                                                                              FILED
                            NOT FOR PUBLICATION                               APR 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOSE ALBERTO CORDOVA-                            No. 09-71555
MANZANAREZ,
                                                 Agency No. A097-476-196
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 7, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

       Jose Alberto Cordova-Manzanarez (Cordova) petitions for review of a

decision of the Board of Immigration Appeals (BIA) affirming the Immigration

Judge’s (IJ) denial of Cordova’s application for asylum and withholding of

removal on credibility grounds and dismissing his appeal from the IJ’s denial of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cordova’s application for relief under the United Nations Convention Against

Torture (CAT). We grant the petition in part and remand to the BIA.

Asylum and Withholding Claims

      The BIA and IJ based their adverse credibility determination on (1) a single

inconsistency in Cordova’s testimony regarding the year he was shot for the first

time and (2) an assertion that Cordova’s claim that he was forcibly tattooed is

inherently implausible.

1.    In focusing on one date inconsistency in Cordova’s otherwise consistent

testimony, the IJ and BIA failed to “recognize that the normal limits of human

understanding and memory may make some inconsistencies or lack of recall

present in any witness’s case.” Shrestha v. Holder, 590 F.3d 1034, 1044-45 (9th

Cir. 2010). Further, and critically, neither the IJ nor the BIA took into account

with regard to the credibility finding testimony by Dr. Kuck that Cordova showed

signs of cognitive compromise that had affected his memory and his ability to

understand and answer questions without prompting and redirection. Here, Dr.

Kuck’s testimony indicates that Cordova’s single confusion about one date could

have resulted from either a momentary loss of memory or a misunderstanding of

the question. Neither explanation suggested by the expert testimony concerning

Cordova’s cognitive impairment was considered by the IJ or BIA in making the


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adverse credibility finding. The agency thus failed to take Cordova’s individual

circumstances into account in making its credibility finding, and thereby erred. See

id. at 1041 (holding that adverse credibility determinations under the REAL ID Act

must “take into consideration the individual circumstances of the applicant”).

2.    The agency also erred by failing to take into account all of the relevant

factors when concluding that Cordova’s story of forcible tattooing was inherently

implausible. See id. at 1040 (holding that an adverse credibility determination

under the REAL ID Act must take into account “the totality of the circumstances,

and all relevant factors”). The BIA and IJ relied heavily on Deputy Sheriff Mata’s

testimony that it would be too hard to hold someone down and tattoo him, and that

gang members are proud of their tattoos. In doing so, the BIA ignored Dr. Serpas’

testimony that Cordova was embarrassed by his blurry, distorted tattoos. The

agency also ignored Cordova’s testimony that he was involuntarily tattooed at

gunpoint while tied to a chair, obviating as irrelevant the suggestion one could not

involuntarily tattoo someone by just holding him down. Further, there is no

inherent inconsistency between gang members’ pride in gang tattoos and a desire

that all gang members, including those forcibly inducted, wear them.

      As BIA’s adverse credibility finding is for these reasons not supported by

substantial evidence, on remand, Cordova is to be deemed credible for the purposes


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of assessing his asylum and withholding claims. See Soto-Olarte v. Holder, 555

F.3d 1089, 1094-95 (9th Cir. 2009) (“the deemed credible rule may apply when it

is evident that the IJ and BIA have both strained to provide reasons properly

supporting an adverse credibility finding, but despite their best efforts have been

unable to do so”).

3.    Because the BIA’s decision did not cite Matter of Burbano, 20 I.&N. Dec.

872 (BIA 1994), nor did it expressly adopt the IJ’s alternative findings, this court

cannot presently address the question whether Cordova was persecuted on a

protected ground. See Joseph v. Holder, 600 F.3d 1235, 1239 (9th Cir. 2010)

(holding that this court’s review is limited to the BIA decision and the portions of

the IJ’s decision that it expressly adopted); see also Gonzales v. Thomas, 547 U.S.

183, 185-87 (2006) (per curiam) and INS v. Ventura, 537 U.S. 12, 16-17 (2002)

(per curiam) (holding that this court must remand to the BIA to allow it to address

in the first instance an issue that it has not yet considered). The BIA should

consider the issue on remand.

CAT Claims

      Cordova asserts that he will more likely than not be tortured by either

vigilante groups or by the police if returned to El Salvador. We consider each

claim in turn.


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1.    Although evidence in the record establishes that Sombra Negra is a

notorious vigilante organization that has claimed credit for murdering gang

members, the record supports the BIA’s conclusion that the Salvadoran

government has prosecuted some members of Sombra Negra and is attempting to

control the group. Thus, the record does not compel a conclusion that Cordova

would more likely than not be tortured by vigilante groups if returned to El

Salvador. See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008).

2.    As to torture by police, Cordova testified that police had beaten him with

their batons several times after stopping him and asking him if he was a gang

member. As the government pointed out, however, it was unclear whether the

police in El Salvador beat him because of his tattoos. Cordova had trouble

remembering when these incidents with the police occurred, but he thought they

probably happened between 1996 and 1998. The record supports the BIA’s

conclusion that these were isolated incidents. Moreover, while some documentary

evidence in the record suggests that Salvadoran police commit human rights

abuses, and target and abuse individuals with tattoos, the record dos not compel a

conclusion that Cordova would more likely than not be tortured by the police if

returned to El Salvador.

      Cordova’s CAT claim is denied.


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PETITION GRANTED IN PART AND REMANDED.




                      6
                                                                               FILED
Cordova-Manzanarez v. Holder, No. 09-71555                                       APR 27 2011

                                                                            MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, concurring and dissenting:                          U.S. COURT OF APPEALS



      Although I concur in the majority’s holding that Mr. Cordova-Manzanarez

(“Cordova”) is clearly ineligible for relief under the Convention Against Torture

(“CAT”), I dissent from the majority’s decision to reverse the Board of

Immigration Appeals (“BIA”) and Immigration Judge (“IJ”)and remand for further

proceedings to consider Cordova’s asylum and withholding of removal claims.

      The BIA and the IJ found that, under the totality of the circumstances,

Cordova’s claims were inconsistent, unpersuasive and not credible. In particular,

the BIA and IJ noted that Cordova had provided contradictory dates as to when he

was shot and that his story about being forcibly tattooed was implausible. Notably,

the IJ devoted fifteen pages of his opinion to detailing Cordova’s claims, the

evidence and testimony – including the testimony of both sides’ experts – before

concluding that “[w]ith due respect to the experts who testified on respondent’s

behalf, I do not find respondent to be a credible or persuasive witness as to the

issues before this Court on the basis of the totality of the circumstances and all

relevant factors.”

      In reaching its conclusion that the BIA and IJ erred, the majority fails to

adhere to the deferential substantial evidence standard that is required of us for

reviewing immigration agency decisions. 8 U.S.C. § 1252(b)(4)(B); see also
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2010) (“Under the substantial

evidence standard, the court upholds the BIA’s determination unless the evidence

in the record compels a contrary conclusion.”). “This 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 testimony 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). Furthermore, while the IJ must

consider the totality of the circumstances, under the REAL ID Act, an IJ does not

need to find that a petitioner’s “inconsistency inaccuracy, or falsehood” go “to the

heart of an applicant’s claim.” See Real ID Act § 101(a)(3)(iii).

      Here, Cordova’s inconsistent responses regarding the dates that he was shot

coupled with the BIA and IJ’s finding that his story about being forcibly tattooed

was implausible were more than sufficient, under our deferential standard of

review, to uphold the BIA and IJ’s decisions. Their decisions make clear that

Cordova and his experts’ testimony and evidence was considered, but the

government’s evidence and its experts’ testimony were determined to be more

                                          2
compelling. Nothing the majority points to compels a conclusion contrary to that

reached by the BIA and IJ and there is certainly nothing that supports the

majority’s conclusion that the deemed credible rule should apply here. Because I

would find that the BIA and IJ’s asylum and withholding decisions were supported

by substantial evidence, and because I disagree with the majority’s failure to

adhere to our deferential standard of review, I dissent.




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