Hubert Cole v. Eric Holder, Jr.

Filing

FILED OPINION (JOHN T. NOONAN, MARSHA S. BERZON and CONSUELO M. CALLAHAN) We therefore GRANT Cole s petition, VACATE the BIA s decision, and REMAND for further proceedings consistent with this opinion. VACATED and REMANDED. Judge: JTN Concurring, Judge: MSB Authoring, Judge: CMC Dissenting. FILED AND ENTERED JUDGMENT. [7902460]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



HUBERT GEORGE COLE,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 09-73625
Agency No.
A092-817-988
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2010—Pasadena, California
Filed September 22, 2011
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

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COUNSEL
Fatma E. Marouf, Marouf Law Group, Los Angeles, California, 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.

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OPINION
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.
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 medical care.
The Department of Homeland Security commenced
removal proceedings against Cole on July 11, 2008. The
Notice to Appear charged that Cole was removable because
he entered without being admitted or paroled and was convicted, on June 18, 1999, for possession of cocaine for sale.
Cole conceded removability and applied for asylum, withholding of removal, and relief under CAT. After the immigration judge (IJ) denied all his claims for relief, Cole appealed
only the CAT claim to the BIA, which dismissed the appeal.
Whether the BIA properly denied CAT relief is the only issue
before us.

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A.

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Factual Background

Cole testified that while incarcerated as a young man, he
felt threatened by Hispanic gang members, joined the Crips
for protection, and acquired several Crips tattoos, including a
teardrop under his eye, a G behind his ear, and tattoos on his
calves, arms and back. Once released from prison Cole
stopped associating with the Crips and worked at a homeless
services agency. Nevertheless, rival gangs could still identify
him as a Crips gang member because of his tattoos. According to Cole, Hispanic gangs hate the Crips and kill Crips gang
members. Cole has not had the tattoos removed because tattoo
removal is a painful and long process.
Despite disassociating himself from the Crips, Cole continued to feel threatened by Hispanic gang members. In August
2007, Cole was the victim of a drive-by shooting by Hispanic
gang members.1 He was outside a store with a friend when a
car with four or five Hispanic people drove by; the car’s occupants were pointing at him and yelling out their gang affiliation — Santa Monica 13. Cole and his friend quickly got back
into their car. But, before his friend could get his car started,
the other car pulled up on the passenger side, where Cole was
sitting, and a Hispanic man started shooting at Cole.
Cole was shot in the head and abdomen. Half his liver and
part of his skull had to be removed because of the shooting.
Hospitalized for five or six months, Cole was still experiencing problems related to his brain injury at the time of his testimony. In his declaration, Cole stated that he now has a
1

Cole also testified about one other specific instance in which he
encountered Hispanic gang members after he was released from prison:
Once, while he and his friends were watching fireworks at the Santa Monica pier, 18th Street gang members approached and asked them if they
were Crips. Cole testified that there was a lot of tension until the police
appeared and took some of the 18th Street gang members to jail. He testified that he believes “something terrible,” such as someone being stabbed,
would have happened if the police had not arrived.

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defective, fragile skull and that he can easily injure his brain
if he is not careful. A letter from his doctor confirmed that he
has a “sizable skull defect with no protection of his brain” and
asserted that, for this reason, incarceration could put him at a
high risk of serious injury. Cole’s doctor told him he will be
in pain for a long time and will likely have seizures in the
future, necessitating ongoing medical care.
Cole maintains that if returned to Honduras, he will be tortured and possibly killed by gangs, police, or death squads,
because of his race and his gang-related tattoos.2 He testified
that his race,3 his tattoos, his general appearance, and even his
accent will mark him as an outsider in Honduras, and that he
believes that, even if the police do not harm him themselves,
they will think he is a gang member and so not protect him.
Cole also fears that the police will detain him and that he will
be intentionally exposed to torturous prison conditions
because of his tattoos. Finally, Cole contends that he will be
intentionally denied necessary medical care by public health
officials in Honduras because of his tattoos, and that the
intentional denial of medical care also qualifies as torture.
2

The dissent emphasizes that there is no evidence in the record to suggest that the Crips operate in Honduras. It argues that there is, therefore,
no reason to think that Cole will suffer harm because of his Crips tattoos.
But Cole’s claim does not rely on the presence of Crips in Honduras.
Rather, he claims — and presented evidence — that (1) Hispanic gang
members removed from the United States and returned to Honduras are
likely to bring their rivalries with them and to recognize Cole’s tattoos as
those of a rival gang; (2) Honduran gangs are likely to see Cole as a threat
because of his tattoos regardless of whether they can identify the gang
with which he was affiliated; and (3) the Honduran government, police,
and medical personnel associate tattoos with gang membership, regardless
of the nature of the tattoo, and are not likely to inquire further as to the
meaning of the tattoo or whether a tattooed person maintains gang membership.
3
The record includes documentation of racial inequality and discrimination in Honduras against Afro-Hondurans.

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Cole’s sister and mother testified that they are also afraid
Cole will be tortured or killed if returned to Honduras and
will not be able to receive the medical care that he needs.
1.

Expert Testimony

Cole supported his CAT claim with testimony from two
experts. Luis Javier Rodriguez (Rodriguez) testified as an
expert on the “structure and dynamics of U.S. and Central
American gangs, including the racial rivalries among those
gangs.” He discussed the origins of two large Hispanic gangs,
Mara Salvatrucha (MS-13) and 18th Street, and how those
gangs spread to Central America, primarily through gang
members deported from the U.S. Rodriguez explained that the
Crips gang is viewed as an enemy by Hispanic gangs, including MS-13 and 18th Street, whose members attack members
of African American gangs. According to Rodriguez, the Hispanic gangs can easily spot Crips tattoos. He also testified that
the Hispanic gang members brought their “anti-black culture”
down to Central America when they were deported and that
someone with Crips tattoos would likely be threatened,
beaten, or killed in Central America by either MS-13 or 18th
Street gang members.
Cole’s second expert, Elmer Javier Canales Mesa
(Canales), had about nine years experience working with gang
members and former gang members in Honduras. Canales testified that the two biggest gangs in Honduras are MS-13 and
18th Street and that members of these gangs kill people with
tattoos from rival gangs such as the Crips. In Canales’ experience, the Honduran police do not investigate the murders of
gang members or suspected gang members.
Canales also testified that it is illegal to be a member of a
gang in Honduras and that having a gang-related tattoo can
lead to a prison sentence of six to twelve years. According to
Canales, suspected gang members in the area where he works
are each detained by police two or three times per week and

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sometimes jailed. Honduran police also physically abuse suspected gang members by throwing them on the ground and
beating them with their weapons.4 In one case he knew of, a
police officer tortured two gang members to death. That officer, a former police chief, is in jail as a result of an investigation by the organization for which Canales works. Generally,
however, police are not held accountable for harming gang
members.
Canales also testified about specific incidents in which
police or prison guards killed suspected gang members in
prison. In an incident that occurred three or four years before
the hearing, 68 suspected gang members died after being shot
by prison guards. The year he testified, more than 20 suspected gang members had been killed in jail on the first day
they arrived there; Canales attributed the slaughter to “police
negligence.” He also testified about an incident in which 104
gang members died in a fire in their cell block. The guards
blocked their escape by not opening the gate, and it was later
determined that the fire was set by the police.
In Canales’ opinion, based on statistics, studies, and his
experiences over the years, Cole has a 90% chance of being
detained by the Honduran police and a greater than 75%
chance of being killed by gang members in Honduras because
of his Crips tattoos. Canales also testified about the risk Cole
would face in Honduras from death squads and social cleansing aimed at eliminating gang members. According to
Canales, groups of police and other powerful citizens torture
and kill those they find undesirable, including suspected gang
members. Canales reported that such groups act with complete impunity in Honduras.
Finally, Canales spoke about the inability of suspected
gang members to get medical care in public hospitals in Hon4

Canales also testified that he had been punched in the back and chest
by police for defending the youth with whom he worked.

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duras. He had personally accompanied gang members and
former gang members to hospitals and had seen doctors refuse
to care for them. One young man, wounded and bleeding,
died in the waiting room because doctors refused to treat him.
Most doctors in Honduras, Canales stated, would refuse to
treat an individual with tattoos because they would suspect
him of being a gang member. Also, he reported, the government does nothing to hold healthcare workers accountable in
such situations, despite demands from his organization.
According to Canales, Cole would be denied emergency medical care if he needed it and, in a non-emergency situation,
would get treatment only if accompanied by the Commissioner for Human Rights.
Given the high risk of harm former gang members in Honduras face from rival gangs, police, and vigilante groups, most
of the former gang members with whom he works attempt to
remove their tattoos to make themselves less identifiable.
There are some programs in Honduras to help former gang
members remove tattoos, but, Canales reported, they cannot
meet the demand,5 and the process is long, extremely painful,
and often results in visible scarring. In his written declaration,
Canales explained that because such “scars are often visible
. . . these individuals remain a target for gang members, death
squads, and the police.”
2.

Documentary Evidence

Both Cole and the government submitted extensive documentary evidence, including reports by the U.S. government
and by United Nations agencies. Many of the reports corroborated aspects of Cole’s experts’ testimony.
5

Out of desperation, some former gang members attempt to remove
their tattoos using methods such as cigarette burns, mosquito repellent, car
battery acid, acid creams, and metal cleaners. Former gang members go
to such extreme lengths to remove their tattoos because young people with
tattoos run a great risk of being killed.

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For example, the 2008 U.S. State Department report recognized several human rights problems in Honduras, such as
“unlawful killings by members of the police and government
agents; arbitrary and summary killings committed by vigilantes and former members of the security forces; violence
against detainees by security forces; harsh prison conditions;
[and] corruption and impunity within the security forces.” The
report confirmed that gang membership, without more, was
illegal in Honduras and punishable by up to 12 years in
prison, and that police arrested people based on factors such
as their tattoos. The report also noted that private security
companies and vigilante groups acted, with the complicity of
police, as death squads to kill “supposed habitual criminals.”
Moreover, although the Honduran constitution prohibits
torture, there were instances in which government officials
employed such practices, including beatings and other abuse
of detainees. The 2008 State Department report stated that the
Committee for the Defense of Human Rights in Honduras had
reported that police arbitrarily detained and sometimes tortured more than two dozen individuals during a government
program called Operation National. The 2007 State Department report placed the number of individuals arbitrarily
arrested and, sometimes, tortured under Operation National at
more than 34,000 and noted that a number of prisoner deaths
had been attributed to members of the security forces.
On the other hand, the 2008 State Department report
acknowledged that the government had undertaken some
investigations of illegal activities by security forces. For
example, on June 6, 2008, a court found guilty and sentenced
21 of the 43 government officials implicated in a 2003 jail
massacre.
Other documentary evidence confirmed and expanded on
the information in the State Department reports. A 2007 Congressional Research Service report noted that increased violence by gangs has led to corresponding vigilantism, with

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increasing extrajudicial killings. It also acknowledged the July
2003 legislation in Honduras making membership in a gang
punishable by up to 12 years in prison and confirmed that a
prison fire in 2004 killed 107 inmates, mostly gang members.
Similarly, a 2006 U.S. Agency for International Development
(USAID) report on gangs in Honduras noted that the Honduran government’s strict approach includes rounding up tattooed individuals and putting them in prison for gang
membership. The report also noted that when gang members
were killed or died in prisons, often no one was punished.
An August 2008 report by the UN High Commissioner for
Refugees (UNHCR) counted “lack of accountability and professionalism within the police,” “the frequent abuse of detainees,” and “a culture of impunity for violations of human rights
including extrajudicial executions” as among Honduras’ biggest human rights problems. The report also discussed a 2006
anti-gang initiative that called for recruiting 30,000 to 60,000
private security personnel to join the efforts of the 10,000
armed services personnel and 8,000 police officers, and granting the private security personnel “the right to use any means
necessary to deter assailants from committing criminal acts.”
The report noted that the policy had led to mass arrests, and
that there were reports of excessive and even lethal force
being used by these private security forces. The UNHCR
report also discussed evidence that death squads were executing gang members, noting “the widespread conviction that
[the unlawful killings] are being committed by members of
the existing or former security forces.”
Finally, numerous newspaper articles also discussed the
problems of government-linked death squads, extrajudicial
killings, and the high level of violence in Honduran prisons.
Particularly disturbing were reports regarding fires in prison,
some reportedly deliberately set by security forces, which
have killed around 200 prisoners, mostly gang members. One
article noted that an independent report commissioned by the
President of Honduras found that in one prison fire, 51 of the

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68 people who were killed had been “executed — shot,
stabbed, beaten or burned to death by a force of the state
police, soldiers, prison guards and prisoners working with the
guards.”
B.

IJ and BIA Decisions

The IJ denied Cole’s application for deferral of removal
under CAT, finding that Cole’s evidence “str[ung] together a
series of suppositions,” but did not show that each step in the
hypothetical chain of events was more likely than not to occur.6
In particular, the IJ (1) faulted the expert testimony about the
likelihood that Cole would be tortured as lacking evidence
that individuals similarly situated to Cole had been incarcerated and tortured; (2) noted that, according to the State
Department report, torture is against the law in Honduras, and
the state has prosecuted police officers for torture and other
abuses, including for one of the jail massacres; and (3) characterizing Cole as arguing that lack of medical care and poor
prison conditions in Honduras amount to torture, held that
Cole had failed to meet the standard of specific intent to cause
harm established in Villegas v. Mukasey, 523 F.3d 984 (9th
Cir. 2008). Although Cole argued that he would be intentionally denied medical care and that prison officials have intentionally created dangerous prison conditions, the IJ did not
address these arguments.
Like the IJ, the BIA discounted Cole’s expert witness testimony about the likelihood that Cole would be tortured on the
ground that the expert failed to give specific examples corroborating his opinion. The Board also held, as did the IJ, that
Cole had not established by sufficient evidence each link in
the chain of events that could result in his torture by police,
death squads, or other gang members. The BIA did recognize
that evidence in the record suggested that “the presence of a
6

Cole’s applications for asylum and withholding of removal were also
denied.

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tattoo can cause an automatic association with gangs, and that
a tattoo or suspected gang affiliation can equate to harsh treatment.” But the BIA found nothing in the record explaining
why Cole could not have his tattoos removed to avoid being
perceived as a gang member. Finally, the BIA determined that
lack of medical treatment is not tantamount to torture. The
BIA did not make any finding regarding government acquiescence in torture by death squads or gang members.
Cole timely filed this petition for review.7
II.
We review issues of law regarding CAT claims de novo.
Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). “Where
the BIA conducts its own review of the evidence and the law,
this panel only reviews the BIA’s decision, except to the
extent it expressly adopts the IJ’s decision.” Eneh v. Holder,
601 F.3d 943, 946 (9th Cir. 2010). “The BIA’s findings
underlying its determination that an applicant is not eligible
for relief under the CAT are reviewed for substantial evidence.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.
2007). “Under the substantial evidence standard, the court
upholds the BIA’s determination unless the evidence in the
record compels a contrary conclusion.” Id.
7

We note that Cole has been detained throughout these proceedings,
which have lasted for more than three years, seemingly without a bond
hearing. If so, then, as did the court in Aguilar-Ramos v. Holder, 594 F.3d
701 (9th Cir. 2010), “we express grave concerns over [Cole’s three]-year
detention,” id. at 704 n.3, particularly given Cole’s testimony that while
in detention, he was not permitted the medications he needed to control
the pain from his brain injury. Prolonged detention of aliens absent a bond
hearing is not authorized by 8 U.S.C. § 1226(a). See Casa-Castrillon v.
Dep’t of Homeland Sec., 535 F.3d 942, 950-51 (9th Cir. 2008); see also
Prieto-Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008) (holding that
a three-year detention “qualifies as prolonged by any measure”). “We
encourage [Cole] to challenge his detention by filing a habeas petition pursuant to 28 U.S.C. § 2241 or by requesting a bond hearing.” AguilarRamos, 594 F.3d at 704 n.3.

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“Because neither the BIA nor the IJ made an adverse credibility finding, ‘we must assume that [Cole’s] factual contentions are true.’ ” Aguilar-Ramos, 594 F.3d at 704 (quoting
Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000)). “As a
result, the facts to which [he] testified are ‘deemed true, and
the question remaining to be answered becomes whether these
facts, and their reasonable inferences, satisfy the elements of
the claim for relief.’ ” Edu, 624 F.3d at 1143 (quoting Nuru
v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005)).
III.
A.

General CAT Principles

[1] To qualify for CAT relief, a petitioner must establish
that “it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). In other words, Cole must “show only a
chance greater than fifty percent that he will be tortured if
removed to” Honduras. Hamoui v. Ashcroft, 389 F.3d 821,
827 (9th Cir. 2004). In determining whether an individual will
more likely than not be tortured, “all evidence relevant to the
possibility of future torture shall be considered.” 8 C.F.R.
§ 1208.16(c)(3).
[2] Importantly, an application for CAT relief need not
show that he will be tortured “on account of” any particular
ground. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.
2001). Moreover, where torture is sufficiently likely, “CAT
‘does not permit any discretion or provide for any exceptions.’ ” Edu, 624 F.3d at 1145 (quoting 64 Fed. Reg. 8478,
8481 (Feb. 19, 1999). Instead, the provision for deferral of
removal under CAT applies to all applicants, even those who,
like Cole, are former gang members convicted of an aggravated felony. See 8 C.F.R. § 208.17(a); Lemus-Galvan v.
Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (holding that
“even if an alien has been convicted of a ‘particularly serious
crime,’ and is ineligible for withholding of removal under the

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CAT, an IJ is required to grant deferral of removal if the alien
can establish the likelihood of torture upon return”). As we
explained in Edu, “the words of CAT . . . reach out to protect
even the most vile of actors against state vileness.” 624 F.3d
at 1146. Indeed, “in adopting the [CAT] regulations, the agencies themselves recognized that even those who assisted in
Nazi persecutions, or engaged in genocide, or pose a danger
to our own security are not excluded from the protections of
CAT.” Id. at 1145. Futher, “[a foreign] government cannot
exempt torturous acts from CAT’s prohibition merely by
authorizing them as permissible forms of punishment,” Nuru,
404 F.3d at 1221, nor do other circumstances provide a justification for denying deferral of removal where torture is sufficiently likely.
[3] In other words, the policy against providing “sanctuary
for universal outlaws” that led this court to conclude that gang
members or former gang members are not a social group for
the purposes of asylum and withholding of removal, see
Arteaga, 511 F.3d at 946, does not preclude deferral of
removal under CAT. Both the governing regulations and the
case law of this circuit dictate that even gang members, both
current and former, cannot be returned to a country in which
they will more likely than not be tortured. See 8 C.F.R.
§ 208.17(a); Arteaga, 511 F.3d at 949.
“Acts constituting torture” under CAT “are varied, and
include beatings and killings.” Bromfield v. Mukasey, 543
F.3d 1071, 1079 (9th Cir. 2008). The implementing regulations define torture as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her
or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or

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a third person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1). 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.’ ” Bromfield, 543
F.3d at 1079 (quoting Ornelas-Chavez v. Gonzales, 458 F.3d
1052, 1060 (9th Cir. 2006)). The torturer, whether a public
official or a private party acting with the government’s consent or acquiescence, must have the specific intent to inflict
severe harm. See Villegas v. Mukasey, 523 F.3d 984, 989 (9th
Cir. 2008).
B.

Expert Testimony

[4] Cole’s CAT claim depends heavily on the testimony of
two experts, Rodriguez and Canales, as well as on documentary evidence corroborating their testimony. In determining
whether Cole had established that he would more likely than
not be tortured if returned to Honduras, the BIA was required
to evaluate the expert testimony, as well as the documentary
evidence in the record.
CAT’s implementing regulations so require: In making a
CAT decision, the regulations state, “all evidence relevant to
the possibility of future torture shall be considered, including
. . . [e]vidence of gross, flagrant or mass violations of human
rights within the country of removal . . . and . . . [o]ther relevant information regarding conditions in the country of
removal.” 8 C.F.R. § 1208.16(c)(3) (emphasis added). We
therefore grant petitions for review in CAT cases where the
BIA did not consider country conditions evidence in the
record. See Aguilar-Ramos, 594 F.3d at 705 (remanding for
the BIA to determine in the first instance whether the Country

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Report demonstrates a likelihood of torture); see also Bromfield, 543 F.3d at 1077, 1079; Al-Saher v. INS, 268 F.3d 1143,
1147 (9th Cir. 2001). Indeed, “country conditions alone can
play a decisive role in granting relief under the Convention.”
Kamalthas, 251 F.3d at 1280.
In Aguilar-Ramos, for example, the government argued that
“the Board is not required to cite and refute explicitly every
piece of evidence offered on appeal”; this court responded
that “[t]he regulations implementing CAT explicitly require
the IJ to consider ‘all evidence relevant to the possibility of
future torture,’ ” and also noted that country reports are
accorded special weight in removal proceedings. 594 F.3d at
705 n.6 (citations omitted).
That is not to say that the BIA must discuss each piece of
evidence submitted. When nothing in the record or the BIA’s
decision indicates a failure to consider all the evidence, a
“general statement that [the agency] considered all the evidence before [it]” may be sufficient. See Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006). But, where there is
any indication that the BIA did not consider all of the evidence before it, a catchall phrase does not suffice, and the
decision cannot stand. Such indications include misstating the
record and failing to mention highly probative or potentially
dispositive evidence. See Aguilar-Ramos, 594 F.3d at 705 &
n.6; Eneh, 601 F.3d at 948-49; Bromfield, 543 F.3d at 107677; Kamalthas, 251 F.3d at 1283-84.
[5] In particular, where potentially dispositive testimony
and documentary evidence is submitted, the BIA must give
reasoned consideration to that evidence. See Eneh, 601 F.3d
at 948-49. We granted the petition for review in Kamalthas,
for example, because the BIA did not “consider probative evidence in the record of country conditions which confirm[ed]”
torture of individuals with characteristics similar to the petitioner. 251 F.3d at 1284.

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[6] Here, the BIA neither asserted that it had considered all
of the evidence nor evidenced in its opinion reasoned consideration of the potentially dispositive testimony of Cole’s two
experts. Instead, the BIA stated only that the testimony of one
of Cole’s experts “was unpersuasive in light of the other evidence, including the State Department report, . . . because [he]
failed to give specific examples to corroborate his opinion.”
In so stating, the BIA did not clarify to which of Cole’s
experts it was referring; nor did it address the other expert’s
testimony at all. In other words, the Board did not evidence
reasoned consideration of the testimony of Cole’s two experts.
Further, as to whichever expert the BIA opinion did reference, the Board was obliged to “state[ ] reasons in the record
why the testimony was insufficient to establish the probability
of torture necessary to grant CAT relief.” Aguilar-Ramos, 594
F.3d at 706 n.7. It did not do that.
[7] The BIA’s sole stated rationale for rejecting the one
expert’s opinion is entirely unsupported by the record for two
reasons. First, although the Board opined that the expert’s testimony was “unpersuasive in light of the other evidence,” specifically the State Department report, in fact that report
corroborates rather than contradicts many aspects of both
experts’ testimony. For example, although the 2008 report
noted that torture was illegal in Honduras,8 it also stated that
human rights problems in Honduras included “unlawful killings by members of the police and government agents; arbitrary and summary killings committed by vigilantes and
former members of the security forces; violence against
detainees by security forces; harsh prison conditions; [and]
corruption and impunity within the security forces.” The State
Department report also noted that there are instances in which
8

That a country’s constitution prohibits torture does not establish that
the country does not torture people. See Al-Saher, 268 F.3d at 1147 (stating that the country report noted that the Iraqi Constitution prohibited torture but reported that security forces routinely tortured detainees).

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government officials beat and abuse detainees, and that
human rights groups had reported over two dozen instances of
torture due to one government initiative.9 Additionally, the
2008 report acknowledged that police arrest individuals for
having certain types of tattoos. Thus, while the report indicated that some officials are being investigated and convicted
for abusing their authority, it also noted ongoing serious problems and so corroborated the experts’ testimony. Further, as
noted above, other documentary evidence corroborated their
testimony as well.
Moreover, contrary to the Board’s assertion, the experts, in
particular Canales, did testify about specific incidents of
police torturing or killing suspected gang members. For
example, Canales discussed an incident in which 68 suspected
gang members were shot in jail by “members of the police
guard”; an incident in which police set fire to a jail and killed
104 gang members; and an incident involving a police officer
who tortured two gang members to death. Canales also testified that he had personally experienced police brutality, and
personally witnessed tattooed individuals being denied medical care at public hospitals. Finally, Canales attempted to
quantify the risk Cole faced if returned to Honduras, placing
his risk of detention by the police at 90% and his risk of being
killed by other gang members at 75%. The Board did not
acknowledge these examples and estimates.
[8] The government argues that Canales’ testimony should
be discounted because he did not work with former members
of the Crips gang and had very little first-hand knowledge
regarding how former members of that particular gang are
treated in Honduras. Canales’ lack of knowledge about the
Crips gang does not mean, however, that his testimony is
inapplicable to Cole. As the BIA recognized, evidence in the
9

The 2007 State Department report, also in the record, placed the number of individuals arbitrarily arrested and sometimes tortured at more than
34,000.

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record demonstrates that tattoos “can cause an automatic association with gangs,” which can “equate to harsh treatment.”
There is no record evidence suggesting that Cole would experience different treatment because his tattoos are affiliated
with the Crips rather than with the gangs with which Canales
primarily works. Moreover, Canales’ testimony about violence perpetrated by gang members on those they suspect of
being rivals should have been evaluated alongside Rodriguez’s testimony, which focused on the rivalries between the
Crips and the two dominant gangs in Honduras, MS-13 and
18th Street. Because the BIA acknowledged the testimony of
only one of Cole’s experts, it appears that it never considered
Cole’s CAT claim in light of the evidence presented by both
experts.
[9] Because the BIA mischaracterized the record with
regard to one of the expert’s consistency with the State
Department reports, criticized that expert’s testimony on a
basis belied by the record, and failed even to acknowledge
Cole’s other expert witness, it failed to give reasoned consideration to the potentially dispositive testimony of Cole’s two
experts. We must therefore remand for the agency to reconsider Cole’s CAT claim in light of the expert testimony and
the corroborating documentary evidence. See INS v. Ventura,
537 U.S. 12, 16 (2002) (per curiam); see also Aguilar-Ramos,
594 F.3d at 705; Eneh, 601 F.3d at 948-49.
C.

Intentional Denial of Medical Care

In addition to its errors regarding the testimony of Cole’s
expert witnesses, the BIA also failed to consider Cole’s claim
that he would face torture in Honduras as a result of intentional denial of medical care.
[10] The applicable CAT regulations require that the torturer have the specific intent to inflict severe harm. 8 C.F.R.
§ 1208.18(a)(5). Acts that merely have the foreseeable result
of inflicting harm are not sufficient; “the actor [must] intend

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the actual consequences of his conduct.” Villegas, 523 F.3d at
989. Thus, inhumane conditions and lack of access to appropriate medical care do not, in and of themselves, constitute
torture. Id.; Eneh, 601 F.3d at 948. The IJ and BIA were
therefore correct that a claim of inadequate health care in
Honduras, without more, is insufficient to warrant CAT relief.
[11] This court has recognized, however, that the intentional denial of medical care as a form of punishment could
suffice to establish a CAT claim. Eneh, 601 F.3d at 948. Here,
the BIA did not consider at all Cole’s claim that medical care
would be intentionally withheld because of his gang tattoos,
and that he, specifically, was likely to need medical care due
to his brain injury.10 There is at least some evidence supporting Cole’s contentions: Canales testified that he had personally witnessed staff at public hospitals let a victim bleed to
death because he had tattoos. His opinion was that Cole, also
tattooed, would similarly be denied emergency medical care
in Honduras and would have only contingent, restricted
access to other medical care. The BIA should have considered
whether that was so, particularly given evidence in the record
that Cole will need medical care in Honduras to deal with
complications from his brain injury.
D.

Tattoo Removal

Additionally, the BIA’s conclusion that Cole did not meet
his burden under CAT rested in part on its assertion that Cole
10

Cole also argues that the BIA inadequately considered his claim that
prison officials would intentionally allow him to be tortured and killed in
prison by rival gang members. The agency found that Cole had failed to
establish that he would more likely than not come to the attention of police
and be detained in prison, and so did not consider what would happen
were he detained. If, after reasoned consideration of potentially dispositive
testimony and documentary evidence, the BIA reconsiders its conclusion
regarding the likelihood that Cole will come to the attention of the police
and be detained, it should address his claim that prison officials will intentionally subject him to dangerous conditions amounting to torture.

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could “have his tattoos removed so that he would not be perceived as a gang member upon return to Honduras.” Given
that statement, we cannot tell whether the BIA would have
reached the same result had it not assumed that the tattoos
could feasibly be removed in a timely manner.11 But that
assumption falters if the record evidence on the issue is credited: There is evidence that the tattoo removal process is quite
long and extremely painful. Moreover, the process can leave
permanent scarring. Canales also testified that there is a far
greater demand for tattoo removal in Honduras than there are
places that can provide such services, leading many tattooed
individuals to resort to dangerous home remedies such as
burning themselves with cigarette butts or battery acid. Added
to likely lengthy delay in beginning tattoo removal is the
length of time it takes to remove tattoos once the process
begins. As a result of these circumstances, Cole would likely
be unable to remove his tattoos until well after his arrival in
Honduras, and thus would face being perceived as a gang
member for as long as it took — likely quite a while — to get
them removed. And even after getting his tattoos removed,
the record indicates, visible scarring could mean that he
would still be a targeted by rival gangs, police, and death
squads.
[12] The BIA’s statement concerning tattoo removal does
not discuss any of this evidence or explain why it is not dispositive. Thus, once again, the BIA did not give reasoned consideration to potentially dispositive testimony with regard to
the probability of torture, and we must remand for further
consideration and explanation.
11

It is also unclear whether, if it were feasible for Cole to remove his
tattoos sufficiently to reduce his risk of torture, the BIA could deny CAT
relief on that basis. The issue is not squarely before us, so we need not,
and do not, address it.

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Aggregation of Risk

[13] Finally, the BIA did not consider the aggregate risk
that Cole would face from police, death squads, and gangs if
returned to Honduras. Cole need not prove that each group,
treated individually, would more likely than not torture him.
Rather, he must establish that, taking into account all possible
sources of torture, he is more likely than not to be tortured,
by or with the consent or acquiescence of the government, if
returned to Honduras. The BIA erred by treating each potential source of torture individually, never assessing Cole’s
overall risk of being tortured.
IV.
The BIA did not give reasoned consideration to potentially
dispositive testimony by Cole’s expert witnesses, corroborating documentary evidence, or evidence concerning removal of
tattoos. Nor did it address Cole’s argument regarding the
intentional denial of medical care or assess Cole’s risk of torture in the aggregate. We therefore GRANT Cole’s petition,
VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.
VACATED and REMANDED.

NOONAN, Circuit Judge, 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.

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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.

CALLAHAN, Circuit Judge, 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 the IJ nor the BIA made an adverse credibility finding, therefore we take Cole’s factual allegations as true.
Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010).
Because of his criminal background, the IJ and BIA concluded that Cole is not entitled to either asylum or withhold-

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ing of removal. Cole does not challenge these decisions.
Rather, the only issue before this court is his assertion that he
is entitled to protection under CAT.
A
1.

Cole’s Background and Testimony

Cole is a native and citizen of Honduras who entered the
United States with his family when he was eleven years old
and has since acquired a lengthy criminal record. He has no
extended family in Honduras. Cole is African-American and
has numerous gang tattoos on his arms, legs and face that he
acquired while in prison after he joined the Crips, an AfricanAmerican gang. After his release from prison, Cole apparently
left the gang and worked for a homeless services agency. He
states he did not get the gang tattoos removed because tattoo
removal is a long and painful process.
In 2007, Cole was shot in a drive-by shooting.1 As a result
of the shooting, he suffers from certain ongoing medical problems and has a defective, fragile skull.
In 2008, because of a 1999 conviction for possession of
cocaine for sale, Cole was placed in removal proceedings
where he sought asylum, withholding of removal, and CAT
relief. The IJ determined that Cole was removable as an
aggravated felon and therefore ineligible for asylum and with1

Although the majority asserts that “rival gangs could still identify him
as a Crips gang member because of his tattoos,” Cole never testified that
any rival gang ever identified him as a gang member, whether because of
his tattoos or not. Cole testified about a confrontation with rival gang
members at the Santa Monica Pier while he was with friends, but he did
not assert that any of the rival gang members recognized him as a Crip or
that anyone noticed his tattoos. Similarly, when Cole was shot, he was
with a friend in his car and although he claimed that the people who shot
him identified themselves as members of a Hispanic gang, Cole does not
state that any mention was made of his race or his gang tattoos.

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holding of removal. Cole did not contest those decisions
before the BIA.
At his immigration hearing, Cole testified that he feared he
would be tortured or killed if he were returned to Honduras.
He asserted that gangs, police, death squads, or even his
neighbors may torture or kill him because of his race, gang
tattoos, former gang membership, demeanor or accent, and
that the torture and killing would be done with the acquiescence of the government.2 Cole’s sister and mother also testified that they feared he would be tortured or killed if returned
to Honduras on the basis of his race and tattoos. In addition,
Cole claimed that he would be intentionally denied medical
care by public health officials and that this denial of health
care would constitute torture.
2.

Cole’s Experts

Cole supported his claim with testimony from two purported experts: Luis Javier Rodriguez (“Rodriguez”) and
Javier Canales Mesa (“Canales”). Rodriguez was offered as
an expert on Central American gangs. Rodriguez testified that
he was a self-employed author who had not written about
Honduras and had no specific education, background, or
expertise on the subject of Honduras or gangs in Honduras.
The IJ was not convinced that Rodriguez was an expert on
Central American gangs or had any specialized knowledge on
the interaction between Honduran former gang members and
the Honduran authorities, but permitted Rodriguez to testify
as an expert on gangs and on the narrow issue of racial
dynamics between Los Angeles and Central American gangs.
2

Although Cole’s race is a factor, there is little discussion of race in the
proceedings, and neither Cole nor the majority contend that he would be
tortured based on his race alone. Rather, Cole’s race is raised as an additional way that Hispanic gang members, death squads, the police, or medical authorities may recognize Cole as a Crip. It is only the combination
of Cole being an African-American with Crips tattoos that would make
him identifiable as a (former) Crip.

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Rodriguez testified that the major gangs in Honduras are
the Hispanic gangs, Mara Salvatrucha, also known as MS-13,
and the Mara 18, also known as the 18th Street, which are
American gangs that have spread to Central America. He
stated that the Crips are an African-American gang from Los
Angeles. He testified that, in Los Angeles, the Crips are
viewed as rivals to the Hispanic gangs. Rodriguez asserted
that, in the United States, gang members may recognize rival
gang members’ tattoos, which can lead to violence. He speculated that the rivalry between the Hispanic gangs and the
Crips would exist in Honduras and that someone with Crips
tattoos might be “threatened, beaten, or killed” by the Hispanic gangs there if rival gangs were to see the Crips tattoos.
Rodriguez also testified that there is a “very strong anti-black
culture” in Honduras.
Rodriguez testified that gang members obtain tattoos as a
means of identifying their affiliation with a particular gang.
He stated that removing tattoos is an expensive and painful
process that could take several sessions and could leave scarring. He testified that tattoo removal was possible in Honduras, but that he knew of only two facilities and they lacked
adequate personnel and equipment, so there was a backlog of
people wanting to get their tattoos removed.
The IJ accepted Cole’s second expert, Canales, as an expert
on the issue of the treatment of suspected gang members by
Honduran police and rival gang members. Canales had
worked with former gang members in Honduras. He testified
that because Cole’s gang tattoos indicate his membership in
the Crips, Cole may be seen as a threat to some Honduran
Hispanic gang members and accordingly there was a “big
possibility” that Cole could be killed. However, on crossexamination, Canales admitted that he had not worked with
any Crips. Canales testified that former Honduran gang members often try to remove their tattoos because of the risk of
violence from rival gangs, police, and “civil groups.” He
stated that some individuals try to remove the tattoos them-

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selves, although there are three tattoo removal places in Honduras that will professionally remove tattoos.3 He claims that
it takes four to six sessions to remove a tattoo and that it is
a painful process which may result in scarring.
Canales stated that it is illegal in Honduras to be a gang
member or to have a gang-related tattoo. He asserted that the
government does not investigate the murders of gang members and that the police will direct violence at suspected gang
members, or may even kill them. In addition, Canales testified
about incidents in which Honduran police or prison guards
killed suspected gang members in prison. He also testified
that government-sanctioned death squads torture and kill
undesirables, including suspected gang members. Canales
opined that because of his tattoos, Cole has a greater than
75% chance he will be killed by Hispanic gang members and
a 90% probability that he would be detained by police.
Finally, Canales testified that most health care professionals in Honduras would refuse to treat an individual with tattoos because they would suspect he is a gang member.
Canales provided one example in which he stated that he
accompanied a bleeding tattooed gang member to a hospital
and that this individual died in the waiting room because the
staff would not treat the man on account of his tattoos.
Canales asserted that the government is “negligent” because
it does not hold doctors accountable and “these events occur
very often.”
B
1.

The IJ’s Decision

The IJ denied Cole’s application for relief under CAT. The
3

It appears that the third program is run by doctors who come to Honduras every couple of months from the United States. They typically remove
90% of a tattoo in four sessions.

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IJ considered both the documentary evidence and witness testimony and discussed the arguments raised by both Cole and
the government.
The IJ recognized that torture is an extreme form of punishment and that “an alien cannot establish eligibility for [CAT
relief] by stringing together a series of suppositions to show
that it is more likely than not that torture will result where the
evidence does not establish each step in the hypothetical chain
of events is more likely than not to happen.” The IJ found that
Cole was attempting to do just that, by asserting:
that it is more likely than not that he will be arrested
in Honduras and that once he is arrested, he will be
detained for a substantial amount of time and if so
detained, he will then be killed or tortured by the
security forces or he will receive no medical care or
the gangs will kill or torture him with the government’s acquiescence.
The IJ concluded that although there was “evidence that
arrests, abuse, and killings occur, the evidence does not show
that it is more likely than not to happen to the respondent.”
The IJ noted that, according to the Country Report, torture is
illegal in Honduras. Further, “neither the witnesses [n]or the
documentary evidence presented in the case establishes that a
majority of deported gang members are in fact arrested by the
police, held in custody, and tortured or killed.”
The IJ rejected Cole’s assertion that “the lack of medical
care and poor prison conditions are specifically intended to
inflict severe physical or mental pain and suffering,” or that
the government intended those consequences. The IJ, citing
Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), found that
Cole was “unable to show that Honduras has a specific intent
to inflict suffering on prisoners or patients or suspected gang
members by creating the conditions in their jails or medical
facilities.”

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Finally, the IJ concluded that:
The respondent also has not shown that the government of Honduras will acquiesce in his torture at
the hands of other gang members or the death squads
nor has he established that it is more likely than not
to occur to him. It is not enough to show that gang
members have killed other gang members or that
death squads have tortured and killed gang members.
. . . The evidence does not establish that the government acquiesces in such conduct and in fact,
reflects the opposite. The government is trying to
handle the huge gang problem they face and are
attempting to receive specialized training. They are
taking steps to prosecute police officers for abuse of
power. Accordingly, the Court finds that the respondent is unable to establish a likelihood of torture in
Honduras by either the government or with the government’s acquiescence . . . .
2.

The BIA’s Decision

In October 2009, the BIA, in a single judge decision,
affirmed the IJ. The BIA agreed with the IJ that Cole:
failed to meet his burden of proving that it is more
likely than not that he will be tortured based on his
race and gang related tattoos and former gang member status upon return to Honduras. See 8 C.F.R.
§ 1208.16-18; Arteaga v. Mukasey, 511 F.3d 940
(9th Cir. 2007). The Immigration Judge properly
concluded that the expert witness’s claim that the
respondent will be tortured was unpersuasive in light
of the other evidence, including the State Department report, contained in the record because the
respondent’s expert failed to give specific examples
to corroborate his opinion; the record does not com-

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pel a contrary conclusion. See Dukuly v. Filip, 553
F.3d 1147 (9th Cir. 2009); Shehu v. Gonzales, 443
F.3d 435 (5th Cir. 2006). He further properly determined that the evidence does not establish that each
event in the chain of events proposed by the respondent is more likely than not to occur. Matter of J-FF-, 23 I&N Dec. 912 (A.G. 2006); 8 C.F.R.
§§ 1208.16-.18. For example, the evidence does not
establish that, as a black, tattooed, ex-gang member,
it is more likely than not that the police would
become aware of the respondent’s return to Honduras, that upon becoming aware of him, it is more
likely than not that the police would detain him, and
that it is more likely than not that, once the respondent was detained, they would use physical force
against the respondent that would rise to the level of
torture. Id. Likewise, the respondent failed to meet
his burden of proving that it is more likely than not
that a death squad, rival gang members, or any other
entity would become aware of his return to Honduras
and that it is more likely than not that any of these
groups would then torture him. Additionally, the
respondent submitted numerous articles which detail
that the presence of a tattoo can cause an automatic
association with gangs, and that a tattoo or suspected
gang affiliation can equate to harsh treatment. However, there is no indication that the respondent could
not have his tattoos removed so that he would not be
perceived as a gang member upon return to Honduras. Finally, we cannot conclude that the lack of
medical treatment to the respondent is tantamount to
torture. Although the respondent has shown that he
faces some risks of harm when returned to Honduras, the Immigration Judge properly determined that
the testimony and evidence does not establish that he
will “more likely than not” be tortured.
Cole timely petitioned this court for review. In his petition,
Cole alleged that the BIA erred by (a) failing to give proper

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weight to his experts’ testimony; (b) finding that he had failed
to establish a clear probability of future torture by the police,
rival gang members, or death squads; (c) failing to consider
Cole’s prison conditions and denial of medical care claims;
and (d) failing to give proper weight to Cole’s evidence he
will be tortured because the BIA found Cole could remove his
tattoos.
II
Our review focuses on the BIA’s single-member decision
but we look to the IJ’s decision “as a guide to what lay behind
the BIA’s conclusion.” Delgado v. Holder, 563 F.3d 863, 866
(9th Cir. 2009) (quoting Avetora-Elisseva v. INS, 213 F.3d
1192, 1197 (9th Cir. 2000)).
We review factual determinations supporting the denial of
CAT relief under a deferential substantial evidence standard.
See Arteaga, 511 F.3d at 944 (“[t]he BIA’s findings underlying its determination that an applicant is not eligible for relief
under the CAT are reviewed for substantial evidence”). Under
this standard, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added); see also INS v. Elias-Zacarias, 502 U.S. 478, 481
& n.1 (1992) (“To reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it.”). This court “must uphold the IJ’s determination if it is
supported by reasonable, substantial, and probative evidence
in the record.” Halim v. Holder, 590 F.3d 971, 975 (9th Cir.
2009) (quoting Zehatye v. Gonzales, 499 F.3d 1182, 1185 (9th
Cir. 2006).
We have held that “[t]his strict standard bars the reviewing
court from independently weighing the evidence and holding
that the petitioner is eligible for asylum, except in cases where
compelling evidence is shown.” Kotasz v. I.N.S., 31 F.3d 847,
851 (9th Cir. 1994). “We are not free to look anew at the testi-

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mony and then measure the soundness of the agency’s decision by what we would have found. Nor does evidence
compel the opposite conclusion just because it would also
support a different result.” Donchev v. Mukasey, 553 F.3d
1206, 1213 (9th Cir. 2009).
To be eligible for deferral of removal under the CAT, the
applicant must establish that he would more likely than not be
tortured at the instigation of, or with the consent or acquiescence of, a public official. See 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1); Kamalthas v. INS, 251 F.3d 1279, 1282 (9th
Cir. 2001). The “consent or acquiescence” requirement means
that the government must be aware of the allegedly tortuous
conduct, or at least willfully blind to it. Zheng v. Ashcroft, 332
F.3d 1186, 1188-89 (9th Cir. 2003) (citation omitted).
The applicable regulation, 8 C.F.R. § 1208.18(a)(1) states:
Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . . , when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or
other person acting in an official capacity.
See also Kamalthas, 251 F.3d at 1282; Sinha v. Holder, 564
F.3d 1015, 1026 (9th Cir. 2009). In addition, “[t]orture is an
extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment
or punishment that do not amount to torture.” 8 C.F.R.
§ 1208.18(a)(2). Furthermore, “[t]orture does not include pain
or suffering arising only from, inherent in or incidental to
lawful sanctions.” 8 C.F.R. § 1208.18(a)(2); Al-Saher v.
I.N.S., 268 F.3d 1143, 1147 (9th Cir. 2001).
III
Applying the applicable standard of review, the majority
commits four errors in granting Cole’s petition. First, the

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majority manufactures a procedural basis for remand by concluding that the BIA failed to give “reasoned consideration”
to Cole’s experts’ testimony and evidence related to Cole’s
ability to get his tattoos removed. Second, the majority impermissibly (a) reweighs the evidence, see, e.g., Kotasz, 31 F.3d
at 851; and (b) strings together a series of hypothetical events,
related to Cole’s claim that he will be misidentified as being
a gang member and then tortured by rival gangs, police, or
death squads, none of which is more likely than not to occur.
See Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). Third,
the majority misreads the record in concluding that the BIA
did not adequately consider whether Cole would be intentionally deprived of medical care if he were returned to Honduras.
Fourth, the majority decision allows a petitioner to obtain
CAT relief on the basis of having voluntarily obtained a gangrelated tattoo. This is problematic for a number of reasons, not
the least of which is that it appears to undermine our holding
in Arteaga, 511 F.3d 940, that being a tattooed ex-gang member does not constitute belonging to a particular social group.
A
The majority manufactures a procedural basis for remand
by deciding that the BIA failed to give “reasoned consideration” to “the potentially dispositive testimony” of both of
Cole’s experts. Maj. Op. at 17975, 17978-79. Contrary to the
majority’s perspective, the BIA and IJ considered all of
Cole’s evidence.
1.

The BIA Considered Both Experts’ Testimony

The majority finds the BIA erred because “the BIA stated
only that the testimony of one of Cole’s experts ‘was unpersuasive in light of the other evidence, including the State
Department report, . . . because [he] failed to give specific
examples to corroborate his opinion.’ ” The majority claims
that the BIA failed to address Cole’s other expert at all. Maj.
Op. at 17975-77. The majority professes not to know which

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expert the BIA was referring to, but concludes that whichever
expert it was, the BIA was obligated to state the reasons
“ ‘why the testimony was insufficient to establish the probability of torture necessary to grant CAT relief.’ ” Id. (quoting
Aguilar-Ramos, 594 F.3d at 706 n.7). This is not a fair reading of the record.
The BIA stated that “[t]he Immigration Judge properly concluded that the expert witness’s claim that the respondent will
be tortured was unpersuasive in light of the other evidence,
including the State Department report, contained in the record
because the respondent’s expert failed to give specific examples to corroborate his opinion . . . .” Only two experts testified — Rodriguez, who primarily testified about the racial
dynamics of Los Angeles gangs spreading to Central America, rather than about Cole being tortured in Honduras, and
Canales, who testified extensively about the various ways that
Cole might be tortured. In context, it is clear that the BIA was
specifically referring to Canales’s testimony.4
Furthermore, we do not review the BIA’s decision in a vacuum, but rather look to the IJ’s decision “as a guide to what
lay behind the BIA’s conclusion.” Delgado, 563 F.3d at 866
(quoting Avetova-Elisseva, 213 F.3d at 1197). The BIA’s
decision generally affirmed the IJ’s decision and the IJ explicitly discussed both Canales’s and Rodriguez’s testimony,
before concluding that “neither the witnesses [n]or the documentary evidence presented in the case establishes that a
majority of deported gang members are in fact arrested by the
police, held in custody, and tortured or killed.” It is clear that
the IJ considered both of Cole’s experts’ testimony, but found
other evidence more compelling, and it is equally clear that
the BIA considered the IJ’s decision and affirmed on the same
basis.
4

Another possibility, not considered by the majority, is that the BIA’s
statement is a typographical error: the BIA failed to pluralize “witness”,
writing “witness’s” when it actually meant “witnesses’ ” which would render the majority’s argument moot.

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The majority asserts that the BIA’s “rationale for rejecting
one expert’s opinion is entirely unsupported by the record for
two reasons”: (1) the State Department report “corroborates
rather than contradicts many aspects of both experts’ testimony”; and (2) the experts “did testify about specific incidents
of police torturing or killing suspected gang members.” Maj.
Op. at 17975-76. The majority cites examples from the report
and from Canales’s testimony in support of these contentions.
Id. at 17976-77.
The majority, however, overlooks the documentary evidence and testimony supporting the opposite conclusion.5 The
BIA stated:
the evidence does not establish that, as a black, tattooed, ex-gang member, it is more likely than not
that the police would become aware of the respondent’s return to Honduras, that upon becoming aware
of him, it is more likely than not that the police
would detain him, and that it is more likely than not
that, once the respondent was detained, they would
use physical force against the respondent that would
rise to the level of torture. Id.
The IJ found that “[n]either the witnesses [n]or the documentary evidence presented in this case establishes that a majority
of deported gang members are in fact arrested by the police,
held in custody, and tortured or killed.” The IJ noted that,
“[h]ere, the Department of State report for Honduras reflects
that torture is against the law,” and observed that:
5
In addition to Cole’s testimony, over 700 pages of documents were
submitted by the parties, including newspaper articles regarding gang violence in the United States and Honduras, general research articles related
to gang issues in the United States and Honduras, Department of State
Human Rights Reports and Country Reports for 2007 and 2008, a summary of criminal proceedings against Cole, as well as Cole’s medical history related to his gunshot wound.

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The report reflects that the public ministry has filed
charges against police officers for torture and illegal
detention and that an office of internal affairs has
been created. There is a special prosecutor for
human rights and charges against the police have
been found to have merit. Members of the government, including the chief of police of Lasaba and the
police commissioner have been prosecuted and sentenced for the Porvener Jail massacre and authorities
prosecuted 268 police officers for offenses ranging
from abuse of authority to drug trafficking, rape, and
homicide. Furthermore, the evidence reflects that
Honduras is one of the poorest countries in the hemisphere and therefore, a lack of resources remains a
problem.
A review of the 2008 Country Report (the most current at
the time of Cole’s hearing) supports the IJ’s and BIA’s conclusions. That report noted that the Honduran constitution and
law prohibit torture. In addition, arbitrary arrest and detention
are prohibited by the Honduran constitution and other laws.
Regarding arrests, the State Department Human Rights report
states that:
The law states that police may arrest a person only
with a court order, unless the arrest is by order of a
prosecutor, made during the commission of a crime,
made when there is strong suspicion that a person
has committed a crime and may try to evade criminal
prosecution, or made when the person is caught with
evidence related to a crime. Police must clearly
inform the person of the grounds for the arrest.
Police must bring a detainee before a competent
authority within 24 hours. The prosecutor has 24
hours to decide if there is probable cause for an
indictment, and a judge then has 24 hours to decide
whether to issue a temporary detention order that can
last up to six days, by which time the judge must

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hold a pretrial hearing to examine probable cause
and make a decision on whether pretrial detention
should continue.
Further, while the reports document instances of abuses
committed by police and prison authorities, they also document the government’s efforts to investigate prison officials
who allegedly abused their authority, and note that twentyone members of the government, including a chief of police
and a police commissioner, had been convicted for their part
in a jail “massacre” in 2003. The State Department’s Human
Rights report noted that “[t]he Office of Internal Affairs
investigates allegations of illegal activities committed by
members of the police force. The Preventive Police and the
DGIC each have an office of professional responsibility that
conducts internal reviews of police.” Other evidence also supports the conclusion that the Honduran government investigates and prosecutes police officers accused of wrongdoing.
And Honduras has sought assistance in training its law
enforcement and military: “Foreign donors and international
organizations provided human rights training to police and
military officials.” There was also evidence that the government actively investigated and prosecuted gang members. The
2007 Congressional Research Service report documented the
government’s efforts to crack down on gang members and
noted that Honduras had received assistance in its efforts from
several U.S. agencies.
In sum, it appears that the BIA’s rationale for rejecting
Cole’s evidence is supported by the record. When presented
with a record containing conflicting evidence, we are
restrained to determine only whether the agency’s decision is
supported by substantial evidence. See, e.g., 8 U.S.C.
§ 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 481 &
n.1; Halim, 590 F.3d at 975.
B
The above discussion of the majority’s alleged procedural
errors implicates a more fundamental issue: there is no com-

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pelling evidence that Cole will be tortured by rival gangs,
death squads, or the police on the basis of being misidentified
as a gang member because of his tattoos.
The majority suggests that Cole may be identified by rival
gangs because of his tattoos, and that if he were identified as
a rival gang member, he would be in peril of being tortured
or killed by them. See Maj. Op. at 17964, 17965, 17976-77,
17979. This assumes that a Honduran gang would recognize
Cole’s tattoos and consider him a rival.6 But there is no evidence that the Crips operate in Honduras. The majority also
assumes that Honduran gangs will direct violence against
Cole even though he is a former member of a gang that does
not operate in Honduras. Furthermore, even if all of these possibilities were considered probabilities, it is only “torture” for
the purposes of CAT relief if the Honduran government condones or acquiesces in such gang activity.
There is evidence in the record that the Honduran government does not condone gang activity. For example, Canales
testified that being a member of a gang is a crime in Honduras
and that the police will detain and arrest gang members. There
is also documentary evidence that the police investigated and
prosecuted suspected gang members.
This, however, is not evidence that Cole will be tortured by
the police or prison officials because he is misidentified as
being a gang member based on his Crips tattoos. Although
there was evidence that having gang-related tattoos can lead
to imprisonment in Honduras, see Maj. Op. at 17964, 17967,
Cole is a former member of a gang — a gang that does not
6

Neither of Cole’s experts testified that Honduran gangs would assault
Cole because of his tattoos. Rodriguez testified that rival gangs in the
United States “may recognize rival gang members’ tattoos,” and admitted
that he had no specific knowledge about gangs in Honduras. Canales, who
worked with former gang members in Honduras, testified that Cole,
because of his tattoos, may be seen as a threat by a Honduran gang.

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operate in Honduras — and there is no evidence that the
police or prison authorities would continue to detain a person
who they mistakenly identified as a gang member.7 Even if
the police and prison officials did detain or imprison Cole,
neither of these acts by themselves constitute torture. See,
e.g., 8 C.F.R. § 1208.18(a)(3) (“Torture does not include pain
or suffering arising only from, inherent in or incidental to
lawful sanctions.”); Prasad v. INS, 47 F.3d 336, 339-40 (9th
Cir. 1995) (no past persecution where the petitioner was
arrested once, detained for four to six hours and beaten).
The majority cites Canales’s testimony and documentary
evidence that Honduran police physically abuse suspected
gang members. See Maj. Op. 17965. Similarly, the majority
discusses evidence of violent acts directed at prisoners,
including gang members. Id. at 17965, 17967-69, 17976.
However, there was also evidence in the record that tended to
show that the Honduran government neither instigates nor
acquiesces in such behavior by police officers and that it prosecutes police officers who violate the law. Moreover, evidence that the Honduran government opposes gangs is not
evidence that it would condone violence against a person misidentified as a gang member or would torture such a person.
Cole’s argument that he will be tortured by death squads,
with the government’s acquiescence, also lacks compelling
evidence. Cole must show that the government “is unwilling
or unable to control those elements of its society responsible
7

It seems questionable that having a gang-related tattoo that was
obtained in another country and has no relationship to gangs that are active
in Honduras would be considered to be illegal and would lead to Cole’s
detention and torture. The State Department Human Rights report sets
forth the procedures for arresting a suspect, which include the prosecutor
determining whether there is probable cause for an indictment and a
requirement that the suspect be brought before a judge for a probable
cause determination. Accordingly, it is unlikely that Cole would be
arrested, detained, processed by a prosecutor and a judge, and then tortured by police on the basis of his American gang tattoos.

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for targeting a particular class of individuals.” See AvetovaElisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000) (citation
and internal quotation marks omitted). The majority notes
Canales’s testimony that death squads, comprised of “police
and other powerful citizens” kill suspected gang members
with “complete impunity,” as well as documentary evidence
of killings committed by “vigilantes.” Maj. Op. at 17965,
17967. But other than the possibility of someone recognizing
Cole’s tattoos as gang tattoos, the majority does not explain
how Cole might come to the attention of these groups. Furthermore, because Cole is not a member of a Honduran gang,
there is no evidence that such groups — with or without the
government’s acquiescence — would torture Cole once the
misidentification became known.8 Also, there is evidence that
the government prosecuted government officials who violated
its laws.
In sum, the majority does not point to any compelling evidence that individuals such as Cole — who are tattooed exgang member deportees to Honduras — have come, or are
more likely than not to come, to the attention of rival gangs,
police, or death squads and are then tortured at the instigation
of, or with the acquiescence of, the government. It is only by
taking a number of hypothetical events and then assuming
that each one of them inexorably leads to the next hypothetical event in the sequence, that one can reach the conclusion
that it is more likely than not that Cole will be tortured if he
is returned to Honduras.
The majority does just that. It strings together a series of
hypothetical events to reach a thoroughly speculative conclusion. Matter of J-F-F-, 23 I&N Dec. at 917-18 (“The evidence
does not establish that any step in this hypothetical chain of
8

Indeed, the facts that Cole is an African-American and that his tattoos
do not indicate membership in a Honduran gang — which appear to be
primarily of Hispanic ethnicity — suggest that he is not likely to be a target of death squads or vigilantes.

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events is more likely than not to happen, let alone that the
entire chain will come together to result in the probability of
torture of respondent.”); see also Savchuck v. Mukasey, 518
F.3d 119, 123-24 (2d Cir. 2008) (holding that a series of
hypothetical events related to the petitioner’s economic hardship if returned to the Ukraine were too speculative to establish that he would be tortured under CAT). The majority
cannot, and does not, point to any compelling evidence that
Cole will be misidentified as a gang member on the basis of
his tattoos or that this misidentification is likely to lead to his
being tortured at the instigation of, or with the acquiescence
of, the government.
C
The majority concedes that for Cole’s claim that he may be
denied medical care to rise to the level of torture for CAT purposes, he must show that the denial is intentional.9 Maj. Op.
at 17977-78 (citing, inter alia, C.F.R. § 1208.18(a)(5); Villegas, 523 F.3d at 989). The majority then concludes that the
BIA failed to consider Cole’s claims that he would be tortured
as a result of the intentional denial of medical care. Maj. Op.
at 17977-78. Again, the majority misconstrues the record.
Although the majority does not specifically identify the relevant language in the BIA’s decision related to Cole’s denial
of medical care claim, it appears to be referencing the BIA’s
statement that it “cannot conclude that the lack of medical
9

The majority also appears to have concluded that because the BIA did
not specifically refer to whether prison officials will intentionally subject
Cole to dangerous conditions amounting to torture, the BIA failed to give
adequate consideration to this contention. Maj. Op. at 17978, 17878 n.10.
However, the BIA affirmed the IJ’s decision and the IJ specifically found
that Cole was “unable to show that Honduras has a specific intent to inflict
suffering on prisoners or patients or suspected gang members by creating
the conditions in their jails or medical facilities.” In addition, there is evidence that the authorities are doing their best with limited resources to
enforce the laws, even against police officers and prison officials.

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treatment to the respondent is tantamount to torture.” The
majority interprets this as the BIA failing to specifically consider whether Cole would be intentionally denied health care.
Maj. Op at 17978.
However, the majority overlooks the IJ’s decision. See Delgado, 563 F.3d at 866. The BIA affirmed the IJ’s determination that Cole was “unable to show that Honduras has a
specific intent to inflict suffering on prisoners or patients or
suspected gang members by creating the conditions in their
jails or medical facilities.” A review of the IJ’s decision confirms that the IJ specifically rejected Cole’s contention that he
would be tortured as a result of intentional denial of medical
care.
Furthermore, there appears to be but a single anecdote provided by Canales to support the contention that Cole may be
intentionally denied medical care. Canales described an incident in which he witnessed staff at a hospital let a tattooed
gang member that he had brought to the hospital bleed to
death, allegedly on account of his gang tattoos. Maj. Op. at
17978. Even assuming that the events occurred as Canales
described them, this is too slender a reed to compel the conclusion that Cole will more likely than not be intentionally
denied medical care because of his gang tattoos. It is more
than offset by the evidence in the 2008 Country Report of the
efforts undertaken by the Honduran government to combat
gangs and gang violence.
In sum, the BIA, in affirming the IJ’s decision, agreed that
Cole was “unable to show that Honduras has a specific intent
to inflict suffering on prisoners or patients or suspected gang
members by creating the conditions in their jails or medical
facilities,” and the evidence does not compel a contrary result.
D
While the majority is careful not to explicitly hold that
being a tattooed gang member or tattooed ex-gang member is

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a particular social group for the purposes of obtaining CAT
relief, all of the harm that Cole will allegedly be exposed to
is based on his being misidentified as belonging to a gang.
The majority appears to assume that because Cole has gang
tattoos, he is in effect like every tattooed gang suspect, gang
member, or former gang member.
The majority’s apparent acceptance of an undifferentiated
class of tattooed gang members and tattooed former gang
members as being eligible for CAT relief on account of their
tattoos, appears to be contrary to our decision in Arteaga, 511
F.3d at 944. In Arteaga, in the context of a withholding of
removal claim, we rejected the petitioner’s contention that he
was part of a particular social group based on his status as a
tattooed gang member, gang member, or tattooed former gang
member. Id. at 945-46. We stated:
We cannot conclude that Congress, in offering refugee protection for individuals facing potential persecution through social group status, intended to
include violent street gangs who assault people and
who traffic in drugs and commit theft. Following in
the analytical footsteps of President Lincoln, calling
a street gang a “social group” as meant by our
humane and accommodating law does not make it
so. In fact, the outlaw group to which the petitioner
belongs is best described as an “antisocial group[.]”
Id. at 945-46. Further,
To do as Arteaga requests would be to pervert the
manifest humanitarian purpose of the statute in question and to create a sanctuary for universal outlaws.
Accordingly, we hold that participation in such
activity is not fundamental to gang members’ individual identities or consciences, and they are therefore ineligible for protection as members of a social
group under 8 U.S.C. § 1231(b)(3).

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Id. at 946. We also rejected Arteaga’s claim that he belonged
to a particular social group comprised of tattooed former gang
members. Id. We stated, “Arteaga’s attempt to present himself
as a former member of a social group fares no better. Disassociating oneself from a group does not automatically put one
in another group as group is meant in the law.” Id.
Of course, relief under CAT is not dependant upon an individual being a part of a protected group, see, e.g., Kamalthas.,
251 F.3d at 1283-84. Nonetheless, I cannot square the majority’s concern for the harm Cole will allegedly be exposed to
on being misidentified as belonging to a gang with our decision in Arteaga.
Moreover, I have grave doubts as to whether a tattoo, or at
least Cole’s tattoos, should form a basis for relief under CAT.
A tattoo is not something that is innate to an individual or
beyond his or her control. We have held that “tattooing is
purely expressive activity, fully protected by the First Amendment.” Anderson v. City of Hermosa Beach, 621 F.3d 1051,
1055 (9th Cir. 2010). Nonetheless, there are limits to speech
under the First Amendment and even consequences to speech
that is constitutionally protected. Furthermore, there seems to
be no disagreement that tattoos are removable, even if this
process may entail some pain.
Basing CAT relief on a tattoo would appear to encourage
an individual who does not want to be deported to his home
country to get a tattoo that is offensive in his home country
(even if it is not necessarily offensive in the United States)
and refuse to have it removed.10 Would this lead an individual
10

Judge Noonan’s concurrence appears to misconceive Cole’s desires.
Cole does not want to return to Honduras. Accordingly, he has no incentive to remove his tattoos — which appear to be the thing delaying his
removal to Honduras. Furthermore, it is doubtful that the BIA could force
Cole to remove his tattoos. See Anderson, 621 F.3d at 1055.
Rather, on remand, the BIA might ascertain whether Cole has made any
effort to remove his tattoos. If Cole has not removed his tattoos and

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who did not want to return to China to obtain a Falun Gong
tattoo? Would a prominent swastika tattoo compel CAT relief
against repatriation to Israel?
Fortunately, this case does not present such extreme situations. Still, I would not grant CAT relief to an individual
because of tattoos that allegedly may cause the individual to
be misidentified as a member of a violent street gang which
is disapproved of by the government.
CONCLUSION
I disagree with the majority on several counts. First, the
majority manufactures reasons to remand the case by mischaracterizing the BIA’s decision and reweighing the evidence. Second, the majority concludes that remand is
necessary because the BIA failed to give “reasoned consideration” to evidence that Cole may be tortured in Honduras by
rival gangs, police or death squads, on account of his gang tattoos, when there is no compelling evidence of a likelihood of
torture, and there is evidence that the government neither
instigates nor acquiesces in torture by any of these groups.
Third, the majority incorrectly asserts that remand is necessary because the BIA failed to consider whether Cole would
be intentionally denied medical care rising to a level of torture. But the record shows that the BIA affirmed the IJ’s factual determination that Cole would not be intentionally denied
medical care, and that determination is adequately supported
by the evidence. Finally, the majority’s reliance on Cole’s tattoos as a basis for relief under CAT is problematic and
appears to be inconsistent with our decision in Arteaga, 511
F.3d 940, that gangs do not constitute particular social groups
for immigration purposes. Because I believe the majority
erred as to each of these matters, and because I find that the
BIA’s decision is supported by substantial evidence, I dissent.
declines to do so — and Cole is otherwise determined to be removable —
the BIA should be free to remove him immediately, or possibly after a
short period of time in which he could have the tattoos removed in the
United States.