FILED NOT FOR PUBLICATION OCT 14 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEX HERNANDEZ, AKA Louie No. 17-73332 Gonzalez, AKA Louis Gonzalez, AKA Alex Jovanoe Hernandez, AKA Joseph Agency No. A206-352-451 Ramirez, Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 17, 2020 San Francisco, California Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges. Dissent by Judge HUNSAKER * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Alex Hernandez petitions for review of a decision by the Board of Immigration Appeals (“BIA”) holding that he is ineligible for relief under the Convention Against Torture (“CAT”). We grant the petition. Hernandez is a native of Honduras subject to a removal order. While incarcerated in California for a robbery conviction, Hernandez achieved a position of influence within the Sureños prison gang. When he left the gang in 2008, gang members assaulted him and he nearly lost an eye because he had left the gang. MS-13 (Mara Salvatrucha) and Barrio 18 (18th Street Gang), the two main gang structures in Honduras, have close ties to the Sureños and routinely pursue and kill those who leave the gang without permission. Hernandez has gang tattoos that permit easy identification as a member or former member of the Sureños. He presented evidence that he will likely be tortured or killed in Honduras, either because he left the gang or because the gangs would incorrectly perceive him to be a member of a rival gang, and that law enforcement officials in Honduras would acquiesce in his torture or killing. He also presented evidence that he would be tortured or killed by law enforcement officials in Honduras who believe he is still in a gang. The record contains uncontradicted evidence that the Honduran police force is one of the most corrupt and mistrusted in Latin America. The government has 2 “no control” over some areas of Honduras because they are “wholly” controlled by gangs. Though the Honduran government has tried to reduce gang violence, arrest gang leaders, and end corruption in law enforcement, these efforts have met with limited success.1 The Immigration Judge (“IJ”) granted Hernandez’s CAT claim, finding that it was more likely than not that Honduran gangs would torture Hernandez, with the acquiescence of government officials. The IJ did not reach the question of whether it was more likely than not that government officials would themselves conduct, or participate in, torture of Hernandez. The BIA reversed. “Even assuming” that private actors would “seek [Hernandez] out for torture,” the BIA concluded that government officials would not acquiesce under 8 C.F.R. § 1208.18(a)(1). The BIA emphasized that the Honduran federal government has tried, albeit unsuccessfully, to stop gang violence. It then explained that “unlawful violence committed by individuals over whom the government has no reasonable control does not ...
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