US Immigration “Ill-Advised” To Discount Gang Expert’s Opinion: US Ninth Circuit

The US Ninth Circuit Court of Appeals has rebuked the Board of Immigration Appeals for repeating its ruling that discounted a gang expert witness' testimony. The Ninth Circuit's decision “… was not subject to disapproval or revision by another branch of the federal government.”

In Juan Mauricio Castillo v. William P. Barr, Attorney General, Castillo petitioned the Ninth Circuit to review the U.S. immigration agency's denial of his application for protection under the Convention Against Torture (CAT).

When Castillo was 12 years old, he left his native El Salvador and sneaked into the United States with the help of a family friend, joined the MS-13 gang (La Mara Salvatrucha), and as a teenager murdered a 12-year old girl in a gang-related shooting. He was convicted and sent to state prison, where he joined a rival gang, Mi Raza Unida (MRU).

Castillo eventually left the MRU, which led law enforcement to interview him about both his past gang affiliations. The gangs responded by ordering him to be murdered (hit), with the MS-13 order (“greenlight”) applying to him both in the United States and El Salvador.

When Castillo was granted parole, the Department of Homeland Security (DHS) moved to deport him. Castillo applied for protection under CAT, and Castillo's counsel retained Dr. Thomas Boerman as a gang expert witness. With specific expertise in Central American gangs, Dr. Boerman had previously consulted for the U.S. Agency for International Development, the World Bank, and the United Nations High Commissioner for Refugees. His expert qualifications were not challenged by the US immigration agency.

At his hearing before an Immigration Judge (IJ), Castillo testified that he feared for his life if deported to El Salvador, not only from MS-13, but also from extrajudicial/extermination squads which include Salvadoran government officials motivated to rid their country of gangs.

Dr. Boreman testified that Castillo faced a risk of torture if he were deported. His US conviction would be disclosed to the Salvadoran government and his gang tattoos would make him a target for Salvadoran immigration officials, leaving him at risk of imprisonment, torture or even extrajudicial killing by local police and vigilante groups.

The IJ decided to give Dr. Boreman's testimony “reduced weight”, finding his statements were not supported by the record, his identification of Castillo's gang-related tattoos inconsistent and his testimony regarding the “extermination strategy” exaggerated. It ruled Castillo ineligible for CAT.

Castillo appealed to the Board of Immigration Appeals which found that the IJ did not commit clear error, and that the record was “devoid of any mention of immigration officials and police colluding to apprehend returning gang members.”

Castillo appealed to the the Ninth Circuit which found that the IJ relied on faulty reasoning and the Board provided no other reason to discount Dr. Boreman's testimony. They remanded the case to the Board, ordering it to give full weight to Dr. Boreman's testimony.

On remand, the Board rejected the Ninth Circuit's interpretation of the IJ's decision, concluding that Dr. Boerman's testimony should be given reduced weight based on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) which gave the IJ discretion to weigh the “credibility and probative force” of testimony. Additionally, the Board relied on alleged inconsistencies in Dr. Boerman's familiarity with Castillo's prison gang, his failure to submit a video he had referenced depicting immigration officials beating gang members, and the lack of evidence to support his testimony regarding vigilante groups.

On appeal again, the Ninth Circuit rejected the Board's arguments. The Board erred in relying on Vatyan v. Mukasey as that case addressed the IJ's discretion in weighing an authenticated document, not the testimony of an expert who had been considered fully credible by the Board.

The same with the Board's reliance on inconsistencies in Dr. Boerman's familiarity with the prison gang, as he had declared that his comments on the prison gang were based on facts provided by Castillo. The Ninth Circuit found that Dr. Boerman's opinion on rival gangs was not challenged by the Board.

As to Dr. Boerman's failure to submit a copy of a video referenced in his testimony, the Ninth Circuit found that it was not the primary basis for his opinion, which had an “independent factual basis.”

Lastly, the Ninth Circuit found that the Board erred when it concluded that there was a lack of evidence to support Dr. Boerman's opinion because the U.S. Department of State's Country Reports on El Salvador “did not cite extrajudicial killings to such a level that could justify such a characterization and said police are investigating misconduct.” The Ninth Circuit found instead that the Country Reports mention extermination groups containing police officers.

The Court noted that:

If an expert's opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.

Having served as an expert witness hundreds of times over the past 10 years, Dr. Boerman might be considered a thorn to the immigration agency and the DHS. In a telephone interview, Dr. Boerman noted that, while DHS has generally accepts his credentials in immigration cases without question, in “ten to fifteen percent of those cases [it] alleges bias.” Those allegations, he says, “have been sweeping and generalized in nature, but the Department has never provided a specific example of any … gang or gender expert … who suggested he was anything other than an objective professional.” Ironically, despite DHS allegations of bias, he has been deemed an expert by the Board, the circuits, and immigration judges.

Given the US government's publicly stated removal policy, Dr. Boerman finds it predictable that some DHS attorneys would try to limit the input of experts who “present an alternative to the government position and back those alternatives up with data and decade's worth of experience.” He has heard from other experts in his field who have experienced “precisely the same allegations of bias, no matter who the expert is or their area of thematic expertise.”

Dr. Boerman recounts a case in which a DHS attorney submitted a memo to the court alleging that he was biased. The respondent's counsel pointed out several places where the memo had the name of another expert — the DHS attorney had simply cut-and-pasted Dr. Boerman's name into a memo drafted for another case.

Some attorneys have argued that the immigration court system has systemic problems and should be moved outside the executive branch to provide independence from political interference, but both state and federal district courts have at times been swayed at times by political influence.

Certainly cases like Castillo's strain belief in the impartiality of the Board of Immigration Appeals. One immigration attorney called it “undue deference” to DHS, another bluntly called the Board biased. This is not a recent phenomenon brought on by political interference from the current US administration, although it may have become more pronounced in recent years.

America's judicial systems have their defects, but they function far better than those of countries like Castillo's native El Salvador. Here, expert witnesses may serve not only to provide balance against adverse opinions, but also to keep judicial thumbs off the balance.