“The government does not offer any argument on the merits of this petition; therefore, it has waived any challenge to the arguments Martinez raised. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an appellee who did not address an argument in the answering brief had waived that issue). On remand, the agency is directed: (1) to give proper consideration to Martinez’s testimony about police corruption and acquiescence in MS-13 violence; (2) to accord proper weight to the Department of State Country Report on El Salvador, and in particular, evidence of corruption and inability or unwillingness to prosecute gang violence; and (3) to apply the correct legal standards to Martinez’s Convention Against Torture claim.”
PANEL: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, District Judge.
OPINION BY: Judge Soto
Read the full opinion at the link. It’s short. Three things stand out.
First, the Respondent’s credible testimony clearly established a plausible claim for CAT relief. If he gets representation, he will be able to show that the authorities in El Salvador do often cooperate with gangs and that the government is willfully blind to the many instances of torture of citizens by gangs. The Asylum Officer’s incorrect analysis along with that by the Immigration Judge show a fundamental misunderstanding of CAT law and the reasonable fear process. How does an Immigration Court system faced with such glaring problems eliminate training and the guidance provided through the former Benchbook?
Second, the 9th Circuit highlights the Byzantine nature of the regulations in this area. How many unrepresented individuals who been treated in this unfair manner are hustled out of the country because they can’t figure out how to get meaningful review?
Third, this decision shows that there might well be ways to penetrate the general unwillingress of Appellate Courts to review the gross miscarriages of justice and denials of due process going on every day in the expedited removal process which is administered by the DHS and inadequately reviewed by the Immigration Judges. Once they take a look, they will be appalled at what they find!