Cole v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-22-2011
  • Case #: 09-73625
  • Judge(s)/Court Below: Circuit Judge Berzon for the Court; Circuit Judge Noonan concurring; Circuit Judge Callahan dissenting
  • Full Text Opinion

To establish a Convention Against Torture claim, one must show that it is more likely than not he or she will be tortured. Such a claim should review the overall risk of being tortured, rather than only the individual potential sources of torture.

Hubert George “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’s lengthy criminal record began with was a juvenile. When in prison Cole joined the Crips, an African American gang, and acquired gang-related tattoos. He joined the gang to protect himself from other Hispanic gangs. In 2007, Cole was seriously injured when shot in the head and abdomen, now requires continued medical attention. In June 2008, the Department of Homeland Security commenced removal hearings, charging that Cole entered without being admitted and was convicted of cocaine possession for sale in 1999. Cole admitted removability and applied for asylum, seeking withholding of removability, and relief under the Convention Against Torture (“CAT”). Cole maintains that if he returns to Honduras he will be tortured and possibly killed by gangs or police, police detainment on account of his tattoos, and that he will be denied medical attention because of his tattoos. To qualify for CAT relief, a petitioner must establish that if he or she is removed to the proposed country of torture, he or she would more likely than not be tortured. Additionally, a CAT relief application need not show that he will be tortured “on account of” any specific ground. The Court held the Board of Immigration Appeals did not consider all of the evidence, nor evidence in its opinion, of the testimony of Cole’s two expert witnesses or corroborating documentary evidence, or evidence concerning removal of his tattoos. The two experts testified to specific incidents that Cole would more likely than not be tortured if removed. The Court also held that the Board needed to consider the intentional denial of medical attention claim. VACATED AND REMANDED.

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