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9th Cir. Ct. Reverses BIA Removal Order

Oscar Gonzalez-Castillo v. Merrick Garland Docket: 21-70112, Opinion Date: August 31, 2022. At Petitioner’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 Ninth Circuit granted in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. The panel held that: (1) substantial evidence did not support the agency’s determination that Petitioner was ineligible for withholding of removal; (2) the agency erred by failing to consider all of Petitioner’s evidence under the Convention Against Torture, and (3) Petitioner waived review of the agency’s application of the one-year bar to asylum. 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 Petitioner 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 Petitioner was accused. The panel rejected the government’s argument that by presenting “some evidence” in the form of the Red Notice, even if scant, it had shifted the burden to disprove the existence of probable cause on to Petitioner. The panel held Petitioner never alerted the agency to the two possible grounds for excusing the filing deadline that he raised in his briefing to the court.

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