0
0
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.
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. 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.
Luis Javier 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, 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 sometimes jailed. Honduran police also physically abuse suspected gang members by throwing them on the ground and beating them with their weapons. 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 Honduras. 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, 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.”
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 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.”
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.
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.
Hubert George Cole, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent. No. 09-73625 (9th Cir. 2011). 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.
Average Rating