FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR OSWALDO GONZALEZ- No. 21-70112 CASTILLO, Petitioner, Agency No. A216-429-376 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2022 San Francisco, California Filed August 31, 2022 Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges, and Christina Reiss, * District Judge. Opinion by Judge Clifton * The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. 2 GONZALEZ-CASTILLO V. GARLAND SUMMARY ** Immigration Granting in part and dismissing in part Oscar Gonzalez- Castillo’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that: (1) substantial evidence did not support the agency’s determination that Gonzalez-Castillo was ineligible for withholding of removal based on the serious nonpolitical crime bar; (2) the agency erred by failing to consider all of Gonzalez-Castillo’s evidence for purposes of protection under the Convention Against Torture; and (3) Gonzalez- Castillo waived review of the agency’s application of the one-year bar to asylum. At Gonzalez-Castillo’s removal proceeding, the government introduced into the record an INTERPOL Red Notice as the only evidence that Gonzalez-Castillo had committed a serious nonpolitical crime in El Salvador. The Red Notice identified Gonzalez-Castillo by name, birthdate, national identification number, and photograph, and alleged that an incident occurred on January 1, 2015, described as: “MS-13 TERRORIST, RESPONSIBLE FOR STRIKES WITHIN THE CRIMINAL ORGANIZATION, ACCORDING TO THE WITNESS IN THE PROTECTION SCHEME, CODE NAME ‘SAULO’ CRIMINAL CASE, 47-02-18-6.” The crime classification was listed as “TERRORIST ORGANIZATIONS,” and the penal legislation or disposition that sanctioned the crime was designated “Art. 13 LECAT,” a law which was not in the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GONZALEZ-CASTILLO V. GARLAND 3 record. Gonzalez-Castillo admitted that the Red Notice identified him, but claimed that the Red Notice was fabricated because it was issued years after he left El Salvador, and he was not a member of a gang. The panel held that, in this case, the Red Notice did not, by itself, establish probable cause that there were serious reasons to believe that Gonzalez-Castillo committed a serious nonpolitical crime in El Salvador. Explaining that probable cause requires a “fair probability” that the noncitizen committed a serious nonpolitical crime, the panel concluded that the Red Notice in this case did not meet that standard due to errors that cast doubt on its reliability, and its failure to articulate any specific crime of which Gonzalez- Castillo was accused. While the Red Notice here described the structure and misdeeds of MS-13 in Usulutan generally, the only allegation about Gonzalez-Castillo’s involvement in the gang’s activities was that, according to an anonymous witness, he was responsible for strikes within the criminal organization. There was no further detail on what constituted a strike, …
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