 2019.
Its decision found that the IJ's credibility finding was not
clearly erroneous given the contradictions in Diaz Ortiz's
testimony and the contradictions between his testimony and the
BRIC Gang Assessment Database evidence. The BIA stated:
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When pressed, [Diaz Ortiz] explained that he
was not a gang member, and he did not know
that the people he associated with were gang
members or that the areas they spent time in
together were frequented by the gang. He also
explained that the lock and chain found on his
person were for his bike. The [IJ] did not
find these explanations to be reasonable.
[Diaz Ortiz] had multiple contacts with law
enforcement when he associated with known gang
members in areas frequented by the gang, and
[Diaz Ortiz] admitted that he previously
testified that he "did not use any other means
of transportation other than a train" in
Boston. Considering the totality of the
circumstances, we will affirm the [IJ's]
adverse credibility finding because it is not
clearly erroneous.
(footnotes and citations omitted). The BIA also held that, even
if Diaz Ortiz's explanations were plausible, the IJ's conclusions
were also plausible and so could not be clearly erroneous.
The BIA found Diaz Ortiz's objection to the BRIC Gang
Assessment Database evidence was "not borne out by the record"
because the "reports consistently indicate that [Diaz Ortiz]
associated with known MS-13 gang members in areas of Boston
frequented by the gang and carried gang-related weapons." The BIA
also explained its rejection of Prof. Nolan's criticism of the
gang evidence, stating:
[T]he professor does not explain why [Diaz
Ortiz's] associations with known MS-13 gang
members in areas frequented by the gang, along
with the fact that gang-related weapons were
found on his person, do not give rise to a
reasonable suspicion. Significantly, counsel
has not presented evidence that [Diaz Ortiz]
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has been removed from the Boston police's
database because his inclusion was unlawful.
(citation omitted).
The BIA also held that, to the extent that Diaz Ortiz's
supporting materials were consistent with his testimony, those
materials still failed to rehabilitate the inconsistencies in his
testimony. It analyzed each declaration in turn, stating:
[Diaz Ortiz's] declaration, which claims that
he could not join MS-13 because he is a
Christian, is not consistent with other
evidence in the record. In addition, although
the affidavit from [Diaz Ortiz's] pastor
states that the respondent left El Salvador
"to escape the gangs' threats and attempts to
recruit him," it does not corroborate in any
detail [Diaz Ortiz's] testimony that he was
physically assaulted by MS-13. The aunt's
death certificate and evidence that [Diaz
Ortiz] once participated in Christian
activities and distributed religious
literature with his family and church also do
not corroborate that [Diaz Ortiz] was beaten
or threatened by members of MS-13 in El
Salvador. [Diaz Ortiz] conceded that he does
not appear in the undated photographs in the
record, which he claims depict his family's
Christian bookstore in El Salvador. Finally,
although the affidavit from [Diaz Ortiz's]
mother states that [he] was "attacked" by the
gangs because he was going to church, we agree
with the [IJ] that this evidence, which is
from an interested person, is insufficient to
rehabilitate [Diaz Ortiz's] testimony.
(citations omitted). The BIA affirmed the IJ's finding that the
record did not establish that Diaz Ortiz would be tortured in El
Salvador, noting that "the single beating [Diaz Ortiz] allegedly
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experienced in El Salvador . . . did not require medical
attention."
II.
"We must uphold the BIA's decision 'unless any
reasonable adjudicator would be compelled to conclude to the
contrary.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006)
(quoting 8 U.S.C. § 1252(b)(4)(B)). We review "[f]actual
findings, including credibility determinations . . . under the
familiar substantial evidence standard." Rivas-Mira v. Holder,
556 F.3d 1, 4 (1st Cir. 2009). "In other words, findings of fact
will stand as long as they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Where,
as here, "the BIA adopts and affirms the IJ's ruling but also
examines some of the IJ's conclusions, this Court reviews both the
BIA's and IJ's opinions." Perlera–Sola v. Holder, 699 F.3d 572,
576 (1st Cir. 2012) (citing Matovu v. Holder, 577 F.3d 383, 386
(1st Cir. 2009)).
To be eligible for asylum, an applicant must show
"persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42). An
applicant's testimony alone can meet this burden, but if the agency
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finds that the testimony is not truthful, "that determination
strips the testimony of probative force and permits the agency to
. . . discount it." Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.
2007). The REAL ID Act permits the IJ to consider inconsistencies
in an applicant's statements "without regard to whether an
inconsistency . . . goes to the heart of the applicant's claim."
8 U.S.C. § 1158(b)(1)(B)(iii).
Diaz Ortiz argues that the adverse credibility
determination was based on a single inconsistency that was not, in
fact, inconsistent, and that the use of the BRIC Gang Assessment
Database evidence violated his due process rights. From this, he
asserts the adverse credibility finding is unsupported. He is
wrong for several reasons. We first note that the IJ was permitted
to disbelieve Diaz Ortiz's testimony about his modes of transport
and the padlock and chain. We then affirm the BIA's conclusion
that the admission of the BRIC Gang Assessment Database evidence
was not an error and most certainly not a due process violation.
Diaz Ortiz argues the lack of credibility finding turned
on the inconsistency in his explanation for why he had in his
possession a metal chain and pad lock, known MS-13 weapons, while
he was observed with MS-13 members and he had no bicycle with him.
Diaz-Ortiz argues his statements were not inconsistent.2 As the
2 Although Diaz Ortiz also argues that the IJ did not
"provide[] an opportunity to explain the perceived inconsistence,"
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BIA held, the IJ was not compelled to find Diaz Ortiz's statements
were not inconsistent. Given that both of the indicia used by
each of the IJ and the BIA as to lack of credibility were properly
considered, we do not reach the government's argument that the
metal chain and pad lock inconsistency alone supports the IJ's
lack of credibility finding.
Diaz Ortiz next argues that the BRIC Gang Assessment
Database evidence was collected in violation of 28 C.F.R. Part 23,
which requires that an interjurisdictional intelligence system
like BRIC
shall collect and maintain criminal
intelligence information concerning an
individual only if there is reasonable
suspicion that the individual is involved in
criminal conduct or activity and the
information is relevant to that criminal
conduct or activity.
28 C.F.R. § 23.20(a). He argues that the field reports offered at
his asylum hearing do not support reasonable suspicion of criminal
activity. Diaz Ortiz further points to minor inconsistencies in
the field reports. He argues that it was "unclear" that each field
report was created by a person with authority to submit reports to
the database.
this claim is not supported by the record. He was asked about the
inconsistency. Diaz Ortiz's counsel was free to return to the
topic on redirect and did in fact ask him why he had a bike lock
but not a bicycle. Diaz Ortiz explained that a friend had asked
to borrow his bicycle and that police had previously seen him with
the lock and chain while he also had his bicycle with him.
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We reject Diaz Ortiz's challenge to the BIA's upholding
of the admission of the BRIC Gang Assessment Database evidence,
under any standard of review. Diaz Ortiz did not argue to the IJ
the information in the field reports was not accurate, or that the
persons he was seen with were not in fact MS-13 members. Rather,
he denied knowledge that the other people seen with him were MS-
13 members, but produced no evidence to support that testimony.3
He also did not ask that the government produce testimony to
support the assertions in the database that the other people he
was observed with were MS-13 members.
Further, we agree with the BIA's conclusion that there
was no violation of 28 C.F.R. Part 23.4 The regulations set forth
requirements for federal funding for certain state and local law
enforcement operations, including criminal intelligence systems.
See 28 C.F.R. § 23.3 ("These policy standards are applicable to
all criminal intelligence systems operating through support under
the Omnibus Crime Control and Safe Streets Act of 1968 . . . .");
see also 34 U.S.C. § 10723 (authorizing federal grants for
3 He also did not argue to the IJ that the officers whose
reports appear in the evidence should have been required to appear
at his hearing, either to authenticate the documents or to testify
to their contents.
4 Prof. Nolan's declaration, which focuses on the
database's compliance with 28 C.F.R. Part 23, does not challenge
the basic facts of the interactions documented in the field
reports.
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"[p]rograms to assist State and local criminal justice agencies to
develop, establish, and maintain intelligence-focused policing
strategies and related information sharing"). The regulatory
prohibition is meant to cabin the information contained in the
database, at the risk of losing federal funding. See 28 C.F.R.
§ 23.40 (establishing "specialized monitoring and audit" to ensure
state and local agencies' regulatory compliance). These
regulations are not a rule about admissibility or an exclusionary
rule. Diaz Ortiz at no time has offered any authority that
prohibits the use in immigration proceedings of field reports
gathered in a Part 23 database that does not comply with those
regulations. Nor at any time has he offered any authority for the
more general proposition that such police field reports are
inadmissible in immigration proceedings.
Apart from these failings, the argument fails for
another reason. "Strict rules of evidence do not apply in
immigration proceedings," and "[i]t is normally enough if the IJ
reasonably finds a proffered piece of evidence to be reliable and
its use to be fundamentally fair." Jianli Chen, 703 F.3d at 23.
As the BIA held, the IJ reasonably determined these reports were
sufficiently reliable and there was nothing unfair in their
admission.5 The reports, which document Diaz Ortiz's increasingly
5 Because the Federal Rules of Evidence do not apply in
asylum proceedings, Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004),
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frequent associations with MS-13 gang members, leading to the
discovery by police of his possession of a padlock and chain, were
highly material to the claimed bases for his asylum eligibility.
Given Diaz Ortiz's assertions in his testimony that he would never
join a gang because of his religious beliefs, the field reports of
his associations are clearly relevant to his credibility.
The dissent's attack on the BRIC Gang Assessment
Database evidence is misleading and irrelevant. The IJ found that
Diaz Ortiz's testimony lacked credibility because it contained
contradictions. Among the contradictions was that Diaz Ortiz was
carrying a bike chain and lock but was inconsistent about whether
he used a bicycle for transportation. When found with the bike
chain and lock, Diaz Ortiz was in the company of two MS-13 members.
The dissent argues that the fact of Diaz Ortiz's possession of a
bike chain and lock arose only from the BRIC Gang Assessment
Database evidence, which it would reject as unreliable. But the
dissent's basis for finding that evidence unreliable focuses on
the means by which the database tracks and documents gang
affiliations. These are irrelevant to and do not undermine the
testimonial inconsistency. Diaz Ortiz never denied carrying a
bike chain and lock or submitted any evidence to the contrary. We
review an IJ's evidentiary decisions only for abuse of discretion.
we do not reach the question of whether these reports would have
been admissible under those rules.
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See Davis v. Lynch, 802 F.3d 168, 177 (1st Cir. 2015). It was not
an abuse of discretion for the IJ to admit the evidence that Diaz
Ortiz carried a bike chain and lock or to find Diaz Ortiz's
testimony contradictory on that basis. Nor does the use of that
evidence come anywhere close to a due process issue.
Because the dissent's further discussion of the BRIC
Gang Assessment Database evidence is irrelevant to this finding,
we do not address the merits of the dissent's objection to the
database. It is irrelevant to the outcome of the case given the
standards of review which govern this court. There is no need for
us to engage in a response pointing out the many inaccuracies and
weaknesses in the dissent's discussion and its resulting
conclusion that any consideration of the database evidence by the
IJ was a violation of due process.
Diaz Ortiz also argues that the BIA incorrectly
concluded that the record evidence beyond Diaz Ortiz's testimony
did not corroborate his asylum claim. Not so. The BIA
specifically noted that Diaz Ortiz's declaration was "not
consistent with other evidence in the record," namely the gang
evidence. It also noted that each of Diaz Ortiz's other supporting
materials was insufficient: the affidavit from Diaz Ortiz's pastor
did not corroborate his persecution; his mother's affidavit had
limited value because she was an interested party and because she
did not testify; and his aunt's death certificate did not
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demonstrate a threat to Diaz Ortiz himself. These findings were
supported by substantial evidence. Because Diaz Ortiz has not met
his burden for asylum, he cannot prevail on the higher burden for
withholding of removal. See Li Sheng Wu v. Holder, 737 F.3d 829,
832 & n.1 (1st Cir. 2013).
Finally, Diaz Ortiz argues that the BIA applied the wrong
legal standards in its analysis of his CAT claim by adding a
requirement that he would be tortured because of his faith. Even
if, dubitante, that were true, any such error would be harmless.
The IJ found that Diaz Ortiz had "not adduced sufficient evidence
to establish that, if he returned to El Salvador, it is more likely
than not members of the Salvadoran government will engage,
instigate, consent, or acquiesce, in his torture." The BIA then
held:
We will likewise affirm the [IJ's] decision to
deny [Diaz Ortiz's] application for [CAT]
protection. Upon de novo review, we conclude
that the single beating he allegedly
experienced in El Salvador, which did not
require medical attention, along with the
gang's alleged threats do not rise to the
level of past torture. . . . As noted,
moreover, the documentary record does not
independently establish that it is more likely
than not that the respondent will be tortured
in El Salvador by the gangs based on his
Christian faith. Finally, it has been
approximately 5 years since he was allegedly
harmed in El Salvador.
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(citations omitted). For these reasons, Diaz Ortiz's petition for
review is denied.
-Dissenting Opinion Follows-
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LIPEZ, Circuit Judge, dissenting. At the core of the
IJ's and BIA's rejection of Diaz's petition for relief is an
adverse credibility determination based on a "Gang Assessment
Database" so seriously flawed that reliance upon it by the IJ and
BIA violated Diaz's due process rights. Hence, I would grant the
petition for review and remand for new agency proceedings. I
therefore respectfully dissent.
I.
The package of Gang Assessment Database documents
introduced by the government at Diaz's merits hearing opens with
a Department of Homeland Security (DHS) memorandum by HSI Special
Agent Sean Connolly6 featuring this provocative subject line:
"Verified MS-13 Gang Affiliation of Cristian Josue DIAZ ORTIZ aka
Christian DIAZ-ORTIZ." The memo goes on to state the following:
On August 20, 2018, Cristian Josue DIAZ ORTIZ
was arrested with two other MS-13 gang members
by Enforcement and Removal Operations (ERO)
and Homeland Security Investigations (HSI)7 as
part of an MS-13 gang arrest operation in East
Boston, Massachusetts.
6 I will refer to the gang-related documents, i.e., the DHS
memorandum and its supporting documents, collectively as the "gang
package."
7 ERO and HSI are both branches of Immigration and Customs
Enforcement (ICE). Who We Are, U.S. Immigration and Customs
Enforcement, https://www.ice.gov/about (last updated Jan. 8,
2020). ERO "manages all aspects of the immigration enforcement
process" and specifically "target[s] public safety threats,"
including "gang members," for "identification and arrest." Id.HSI investigates "cross-border criminal activity," including
"transnational gang activity." Id.- 22 -
Homeland Security Investigations Boston
Intelligence has determined Cristian Josue
DIAZ ORTIZ to be a Risk to Public Safety as a
VERIFIED and ACTIVE member of the MS-13 gang
in the Boston metro area.
The Mara Salvatrucha (MS-13) gang is a large
transnational criminal organization with
thousands of members and associates throughout
the United States. The MS-13 gang is among
the most violent transnational street gangs in
the United States, specializing in crimes of
violence including murder, attempted murder,
violent armed assaults, firearms offenses,
weapons related crimes, drug distribution,
intimidation and robbery. In Massachusetts
MS-13 operates in a number of communities
including: Boston, Chelsea, East Boston,
Somerville, Everett, Revere, Lynn and
Nantucket.
1. Cristian Josue DIAZ ORTIZ has been
verified as an MS-13 gang member by the Boston
Police Department (BPD)/Boston Regional
Intelligence Center (BRIC). (See the attached
BPD/BRIC MS-13 Gang Member Verification:
"CHRISTIAN DIAZ-ORTIZ".)
2. Cristian Josue DIAZ ORTIZ has documented
associations with MS-13 gang members by the
Boston Police Department and Boston School
Police Department (BSPD). (See the attached
BPD & BSPD incident/field interview reports
and gang intelligence bulletins.)
3. Cristian Josue DIAZ ORTIZ has been
documented carrying common MS-13 gang related
weapons by the Boston Police Department (See
the attached BPD incident/field interview
reports.)
4. Cristian Josue DIAZ ORTIZ has been
documented frequenting areas notorious for MS-
13 gang activity by the Boston Police
Department. These areas are 104 Bennington
St. and the East Boston Airport Park/Stadium
- 23 -
in East Boston, Massachusetts which are both
known for MS-13 gang activity including recent
firearms arrests and a homicide. (See the
attached BPD incident/field interview reports
and MS-13 gang intelligence bulletins.)
This memorandum offers a damning portrayal of Diaz. His
active participation in a vicious gang like MS-13 would rightfully
doom any request for relief from removal. Hence, the reliability
of the report labeling Diaz an active MS-13 gang member is critical
to a fair proceeding. But the record reveals that the DHS
documents relied upon by the IJ and BIA to determine that Diaz was
a gang member are so unreliable that they do not support the
provocative characterization of him in the gang package.
The Department of Homeland Security is the final link in
a chain of reporting that begins with police officers in Boston
conducting stops called "field interrogation observations" -- FIOs
for short. FIOs are "interaction[s] in which a police officer
identifies an individual and finds out that person's business for
being in a particular area." Commonwealth v. Warren, 58 N.E.3d
333, 337 n.5 (Mass. 2016) (quoting Commonwealth v. Lyles, 905
N.E.2d 1106, 1108 n.6 (Mass. 2009)). These "consensual encounters"
are considered "constitutionally insignificant, and a police
officer may initiate such an encounter without any information
indicating that the individual has been or is presently engaged in
criminal activity." Commonwealth v. Narcisse, 927 N.E.2d 439, 443
- 24 -
(Mass. 2010). The officer then documents the FIO.8 If the subject
of the FIO is a suspected gang member, the officer submits the
documentation to the Boston Regional Intelligence Center (BRIC)
for entry into Boston's Gang Assessment Database. See Rule 335 -
Gang Assessment Database, Boston Police Department Rules and
Procedures, 4 (March 23, 2017), https://bpdnews.com/rules-and-
procedures (follow "RULE 335 - GANG ASSESSMENT DATABASE"
hyperlink). BRIC, which maintains the database, is "a unit of the
Boston Police Department that gathers and analyzes intelligence."
Shannon Dooling, Here's What We Know About Boston Police's Gang
Database, WBUR News (July 26, 2019), https://www.wbur.org/news/
2019/07/26/boston-police-gang-database-immigration.9 DHS and
other agencies can then access the intelligence stored in the
database. See id.8
FIOs are documented in various ways. Some FIOs are
documented in actual police reports ("Field Interview Reports," as
the Boston Police Department titles them), while others are
described only in "gang intelligence bulletins," single-page
documents that look like PowerPoint slides. Each bulletin consists
of a one-sentence description of an FIO, along with photos of the
individuals who are the subject of the bulletin captioned with
their names, addresses, and birth dates.
9
The government did not provide the IJ with information about
this chain of reporting when it submitted the gang package at
Diaz's merits hearing, and I have therefore drawn this background
from publicly available sources. Diaz, however, did explain in a
supplemental brief to the IJ that the Boston Police Department
uses a point system to classify people as gang members, see infra,
and emphasized that the system has been the subject of criticism.
- 25 -
The Boston Police Department uses a point system to
identify suspected gang members. See Rule 335 - Gang Assessment
Database, at 2-3. The Department has a non-exhaustive list of
"conduct that could result in an individual's verification for
entry into the Gang Assessment Database." Id. at 2. The conduct
is assigned a point value. Id. at 3. For example, having a gang-
related tattoo and being the victim of gang violence are each worth
eight points. Id. Also included in the list is "Contact with
Known Gang Member/Associate (FIO)," which is worth "2 points per
interaction." Id. A person who accrues six points is labeled a
gang associate, and a person who accrues ten points is deemed a
gang member. Id. at 2.
BRIC generates a "Gang Member Verification Report" for
individuals who have been entered into the database. Diaz's report
identifies him as a primary, active, and "verified" member of MS-
13 and indicates that he has accrued "21 points." All twenty-one
points resulted from his contacts with "known" gang members or
associates. The Gang Member Verification Report shows that sixteen
of the points were assigned for eight instances of "Contact with
Known Gang Members/Associates." The remaining five points were
assigned for one incident, described in a Boston School Police
"Intelligence Report," that is listed under "Information Developed
During Investigation and/or Surveillance." The corresponding
report, however, simply documents that Diaz was seen with young
- 26 -
men who were suspected MS-13 members. It is unclear why he was
assigned five points for that interaction, rather than two.
Thus, Diaz was assigned points for nine FIOs. There are
sixteen reports and bulletins involving Diaz in the Gang Assessment
Database, but some FIOs are documented by both a police report and
a gang intelligence bulletin. There is, however, one Boston School
Police bulletin in the database for which Diaz was not assigned
any points.
These are the nine encounters for which Diaz was assigned
points.
-— March 8, 2017 (2 points10): Diaz was smoking marijuana
in an alleyway with another Hispanic teenager.11 Diaz also had a
small amount of marijuana on his person, a civil offense in
Massachusetts. See Mass. Gen. Laws ch. 94C, § 32L (effective July
28, 2017).12
10This police report does not designate Diaz's companion as
an "MS-13 Gang Member," as later reports do, but Diaz was
nevertheless assigned points for the FIO.
11The Field Interview Reports identify the individuals with
whom Diaz associated as Hispanic. All references to individuals'
ethnicities are drawn from the law enforcement documents being
described.
12 At that time, possession of one ounce or less of marijuana
was a civil offense. See Mass. Gen. Laws ch. 94C, § 32L (effective
Dec. 4, 2008 to July 27, 2017). The triggering amount increased
to two ounces or less on July 28, 2017. See Mass. Gen. Laws ch.
94C, § 32L (effective July 28, 2017).
- 27 -
-— September 13, 2017 (2 points): Diaz was smoking
marijuana on the front steps of a building with another Hispanic
teenager, who is identified in the police report as a "known MS-
13 gang member."
-— November 28, 2017 (5 points): Boston School Police
officers saw a student wearing a "full face mask" and spoke with
the student, whom they identified as a member of MS-13. That
student then walked up to a group of other teenage boys, including
Diaz, and "met with" them.
-— April 3, 2018 (2 points): Diaz and another Hispanic
teenager were found skipping school and smoking marijuana in a
park. The police report states that the two teenagers were "known
to the officer as verified MS-13 gang members"13 and had a "history
of carrying weapons," but none of the prior reports in the gang
package mention Diaz carrying a weapon. The officer did a pat
frisk of the two teens and found an aluminum baseball bat in the
right pant leg of Diaz's companion, which the officer confiscated.
The teens were warned about smoking marijuana in a park and
released.
13 Prior to this FIO, Diaz had only accrued nine points --
enough to be considered a gang "associate" using the BPD's point
system, but not a gang "member," as the police report represents.
See Rule 335 - Gang Assessment Database, at 2.
- 28 -
-— May 28, 2018 (2 points): Diaz was "loitering" with
three other Hispanic teenagers whom the officer conducting the FIO
"knew" to be MS-13 members.
-— June 1, 2018 (4 points assigned for two FIOs): (1)
Diaz was seen with a group of teenagers in front of a building
where one member of the group lived, which officers noted was "a
known hangout and address" for MS-13 members; and (2) Diaz was
stopped with two other teenagers, one of whom officers believed
had a warrant out for his arrest, but when the officers ran their
names there were no outstanding warrants.
-— June 21, 2018 (2 points): Diaz was sitting on the
track benches of the East Boston Stadium after hours with four
other teenagers, three of whom were "verified" MS-13 "associates."
Officers told them to leave. A notation on the report made by HSI
Special Agent Connolly observes that the East Boston Stadium is
"notorious for MS-13 gang activity."
-— August 1, 2018 (2 points): Officers stopped Diaz and
two other Hispanic teenagers as they were walking out of a park.
Diaz was wearing a backpack and told the officers that he had a
metal chain with a padlock in it that he used for his bicycle. A
notation made by Special Agent Connolly on a gang intelligence
bulletin about the encounter comments that "MS-13 gang members
commonly carry large metal chains with locks to be used in gang
related assaults." The officers confiscated the chain and padlock
- 29 -
and released the three teenagers. Nothing in the gang package
suggests that Diaz ever used the bike chain and lock as a weapon.
II.
In advance of his merits hearing, Diaz submitted to the
immigration court his asylum application and supporting evidence,
including an affidavit by criminal justice professor and former
Boston Police Officer Thomas Nolan. Professor Nolan's credentials
as an expert witness are extensive. He served as an officer in
the Boston Police Department for twenty-seven years and as a
lieutenant for nine years. Since leaving the Department, he has
taught criminal justice courses at six colleges and universities
and written an academic book on policing issues, see Thomas Nolan,
Perilous Policing: Criminal Justice in Marginalized Communities
(2019), as well as numerous articles and essays on the subject.
Professor Nolan concludes that Diaz "should not have been listed
as a verified gang member" in the BRIC Gang Assessment Database
because the "intelligence" about Diaz does not comply with federal
regulations governing shared criminal intelligence databases in
the Code of Federal Regulations (CFR). See generally 28 C.F.R.
Part 23. The regulations are implicated, Professor Nolan explains,
because the Gang Assessment Database "is an interjurisdictional
shared database that [is] accessible to other agencies," like DHS.
Part 23 of the Code's Title 28 was originally adopted in
1980 to ensure that the operation of criminal intelligence systems
- 30 -
was not undertaken "in violation of the privacy and constitutional
rights of individuals," Criminal Intelligence Systems Operating
Policies, 45 Fed. Reg. 40,156, 40,156 (June 13, 1980), a purpose
that has remained unchanged, see 28 C.F.R. § 23.1. The regulations
provide that entities that operate "interjurisdictional
intelligence system[s]," see id. § 23.3(b)(5), like BRIC, "shall
collect and maintain criminal intelligence information concerning
an individual only if there is reasonable suspicion that the
individual is involved in criminal conduct or activity and the
information is relevant to that criminal conduct or activity,"
id. § 23.20(a). Such entities
shall not collect or maintain criminal
intelligence information about the political,
religious or social views, associations, or
activities of any individual or any group
. . . unless such information directly
relates to criminal conduct or activity and
there is reasonable suspicion that the subject
of the information is or may be involved in
criminal conduct or activity.
Id. § 23.20(b).
Professor Nolan emphasizes that Diaz faced no criminal
charges for any of the incidents documented in the Boston gang
database and that "there was no direct relation between these
encounters and any reasonable suspicion of [Diaz's] involvement in
criminal activity." Thus, Professor Nolan concludes, the
information about Diaz "should not be contained within the
database" and is "not reliable."
- 31 -
Drawing on Professor Nolan's critiques, and arguing that
the gang package was also unreliable because it contained mistakes
and inconsistencies, Diaz objected to its introduction at his
merits hearing, characterizing the evidence as fundamentally
unfair. The IJ overruled Diaz's objection without explanation and
admitted the gang package. After the hearing, but before the IJ
rendered a decision, Diaz submitted a supplemental brief focused
specifically on the gang package and reiterating the arguments he
made at the hearing. He also described the point system used by
the Boston Police Department and argued that it "can criminalize
normal teenage behaviors such as associating with others of the
same ethnicity." And he included in his brief a two-and-a-half-
page chart detailing the inconsistencies throughout the gang
package -- for example, he flagged that the April 3, 2018, police
report mentions his "history of carrying weapons" but that no prior
entries describe him carrying weapons. Diaz therefore asked the
IJ not to consider the gang package or, if the IJ did consider it,
to give it "minimal weight" in analyzing his application for
relief.
Without addressing Diaz's arguments about the
unreliability of the gang package, the IJ found that Diaz was "not
credible pertaining to his gang membership," and remarked that
Diaz "alleges that he is not an MS-13 gang member, despite the
- 32 -
plethora of evidence found within" the gang package. The IJ
continued by explaining that,
[t]roublingly, the Respondent stated that a
Christian cannot be a member of MS-13;
however, the evidence indicates that he likely
is a MS-13 member. Given the significant
evidence that the Respondent is a MS-13 gang
member, the Court casts great doubt on whether
the Respondent is actually an [E]vangelical
Christian.
Thus, the IJ used the gang package to find that Diaz's asserted
Christian faith was not credible.
Then, relying on the adverse credibility determination,
the IJ found that Diaz had not met his burden to prove statutory
eligibility for asylum. The IJ also found that Diaz did not merit
a favorable exercise of discretion because of his gang membership,
and that he did not qualify for withholding of removal or relief
under the Convention Against Torture.
In his subsequent appeal to the BIA, Diaz argued that
the IJ violated his due process rights by relying on the gang
package to conclude that he was not credible on the question of
his gang membership. Looking at the totality of the evidence, the
BIA concluded that the adverse credibility determination of the IJ
was not clearly erroneous. In so ruling, the BIA dispatched in a
lengthy footnote Diaz's legal argument that it was fundamentally
unfair, and thus a due process violation, for the IJ to rely on
the gang package to undermine his credibility.
- 33 -
Specifically, the BIA rejected as "not borne out by the
record" Diaz's assertion of inconsistencies in the gang package.
Rather, the BIA stated, the reports "consistently indicate that
the respondent associated with known MS-13 gang members in areas
of Boston frequented by the gang and carried gang-related weapons."
The BIA noted Professor Nolan's critique of the gang package,
including his assertion that including Diaz in the gang database
violates federal regulations because the database does not
identify the information giving "rise to a reasonable suspicion
that the respondent participated in criminal activity." In
response, without identifying any criminal activity by Diaz, the
BIA observed that "the professor does not explain why the
respondent's associations with known MS-13 gang members in areas
frequented by the gang, along with the fact that gang-related
weapons were found on his person, do not give rise to a reasonable
suspicion."
However, the BIA did not address Professor Nolan's
critique that the "known MS-13 members" with whom Diaz was seen
associating might themselves have been identified as such based on
the same problematic foundation. Nor does the BIA explain why,
absent evidence of specific criminal activity by Diaz, his
inclusion in the gang database was consistent with the federal
regulations governing the collection of intelligence data.
Finally, the BIA deemed significant that "counsel has not presented
- 34 -
evidence that the respondent has been removed from the Boston
police's database because his inclusion was unlawful."
III.
Although "the 'Federal Rules of Evidence do not apply in
[DHS] proceedings[,] . . . the less rigid constraints of due
process impose outer limits based upon considerations of fairness
and reliability.'" Toribio-Chavez v. Holder, 611 F.3d 57, 66 (1st
Cir. 2010) (first alteration in original) (quoting Yongo v. I.N.S.,
355 F.3d 27, 30 (1st Cir. 2004)). The purpose of due process in
"the realm of factfinding[] is to minimize the risk of erroneous
decisions," and "the quantum and quality of the process due in a
particular situation" varies as needed to advance the objective of
accurate decision-making. Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 13 (1979).
At a minimum, the government must give "a person in
jeopardy of serious loss . . . notice of the case against him and
opportunity to meet it." Mathews v. Eldridge, 424 U.S. 319, 348
(1976) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123, 171-72 (1951) (Frankfurter, J., concurring)). But "[t]he
opportunity to provide reasons . . . why proposed action should
not be taken" is meaningless if the decisionmaker dismisses those
reasons out of hand, Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 546 (1985), and the risk to accurate decision-making is
- 35 -
especially acute when the disregarded challenge goes to the
reliability of core facts.
To prevail on a due process claim in the immigration
context, a petitioner "must show that a procedural error led to
fundamental unfairness as well as actual prejudice." Conde Cuatzo
v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015). Diaz asserts that
the agency's uncritical reliance on the gang package, despite the
obvious flaws demonstrated by Professor Nolan's report and Diaz's
own forceful challenge to the evidence in his post-hearing brief,
was both fundamentally unfair and prejudicial.
A. Fundamental Unfairness
Unmistakably, the IJ and BIA both gave the gang package,
and in particular the conclusion that Diaz is an "active" member
of MS-13, dispositive weight. We previously have rejected a
challenge to the agency's reliance on similar reports, noting that
"[n]othing in the record compels us to find that the police and
other government reports were so obviously unreliable as to render
the agency's reliance on them an abuse of the agency's wide
discretion." Miranda-Bojorquez v. Barr, 937 F.3d 1, 7 (1st Cir.
2019); see also Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st Cir.
2015) ("[I]t is settled beyond hope of contradiction that
. . . immigration courts may consider police reports even when
they rest largely on hearsay."). Although we noted that limits on
the use of such materials exist, we observed that "those limits
- 36 -
are generally satisfied as long as the trier first determines that
the report is reliable and that its use would not be fundamentally
unfair." Arias-Minaya, 937 F.3d at 54.
Here, Diaz submitted abundant evidence to bolster his
objections to the gang package, yet the IJ and BIA gave that
evidence barely a glance. When the gang package is closely
scrutinized in the context of the full record -- as it must be,
with the stakes so high -- it does not support the conclusion that
Diaz was an "active" member of MS-13 with reliable information
that meets the regulatory standard for collecting criminal
intelligence. The finding of gang involvement is flawed in
multiple respects.
First, Diaz's reported conduct does not support an
inference that he was involved in criminal activity at all, let
alone the kinds of violent crimes for which MS-13 is infamous.14
Diaz was entered into the Gang Assessment Database based on the
points he accrued from interactions with purported MS-13 members,
not for engaging in gang-related criminal activity himself.
Indeed, all of the information about Diaz that appears in the
database was gathered during FIOs, encounters that police officers
may initiate "without any information indicating that the
14
Presumably, the arrest of Diaz by ERO and HSI in August
2018 was based solely on Diaz's supposed status as a gang member,
not criminal activity, as no criminal conduct is noted anywhere in
the DHS memorandum reporting the arrest. See supra Section I.
- 37 -
individual has been or is presently engaged in criminal activity."
Narcisse, 927 N.E.2d at 443. The regulations in 28 C.F.R. Part 23
plainly prohibit entities like BRIC from collecting "criminal
intelligence information" about an individual unless "there is
reasonable suspicion that the individual is involved in criminal
conduct or activity." 28 C.F.R. § 23.20(a) (emphasis added).
Simply associating with people who may be engaged in criminal
activity is not enough. Thus, the data about Diaz in the BRIC
Gang Assessment Database does not meet the standard for "criminal
intelligence information," as Professor Nolan concludes, and it
should never have been submitted to the database.
My colleagues correctly point out that those regulations
"are not a rule about admissibility or an exclusionary rule." But
that observation misses the point. Diaz does not argue that the
regulations categorically preclude IJs from admitting and relying
on BRIC Gang Assessment Database documents. Rather, he argues
that, in this case, the gang package does not reliably establish
that he is a gang member, in part because it fails to comply with
the regulations.
Remarkably, in rejecting Professor Nolan's opinion about
the unreliability of the gang database information, the BIA found
it significant that Diaz's counsel had not presented evidence that
Diaz's name had been "removed from the Boston police's database
because his inclusion was unlawful." It was error for the BIA to
- 38 -
presume that Diaz could have taken such a step. There is no
mechanism through which a person can challenge his designation as
a gang member and inclusion in the BRIC Gang Assessment Database.15
See Yawu Miller, Are There Really 160 Gangs in Boston?, Bay State
Banner (July 30, 2019), https://www.baystatebanner.com/
2019/07/30/are-there-really-160-gangs-in-boston/. Recognizing
the lack of any such procedure, the government now suggests on
appeal that Diaz should have brought suit under 42 U.S.C. § 1983to have his name removed from the database. It is absurd, however,
to place the onus on a respondent in removal proceedings to bring
a slow, costly, burdensome federal civil lawsuit to challenge his
wrongful inclusion in a law enforcement database. The fact that
Diaz did not pursue that course to get his name removed from the
database does not make the information in the database reliable.
Second, there is no explanation in this record of the
basis for the point system employed by the Boston Police
Department. Diaz specifically raised the disconnect between the
points assessed and actual gang affiliation. Yet the IJ and BIA
accepted the point system uncritically, even though it is unclear
how the Department determined what point values should attach to
what conduct, or what point threshold is reasonable to reliably
15
In contrast, California requires local law enforcement
agencies to notify individuals whose names are included in its
gang database, CalGang, of the process through which they can
contest that designation. Cal. Penal Code § 186.34(c)(1)-(2).
- 39 -
establish gang membership. See Rule 335 - Gang Assessment
Database, at 2-3. Indeed, scholarly critiques of gang databases
that employ similar point systems have recognized their tendency
to cast too wide a net. See, e.g., Kevin Lapp, Databasing
Delinquency, 67 Hastings L.J. 195, 210 (2015) ("The broad criteria
for inclusion in gang databases, and the discretion afforded to
law enforcement in deciding whom to include, make it difficult for
young people living in gang-heavy communities to avoid qualifying
criteria."); K. Babe Howell, Fear Itself: The Impact of Allegations
of Gang Affiliation on Pre-Trial Detention, 23 St. Thomas L. Rev.
620, 649 (2011) (remarking that the criteria for inclusion in gang
databases are generally "almost entirely unrelated to criminal
conduct or even to active participation in gang activities" and
create "the potential for false positives"); Joshua D. Wright, The
Constitutional Failure of Gang Databases, 2 Stan. J. C.R. & C.L.
115, 125 (2005) ("The subjective criteria used to document gang
members . . . reinforce the suspicion that databases, even if
properly managed and administered, are excessively over inclusive
and overstate minority participation rates.").
In addition, as this case illustrates, the point system
is applied in a haphazard manner. Diaz was assigned points for
most, but not all, of his documented interactions with purported
MS-13 members. When he was assigned points, he was not always
assigned the same number per interaction. Although he was assigned
- 40 -
two points for "contact" with alleged gang members or associates
on most occasions, he was assigned five points for one
"Intelligence Report" submitted by the Boston School Police.
Furthermore, the people with whom Diaz interacted were
likely "verified" as gang members using the same problematic point
system. As Professor Nolan points out in his affidavit, "it is
unclear from the information provided by the Gang Assessment
Database how any other named individuals were verified as members
of MS-13. Given the problems with [Diaz's] inclusion as a
'verified member,' it is possible that these individuals also
should not have been included."
In rejecting Diaz's due process challenge, the BIA
ignored this basic problem with the government's evidence and
discredited Professor Nolan's views simply because Diaz had
"associated with known MS-13 gang members" in areas frequented by
gang members and possessed "gang-related weapons," i.e., a bike
chain and lock. In other words, while acknowledging that Professor
Nolan had raised serious doubts about the gang reports'
reliability, the BIA responded to those concerns in circular
fashion -- relying on the questionable data about Diaz's peers to
deflect the criticism of the questionable data about Diaz.
Most troubling of all, Professor Nolan's critique of the
Boston Police Department's point system highlights its potential
for criminalizing ordinary behaviors of minority youth, such as
- 41 -
spending time with peers of the same ethnicity. The system creates
a self-perpetuating cycle that is devastating in its application
in immigration proceedings. Individuals are assigned points based
on their associations, which leads to their classification as a
gang member, which results in heightened police attention to their
activities, additional observations of their associations, and the
assignment of additional points. Although Diaz was never seen
engaging in the kinds of violent crime for which MS-13 is notorious
-- or any criminal activity, for that matter -- he was labeled an
MS-13 gang member based solely on associations with his peers in
the East Boston community where he lived. It is just such guilt-
by-association -- developed through "violation of the privacy and
constitutional rights of individuals" -- that the federal
regulations governing criminal intelligence gathering were
designed to prevent. See supra Section II (quoting Criminal
Intelligence Systems Operating Policies, 45 Fed. Reg. 40,156,
40,156 (June 13, 1980)).
Put simply, Diaz was denied relief from removal based on
quintessential teenage behavior -- hanging out with friends, who
unsurprisingly were also young Hispanic men. The record lacks any
evidence that those social encounters were linked to criminal
activity that would have been a proper basis for recording them,
and any explanation by the government as to why the point system
is nevertheless a reliable means of determining gang membership.
- 42 -
The flaws in the gang package, which Diaz brought to the attention
of the IJ and BIA, cast serious doubt upon the accuracy of Diaz's
classification as a gang member. The IJ's and BIA's uncritical
reliance upon that evidence denied Diaz an "accurate determination
of the matters before the court," Heller v. Doe by Doe, 509 U.S.
312, 332 (1993), and rendered the agency proceedings fundamentally
unfair.
B. Prejudice
In the context of an immigration appeal, "a 'due process
claim cannot succeed without prejudice; without prejudice, any
error that occurred would be harmless.'" Toribio-Chavez, 611 F.3d
at 66 (quoting Hossain v. Ashcroft, 381 F.3d 29, 32 (1st Cir.
2004)). Prejudice is established "when it is shown that an
abridgement of due process is likely to have affected the outcome
of the proceedings." Pulisir v. Mukasey, 524 F.3d 302, 311 (1st
Cir. 2008).
The IJ relied on the gang package to find that Diaz was
"not credible pertaining to his gang membership" and that he likely
was a member of MS-13. The IJ then expressed "great doubt" as to
whether Diaz is an Evangelical Christian, the basis upon which he
claimed asylum, because of his gang membership. In doing so, the
IJ gave the gang package dispositive weight in assessing Diaz's
credibility. Based on that adverse credibility determination, the
IJ discounted Diaz's testimony about the harm he had experienced
- 43 -
in El Salvador, found that Diaz had not demonstrated past
persecution on account of a statutorily protected ground (his
religion), and found that Diaz failed to establish that he had an
objectively reasonable fear of future persecution. The IJ also
concluded that, even if Diaz was statutorily eligible for asylum,
he would have denied Diaz's application on discretionary grounds
because of Diaz's gang affiliation. In short, the gang package
permeated every aspect of the IJ's decision denying Diaz's asylum
claim.
My colleagues suggest that, apart from the gang package,
the IJ properly relied on two inconsistencies in Diaz's testimony
when making the adverse credibility determination and, thus, the
IJ was entitled to discount Diaz's testimony on that basis. But
a line of questioning that supposedly produced a major
inconsistency in Diaz's testimony was anchored in the flawed gang
package -- that is, the IJ's questions about how Diaz traveled
around Boston undoubtedly stemmed from the police report that
Diaz's backpack held a bike lock and chain, items that authorities
say are used as weapons by MS-13 members. More importantly,
however, closer examination reveals that Diaz's testimony was
consistent and the IJ erred in finding otherwise.
After Diaz's attorney finished her direct examination,
the IJ posed a series of questions to Diaz that included the
subject of his transportation:
- 44 -
how do you get from one place to the other?
JUDGE TO MR. DIAZ-ORTIZ:
What is your method of transportation,
meaning
MR. DIAZ-ORTIZ TO JUDGE:
What do you mean, what do you mean? I
don't understand the question.
JUDGE TO MR. DIAZ-ORTIZ:
When you, when you travel in your
community, what transportation do you use?
MR. DIAZ-ORTIZ TO JUDGE:
Train.
JUDGE TO MR. DIAZ-ORTIZ:
Always?
MR. DIAZ-ORTIZ TO JUDGE:
Yes. Well, when I lived in, in my house
where I lived in, in East Boston, I didn't
because it was close, but when I lived in
Boston, I, I had to use the train.
JUDGE TO MR. DIAZ-ORTIZ:
Do you have a car?
MR. DIAZ-ORTIZ TO JUDGE:
No.
Diaz required the assistance of a Spanish interpreter at his
hearing, and it is clear that he was confused by this line of
questioning. The IJ then concluded with a leading question: "So,
you never traveled anywhere except by train, correct?" Diaz
responded in the affirmative.
On cross-examination, after the government introduced
the gang package, the DHS attorney asked Diaz why he told the
police that he had the chain and padlock for his bicycle when he
had told the IJ that he only traveled by train. Diaz responded,
in line with his prior testimony: "Well, when I lived in East
Boston, of course, I had the bicycle there to go around and, and
do things around there, but when I lived in Boston and I took the
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train, I couldn't bring the bike anymore." The IJ then interrupted
the DHS attorney's next question to press Diaz on the issue:
JUDGE TO MR. DIAZ-ORTIZ:
Do you remember that I specifically asked
you whether you used any other means of
transportation, yes or no?
MR. DIAZ-ORTIZ TO JUDGE:
Oh, yes, yes, I remember when you said
that.
JUDGE TO MR. DIAZ-ORTIZ:
And you told the Court that you did not
use any other means of transportation other
than a train? Is that correct?
MR. DIAZ-ORTIZ TO [DHS ATTORNEY]:
[Not translated].
JUDGE TO MR. DIAZ-ORTIZ:
No, I didn't ask for a reason why.
MR. DIAZ-ORTIZ TO JUDGE:
Yes, you said that, but --
JUDGE TO MR. DIAZ-ORTIZ:
I'm just asking you what you told the
court.
JUDGE TO [DHS ATTORNEY]:
Next question.
Diaz's statement that the train was his only mode of transportation
was in response to a leading question by the IJ. In contrast, his
responses to open-ended questions posed by both the IJ and the DHS
attorney were consistent -- he traveled by train when he lived in
Boston, but he did not need the train when he lived in East Boston.
And, as Diaz points out in his brief, he was living in East Boston
when he was found with the bike chain and lock.16
16 The Field Interview Report documenting the FIO where the
police recovered the bike chain and lock from Diaz lists Diaz's
home address, with the zip code 02128 -- an East Boston zip code.
Look Up a Zip Code, U.S. Postal Service,
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Another inconsistency identified by the IJ concerned
Diaz's religion. The IJ found that Diaz varied in his testimony
as to whether his family's store in El Salvador -- which sold
religious objects -- was owned by him or other family members.
The IJ observed: "At first during his testimony, [Diaz] stated
that he owned a store that sold Christian paraphernalia. However,
he later revisited this fact and stated that the store actually
belonged to his family." The IJ's statement is patently wrong.
The hearing transcript reveals that, to the extent there was
inconsistency, it resulted from the IJ's confused and confusing
questioning.
When Diaz first mentioned the store, he testified that
he worked with his parents when he lived in El Salvador and that
"we did have a store" that sold Bibles and other merchandise. He
never said that the store belonged to him. After Diaz's attorney
concluded her questioning on that topic, the IJ posed several
additional questions:
JUDGE TO MR. DIAZ-ORTIZ:
Mr. Diaz, the photographs that you were
presented earlier, are those photographs of
your store on the street?
MR. DIAZ-ORTIZ TO JUDGE:
Yes, of course, that's my mother and
father's store.
JUDGE TO MR. DIAZ-ORTIZ:
My question is, are those pictures of the
store that you said was yours in El Salvador?
https://m.usps.com/m/ZipLookupAction (click "Search for a City by
ZIP Code," then type "02128" in the text box and click "Search").
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MR. DIAZ-ORTIZ TO JUDGE:
Yes, they are, yes.
. . .
JUDGE TO MR. DIAZ-ORTIZ:
So, these are pictures of the store that
belongs to your mother and your father,
correct? It's not a picture of --
MR. DIAZ-ORTIZ TO JUDGE:
Yes, yes, they are.
JUDGE TO MR. DIAZ-ORTIZ:
-- a store that belongs to you, correct?
MR. DIAZ-ORTIZ TO JUDGE:
No, not, not to me. It's the family's, it
belongs to the family.
(emphasis added). The IJ misinterpreted Diaz's prior testimony,
in which he consistently reported that the store belonged to his
family. Notably, the BIA explicitly did not rely on this purported
inconsistency when it upheld the IJ's adverse credibility
determination. Inexplicably, however, the majority does rely on
it, concluding that "both of the indicia used by each of the IJ
and the BIA as to lack of credibility were properly considered."
Like the IJ, my colleagues are plainly wrong.
In sum, neither inconsistency identified by the IJ
independently supports the adverse credibility determination.
Moreover, that credibility determination was inescapably
controlled by the gang package, and credibility was the express
basis upon which the IJ denied Diaz's application for asylum.
Thus, it is not reasonably debatable that the IJ's reliance on the
fundamentally unfair gang package prejudiced Diaz.
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IV.
MS-13 is a Central American gang originally created by
Salvadorans in Los Angeles that now operates primarily in the
"northern triangle" countries: El Salvador, Guatemala, and
Honduras. Clare Ribando Seelke, Cong. Research Serv., RL34112,
Gangs in Central America 1-4 (2016), available at
https://fas.org/sgp/crs/row/RL34112.pdf. MS-13 also recruits
members in the United States. See id. at 3. There is
unquestionably a need for federal and state law enforcement
authorities to monitor and control the activities of MS-13 and
other gangs that engage in criminal activity in this country. But
that need does not justify intelligence gathering by police that
treats the mere proximity of any young Hispanic man to his peers
-- even those suspected to be gang members -- as gang-related
activity. That inferential leap crosses the line from legitimate
monitoring to racial profiling.
This is not a theoretical concern. A 2015 report on the
Boston Police Department's field interrogation observation
practices "revealed racially disparate treatment of minority
persons in BPD FIO activity." Jeffrey Fagan, et al., Final Report:
An Analysis of Race and Ethnicity Patterns in Boston Police
Department Field Interrogation, Observation, Frisk, and/or Search
Reports 20 (2015), available at https://s3.amazonaws.com/
s3.documentcloud.org/documents/2158964/full-boston-police-
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analysis-on-race-and-ethnicity.pdf. Indeed, data released by the
Boston Police Department last year shows that nearly all
individuals tracked in the BRIC gang database are "young black and
Latino men." Philip Marcelo, Inside the Boston Police Gang Database,
WGBH News (July 30, 2019), https://www.wgbh.org/news/
local-news/2019/07/30/inside-the-boston-police-gang-database. The
2015 report found that "at least some of the racial disparity in FIO
encounters" can be attributed to "intense police attention to gang
members by Boston Police, including reputed gang members who may
have had no criminal history." Fagan et al., at 12 (emphasis
added). Notwithstanding the importance of addressing gang
activity, it is simply unacceptable for aggressive policing to
single out racial minorities, subjecting them to unfair and
unreliable law enforcement practices.
The 2015 report on the Boston Police Department's FIO
practices was not presented to the IJ during Diaz's merits hearing,
and, accordingly, it has no bearing on whether the IJ and BIA
committed a legal error by crediting the gang package.
Nonetheless, the report highlights the fundamental unfairness in
the ready acceptance by the IJ and the BIA of the ostensibly
damning evidence in the gang package. "The function of legal
process, as that concept is embodied in the Constitution, and in
the realm of factfinding, is to minimize the risk of erroneous
decisions." Greenholtz, 442 U.S. at 13. By accepting at face
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value the gang package's identification of Diaz as a gang member,
despite compelling evidence revealing that finding's flimsy
foundation, the agency neglected its obligation "to guard against
the risk of erroneous deprivation." Allen v. Illinois, 478 U.S.
364, 374 (1986). That cursory acceptance of such facially powerful
evidence to deny relief in immigration proceedings is the epitome
of fundamental unfairness, and the resulting high likelihood of
error is the essence of a due process violation.
Hence, we should vacate the BIA's ruling and remand this
case for renewed consideration of Diaz's application on the basis
of reliable evidence. I respectfully dissent.
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