Gustavo Navichoque v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO ADOLFO NAVICHOQUE, No. 18-70661
AKA Arnoldo Morales-Lopez, AKA
Geraldo Navichoque, AKA Gustavo Agency No. A088-451-628
Navichoque,
Petitioner, MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2020
San Francisco, California
Before: SCHROEDER and BERZON, Circuit Judges, and MENDOZA,** District
Judge.
Petitioner Gustavo Adolfo Navichoque, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA” or “agency”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
denial of his claim for withholding of removal and relief under the Convention
Against Torture (“CAT”), including deferral of removal. For the reasons that
follow, the petition is granted and remanded with instructions to grant CAT
deferral relief.
1. The agency’s adverse credibility finding is not supported by substantial
evidence. The government did not address the merits of petitioner’s credibility
argument in its briefing, but instead suggested a remand to the BIA to reconsider
its affirmance of the IJ’s credibility determination. But the government offered no
reason in its briefing or during oral argument why the agency should revisit the
credibility determination. We therefore decline to remand the credibility issue but
instead review it for substantial evidence.
The agency relied on petitioner’s previous use of an erroneous name and
nationality as well as discrepancies between petitioner’s testimony and the factual
basis of his prior nolo contendere plea to a state offense. Neither is sufficient to
establish a lack of credibility. The use of a false name and nationality “does not
detract from but supports [petitioner’s] claim of fear of persecution.” Turcios v.
I.N.S., 821 F.2d 1396, 1401 (9th Cir. 1987). Further, although the BIA
acknowledged at points that Navichoque pleaded nolo contendere, the BIA
analysis treated a nolo contendere plea as if it were a guilty plea. A nolo
contendere plea is “not an admission of factual guilt,” United States v. Nguyen,
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465 F.3d 1128, 1130 (9th Cir. 2006), so Navichoque’s explanation at his hearing of
the circumstances of his conviction did not contradict any earlier admission of
guilt. Because “it is apparent from the record before us that the IJ and BIA have
listed all possible reasons to support an adverse credibility determination, and they
are inadequate in law or not supported by substantial evidence, then . . . on remand
we can sensibly say that a petitioner should be deemed credible.” Soto-Olarte v.
Holder, 555 F.3d 1089, 1095 (9th Cir. 2009).
We conclude that petitioner is entitled to be deemed credible on remand.
2. The agency’s alternative holding denying CAT relief because petitioner
failed to establish government acquiescence is also not supported by substantial
evidence. “Acquiescence by government officials requires only that they were
aware of the torture but remained willfully blind to it, or simply stood by because
of their inability or unwillingness to oppose it.” Cole v. Holder, 659 F.3d 762, 771
(9th Cir. 2011) (cleaned up) (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079
(9th Cir. 2008). After petitioner reported his kidnapping, “[t]he police told [him] to
stop reporting, because they couldn’t do anything. They said [that] [his] reporting
also put them in danger, and [he] needed to stop.” The IJ, whose reasoning the BIA
adopted, found the petitioner’s testimony insufficient to establish acquiesce. But
the IJ did not acknowledge that, after the kidnapping, the police affirmatively told
petitioner not to make any more reports and that they could not do anything about
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drug cartel attacks. That the police directly told petitioner not to make reports
compels a finding that there was acquiescence by the local police in petitioner’s
torture. Because “past torture is ordinarily the principal factor on which we rely
when an applicant who has previously been tortured seeks relief under the
Convention,” Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005); see also
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015), the record
compels the conclusion that petitioner will more likely than not be tortured upon
removal to Guatemala, with government acquiescence. In sum, petitioner is
credible and has established entitlement to CAT relief. Thus, the BIA shall grant
such relief on remand. 8 C.F.R. § 1208.17(a).
3. Petitioner did not make any argument as to the particularly serious crime
determination that precluded withholding relief and thus waived the issue. See,
e.g., Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013).
PETITION GRANTED; REMANDED WITH INSTRUCTIONS.
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