                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 07 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MISAEL FRANCISCO NAJARRO-                        No. 13-73958
PORTAL, AKA Francisco Julio Ceaser
Portal, AKA Misael Portal, AKA Julio             Agency No. A087-967-903
Cesar Portal Najarro, DBA Misael Portal-
Najarro,
                                                 MEMORANDUM*
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted September 15, 2015
                            San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      Misael Francisco Najarro-Portal appeals from the BIA and IJ’s decision

denying his application for withholding of removal under the Immigration and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Nationality Act and the Convention Against Torture (“CAT”), as well as deferral

of removal under CAT.

      1. Substantial evidence supports the BIA and IJ’s conclusions that there are

serious reasons to believe Najarro-Portal committed serious non-political crimes in

El Salvador. See Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011). Najarro-

Portal was convicted of committing several robberies in El Salvador in 1997.

Although Najarro-Portal contends he was convicted of those crimes in absentia,

and therefore that his conviction was invalid, the question is whether there are

serious reasons to believe he committed a serious, non-political crime, not whether

there are serious reasons to believe he was properly convicted. See id. (explaining

that “serious reasons to believe” is equivalent to probable cause). Here, given the

witness testimony cited as evidence of the crimes, substantial evidence supports the

finding that there are serious reasons to believe Najarro-Portal committed the 1997

robberies. Accordingly, Najarro-Portal is not entitled to withholding of removal.

      2. Substantial evidence also supports the IJ’s adverse credibility finding.

See Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010). The IJ primarily

based the adverse credibility finding on inconsistencies in record evidence

regarding whether Najarro-Portal was a leader of the gang MS-13, rather than just

a member. Najarro-Portal maintains that the evidence is not inconsistent because


                                          2
prison officials in El Salvador viewed him as a leader of the gang. Our review of

the IJ’s credibility finding is “significantly restricted,” however. Shrestha, 590

F.3d at 1041 (quoting Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005)).

Accordingly, because the IJ identified portions of the record that could reasonably

be viewed as inconsistent with Najarro-Portal’s testimony on the gang leadership

question, we uphold that determination as supported by substantial evidence. See

id. at 1044.

      3. Excluding all of Najarro-Portal’s testimony, however, as we must given

the IJ’s adverse credibility finding, see Shrestha, 590 F.3d at 1048–49, we

conclude that Najarro-Portal is entitled to deferral of removal under CAT. See

Maldonado v. Lynch, 786 F.3d 1155, 1162 n.7 (9th Cir. 2015) (en banc).

      Ample evidence supports Najarro-Portal’s claim that he will be tortured if

returned to El Salvador, including: testimony by his attorney, Jaime Mira, who met

with and relayed information from multiple concerned individuals in El Salvador

not able to attend the proceedings in person; Mira’s declarations; translated records

from Najarro-Portal’s prison file regarding his petitioning activities, prison

transfers, and injuries while in prison; the declaration of Eliza Aracely Sarceño

Monge, Najarro-Portal’s ex-girlfriend and the mother of his child; the declaration

of Juan de Dios Masias, a friend who attends the same church in the United States


                                           3
as Najarro-Portal; Najarro-Portal’s mother’s testimony before the IJ; translated

letters from Najarro-Portal to his mother; and country reports. This evidence

compels the view that Najarro-Portal will more likely than not be tortured if

returned to El Salvador. Cf. Shrestha, 590 F.3d at 1048–49.

      For instance, records from Najarro-Portal’s prison file demonstrate that he

was actively engaged in petitioning activities while imprisoned in El Salvador.1

The petitions show that he sought, on behalf of himself and others, such basic

conditions as an adequate water supply, functioning electricity, and access to

classes and workshops, and that although the petitions were filed in his name, he

sought broad changes. In addition, as to himself only, he requested, among other

things, transfers to other prison facilities, medical care, and a hearing to be released

after serving two-thirds of his sentence. Najarro-Portal’s petitioning activity is

closely linked to the reason he fears harm if returned to El Salvador.

      Jeanne Rikkers, a U.S. citizen with whom Mira spoke in El Salvador,

confirmed that Najarro-Portal was an original member of a group called OPERA,



      1
        Mira explained that documentation of much of Najarro-Portal’s petitioning
directly on behalf of other inmates is unavailable because the prison records are not
digitized, and because documents filed for other prisoners would be kept in those
prisoners’ files, not Najarro-Portal’s. Monge did not keep the petitions, in part
because keeping those types of documents, she said, could lead to problems with
police.
                                           4
which advocated for prisoners’ rights. OPERA members, according to Rikkers,

were mistreated and subject to frequent prison transfers. One member had been

killed in prison, and most feared for their lives and had fled the country, died, or

were still in prison.

       Judge Astrid de los Angeles Torres, who oversaw prison conditions in El

Salvador, explained to Mira that prisoners like Najarro-Portal, who file complaints

and are perceived as protest leaders, are mistreated, forcefully transferred to

different prisons, put in solitary confinement, and accused of being gang leaders to

justify their treatment. She was also certain that Najarro-Portal would be killed if

returned to El Salvador—either directly at the hands of government officials, or by

gang members, with the officials’ complicity. Monge agreed that if Najarro-Portal

were returned to El Salvador, he would be killed, and explained that gang members

told her it was in her best interest to inform them if Najarro-Portal returned to El

Salvador “because they were not happy with him.”

       The record contains evidence of the actual harm Najarro-Portal suffered at

the hands of government authorities in El Salvador. Najarro-Portal’s prison file

reveals that prison guards severely injured his jaw, probably breaking it, and then

left him without treatment for some period of time, such that his jaw did not heal

and he lost a “major” amount of weight due to not being able to eat. The jaw


                                           5
injury also made it difficult for him to speak. Along with prison records, Najarro-

Portal’s letters to his mother, his mother’s testimony before the IJ, and Judge

Torres’ statements confirm that prison guards beat Najarro-Portal, caused bruising

on his face, and broke his jaw.

      Also, Najarro-Portal was moved to the Zacatecoluca prison, reserved for

“troublemakers,” with the intent that the harsh conditions and isolation there would

stifle their activism. Country reports echo Zacatecoluca’s bad reputation.

      Further, Monge told Mira that police officers visited the house she shared

with Najarro-Portal multiple times, including waiting for him upon his release

from prison and warning him “that it was best for him to leave town or they would

harm him.” Consequently, Najarro-Portal went into hiding. The visits continued

after Najarro-Portal left for the United States. Monge also recounted an incident

after Najarro-Portal was released from prison when police kidnapped him and

drove him into rival gang territory, then stripped him and left him naked and at the

mercy of the rival gang.

      In light of this uncontradicted evidence, Najarro-Portal is entitled to deferral

of removal under CAT.

      PETITION GRANTED; REMANDED for further proceedings.




                                          6
                                                                            FILED
Najarro–Portal v. Lynch, No. 13-73958
                                                                            DEC 07 2015
BEA, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      I agree with the majority that petitioner Misael Francisco Najarro–Portal is

not entitled to withholding of removal and that substantial evidence supports the

immigration judge’s (“IJ”) adverse credibility determination. Unlike the majority, I

would also find that Najarro–Portal is not entitled to deferral of removal under the

Convention Against Torture (“CAT”).

      For Najarro–Portal to be entitled to deferral of removal under the CAT, we

must find sufficient evidence in the record—other than Najarro–Portal’s testimony,

account the IJ’s adverse credibility finding—to compel the conclusion that it is

more likely than not that Najarro–Portal would be tortured by or with the

acquiescence of Salvadoran officials if he were removed to El Salvador. See

Shrestha v. Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010); see also 8 C.F.R.

§ 1208.18(a) (defining “torture” for purposes of the CAT). I find the record

insufficient to compel that conclusion.

      I note first that when Najarro–Portal hired Jaime Mira as his attorney, he

told Mira that he believed he had faced persecution1 in El Salvador because he

      1
       Whether a petitioner will be “persecuted” is relevant for granting asylum.
See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 208.13. Najarro–Portal originally sought
                                                                       (continued...)

                                          1
refused to talk about human-rights violations he witnessed while serving in the

Salvadoran army. Mira discovered, after reviewing Najarro–Portal’s prison file

from El Salvador, that prison officials may have mistreated Najarro–Portal due to

Najarro–Portal’s advocacy of prisoners’ rights. Mira then based Najarro–Portal’s

immigration case on that story. This is important for two reasons: (1) It is

undisputed that Mira proffered only a fraction of Najarro–Portal’s prison records

during the immigration proceedings, and he could have excluded documents that

would have contradicted the story he crafted, and (2) the majority relies in large

part on Mira’s statements as to what Jeanne Rikkers, Judge Astrid de los Angeles

Torres, and Eliza Aracely Sarceño Monge told him, which are mostly

uncorroborated. I do not mean to impugn Mira’s character, but I find this hearsay

evidence insufficiently weighty to displace the decisions of the IJ and the Board of

Immigration Appeals (“BIA”), who are better positioned to make credibility

determinations and to whom we afford significant deference.

      The other evidence in the record also does not compel the conclusion that

Najarro–Portal was, or will be, tortured by Salvadoran officials. True enough, there



      1
        (...continued)
asylum, but concedes he is ineligible for it. Whether Najarro–Portal will be
“persecuted” if he returns to El Salvador is not the relevant inquiry for granting
relief under the CAT. See 8 C.F.R. §§ 1208.16–.18.

                                          2
is documentation of Najarro–Portal’s prison transfers and his broken jaw, but there

is nothing connecting those transfers and his injury to malfeasance of prison

officials. The undated letters Najarro–Portal wrote to his mother similarly fail to

make that connection; they mention “the beatings I am receiving” and his injury,

but do not tie prison officials to any abuse Najarro–Portal received in prison.2 As

Najarro–Portal admitted to joining a gang in prison for “protection,” and was

viewed as a gang leader, the record supports other plausible reasons for his injury.

In fact, years later, while he was in the United States and presumably safe from

Salvadoran prison officials, Najarro–Portal told members of his church that his jaw

was broken in a prison “quarrel” without saying that prison officials were involved.

      Monge’s declaration supports a finding that Najarro–Portal may be harmed

if he returns to El Salvador, but suggests that Salvadoran prisoners and their

friends—not Salvadoran officials—are likely to inflict the harm. Moreover, the

declaration suffers from credibility problems of its own: Monge wrote it in June

      2
        Admittedly, Najarro–Portal’s mother testified before the IJ that she saw her
son in prison with a broken jaw and bruised face and that Najarro–Portal told her
“the authorities” beat him up. The IJ could reasonably have found her account not
credible. Najarro–Portal’s mother was not clear about when she saw
Najarro–Portal in prison, and her testimony that she saw Najarro–Portal with a
broken jaw in 2006 is inconsistent with other evidence showing that his jaw was
broken in 2004. Moreover, Najarro–Portal’s mother testified that she went to the
immigration hearing from El Salvador when other evidence showed that she is a
U.S. citizen and was living with Najarro–Portal and his wife in California.

                                          3
2011, when she was “preparing to migrate to Canada,” but she was not made

available during the immigration proceedings that occurred over a year later, even

though the IJ requested that she testify.3

      Najarro–Portal’s fear of being tortured or killed by Salvadoran officials is

undermined by his experience in El Salvador. Najarro–Portal spent the last few

months of his prison sentence in a prison in Ciudad Barrios, apparently without

incident. He was free for several months, during which time he was not killed or

harmed, and was re-imprisoned on a drug-possession charge. Najarro–Portal then

spent another several months in jail, and there is no evidence that government

officials harmed him during that time.

      For all of these reasons, I do not believe that Najarro–Portal has shown that

the record compels the conclusion that it is more likely than not that he would be

tortured by or with the acquiescence of Salvadoran officials if he were removed to

El Salvador. As a result, I would not find him entitled to deferral of removal under

the CAT, and I respectfully dissent from that portion of the majority’s decision.


      3
        The IJ stated: “[W]e’ve got to get testimony from [Monge] because there’s
an issue; in her declaration there’s some issues. And it’s important because she’s
the only one who’s able to testify about events post-prison to the extent that this,
that, and the other thing happened in prison, he’s not in prison. They released him.
He’s not under any charges in El Salvador. So then what happened after he got out
becomes critical. And she’s the only witness to that.”

                                             4
