FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MAURICIO CASTILLO,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-72745

Agency No.

A073-244-050

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 1, 2020

San Francisco, California

Filed November 18, 2020

Before: J. Clifford Wallace and Michelle T. Friedland, 

Circuit Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge Wallace

* The Honorable Robert S. Lasnik, United States District Judge for 

the Western District of Washington, sitting by designation.
2 CASTILLO V. BARR

SUMMARY**

Immigration

Granting Juan Mauricio Castillo’s petition for review of 

the Board of Immigration Appeals’ denial of his application 

for protective status pursuant to the Convention Against 

Torture, and remanding, the panel held that the Board erred 

in giving reduced weight to the testimony of Dr. Thomas 

Boerman, a specialist in gang activity in Central America

and governmental responses to gangs.

Castillo is a former gang member with tattoos who fears 

torture by gangs and/or Salvadoran officials because of his 

former gang memberships, his criminal conviction, and his 

later cooperation with law enforcement against La Mara 

Salvatrucha or MS-13. In a prior petition, the same panel 

concluded that the immigration judge and the Board 

improperly discounted Dr. Boerman’s testimony. 

The panel addressed two initial matters. First, the panel 

stated that the Board’s rejection on remand of the panel’s 

prior interpretation of the immigration judge’s decision was 

ill-advised, explaining that its prior disposition was not an 

advisory opinion, but a conclusive decision not subject to 

disapproval or revision by another branch of the federal 

government. Second, the panel rejected the Board’s reliance 

on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to 

support its conclusion that Dr. Boerman’s testimony should 

be given reduced weight, because Vatyan addressed an IJ’s 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CASTILLO V. BARR 3

discretion to weigh the “credibility and probative force” of 

an authenticated document, whereas the issue in this case 

involved the testimony of an expert that the agency had 

ostensibly concluded was fully credible.

Even assuming the agency could accord reduced weight 

to Dr. Boerman’s testimony and declaration, the panel 

disagreed with the Board’s new justifications. First, the 

panel rejected the Board’s reliance on alleged 

inconsistencies regarding Dr. Boerman’s familiarity with 

Castillo’s prison gang, where Dr. Boerman explicitly wrote 

in his declaration that his comments on Castillo’s prison 

gang were based on facts provided by Castillo, and the Board 

did not cite any reason to doubt Castillo’s testimony 

regarding rival gangs. 

Second, the panel disagreed with the Board’s conclusion 

that Dr. Boerman’s testimony did not warrant full weight 

because he did not submit a copy of a video referenced in his 

testimony, where the video was neither the sole nor primary 

basis for his opinion, and the Board failed to explain why the 

absence of one video diminished the weight of Dr. 

Boerman’s expert opinion, when his opinion had an 

independent factual basis.

Finally, the panel concluded that the Board’s decision to 

give Dr. Boerman’s opinion reduced weight, because it was 

not corroborated by other evidence in the record, was 

erroneous. The panel observed that the country report did 

provide support for Castillo’s claim, and it noted that Dr. 

Boerman’s expert testimony was itself evidence that could 

support Castillo’s claim.

The panel remanded to the Board, directing it to give full 

weight to Dr. Boerman’s testimony regarding the risk of 
4 CASTILLO V. BARR

torture Castillo faces if removed to El Salvador. The panel 

explained that if the Board determines once again that 

Castillo is not entitled to relief, it must provide a reasoned 

explanation for why Dr. Boerman’s testimony is not 

dispositive on the issue of probability of torture. The panel 

further explained that once it gives full weight to Dr. 

Boerman’s testimony, the remaining issue for the Board is 

to determine whether Castillo has established the 

government acquiescence element of his CAT claim.

COUNSEL

Michael Kagan (argued), Attorney; Edgar Cervantes, Law 

Student; Thomas & Mack Legal Clinic, University of 

Nevada, Las Vegas, Nevada; for Petitioner. 

John F. Stanton (argued), Trial Attorney; Jessica E. Burns, 

Senior Litigation Counsel; Joseph H. Hunt, Assistant 

Attorney General; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

WALLACE, Circuit Judge:

Juan Mauricio Castillo appeals from the Board of 

Immigration Appeals’ (Board) denial of his application for 

protective status pursuant to the Convention Against Torture 

(CAT). Castillo is a native citizen of El Salvador. He snuck 

into the United States when he was 12 years old with the 

assistance of a family friend. He then murdered a 12-yearold girl when he was a teenager during a gang-related 
CASTILLO V. BARR 5

shooting, and he was convicted in 1996 for first-degree 

murder with the use of a firearm during gang-related activity. 

Upon his parole from state prison, the Department of 

Homeland Security sought Castillo’s removal. Castillo 

applied for withholding of removal and CAT status. The 

Immigration Judge (IJ) concluded that Castillo was not 

eligible for withholding of removal because his murder 

conviction was a bar as a particularly serious crime.

To support his application for CAT status, Castillo called 

an expert to testify on his behalf about gang activity in 

Central America and governmental responses to gangs. 

Ultimately, the IJ did not find the expert credible and 

discounted his testimony on the risks posed to Castillo 

because of his gang membership and murder conviction. 

The Board affirmed, but we remanded the petition to the 

Board. Castillo v. Barr, No. 17-72544, 765 F. App’x 256 

(9th Cir. Mar. 28, 2019) (unpublished). We reasoned that 

the IJ’s disagreement with portions of the expert’s testimony 

ignored the record and relied on incorrect reasoning. Id.

at 257. On remand, the Board re-affirmed the IJ’s denial of 

Castillo’s application for CAT protection for reasons like 

those we had rejected. Castillo again petitions for review of 

the denial of his application for CAT status.

We have jurisdiction pursuant to 8 U.S.C. § 1252. 

Reviewing the Board’s findings for substantial evidence, 

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007), we 

grant the petition for review and remand.

I.

Castillo is a former gang member who has belonged to 

various violent gangs, including La Mara Salvatrucha, 

commonly known as MS-13. He joined MS-13 as a 

teenager, a few years after arriving in the United States. His 
6 CASTILLO V. BARR

underlying murder conviction stemmed from his gang 

activity. Upon his incarceration, he joined a rival gang 

known as Mi Raza Unida (MRU) rather than MS-13. 

Castillo eventually tried to leave MRU, and he was debriefed 

by law enforcement about both MRU and MS-13. Both 

gangs responded by ordering a hit, or greenlight, on Castillo. 

The MS-13 hit applies in both the United States and El 

Salvador.

Castillo testified before the IJ that he feared for his life if 

removed to El Salvador because of his former gang 

memberships, his criminal conviction, and his later 

cooperation with law enforcement against MS-13. He also 

feared persecution from Salvadoran officials. Castillo 

contended he would be easily identified as a former gang 

member because of (1) his criminal record, (2) his 

deportation from the United States, and (3) his visible gang 

tattoos.

Castillo called Dr. Thomas Boerman as a specialist in 

Central American gang response strategies to testify on his 

behalf. Dr. Boerman has consulted on Central American 

gang issues for the U.S. Agency for International 

Development, the World Bank, and the United Nations High 

Commissioner for Refugees. Dr. Boerman opined in his 

testimony and declaration that Castillo faced a risk of torture 

or harassment from four different sources if he were 

deported to El Salvador.

The first is Castillo’s status as a tattooed former gang 

member would make him a target for Salvadoran 

immigration officials, particularly because his United States 

conviction would have to be disclosed to the Salvadoran 

government, which could lead to his torture. The second is 

the ongoing risk from local police wherever he settles in El 

Salvador, which could lead to his imprisonment, torture, or 
CASTILLO V. BARR 7

extrajudicial killing based on his former gang member 

status. The third is Castillo’s status as a former MS-13 

member who turned on his gang would make him a target 

for both MS-13 and other gangs in El Salvador, which would 

likely lead to his torture and death because of the 

“greenlight.” The fourth is the alleged vigilante groups, 

which include Salvadoran government officials, engaged in 

“extermination squads” as a strategy to rid the country of 

gang members.

The IJ decided that Dr. Boerman’s testimony should be 

given reduced weight and implied he was not a credible 

expert. The IJ held that Dr. Boerman’s statements were not 

supported by the record, and his testimony proposed “linking 

together a series of suppositions and without ‘establishing 

that each step in the hypothetical chain [was] more likely 

than not to happen.’” The IJ also discounted Dr. Boerman’s

testimony regarding the “extermination strategy” as 

“exaggerated,” and the IJ observed that Dr. Boerman “was 

not able to consistently identify which of [Castillo’s] tattoos 

were gang-related.” The IJ concluded that Castillo could not 

establish that it was more likely than not that Salvadoran 

immigration officials would collude with police and torture 

him because the documentary evidence did not mention such 

collusion.

The Board held that the IJ did not commit clear error in 

concluding that the record was “devoid of any mention of 

immigration officials and police colluding to apprehend 

returning gang members.” We disagreed in Castillo, 765 F. 

App’x at 257, and held that the IJ and the Board 

(collectively, the Agency) improperly discounted Dr. 

Boerman’s testimony because the IJ relied on faulty 

reasoning and the Board failed to provide any other 

sufficient reason why his testimony and report should be 
8 CASTILLO V. BARR

discounted. We granted Castillo’s petition and remanded to 

the Board. Id. at 258.

Despite our direction to reconsider Dr. Boerman’s 

testimony and its effect on Castillo’s CAT claim, the Board 

has once again similarly discounted Dr. Boerman’s 

testimony and did not consider the entire record. The Board 

also rejected our interpretation of the IJ’s decision, and it 

held that the IJ had not made an explicit credibility finding. 

The Board also continued to give Dr. Boerman’s testimony 

“reduced weight.”

The Board listed three reasons in support of its decision 

to discount Dr. Boerman’s testimony. The first are 

purported inconsistencies between Dr. Boerman’s testimony 

and his written declaration with respect to his familiarity 

with Castillo’s prison gang. The second are Dr. Boerman’s 

references to video evidence depicting Salvadoran 

immigration officials beating gang members at an airport 

despite not submitting the underlying video into evidence. 

The third is the dearth of corroborating evidence to support 

Dr. Boerman’s testimony and declaration regarding the 

extermination strategy of the Salvadoran government and 

vigilante groups. The Board concluded that Castillo failed 

to meet his burden because it held that Dr. Boerman’s 

testimony was insufficient evidence, alone or in aggregate, 

to establish that Castillo’s torture was more likely than not 

to occur.

Castillo argues two issues in his current petition for 

review. The first is that the Board’s holding that 

Dr. Boerman’s testimony was not corroborated misconstrues 

the record. The second is the Board did not properly 

aggregate Castillo’s risks because it incorporated the IJ’s 

chain-of-events analysis by reference.
CASTILLO V. BARR 9

II.

Under the Immigration and Nationality Act, even 

individuals convicted of aggravated felonies are eligible for 

CAT relief. See Bromfield v. Mukasey, 543 F.3d 1071, 1075 

(9th Cir. 2008). To receive CAT status, Castillo must show 

that he would “more likely than not” be tortured if so 

removed. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). Castillo 

must demonstrate “a chance greater than fifty percent that he 

will be tortured” if removed to El Salvador. Hamoui v. 

Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). Castillo must 

also establish that he would experience torture with the 

“acquiescence” of the Salvadoran government. Cole v. 

Holder, 659 F.3d 762, 771 (9th Cir. 2011).

The Board’s factual findings are reviewed for substantial 

evidence. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 

2007). Substantial evidence means the Board’s holding is 

supported by “reasonable, substantial, and probative 

evidence on the record.” Ornelas-Chavez v. Gonzalez, 

458 F.3d 1052, 1056 (9th Cir. 2006) (citation omitted). As 

such, we must uphold the Board’s decision unless the record 

compels a contrary conclusion. Where the Board does not 

consider all the evidence before it, either by “misstating the 

record [or] failing to mention highly probative or potentially 

dispositive evidence,” its decision cannot stand. Cole, 

659 F.3d at 772. If the Board rejects expert testimony, it 

must state “in the record why the testimony was insufficient 

to establish the probability of torture.” Id. (citation omitted). 

Improperly rejected expert testimony is a legal error and, 

thus, per se reversible. See id. at 773.

There are two initial matters. First, the Board’s defiance 

of our previous decision in this matter and disagreement with 

our holding that the IJ did not find Dr. Boerman credible was 

ill-advised. Our prior disposition was not an advisory 
10 CASTILLO V. BARR

opinion, but a conclusive decision not subject to disapproval 

or revision by another branch of the federal government. 

Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020). 

“Once we reached [our] conclusion, both the Constitution 

and the statute required the Board to implement it.” Id. 

Second, we reject the Board’s reliance on Vatyan v. 

Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its 

conclusion that Dr. Boerman’s testimony should be given 

reduced weight. Vatyan addressed an IJ’s discretion to 

weigh the “credibility and probative force” of an 

authenticated document. Id. at 1185 n.4 (citation omitted). 

The issue here is the testimony of an expert that the Agency 

has ostensibly concluded is fully credible.

However, even assuming the Agency can accord reduced 

weight to Dr. Boerman’s testimony and declaration, we 

disagree with the Board’s new justifications. We first turn 

to the alleged inconsistencies regarding Dr. Boerman’s 

familiarity with Castillo’s prison gang. Dr. Boerman 

explicitly wrote in his declaration that his comments on 

Castillo’s prison gang were based on facts provided by 

Castillo. The Board did not cite any reason to doubt 

Castillo’s testimony that MRU and MS-13 are rival gangs. 

In the end, Dr. Boerman’s testimony was not undermined by 

his reliance on facts about gang rivalries that have not been 

disputed. See also Aguilar-Ramos v. Holder, 594 F.3d 701, 

706 n.7 (9th Cir. 2010) (observing that “[a]n expert is 

permitted to base his opinion on hearsay evidence and need 

not have personal knowledge of the facts underlying his 

opinion”).

Second, we disagree with the Board’s conclusion that 

Dr. Boerman’s testimony did not warrant full weight 

because he did not submit the underlying evidence to the IJ. 

Our circuit has held that the underlying facts or data forming 
CASTILLO V. BARR 11

the basis of an expert’s opinion in an immigration 

proceeding “need not be admissible in evidence in order for

the opinion or inference to be admitted.” Malkandi v. 

Holder, 576 F.3d 906, 916 (9th Cir. 2009) (citation omitted). 

In addition, Dr. Boerman’s testimony about a video of 

extrajudicial violence by Salvadoran immigration officials 

against gang members at an airport was neither the sole nor 

primary basis for his opinion that Castillo would be at risk 

from Salvadoran immigration officials. Dr. Boerman swore 

in his declaration that he was familiar with “numerous 

instances in which gang members and other tattooed 

individuals have been physically abused by [Salvadoran] 

immigration officials and/or turned over to police at the 

airport who subjected them to threats, beatings and/or 

torture.” Accordingly, the Board failed to explain why the 

absence of one video diminished the weight of 

Dr. Boerman’s expert opinion when it had an independent 

factual basis.

Finally, the Board’s decision to give Dr. Boerman’s 

opinion reduced weight because it was not corroborated by 

other evidence in the record was erroneous. The Board 

reasoned that Dr. Boerman’s testimony about the Salvadoran 

government’s alleged extermination strategy was not 

supported by other record evidence because the U.S. State 

Department’s country report did not cite extrajudicial 

killings to a level that could justify such a characterization 

and said police are investigating misconduct. However, the 

country report also mentions extermination groups 

containing police officers. In any event, Dr. Boerman’s 

expert testimony was itself evidence that could support 

Castillo’s claim. See Velasquez-Banegas v. Lynch, 846 F.3d 

258, 262 (7th Cir. 2017) (holding that an IJ erred in 

disregarding an expert’s opinion on the basis that the expert 

did not cite data, reports, or examples as support for the 
12 CASTILLO V. BARR

opinion, because the testimony was accepted by the IJ as 

truthful and was uncontradicted evidence). If an expert’s 

opinion could only be relied upon if it were redundant with 

other evidence in the record, there would be no need for 

experts. The Board therefore erred in giving Dr. Boerman’s 

testimony reduced weight.

We reject Castillo’s second argument that the Agency 

erred by applying the chain-of-events analysis rather than 

aggregation of risks. The IJ discussed both analyses, and the 

Board assessed the aggregate risk.

III.

We grant Castillo’s petition and remand to the Board. 

Based on the record now before us, we further direct the 

Board to give full weight to Dr. Boerman’s testimony 

regarding the risk of torture Castillo faces if removed to El 

Salvador. If the Board determines once again that Castillo 

is not entitled to relief, it must provide a reasoned 

explanation for why Dr. Boerman’s testimony is not 

dispositive on the issue of probability of torture. Once it 

gives full weight to Dr. Boerman’s testimony, the remaining 

issue for the Board is to determine whether Castillo has 

established the government acquiescence element of his 

CAT claim.

GRANTED and REMANDED.