United States Court of Appeals For the First Circuit

No. 19-1620

CRISTIAN JOSUE DIAZ ORTIZ,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge, Lynch, Lipez, Thompson, Kayatta, Barron, and Gelpí, Circuit Judges.

Kristin M. Beale, with whom Ellen A. Scordino and DLA Piper LLP were on brief, for petitioner. Benjamin Mark Moss, Senior Litigation Counsel, Office of Immigration Litigation, with whom Brian M. Boynton, Acting Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. Sameer Ahmed, with whom Philip L. Torrey and the Crimmigration Clinic/Harvard Immigration and Refugee Clinical Program were on brief, for amici curiae Constitutional and Immigration Law Professors. Kirsten V. Mayer, Ezra D. Geggel, and Ropes & Gray LLP on brief for amicus curiae Political Asylum/Immigration Representation Project. ____________________

Opinion En Banc

January 10, 2022 LIPEZ, Circuit Judge. Cristian Josue Diaz Ortiz, a

native of El Salvador, seeks review of a decision by the Board of

Immigration Appeals ("BIA") affirming the denial of his claims for

asylum, withholding of removal, and protection under the United

Nations Convention Against Torture ("CAT"). The Immigration

Judge's ("IJ") rejection of Diaz Ortiz's petition for relief rested

on an adverse credibility determination that primarily drew its

support from a "Gang Assessment Database." Flaws in that database,

including its reliance on an erratic point system built on

unsubstantiated inferences, compel us to conclude that the

credibility judgment -- and, in turn, the rejection of Diaz Ortiz's

request for relief -- is not supported by substantial evidence.

Accordingly, we grant the petition for review and remand for new

immigration proceedings.

I.

A. Factual Background

In July 2015, when he was sixteen, Diaz Ortiz entered

the United States at the Texas border. Immigration officials

quickly arrested him, initiated removal proceedings, and released

him into the custody of his uncle, who lived in East Boston. Three

years later, on August 20, 2018, Diaz Ortiz and two others were

arrested in East Boston by agents of Homeland Security

Investigations ("HSI") and Enforcement and Removal Operations

("ERO") as part of an operation to arrest members of the notorious

- 3 - Mara Salvatrucha ("MS-13") gang, a dangerous criminal organization

known for committing violent crimes in the United States and

Central America. See United States v. Pérez-Vásquez,

(1st Cir. 2021) (describing the operation and criminal

activities of MS-13).1 Although he had no prior arrests and had

not been observed participating in any gang activity, Diaz Ortiz

was thereafter detained by Immigration and Customs Enforcement

("ICE"). See

(a) (providing that "an alien may be

arrested and detained pending a decision on whether the alien is

to be removed from the United States").2

On October 1, 2018, Diaz Ortiz filed an application for

asylum, withholding of removal, and CAT protection, basing his

request on multiple grounds, including persecution because of his

evangelical Christian religion. He also reported that an aunt had

been murdered in 2011 by members of MS-13, and he feared that the

1 ERO and HSI are both branches of Immigration and Customs Enforcement ("ICE"). Who We Are, U.S. Immigration and Customs Enforcement, https://www.ice.gov/about-ice (last updated July 6, 2021). "ERO manages all aspects of the immigration enforcement process" and specifically "target[s] public safety threats," including "gang members," for "identification and arrest."

HSI investigates "transnational crime," including "transnational gang activity."

2 Diaz Ortiz unsuccessfully sought release from custody while proceedings were ongoing, see Diaz Ortiz v. Smith,

(D. Mass. 2019), and he later was denied a stay of removal pending resolution of his petition for review. According to his original brief to this court, he was deported to El Salvador on July 9, 2019.

- 4 - gang would kill him as well if he returned to El Salvador. In a

subsequently filed affidavit, Diaz Ortiz stated that, while he was

living in El Salvador, MS-13 had threatened his life "on multiple

occasions" because he was a practicing evangelical Christian. He

said he repeatedly refused the gang's demands that he join MS-13,

but gang members continued to follow him and issue threats. In

2015, the gang physically attacked him and warned "that they would

kill [him] and [his] family if [he] did not stop saying [he] was

a Christian and living and preaching against the gang way of life."

Diaz Ortiz explained that, because he would not give up his

evangelical Christian beliefs, he and his parents decided he should

leave El Salvador and "seek the safety and protection of [his]

aunt and uncle" in the United States.

In elaborating on his Christian practice in El Salvador,

Diaz Ortiz stated in the affidavit that he had attended church

with his family three to four times a week, and he became a youth

leader in the church at the age of thirteen. The family sometimes

hosted vigils and prayer sessions in their home. Diaz Ortiz also

reported that his family owns a store that sells religious items,

including Bibles, crosses, and Christian music. In Boston, he

only occasionally went to church with his aunt, noting that it was

difficult to find the time to go because he was in school during

the day and working at night. However, he would often read the

- 5 - Bible, and he spoke with his mother "almost every day and [they]

always prayed together and would sometimes sing hymns."

Among the other supporting documents submitted by Diaz

Ortiz were affidavits from his mother and his pastor in El

Salvador, and a letter from the instructor of the Army Junior

Reserve Officers' Training Corps ("JROTC") at East Boston High

School describing Diaz Ortiz as "an excellent student and also a

leader." Diaz Ortiz also submitted an expert declaration

describing gang violence in El Salvador and confirming that gangs

target evangelical Christians, particularly visible youth leaders

such as Diaz Ortiz.

B. Diaz Ortiz's Testimony at the Merits Hearing

On December 4, 2018, an IJ presided over a hearing in

which Diaz Ortiz testified with the help of an interpreter. His

testimony reiterated much of the information that he had reported

in his affidavit, sometimes with slight variation or elaboration.

Diaz Ortiz stated, inter alia, that: (1) he is an evangelical

Christian who regularly attended church in El Salvador and served

as a youth leader; (2) he worked at his family's store, where

religious items were sold; (3) MS-13 gang members often approached

him on his way to school to ask him to join the gang, which he

repeatedly refused to do; (4) on one occasion in 2015, gang members

beat him with a baseball bat, stole his phone and bicycle, and

threatened to kill him if he did not give up his Christian beliefs

- 6 - and join the gang. Diaz Ortiz also testified that a person cannot

be both an evangelical Christian and a member of MS-13, that he

would not join a gang, and that he was opposed to gangs because of

his faith.

With respect to his religious practice in the United

States, Diaz Ortiz testified that, since arriving in Boston, he

had attended church only "a few times" because, not knowing anyone,

he "felt alone." Instead, he prayed at home and, during daily

video calls, his mother would read Bible verses to him. He

recounted that, while living in his aunt and uncle's home, he had

been helping care for a cousin with special needs. He attended

school for tenth and eleventh grades, and he participated in the

school's JROTC program until he took a part-time job to cover his

personal expenses.

C. The IJ's Questioning

During the hearing, the IJ questioned Diaz Ortiz on two

subjects that the IJ later referenced in finding that Diaz Ortiz

was not credible. The first inquiry focused on his family's store:

IJ: Mr. Diaz, the photographs that you were presented earlier, are those photographs of your store on the street? Diaz Ortiz: Yes, of course, that's my mother and father's store. IJ: My question is, are those pictures of the store that you said was yours in El Salvador? Diaz Ortiz: Yes, they are, yes. IJ: Are you in any of these pictures? Diaz Ortiz: No. IJ: When were these pictures taken?

- 7 - Diaz Ortiz: Well, this was sent by my mother as evidence from my country.

. . .

IJ: So, these are pictures of the store that belongs to your mother and your father, correct? It's not a picture of . . . Diaz Ortiz: Yes, yes, they are. IJ: . . . a store that belongs to you, correct? Diaz Ortiz: No, not, not to me. It's the family's, it belongs to the family.

The IJ then directed Diaz Ortiz's counsel to continue her

questioning.

The second inquiry occurred after Diaz Ortiz's counsel

completed her questioning. The IJ briefly asked Diaz Ortiz about

his admitted use of marijuana, and the following exchange then

occurred:

IJ: What is your method of transportation, meaning how do you get from one place to the other? Diaz Ortiz: What do you mean, what do you mean? I don't understand the question. IJ: When you, when you travel in your community, what transportation do you use? Diaz Ortiz: Train. IJ: Always? Diaz Ortiz: Yes. Well, when I lived in, in my house where I lived in, in East Boston, I didn't because it was close, but when I lived in Boston, I, I had to use the train. IJ: Do you have a car? Diaz Ortiz: No. IJ: So, you never traveled anywhere except by train, correct? Diaz Ortiz: Yes, yes, only in train.

- 8 - At that point, the government began its cross-examination. After

other questioning, the government attorney referred to an

encounter between Diaz Ortiz and the police on August 1, 2018, in

which officers seized a chain with a padlock that Diaz Ortiz was

carrying in his backpack. The questioning then proceeded as

follows:

Government: And you told the officer that it was a chain and lock that you use for your bicycle. Diaz Ortiz: Yes, several times they stopped me. Government: And why would you tell the officers -- IJ: . . . The question is not whether they stopped you on various occasions, the question is whether you told the officer that you had the bicycle and the padlock -- that you had the chain and the lock for your bicycle, that's the question. Diaz Ortiz: I told them that I had . . . that because I changed it. . . . . . . Government: Why did you tell the police that you had the chain and the padlock for a bicycle, yet you told the Court today that you only traveled around by train? Diaz Ortiz's Attorney ("Attorney"): Objection, mischaracterizes the testimony. IJ: Overruled, it's not misstating the testimony. IJ to Diaz Ortiz: Go ahead. Diaz Ortiz: Well, when I lived in East Boston, of course, I had the bicycle there to go around and, and do things around there, but when I lived in Boston and I took the train, I couldn't bring the bike anymore. . . . IJ to Diaz Ortiz: Do you remember that I specifically asked you whether you used any other means of transportation, yes or no?

- 9 - Diaz Ortiz: Oh, yes, yes, I remember when you said that. IJ: And you told the Court that you did not use any other means of transportation other than a train? Is that correct? Diaz Ortiz: [Not translated]. IJ: No, I didn't ask for a reason why. Diaz Ortiz: Yes, you said that, but -- IJ: I'm just asking you what you told the Court. IJ to Government: Next question.

Government counsel then turned to a different subject.

In her redirect examination, Diaz Ortiz's attorney

returned to the bike lock incident:

Attorney: . . . [C]ounsel asked you about a time that you were found with the . . . bike lock, do you remember that? Diaz Ortiz: Yes, I remember that. Attorney: And why did you carry a bike lock? Diaz Ortiz: Well, that time, a friend of mine had asked to borrow my bike because he had messed up his bike, and the chain that he had, he told me to change it, it was a chain that had numbers, a lock that had numbers, and he said to take mine off and use this one. So, I took his own, the one that had the numbers, that's what I was going to use. Attorney: Were there other times that the police had also stopped you and, and seen you with the bike lock? Diaz Ortiz: Yes, several times when I had my bike with me, and they saw me with my backpack, and they asked did I have anything inside, and I said, yes, of course, I have my bike chain. And I showed it to them, and then I -- they looked and then they put it back, and that was the only -- only that one time that I didn't have my bike with me that they asked me, but I explained the reason why.

- 10 - The hearing also included expert testimony given via

telephone by Dr. Harry E. Vanden, a professor of Latin American

and International Studies, who explained that MS-13 targets

evangelical Christians who proselytize in neighborhoods the gang

wants to control because it views them as competitors. He noted

that the gang would be aware of Diaz Ortiz and his family because

of their visible proselytizing activities, including door-to-door

visits to neighbors.

D. The Gang Package

Over objection from Diaz Ortiz's counsel, the government

introduced a package of Gang Assessment Database documents as

rebuttal evidence during its cross-examination. The package

included a memorandum by Special Agent Sean Connolly of the

Department of Homeland Security ("DHS") describing Diaz Ortiz as

a "verified" MS-13 gang member based on a collection of law

enforcement field reports drawn from the database.3 Diaz Ortiz's

attorney argued that the gang package was "not reliable and [was]

fundamentally unfair," asserting that the field reports contained

mistakes and inconsistencies. Counsel also referred to testimony

given at Diaz Ortiz's bond hearing by criminal justice professor

and former Boston Police Officer Thomas Nolan, who criticized the

3We shall refer to the gang-related documents, i.e., the memorandum and its supporting documents, collectively as the "gang package."

- 11 - methodology used and conclusions reached in the gang package.4 The

IJ overruled Diaz Ortiz's objection to the gang package without

explanation.

Because the gang package is central to our decision in

this case, we describe its contents below in some detail and then

similarly review Professor Nolan's critique of those materials.

1. The Contents of the Gang Package

The gang package opens with Agent Connolly's memo, with

the subject line: "Verified MS-13 Gang Affiliation of Cristian

Josue DIAZ ORTIZ aka Christian DIAZ-ORTIZ." The memo goes on to

state the following:

On August 20, 2018, Cristian Josue DIAZ ORTIZ was arrested with two other MS-13 gang members by Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI) as part of an MS-13 gang arrest operation in East Boston, Massachusetts.

Homeland Security Investigations Boston Intelligence has determined Cristian Josue DIAZ ORTIZ to be a Risk to Public Safety as a VERIFIED and ACTIVE member of the MS-13 gang in the Boston metro area.

The Mara Salvatrucha (MS-13) gang is a large transnational criminal organization with thousands of members and associates throughout the United States. The MS-13 gang is among the most violent transnational street gangs in the United States, specializing in crimes of violence including murder, attempted murder, violent armed assaults, firearms offenses, weapons related crimes, drug distribution,

4 Professor Nolan also prepared an affidavit that was submitted as an exhibit to Diaz Ortiz's Prehearing Statement.

- 12 - intimidation and robbery. In Massachusetts MS-13 operates in a number of communities including: Boston, Chelsea, East Boston, Somerville, Everett, Revere, Lynn and Nantucket.

1. Cristian Josue DIAZ ORTIZ has been verified as an MS-13 gang member by the Boston Police Department (BPD)/Boston Regional Intelligence Center (BRIC). (See the attached BPD/BRIC MS-13 Gang Member Verification: "CHRISTIAN DIAZ-ORTIZ".)

2. Cristian Josue DIAZ ORTIZ has documented associations with MS-13 gang members by the Boston Police Department and Boston School Police Department (BSPD). (See the attached BPD & BSPD incident/field interview reports and gang intelligence bulletins.)

3. Cristian Josue DIAZ ORTIZ has been documented carrying common MS-13 gang related weapons5 by the Boston Police Department. (See the attached BPD incident/field interview reports.)

4. Cristian Josue DIAZ ORTIZ has been documented frequenting areas notorious for MS- 13 gang activity by the Boston Police Department. These areas are 104 Bennington St. and the East Boston Airport Park/Stadium in East Boston, Massachusetts which are both known for MS-13 gang activity including recent firearms arrests and a homicide. (See the attached BPD incident/field interview reports and MS-13 gang intelligence bulletins.)

Although this memorandum was written by a federal agent,

DHS was merely the final link in a chain of reporting that began

with police officers in Boston conducting stops called "field

5 The only "documented" reference to a "weapon[]" is a report that Diaz Ortiz possessed the bicycle chain and padlock when he was questioned by police on August 1, 2018. See infra.

- 13 - interrogation observations" -- FIOs for short. FIOs are

"interaction[s] in which a police officer identifies an individual

and finds out that person's business for being in a particular

area." Commonwealth v. Warren,

, 337 n.5 (Mass. 2016)

(quoting Commonwealth v. Lyles,

, 1108 n.6 (Mass.

2009)). These "consensual encounters" are considered

"constitutionally insignificant, and a police officer may initiate

such an encounter without any information indicating that the

individual has been or is presently engaged in criminal activity."

Commonwealth v. Narcisse,

(Mass. 2010).6 The

6 The Boston Police Department ("BPD") rule that governs reports on FIOs states that it was "developed to assist officers in ensuring that intelligence and information is gathered only on persons suspected of engaging in criminal activity or persons associating with those suspected of criminal activity." Boston Police Dep't Rules & Procedures, Rule 323, Field Interaction/Observation/Encounter Report (FIOE Report), sec. 1 (July 2015) (hereinafter "Rule 323"), https://static1.squarespace.com/static/5086f19ce4b0ad16ff15598d/ t/56a2569205caa7ee9f29e6a2/1453479570208/rule323.pdf; see also

at sec. 2 ("The FIOE Report is a mechanism to allow the Department to document and accumulate up-to-date information concerning known criminals and their associates . . . ." (emphasis added)). However, the rule also allows an officer to document an "observation" or "a voluntary encounter," without reasonable suspicion.

at secs. 4.3, 4.4. An "observation" may be documented only "where the information collected serves a legitimate intelligence purpose,"

at sec. 4.3, and an "encounter" may be documented only if the officer has "a legitimate intelligence purpose for the encounter,"

at sec. 4.4. A "legitimate intelligence purpose" includes observing, or speaking to, "[a]n individual known to be associated with a gang."

at sec. 4.3; see also

at sec. 4.4.

At least since 2011, the BPD has labeled these interactions as FIOEs -- "Field Interaction/Observation/Encounter[s]" -- but it

- 14 - officer then documents the FIO.7 At the time of Diaz Ortiz's

immigration hearing, if the subject of an FIO was verified as a

gang member or associate, the "name and supporting documentation"

would be forwarded to the Boston Regional Intelligence Center

("BRIC") for entry into Boston's Gang Assessment Database. See

Boston Police Dep't Rules & Procedures, Rule 335, Gang Assessment

Database 4 (Mar. 23, 2017) (hereinafter "Rule 335 (2017)"),

https://www.ca1.uscourts.gov/sites/ca1/files/citations/rule335%2

B%28gang%2Bdatabase%29.pdf.8 BRIC, which maintains the database,

also continues to use the FIO acronym. See Rule 323 (using the FIOE label); Boston Police Dep't, Boston Police Commissioner Announces Field Interrogation and Observation (FIO) Study Results (Oct. 8, 2014), https://bpdnews.com/news/2014/10/8/boston-police- commissioner-announces-field-interrogation-and-observation-fio- study-results?rq=fio%20dATA (noting "Significant Changes to Department FIO Rule in 2011," including that "[t]he new FIO Rule adds an encounter to the list of documentable interactions, to ensure that those interactions that do not rise to a Terry Stop are properly documented").

7 The FIOs involving Diaz Ortiz are documented in various ways. Some FIOs are documented in actual police reports ("Field Interview Reports," as the BPD titles them), while others are described only in "gang intelligence bulletins," single-page documents that look like PowerPoint slides and have slide numbers. Each bulletin consists of a one-sentence description of an FIO, along with photos of the individuals who are the subject of the bulletin captioned with their names, addresses, and birth dates.

8 In June 2021, the BPD amended Rule 335 to exclude the use of FIO reports "as the sole verification criteria for any individual." Boston Police Dep't Rules & Procedures, Rule 335, Gang Assessment Database, sec. 5 (June 8, 2021) (hereinafter "Rule 335 (2021)"), https://static1.squarespace.com/static/5086f19ce4b0ad16ff15598d/ t/60c008de38813c6f9ecda1f9/1623197918488/ACFrOgB2rFeSFgLdZEW8mws 9eunEbgjaWMwzU5UJnIMONIeFfoVLprGEvsHWcfTYpaI4hoI30Ioacz7pDChr_r4

- 15 - "is a unit of the Boston Police Department that gathers and

investigates information in an effort to reduce violence in

Boston." Sarah Betancourt, Boston center's gang database lists

3,853 people, CommonWealth (Mar. 9, 2021),

https://commonwealthmagazine.org/criminal-justice/boston-

centers-gang-database-lists-3853-people/.9 DHS and other agencies

have been able to access the intelligence stored in the database.

See id.10

LIBNaBY0RnDvKYv4BH- 1fuE_FV0q6FmD6J07iocJKdM9B95o1TG8BvW6GTi9o.pdf. The recent changes obviously may play no role in our assessment of the BIA's and IJ's decisions, but we describe the amendments where relevant to our discussion. In referring to Rule 335, we will indicate whether it is the 2017 version applicable to Diaz Ortiz's original proceedings or the amended 2021 rule. One further note: the 2017 version was not divided into sections, and we therefore refer to its page numbers. The amended version contains section numbers.

9 The government did not provide the IJ with information about this chain of reporting when it submitted the gang package at Diaz Ortiz's merits hearing, and we have therefore drawn this background from publicly available sources.

10 The amended rule states that "[t]he database is only used for valid law enforcement purposes." Rule 335 (2021), sec. 3; see also

at sec. 6 ("Authorized users must have a legitimate law enforcement purpose for accessing the Gang Assessment Database.");

at sec. 8 (stating that "[a]uthorized [u]sers may access the Gang Assessment Database when there is a legitimate law enforcement purpose for doing so, such as an ongoing investigation or in support of a prosecution"). The older version of the rule stated that officers needed "a legitimate law enforcement purpose" to access the database, but it did not place the same limit on "authorized user[s]." Rule 335 (2017), at 3. Given the recency of the amendments to the rule, the record in this case contains no information about whether the changes have affected DHS's access to the database.

- 16 - The BPD uses a point system to verify suspected gang

members, and different types of conduct are assigned different

point values. See Rule 335 (2017), at 2-3. For example, the

Department's non-exhaustive list of triggering conduct includes

having a gang-related tattoo and participating in gang

publications, each worth eight points. Id. at 3. Also on the

list is "Contact with Known Gang Member/Associate (FIO)," which is

worth "2 points per interaction." Id. At the time of Diaz Ortiz's

hearing, a person who accrued six points was labeled a gang

associate, and a person who accrued ten points was deemed a gang

member. Id.11

BRIC generates a "Gang Member VERIFICATION Report" for

individuals who have been entered into the database. Diaz Ortiz's

report identifies him as a primary, active, and "[v]erified" member

of MS-13 and indicates that he has accrued "21 points." All

twenty-one points resulted from his contacts with "known" gang

members or associates. The Gang Member Verification Report shows

that sixteen of the points were assigned for eight instances of

"Contact with Known Gang Members/Associates." The remaining five

points were assigned for one incident, described in a Boston School

11The 2021 version of the rule does not distinguish between gang "associates" and "members," and it specifies that a gang associate is "[a]ny person . . . that has been verified using the Point-Based Verification System defined by this Rule and has obtained at least ten (10) points." Rule 335 (2021), sec. 4.2.

- 17 - Police "Intelligence Report," that is listed under "Information

Developed During Investigation and/or Surveillance." The

corresponding report, however, simply documents that Diaz Ortiz

was seen with young men who were suspected MS-13 members.

Thus, Diaz Ortiz was assigned points for nine FIOs.

There are sixteen reports and bulletins involving Diaz Ortiz in

the Gang Assessment Database, but some FIOs are accompanied by

both a police report and a gang intelligence bulletin. There is

also one Boston School Police report in the database for which

Diaz Ortiz was not assigned any points.12

The nine encounters for which Diaz Ortiz was assigned

points are the following:

-— March 8, 2017 (2 points13): Diaz Ortiz was smoking

marijuana in an alleyway with another Hispanic teenager.14 Diaz

Ortiz also had a small amount of marijuana on his person, a civil

12 That report, detailing events that occurred on September 14, 2017, states that Diaz Ortiz was in the East Boston Stadium with "a group of known MS-13 members" who were approached by a Hispanic male who identified himself as Eric Quevedo. According to the report, as Quevedo was leaving the area, "he got into a verbal confrontation with [another individual] who made reference to the fact that QUEVEDO was an MS-13 member."

13 This police report does not designate Diaz Ortiz's companion as an "MS-13 Gang Member," as later reports do, but Diaz Ortiz was nevertheless assigned points for the FIO.

14The Field Interview Reports identify the individuals with whom Diaz Ortiz associated as Hispanic. All references to individuals' ethnicities are drawn from the law enforcement documents being described.

- 18 - offense in Massachusetts. See Mass. Gen. Laws ch. 94C, § 32L

(effective July 28, 2017).15

-— September 13, 2017 (2 points): Diaz Ortiz was smoking

marijuana on the front steps of a building with another Hispanic

teenager, who is identified in the police report as a "known MS-

13 gang member."

-— November 28, 2017 (5 points): Boston School Police

officers saw a student wearing a "full face mask" and spoke with

the student, whom they identified as a member of MS-13. That

student then walked up to a group of other teenage boys, including

Diaz Ortiz, and "met with" them.

-— April 3, 2018 (2 points): Diaz Ortiz and another

Hispanic teenager were found skipping school and smoking marijuana

in a park. The police report states that the two teenagers were

"known to the officer as verified MS-13 gang members"16 and had a

"history of carrying weapons," but none of the prior reports in

the gang package mention Diaz Ortiz carrying a weapon. The officer

15 At that time, possession of one ounce or less of marijuana was a civil offense. See Mass. Gen. Laws ch. 94C, § 32L (effective Dec. 4, 2008 to July 27, 2017). The triggering amount increased to two ounces or less on July 28, 2017. See Mass. Gen. Laws ch. 94C, § 32L (effective July 28, 2017).

16Prior to this FIO, Diaz Ortiz had only accrued nine points -- enough to be considered a gang "associate" using the BPD's point system under the 2017 version of the BPD's Rule 335, but not a gang "member," as the police report represents. See Rule 335 (2017), at 3.

- 19 - did a pat frisk of the two teens and found an aluminum baseball

bat in the right pant leg of Diaz Ortiz's companion, which the

officer confiscated. The teens were warned about smoking marijuana

in a park and released.

-— May 28, 2018 (2 points): Diaz Ortiz was "loitering"

with three other Hispanic teenagers whom the officer conducting

the FIO "knew" to be MS-13 members.

-— June 1, 2018 (4 points assigned for two FIOs): (1)

Diaz Ortiz was seen with a group of teenagers in front of a building

where one member of the group lived, which officers noted was "a

known hangout and address" for MS-13 members; and (2) Diaz Ortiz

was stopped with two other teenagers, one of whom officers believed

had a warrant out for his arrest, but when the officers ran their

names there were no outstanding warrants.

-— June 21, 2018 (2 points): Diaz Ortiz was sitting on

the track benches of the East Boston Stadium after hours with four

other teenagers, three of whom were "verified" MS-13 "associates."

Officers told them to leave. A notation on the report made by HSI

Special Agent Connolly observes that the East Boston Stadium is

"notorious for MS-13 gang activity."

-— August 1, 2018 (2 points): Officers stopped Diaz

Ortiz and two other Hispanic teenagers as they were walking out of

a park. Diaz Ortiz was carrying a backpack and told the officers

that he had a metal chain with a padlock in it that he used for

- 20 - his bicycle. A notation made by Special Agent Connolly on a gang

intelligence bulletin about the encounter asserts that "MS-13 gang

members commonly carry large metal chains with locks to be used

[i]n gang related assaults."17 The officers confiscated the chain

and released the three teenagers. Nothing in the gang package

suggests that Diaz Ortiz ever used the bike chain and lock as a

weapon.

2. The Expert Critique of the Gang Package

As noted above, Diaz Ortiz submitted an affidavit from

Professor Nolan, a former Boston police officer, in advance of his

merits hearing. Nolan spent twenty-seven years as an officer in

the BPD and nine as a lieutenant. Since leaving the Department,

he has taught criminal justice courses at six colleges and

universities and written an academic book on policing issues, see

Thomas Nolan, Perilous Policing: Criminal Justice in Marginalized

Communities (2019), as well as numerous articles and essays on the

subject. Nolan concluded that Diaz Ortiz "should not have been

listed as a verified gang member" in the BRIC Gang Assessment

Database because the "intelligence" about Diaz Ortiz does not

comply with federal regulations governing shared criminal

17The notation does not attribute that assertion to any source, although the record contains a January 2016 newspaper article on MS-13 stating that one gang leader told members to "dress down and carry a bicycle chain with a lock for a weapon, instead of a gun or a knife."

- 21 - intelligence databases in the Code of Federal Regulations. See

generally 28 C.F.R. Part 23. The regulations are implicated, Nolan

explains, because the Gang Assessment Database "is an

interjurisdictional shared database that [is] accessible to other

agencies."

Part 23 of the Code's Title 28 was originally adopted in

1980 to ensure that the operation of criminal intelligence systems

was not undertaken "in violation of the privacy and constitutional

rights of individuals," Criminal Intelligence Systems Operating

Policies,

, 40,156 (June 13, 1980), a purpose

that has remained unchanged, see

. The regulations

provide that entities that operate "interjurisdictional

intelligence system[s]," see

§ 23.3(b)(5), like BRIC, "shall

collect and maintain criminal intelligence information concerning

an individual only if there is reasonable suspicion that the

individual is involved in criminal conduct or activity and the

information is relevant to that criminal conduct or activity," id.

§ 23.20(a).

Nolan emphasizes that Diaz Ortiz faced no criminal

charges for any of the incidents documented in the Boston gang

database and that "there was no direct relation between these

encounters and any reasonable suspicion of [Diaz Ortiz's]

involvement in criminal activity." Thus, Nolan concludes, the

- 22 - information about Diaz Ortiz "should not be contained within the

database" and is "not reliable."

In addition to his pre-hearing submission of Professor

Nolan's affidavit, Diaz Ortiz submitted a supplemental brief after

the hearing that focused specifically on the gang package and

reiterated his contention that its contents were unreliable and,

hence, an improper basis for concluding that Diaz Ortiz was a gang

member or involved in gang activities. Diaz Ortiz's brief

described the point system used by the BPD and argued that it "can

criminalize normal teenage behaviors such as associating with

others of the same ethnicity." And he included in his brief a

two-and-a-half-page chart detailing the inconsistencies throughout

the gang package -- for example, he flagged that the April 3, 2018,

police report mentions his "history of carrying weapons" but that

no prior entries describe him carrying weapons. Diaz Ortiz

therefore asked the IJ not to consider the gang package or, if the

IJ did consider it, to give it "minimal weight" in analyzing his

application for relief.

II.

A. The IJ's Decision

The IJ began his assessment of the record with the

"threshold" determination that Diaz Ortiz was not credible,

initially attributing that finding to inconsistencies in his

testimony and "the lack of corroboration." The IJ gave limited

- 23 - weight to the supporting affidavits from Diaz Ortiz's family

members and noted a shift he perceived in Diaz Ortiz's testimony

concerning his family's store: "At first during his testimony, he

stated that he owned a store that sold Christian paraphernalia.

However, he later revisited this fact and stated that the store

actually belonged to his family." Although the IJ was "persuaded

that [Diaz Ortiz's] family may have been evangelical Christians,"

"such does not necessarily indicate that [Diaz Ortiz] is an

evangelical Christian."

Then, without addressing Diaz Ortiz's arguments about

the unreliability of the gang package, the IJ went on to find that

Diaz Ortiz was "not credible pertaining to his gang membership,"

remarking that Diaz Ortiz "alleges that he is not an MS-13 gang

member, despite the plethora of evidence found within" the gang

package. The IJ specifically stated that he was "unpersuaded" by

Diaz Ortiz's explanation for the chain and padlock seized from him

on August 1, 2018. Elaborating, the IJ stated: "Upon questioning

by the Court, [Diaz Ortiz] stated that he uses the train for

transportation and did not make any mention of the bicycle."

The IJ continued by explaining that,

[t]roublingly, the Respondent stated that a Christian cannot be a member of MS-13; however, the evidence indicates that he likely is a MS-13 member. Given the significant evidence that the Respondent is a MS-13 gang member, the Court casts great doubt on whether

- 24 - the Respondent is actually an evangelical Christian.

Relying on that doubt, the IJ concluded that Diaz Ortiz had not

met his burden to prove statutory eligibility for asylum and did

not consider whether the evidence would have entitled Diaz Ortiz

to relief if he were credible. With respect to Diaz Ortiz's claim

that he had experienced past persecution in El Salvador, the IJ

explained that, "based on the Court's adverse credibility

determination, the Court is unable to find that these events

actually occurred as described." The IJ likewise found that Diaz

Ortiz's lack of credibility undermined his assertion that his life

would be threatened on account of a protected ground if he returned

to El Salvador.18 The IJ also found that Diaz Ortiz did not merit

a favorable exercise of discretion because of his gang

membership,19 and that he did not qualify for withholding of removal

or relief under the Convention Against Torture.

18 Diaz Ortiz originally asserted persecution based on his political opinion and membership in a particular social group, as well as on his religion. He has since focused on his identity as an evangelical Christian and his "related affiliations as a Salvadoran evangelical youth leader and a Salvadoran evangelical who proselytizes."

19 In explaining why he would deny relief as a matter of discretion even if Diaz Ortiz were eligible for asylum, the IJ said the following:

DHS has filed numerous documents stating that [Diaz Ortiz] is affiliated with a gang or a member of such. He has been stopped by the police several times, and on at least one

- 25 - B. The BIA's Decision

In his appeal to the BIA, Diaz Ortiz argued that the IJ

violated his due process rights by relying on the gang package to

conclude that he was not credible on the question of his gang

membership. The BIA, however, found no clear error in the IJ's

adverse credibility determination, noting that it was "based on

inconsistencies between [Diaz Ortiz's] testimony and the

documentary evidence." The BIA pointed to Diaz Ortiz's testimony

that he had never joined a gang and that a Christian could not be

in a gang, contrasting that assertion with the evidence in the

gang package, including that he was a "'VERIFIED and ACTIVE member

of the MS-13 gang in the Boston metro area'" and that he had been

"'documented carrying common MS-13 gang related weapons,'

including 'large metal chains with locks . . . used in gang related

assaults.'"

The BIA acknowledged Diaz Ortiz's explanations for the

evidence cited by the IJ -- including that he had the lock and

chain for his bike -- but observed that the IJ "did not find these

explanations to be reasonable." Apparently to demonstrate that

occasion, he was found with a lock and chain, a weapon frequently used by local gang members. His gang affiliations are also well- documented by law enforcement agencies. Because gang affiliation is an incredibly dangerous factor, the Court finds that it is a serious negative inequity that is not offset by [Diaz Ortiz]'s positive equities.

- 26 - the IJ's view was supportable, the BIA then turned to the specific

encounters between Diaz Ortiz and law enforcement officers that

were described in the police reports in the gang package and from

which Diaz Ortiz's gang affiliation purportedly could be inferred.

The BIA noted that Diaz Ortiz "had multiple contacts with law

enforcement when he associated with known gang members in areas

frequented by the gang, and [he] admitted that he previously

testified that he 'did not use any other means of transportation

other than a train' in Boston."

The BIA dispatched in a lengthy footnote Diaz Ortiz's

argument that it was fundamentally unfair, and thus a due process

violation, for the IJ to rely on the gang package to find him not

credible. Specifically, the BIA rejected as "not borne out by the

record" Diaz Ortiz's assertion of inconsistencies in the gang

package. Rather, the BIA stated, the reports "consistently

indicate that the respondent associated with known MS-13 gang

members in areas of Boston frequented by the gang and carried gang-

related weapons."

The BIA noted Professor Nolan's critique of the gang

package, including his assertion that the reports about Diaz Ortiz

in the gang database violate federal regulations because the

database does not identify information giving "rise to a reasonable

suspicion that the respondent participated in criminal activity."

In response, without identifying any criminal activity by Diaz

- 27 - Ortiz, the BIA observed that "the professor does not explain why

the respondent's associations with known MS-13 gang members in

areas frequented by the gang, along with the fact that gang-related

weapons were found on his person, do not give rise to a reasonable

suspicion." The BIA did not address Nolan's critique that the

"known MS-13 members" with whom Diaz Ortiz was seen associating

might themselves have been identified as such based on the same

problematic foundation. Further sidestepping the contention that

Diaz Ortiz's inclusion in the gang database was inconsistent with

federal law, the BIA deemed "[s]ignificant[]" that "counsel has

not presented evidence that the respondent has been removed from

the Boston police's database because his inclusion was unlawful."

The BIA expressly noted that it did not rely on the IJ's

finding that Diaz Ortiz testified inconsistently about the

ownership of his family's store. The BIA also stated in a footnote

that, even if Diaz Ortiz's explanations for the inconsistencies

found by the IJ were plausible, "the Immigration Judge's findings

are also plausible in light of the record as a whole, and thus

they are not clearly erroneous."

C. Petition for Review to the First Circuit

On review of the BIA's decision, the panel was divided.

The majority rejected Diaz Ortiz's contention that the IJ's adverse

credibility determination was not supported by substantial

evidence. See Diaz Ortiz v. Barr,

(1st Cir.

- 28 - 2020). The dissent asserted that the agency's reliance on the

"seriously flawed" gang package undermined the credibility finding

and resulted in a due process violation that required new

proceedings.

. That disagreement became the focus of

Diaz Ortiz's request for rehearing en banc.

We granted that request, vacated the panel decisions,

and now reconsider Diaz Ortiz's petition for review. He again

asserts that the IJ's and BIA's reliance on the gang database

denied him due process and that the IJ's adverse credibility

finding is not supported by substantial evidence. He further

asserts that the record demonstrates that he is eligible for

immigration relief, and that -- at a minimum -- he is entitled to

a new hearing.

III.

A. Legal Principles

Where, as here, the agency's denial of relief rests on

both the IJ's conclusions and the BIA's further justifications for

the IJ's findings, we review both administrative decisions. See

Zhakira v. Barr,

(1st Cir. 2020). "We assess the

agency's legal determinations de novo and its 'factual findings

under the deferential substantial evidence standard, meaning that

we will not disturb such findings if they are supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'"

(quoting Ramírez-Pérez v. Barr, 934

- 29 - F.3d 47, 50 (1st Cir. 2019)) (additional internal quotation marks

omitted).

An adverse credibility determination is a factual

finding subject to the substantial evidence standard. See Cuesta-

Rojas v. Garland,

(1st Cir. 2021). In

evaluating an asylum-seeker's credibility, the IJ may take

inconsistencies into account "without regard to whether

[they] . . . go[] to the heart of the applicant's claim,"

(b)(1)(B)(iii), so long as the resulting adverse credibility

determination is "sustainable" based on the record as a whole,

Cuesta-Rojas,

. We are obliged to "uphold

credibility findings if 'the IJ has given reasoned consideration

to the evidence and has provided a cogent explanation for his

finding.'" Huang v. Holder,

(1st Cir. 2010)

(quoting Muñoz-Monsalve v. Mukasey,

(1st Cir. 2008));

see also Cuesta-Rojas,

.

Asylum relief requires proof that the petitioner is

"unable or unwilling" to return to his home country "because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion."

(a)(42)(A); see also

Zhakira,

. Withholding of removal requires the

applicant to show a higher likelihood of future persecution. See

Avelar Gonzalez v. Whitaker,

, 828 & n.3 (1st Cir.

- 30 - 2018);

(b)(3)(A);

(b)(2). To

prevail on his CAT claim, Diaz Ortiz would need "to show by a

preponderance of the evidence that, if returned to El Salvador,

'he would be subject to torture by or with the acquiescence of a

government official.'" Perez-Trujillo v. Garland,

(1st Cir. 2021) (quoting Aldana-Ramos v. Holder,

(1st Cir. 2014)) (additional internal quotation marks omitted);

see also

(c)(2), 1208.18(a)(1).

The IJ did not consider whether Diaz Ortiz's testimony

and his supporting evidence would have satisfied these standards

for relief if he had found Diaz Ortiz credible. Rather, as

recounted above, the IJ identified inconsistencies between Diaz

Ortiz's testimony and other evidence in the record -- primarily,

that contained in the gang package -- as the basis for discrediting

Diaz Ortiz's professed adherence to evangelical Christianity and

finding that he was a member of MS-13. The BIA likewise cited the

evidence of Diaz Ortiz's gang association as support for the IJ's

factual findings.

Diaz Ortiz argues that the gang package is so flawed

that it should not have been considered at all in the IJ's and

BIA's assessment of his claims for immigration relief. He contends

both that the gang package's overarching conclusion that he is a

gang member -- based on the point system -- is wrong and that the

underlying reports that he associated with gang members are

- 31 - themselves not reliable evidence that he did so. Accordingly, he

asserts, the record fails to support the IJ's credibility finding

with substantial evidence. We thus begin by examining Diaz Ortiz's

challenge to the agency's reliance on the gang package.

B. The Reliability of the Gang Package

Unmistakably, the IJ and BIA both gave the gang package

substantial weight in finding Diaz Ortiz not credible. However,

it is important to distinguish between two materially different

types of content in the package: (1) the police reports detailing

specific encounters with Diaz Ortiz, and (2) the gang "evidence"

drawn from those reports, using the BPD's point system and other

non-percipient information. That distinction is significant in

evaluating the IJ's credibility determination.

In affirming that determination, the BIA "consider[ed]

the totality of the circumstances," recounting the evidence and

Diaz Ortiz's responses as follows:

The respondent was . . . confronted with documents from Homeland Security Investigations and the Boston Police Department indicating that he is a "VERIFIED and ACTIVE member of the MS-13 gang in the Boston metro area." These documents reflect that the respondent has "documented associations with MS-13 members" and "frequent[ed] areas notorious for MS-13 gang activity." Finally, they state that the respondent "has been documented carrying common MS-13 gang related weapons," including "large metal chains with locks . . . used in gang related assaults."

- 32 - When pressed, the respondent explained that he was not a gang member, and he did not know that the people he associated with were gang members or that the areas they spent time in together were frequented by the gang. He also explained that the lock and chain found on his person were for his bike. The Immigration Judge did not find these explanations to be reasonable. The respondent had multiple contacts with law enforcement when he associated with known gang members in areas frequented by the gang, and the respondent admitted that he previously testified that he "did not use any other means of transportation other than a train" in Boston.

(citations omitted) (alteration and omission in original).

Because the BIA affirmed the IJ's decision based on the "totality

of the circumstances," we understand the BIA to have relied on

both the police reports themselves and the "gang evidence" derived

from the use of the point system. Consequently, if any aspect of

this evidence is unreliable, the stated evidentiary basis for the

agency's decision would be undermined. Here, it turns out, the

agency's reliance on the challenged evidence is problematic for

the reasons we now explain.

We previously have rejected a challenge to the agency's

use of law enforcement reports similar to the FIOs, noting that

"[n]othing in the record compels us to find that the police and

other government reports were so obviously unreliable as to render

the agency's reliance on them an abuse of the agency's wide

discretion." Miranda-Bojorquez v. Barr,

(1st Cir.

- 33 - 2019); see also Arias-Minaya v. Holder,

(1st Cir.

2015) ("[I]t is settled beyond hope of contradiction that

. . . immigration courts may consider police reports even when

they rest largely on hearsay."). We recognized that limits on the

use of such materials exist, but we observed that "those limits

are generally satisfied as long as the trier first determines that

the report is reliable and that its use would not be fundamentally

unfair." Arias-Minaya,

(emphasis added).

Diaz Ortiz contends that, unlike in the cases cited

above,20 no such threshold determination of reliability was made

here despite the compelling evidence to the contrary that he

provided. He particularly targets the portion of the gang package

that concluded that he was a member of MS-13. In other words,

this objection does not attack the government's use of the police

20 In Arias-Minaya, the IJ had observed that "the petitioner had offered no reason to doubt either the reliability of the police report or the truth of the facts set forth therein."

. We also noted that "the IJ determined (and the BIA confirmed) that the police report was reliable and probative of the petitioner's character."

.

Similarly, in Miranda-Bojorquez, we observed that, "not only did the IJ find the reports reliable and that their use would not be fundamentally unfair, but he also gave Miranda an opportunity to rebut their reliability."

. As previously noted, we also stated that "[n]othing in the record compels us to find that the police and other government reports were so obviously unreliable as to render the agency's reliance on them an abuse of the agency's wide discretion."

- 34 - officers' firsthand accounts of their encounters with him.21

Rather, he objects to the way those reports are used in the

database, and he faults the IJ and BIA for uncritically accepting

the conclusion that he is a gang member despite the abundant

evidence he submitted of the faulty underpinnings for that

conclusion.

The record amply justifies Diaz Ortiz's critique of the

agency's deference to the gang package. Despite his assertion

that the law enforcement reports in the database -- the building

blocks for identifying Diaz Ortiz as a "verified" member of MS-13

-- do not support that classification, neither the IJ nor BIA

considered whether the interactions documented by the FIOs, and

the points assigned to those encounters, were reliable indicators

of gang affiliation. See, e.g., Vasquez v. Rackauckas,

(9th Cir. 2013) (noting that "the lack of objective

criteria" for assessing whether an individual is an active gang

member, inter alia, "presents a considerable risk of error" and

requires "careful factfinding").

If the IJ and BIA had performed even a cursory assessment

of reliability, they would have discovered a lack of evidence to

21That is not to say that Diaz Ortiz agrees that the FIOs are entirely accurate. As noted above, his post-hearing brief to the IJ identified numerous inaccuracies in the police reports, including an unsubstantiated statement that he had a "history of carrying weapons." However, he does not contest most of the percipient details of the reported encounters.

- 35 - substantiate the gang package's classification of Diaz Ortiz as a

member of MS-13. Most significantly, the record contains no

explanation of the basis for the point system employed by the BPD.

The record is silent on how the Department determined what point

values should attach to what conduct, or what point threshold is

reasonable to reliably establish gang membership.

That silence is so consequential because, during the

period relevant to this case, the list of "items or activities"

that could lead to "verification for entry into the Gang Assessment

Database" was shockingly wide-ranging. Rule 335 (2017), at 2. It

included "Prior Validation by a Law Enforcement Agency" (nine

points), "Documented Association (BPD Incident Report)" (four

points), and the open-ended "Information Not Covered by Other

Selection Criteria" (one point). Id. at 3.22 The 2017 form for

submitting FIO reports to the database states that a "Documented

Association" includes virtually any interaction with someone

identified as a gang member: "[w]alking, eating, recreating,

communicating, or otherwise associating with confirmed gang

22Among other changes, the 2021 revised rule does not include the open-ended entry in the list of items, and the rule now specifies that validation by another law enforcement agency is limited to agencies whose validation process is "at least as rigorous as that used by the Boston Police Department." Rule 335 (2021), sec. 5. Also, the rule now provides that reports submitted for verification "must be manually reviewed by a BRIC analyst and supervisor to determine compliance" with the rule before they are entered into the database. Id. at sec. 7.

- 36 - members or associates." See Rule 335 (2017), at 6. "Contact with

Known Gang Members/Associates (FIO)" -- the category used for

nearly all of Diaz Ortiz's point accumulation -- includes

"[v]isiting, corresponding, or engaging in financial transactions

with gang members or associate[s]." Id.

Scholarly critiques of gang databases that employ

similar point systems have recognized that they cast too wide a

net. See, e.g., Kevin Lapp, Databasing Delinquency,

, 210 (2015) ("The broad criteria for inclusion in gang

databases, and the discretion afforded to law enforcement in

deciding whom to include, make it difficult for young people living

in gang-heavy communities to avoid qualifying criteria."); K. Babe

Howell, Fear Itself: The Impact of Allegations of Gang Affiliation

on Pre-Trial Detention,

, 649 (2011)

(remarking that "[t]he criteria for inclusion in gang databases

are almost entirely unrelated to criminal conduct or even to active

participation in gang activities" and create "the potential for

false positives"); Joshua D. Wright, The Constitutional Failure of

Gang Databases,

, 125 (2005) ("The

subjective criteria used to document gang members . . . reinforce

the suspicion that databases, even if properly managed and

administered, are excessively over inclusive and overstate

minority participation rates.").

- 37 - Moreover, the point system was applied to Diaz Ortiz in

a haphazard manner. He was assigned points for most, but not all,

of his documented interactions with purported MS-13 members. When

he was assigned points, he was not always assigned the same number

per interaction. Although he was assigned two points for "contact"

with alleged gang members or associates on most occasions, he was

assigned five points for the "Intelligence Report" submitted by

the Boston School Police that describes an encounter that appears

no different from the other "contacts." Only two items in the

Rule 335 list carry five points: "Information from Reliable,

Confidential Informant" and "Information Developed During

Investigation and/or Surveillance." See Rule 335 (2017), at 3.

We thus cannot accept the BIA's implicit conclusion that the gang

package's points-driven identification of Diaz-Ortiz as a

"VERIFIED and ACTIVE" member of MS-13 was reliable.

The FIOs describing Diaz Ortiz's contacts with law

enforcement that were contained in the gang package were themselves

similarly unreliable. Consequently, even if the BIA had relied

exclusively on the material in the FIOs -- rather than also relying

on the points-based conclusion that Diaz Ortiz himself was a gang

member -- we would still have reason to fault the BIA's affirmance

of the IJ's credibility determination. For example, several of

the FIOs specifically state that the individuals with whom Diaz

Ortiz was interacting were deemed "verified MS-13 gang members"

- 38 - because the BRIC database classified them as such, presumably

utilizing the flawed point system we have described. As Professor

Nolan points out in his affidavit, "it is unclear from the

information provided by the Gang Assessment Database how any other

named individuals were verified as members of MS-13. Given the

problems with [Diaz Ortiz's] inclusion as a 'verified member,' it

is possible that these individuals also should not have been

included."

The entry for November 28, 2017 -- the report from a

Boston school officer -- illustrates several of these issues. The

gist of the entry is that two officers made "casual conversation"

with a student in a "full face mask" whom they identified as a

member of MS-13, and they then saw the student walk over to a group

of teenage boys that included Diaz Ortiz. The report identifies

no improper conduct by any of the students; it does not say that

the mask bore gang colors or symbols;23 it does not indicate that

the masked student spoke directly to Diaz Ortiz. Nor does the

report explain the basis for identifying the student as an MS-13

member other than to say that the BRIC labeled the student as a

"verified" member. Therefore, we at most can infer from this

paltry set of facts that Diaz Ortiz was standing near an individual

23In his en banc supplemental brief, Diaz Ortiz states, though without citation to the record, that the face mask was "an 'animal hoodie' that was popular attire for students attending the high school at that time."

- 39 - who was identified as an MS-13 member by the BRIC, with the only

basis for that identification the possible use of the same

problematic point system that identified Diaz Ortiz as a member.

Yet, Diaz Ortiz received five points merely because that student

decided to walk over and join a group that included him.24

Other FIOs in the gang package, including encounters on

June 1 and June 21, 2018, are flawed for the same reason. They

say that the individuals with whom Diaz Ortiz was found were gang

members in part because the BRIC database "verified" them as such.

We have no reason to believe that the BRIC labeled these

individuals as gang members on any basis other than an application

of the flawed point system. For the reasons we have already

explained, an identification of an individual based on the point

system alone, without additional information to bolster the

credibility of its conclusion, is not reliable. Therefore, the

BIA could not have properly affirmed the IJ's credibility

determination on the ground that Diaz Ortiz was associating with

A news story published in March 2021 reported that, 24

according to the BPD, school resource officers no longer communicate with BRIC or federal immigration authorities. See Sarah Betancourt, Boston center's gang database lists 3,853 people, CommonWealth (Mar. 9, 2021), https://commonwealth magazine.org/criminal-justice/boston-centers-gang-database- lists-3853-people/.

- 40 - gang members and, for that reason, was not believable in asserting

that he is a devout Christian opposed to gangs.25

In addition, there is a patent disconnect between Diaz

Ortiz's conduct as described in the database and any threatening,

"gang-like" activities. None of the reports support an inference

that he had participated in criminal activity at all,26 let alone

the kinds of violent crimes for which MS-13 is infamous.27 Indeed,

absent the unsubstantiated statements that those with whom he

associated were gang members, the FIOs show no more than a teenager

engaged in quintessential teenage behavior -- hanging out with

friends and classmates. These social encounters occurred in

unremarkable neighborhood locations for this peer group: at a park,

at school, in front of one teenager's home, on the benches in an

empty stadium. The record lacks any evidence as to why assigning

25 In his testimony before the IJ, Diaz Ortiz did not explicitly deny that the other individuals with whom he was found to be associating were gang members. Rather, he stated that he was not aware that such was the case. However, Diaz Ortiz was not obliged to prove that those individuals were not gang members. It was the government's obligation to demonstrate that they were MS- 13 associates through the gang package or other evidence.

26 As previously noted, possession of a small amount of marijuana was a civil offense in Massachusetts, see supra note 15, and the officers who observed Diaz Ortiz using marijuana took no action against him.

27 Presumably, the arrest of Diaz Ortiz by ERO and HSI in August 2018 was based solely on his supposed status as a gang member, not criminal activity, as no criminal conduct is noted anywhere in the DHS memorandum reporting the arrest.

- 41 - points for those interactions was a reliable means of determining

gang membership. Certainly, the fact that the young men were all

Hispanic does not permit an inference that any, or all, of them

were gang members. See generally Jeffrey Fagan, et al., Final

Report: An Analysis of Race and Ethnicity Patterns in Boston Police

Department Field Interrogation, Observation, Frisk, and/or Search

Reports 20 (2015),

https://s3.amazonaws.com/s3.documentcloud.org/documents/2158964/

full-boston-police-analysis-on-race-and-ethnicity.pdf (reporting

"racially disparate treatment of minority persons in BPD FIO

activity").

In rejecting Diaz Ortiz's due process challenge, the BIA

ignored the problems with the government's evidence and

discredited Professor Nolan's views because Diaz Ortiz had

"associated with known MS-13 gang members" in areas frequented by

gang members and "carried gang-related weapons," i.e., the bicycle

chain and lock.28 In other words, while acknowledging that Nolan

had raised serious doubts about the gang database's reliability,

the BIA responded to those concerns in circular fashion -- relying

on the questionable data about Diaz Ortiz's peers to deflect the

criticism of the questionable data about Diaz Ortiz.

28As recounted above, the database contains no information that Diaz Ortiz possessed "weapons," aside from the reference to the single occasion that he was reported to have the chain and lock.

- 42 - The government argues that the IJ and BIA could find

Diaz Ortiz's claim to be an evangelical Christian not credible

based on his undisputed "bad" behaviors: trespassing at the East

Boston Stadium, smoking marijuana, skipping school, and

associating with a peer who had a baseball bat concealed in his

pants leg.29 But even if such a finding would be supportable --

an assessment we need not make -- that is not the finding that was

made here. The IJ and the BIA expressly invoked the conclusion

drawn in the database that Diaz Ortiz was a member of MS-13, and

their view of the evidence was necessarily colored by the

assumption that gang members or associates were involved in each

observed interaction. Indeed, none of these non-violent behaviors

would even be fodder for entry into the Gang Assessment Database

without that assumption.

The government emphasizes in its en banc briefing, and

it reiterated at oral argument, that "[a]t least seven different

police officers on at least six different occasions indicated that

they knew various individuals -- Diaz Ortiz and people he

associated with -- to be gang members." Although the government

describes these as "statements of personal knowledge," there is

little in the record to support this claim. None of the FIOs,

The government also points to Diaz Ortiz's possession of 29

the bike lock without his bicycle in its catalogue of "bad" behaviors. As we explain below, this categorization rests on tenuous assumptions grounded in the problematic gang package.

- 43 - with the exception of the one concerning the September 14, 2017

encounter that garnered no points in the BRIC, see supra note 12,30

provide any specific facts supporting the assertion that the

individuals identified were MS-13 gang members. Most state that

the officers identified the individuals as gang members or that

the officer knew them to be such, but they do not specify whether

that belief stemmed from the point system or from personal

knowledge.

Moreover, no officer testified at Diaz Ortiz's

immigration hearing or submitted an affidavit or sworn statement

articulating what that personal knowledge, if it existed, might

have been. Accordingly, the record fails to show personal

knowledge for the officers' statements that Diaz Ortiz was with

gang members such that those statements could properly cast doubt

on the veracity of his testimony. Diaz Ortiz testified that he

did not know that he had been socializing with anyone associated

with a gang, and the government's assertion that he must have known

is based solely on the information in the database that is

unreliable for the reasons we have discussed. The record simply

leaves unanswered whether any of Diaz Ortiz's neighborhood and

school friends were in fact gang members or associates.

Neither the IJ nor BIA specifically referred to this 30

encounter in their decisions.

- 44 - As noted above, and apparently in response to critiques

like those submitted by Diaz Ortiz in this case, the BPD has

acknowledged that FIOs, on their own, do not provide an adequate

foundation for verifying individuals as gang associates. See supra

note 8 (describing the elimination of FIOs "as the sole

verification criteria for any individual," Rule 335 (2021), sec.

5). Tellingly, also as described above, the FIO reports about

Diaz Ortiz in the BRIC database should not have been included at

all, regardless of the significance attributed to them. The

federal regulations cited above plainly prohibit entities like

BRIC from collecting "criminal intelligence information" about an

individual unless "there is reasonable suspicion that the

individual is involved in criminal conduct or activity."

(a) (emphasis added). Simply associating with people who

may be engaged in criminal activity is not enough.

We are not suggesting that the federal regulations

governing criminal intelligence information establish an

exclusionary rule applicable to immigration proceedings. Nor are

we saying that IJs are entirely precluded from admitting into

evidence, and considering, information contained in police reports

such as those in the BRIC Gang Assessment Database.31 Rather, the

We reiterate, however, that we do not know the circumstances 31

in which the BPD's revised Rule 335 contemplates DHS access to the BRIC database.

- 45 - IJ's and BIA's primary error in this case was their embrace of the

flimsy -- indeed, arguably nonexistent -- link between the FIOs,

with their assigned point values for largely unexceptional teen

behaviors, and the conclusion that Diaz Ortiz is a gang member.

The BPD's failure to comply with the federal regulations meant to

prevent "violation of the privacy and constitutional rights of

individuals" was simply one of multiple signals that the contents

of the gang package do not reliably establish its conclusion of

gang affiliation. Criminal Intelligence Systems Operating

Policies,

, 40,156 (June 13, 1980).

In rejecting Professor Nolan's opinion about the

unreliability of the gang database information, the BIA found it

significant that Diaz Ortiz's counsel had not presented evidence

that Diaz Ortiz's name had been "removed from the Boston police's

database because his inclusion was unlawful." However, there is

typically no notice provided to individuals of their inclusion in

the database or a specified procedure to object.32 See Yawu Miller,

Are there really 160 gangs in Boston?, Bay State Banner (July 30,

2019), https://www.baystatebanner.com/

32By contrast, California and Nevada, among other jurisdictions, require local law enforcement agencies to notify individuals whose names are included in their gang databases of the process through which they can contest that designation. See

(c)(1)-(2); Nev. Rev. Stat. Ann. § 179A.500(1)(a).

- 46 - 2019/07/30/are-there-really-160-gangs-in-boston/.33 Recognizing

the lack of any such procedure, the government suggested on appeal

that Diaz Ortiz could have brought a civil rights lawsuit under

to have his name removed from the database. Putting

aside the unrealistic assumptions that a slow and costly civil

action is feasible for a respondent in immigration proceedings and

that -- even if successful -- a judgment would have issued in time

to make a difference in these removal proceedings, it defies logic

to suggest that Diaz Ortiz's failure to pursue that course enhances

the reliability of the information in the database.

In sum, the record clearly shows that the IJ and the BIA

credited the gang package's "verification" of Diaz Ortiz as a gang

member in finding him not credible. However, the BRIC database

does not contain "reasonable, substantial, and probative evidence"

of gang membership or association, and the government provided no

other evidence to substantiate the inferences and conclusions

drawn from the police reports via the BRIC point system. Zhakira,

(quoting Ramírez-Pérez, 934 F.3d at 50) (internal

quotation marks omitted). Put differently, the government's

33According to a news report in March 2021, BRIC's director stated that an individual seeking to have his name removed from the database would need to write a letter to the Boston Police Department's legal advisor, which would trigger an assessment by the Department and BRIC. See Sarah Betancourt, Boston center's gang database lists 3,853 people, CommonWealth (Mar. 9, 2021), https://commonwealth magazine.org/criminal-justice/boston- centers-gang-database-lists-3853-people/.

- 47 - evidence was simply not "of a 'kind and quality' that a reasonable

factfinder could find sufficient" to support labeling Diaz Ortiz

a gang member and, for that reason, to reject on credibility

grounds his claim to religious persecution. Garland v. Ming Dai,

, 1677 (2021) (quoting Dir., Office of Workers'

Comp. Programs v. Greenwich Collieries,

(1994)).

C. Mode of Transportation Testimony

The government maintains that the IJ's credibility

determination did not rest solely on the gang database and Diaz

Ortiz's gang status. It points out that the IJ also identified an

inconsistency in Diaz Ortiz's testimony concerning his use of a

bicycle as a means of travel, and that the BIA supported the IJ's

view of that testimony. Hence, we must consider whether such an

inconsistency provides an independent ground for the IJ's adverse

credibility determination.34

34 The IJ also identified a discrepancy in Diaz Ortiz's testimony concerning the ownership of his family's store. However, the BIA did not endorse the IJ's view of that testimony, evidently recognizing -- correctly -- that it provides no support for the adverse credibility determination. The IJ plainly misinterpreted Diaz Ortiz's initial statements about the store, inexplicably construing that testimony to suggest that Diaz Ortiz -- a teenager when he left El Salvador -- had claimed he was the owner, rather than his parents. Specifically, after the IJ asked Diaz Ortiz if he had worked in El Salvador, he answered that he "worked with [his] parents" and that the work was "selling clothes in the street." In response to a question from his attorney, he explained that "we did have a store . . . on the street . . . and we would sell Bibles and Christian belts and clothing."

- 48 - The IJ saw a contradiction in Diaz Ortiz's testimony on

how he traveled around Boston. In cross-examination, the DHS

attorney asked Diaz Ortiz to explain why he told police on August

1, 2018, that he was carrying a chain and padlock for his bicycle

given that, earlier in the immigration hearing, he had told the IJ

that he traveled only by train. As recounted above, Diaz Ortiz

responded that he used a bicycle when he lived in East Boston, but

he took the train when he lived in Boston.

Plainly, the IJ's initial probing about Diaz Ortiz's

transportation, which occurred at the end of Diaz Ortiz's direct

testimony, was not about his travel per se. Rather, that

questioning is only reasonably understood as a between-the-lines

inquiry into Diaz Ortiz's gang affiliation, triggered by the

notation on the August 1, 2018, police report that "MS-13 gang

members commonly carry large metal chains with locks to be used

[i]n gang related assaults." On that day, Diaz Ortiz did not have

his bicycle with him, and the IJ unsurprisingly wanted an

explanation for why he nonetheless was carrying the lock.

Our deferential review of agency fact-finding might

ordinarily keep us from second-guessing the IJ's assessment that

Diaz Ortiz's explanation for carrying the bike lock that day, given

during his redirect examination, was unpersuasive. See supra

Section III.A. But the IJ juxtaposed that assessment with his

finding that Diaz Ortiz was "not credible pertaining to his gang

- 49 - membership," citing "the plethora of evidence found within [the

gang package]." In other words, as described below, the record

demonstrates that the IJ rejected Diaz Ortiz's innocent

explanation for his possession of the bike lock because of "the

significant evidence that Respondent is a MS-13 gang member." In

turn, the BIA relied on the gang database to uphold the IJ's

adverse credibility finding.

A careful review of the exchange between Diaz Ortiz and

the IJ that gave rise to the government's cross-examination about

his possession of the bike lock reveals, at most, imprecision in

Diaz Ortiz's statements about his mode of transportation. His

assertion that he used "only" the train was part of an exchange in

which the IJ pressed him on whether he "[a]lways" did so. In

responding, Diaz Ortiz initially said, "Yes," but then continued

to explain that, when he lived in East Boston, "I didn't because

it was close." The IJ then asked Diaz Ortiz if he had a car. Diaz

Ortiz replied that he did not, and the IJ then asked again, "So,

you never traveled anywhere except by train, correct?" His answer,

"Yes, yes, only in train" -- and not by car -- was thus given in

the context of his earlier explanation that he did not need the

train in East Boston. Later, when the government in cross-

examination inquired about the bike lock in his backpack, he

explained that, when he lived in East Boston, he had the bicycle

"to go around and . . . do things around there."

- 50 - It is important to keep in mind that Diaz Ortiz required

the assistance of an interpreter at the hearing. His answers to

the questions from the IJ and DHS attorney suggest that he may not

have viewed bicycling around East Boston to "do things around

there" as "travel" equivalent to the use of a car or the train.

Strikingly, despite the language barrier and Diaz Ortiz's evident

willingness to answer the questions posed to him, the IJ manifested

impatience and, indeed, hostility toward Diaz Ortiz throughout the

questioning about his mode of transportation.

Most notably, during the cross-examination, the IJ cut

off what appears to be an attempt by Diaz Ortiz to explain the

discrepancy the IJ had raised. When pressed a second time to

confirm that he previously said that he traveled only by train

("And you told the Court that you did not use any other means of

transportation other than a train? Is that correct?"), Diaz Ortiz

said something to the government's attorney that is reported as

"[Not Translated]" in the transcript. The IJ then said to Diaz

Ortiz: "No, I didn't ask for a reason why." Diaz Ortiz again

attempted to reply, saying, "Yes, you said that but--." In

response, the IJ said, "I'm just asking you what you told the

Court," and then immediately said to the government: "Next

question."

Diaz Ortiz's testimony about the bike lock and chain was

not inherently unbelievable. He was living in East Boston when he

- 51 - was found with them, and he testified that officers had asked him

on other occasions -- when he did have his bicycle -- if he had

anything in his backpack: "I said, yes, of course, I have my bike

chain. And I showed it to them, and . . . they looked and then

they put it back . . . ." Even if one could plausibly see a

variation in Diaz Ortiz's testimony on his mode of transit, the

difference was minor when viewed in context and, hence,

insufficient on its own to support the adverse credibility

determination. See

(b)(1)(B)(iii) (stating that

the IJ may consider inconsistencies that do not go "to the heart

of the applicant's claim," but also must consider "the totality of

the circumstances, and all relevant factors").

Inescapably, then, given the agency's emphasis on the

gang package and Diaz Ortiz's supposed gang affiliation, we cannot

isolate the "bike lock" rationale as a standalone basis for the

IJ's credibility finding. Indeed, it is undeniable that Agent

Connolly's notation about MS-13's use of bicycle chains -- the

prompt for the IJ's travel inquiry -- was an attempt to attach

sinister meaning to Diaz Ortiz's possession of the bike lock. The

IJ acted on that cue -- reflected in both the content and manner

of his questioning -- and then expressly relied on the depiction

of Diaz Ortiz as a gang member in evaluating his responses.35

35The IJ's hostile attitude toward Diaz Ortiz, fueled by the gang database, may also account for the absurd interpretation of

- 52 - Hence, because the IJ's view of Diaz Ortiz's testimony about his

use of a bicycle and bike lock was anchored in the database's

"verification" of his gang status, the sustainability of that view

necessarily turns on whether the "plethora of evidence" in the

gang package has a supportable foundation. And, as we have

explained, it does not.

Finally, we note that, even if the IJ's assessment of

the mode-of-transportation evidence had not been influenced by the

gang package, we would need to remand the case to the agency for

reconsideration of the adverse credibility determination. In

making and affirming the credibility finding, the IJ and BIA

impermissibly relied on the identification of Diaz Ortiz as a

"verified" gang member as part of "the totality of the

circumstances." Hence, we do not know if the IJ would have found

Diaz Ortiz not credible based solely on his mode-of-transportation

testimony. It would be the IJ's role, not ours, to assess Diaz

Ortiz's credibility on that basis. See Securities Exchange Comm'n

v. Chenery,

(1943) (noting that "a judicial

judgment cannot be made to do service for an administrative

judgment");

("[A]n administrative order cannot be upheld

unless the grounds upon which the agency acted in exercising its

powers were those upon which its action can be sustained."); see

Diaz Ortiz's testimony about his family's store. See supra note 34.

- 53 - also, e.g., Rivera v. Ashcroft,

(1st Cir. 2005)

(remanding to the BIA because "the agency action . . . cannot be

sustained on the stated grounds").

Accordingly, neither the agency's adverse credibility

determination nor its denial of Diaz Ortiz's claims was supported

by substantial evidence, and Diaz Ortiz is entitled to

reconsideration of his claims for relief.

IV.

In holding that the IJ's credibility finding and the

resulting denial of relief are not supported by substantial

evidence, we wish to make clear that we are not necessarily

prohibiting all use on remand of the police reports contained in

the gang package. Those reports include uncontested percipient

facts. Nonetheless, the agency must ensure that all evidence cited

in support of its decision "is reliable and that its use would not

be fundamentally unfair." Arias-Minaya,

.

Given our conclusion that this case must be remanded

under the substantial evidence standard of review, we need not,

and therefore do not, reach Diaz-Ortiz's constitutional due

process claim. See Marasco & Nesselbush, LLP v. Collins,

(1st Cir. 2021) (describing the principle of

constitutional avoidance). However, we do not minimize the

importance of the fairness concerns raised by Diaz Ortiz and amici

with respect to the law enforcement practices that led to his

- 54 - classification as a member of MS-13. The Boston Police

Department's amended Gang Assessment Database Rule reflects

recognition of those concerns. The amended rule, which discounts

the significance of FIOs and provides other safeguards, should

diminish the potential for criminalizing ordinary behaviors of

minority youth without hampering law enforcement efforts to

monitor and control violent gangs.

Nonetheless, in this case, unsupported characterizations

of such behaviors permeated the record before the IJ. We

previously have recognized the risk that fresh credibility

findings may be affected by prior exposure to a petitioner's case.

See, e.g., Jabri v. Holder,

(1st Cir. 2012). The

case before us again presents such a scenario. Thus, on remand,

"although assignments are within the agency's discretion, given

the prior credibility determination, confidence would be enhanced

if the matter were assigned to a different IJ."

The petition for review is granted, the order of the BIA

is vacated, and the matter is remanded to the BIA for proceedings

consistent with this opinion.

-DISSENTING OPINION FOLLOWS-

- 55 - LYNCH, Circuit Judge, with whom HOWARD, Chief Judge,

joins, dissenting. We dissent because, in our view, the majority

violates binding statutory, Supreme Court, and First Circuit law,

and also because the majority's unprecedented alteration of the

law will have unfortunate consequences going well beyond this case.

The majority erroneously vacates a well-supported lack of

credibility finding by the Immigration Judge ("IJ") as to the

religious persecution asylum claim by Cristian Josue Diaz Ortiz if

he were removed after his illegal entry into the United States.

This finding was based on the IJ's observations of Diaz Ortiz's

testimony and admissions, including his admitted failure to attend

his church in the United States and his own volunteered statement

that, based on his religious belief, he would, of course, not

associate with MS-13. But Diaz-Ortiz was found with gang members

and in possession of a favored MS-13 weapon, and he had admitted

he had numerous associations with individuals linked by police

with MS-13 (as set forth in an admissible gang database), although

Diaz Ortiz claimed, not credibly, not to know of their MS-13

affiliation. The IJ supportably rejected Diaz Ortiz's attempted

explanation of the inconsistency between the "innocent"

explanation of why he was found with a gang weapon while in the

company of gang members and an earlier admission he had made. The

lack of credibility finding was upheld by the Board of Immigration

Appeals ("BIA") in a reasoned decision. This court is required by

- 56 - binding law to deny the petition. See Garland v. Dai,

, 1677 (2021).

I.

We incorporate our prior majority opinion, vacated by

the en banc court, for a longer discussion of the case. See Diaz

Ortiz v. Barr,

(1st Cir. 2020). In addition, we add

these points.

We start with the binding statutes and Supreme Court and

First Circuit precedents. The majority's decision arrogated to

itself a function which by congressional command belongs to the

immigration agencies. See

(b)(1)(B)(iii)

(assigning to the trier of fact -- i.e. the immigration judge --

credibility determinations); see also Cuatzo v. Lynch,

(1st Cir. 2015) ("Immigration judges have broad discretion

over the conduct of immigration court proceedings.").

As the Supreme Court recently has explained,

Congress has carefully circumscribed judicial review of [IJ and] BIA decisions. When it comes to questions of fact -- such as [an adverse credibility determination] -- the [Immigration and Nationality Act] provides that a reviewing court must accept "administrative findings" as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."

- 57 - Dai, 141 S. Ct. at 1677 (emphases added) (quoting

(b)(4)(B)). "This is a 'highly deferential' standard" that

precludes reviewing courts from making independent credibility

determinations.

at 1677–78 (quoting Nasrallah v. Barr,

(2020)). Instead, it permits only the deferential

review by courts of the agency's credibility determinations. Id.

at 1678 ("The only question for judges reviewing the [IJ or] BIA's

factual determinations is whether any reasonable adjudicator could

have found as the agency did." (emphasis in original)). That is

because "[t]he IJ -- who actually observes the witness -- is best

positioned to assess the applicant's credibility in the first

instance." Id. at 1678.

The majority violates the firm rules that special

deference is given to adverse credibility determinations made by

immigration judges and that we must deny the petition for review

of the denial of an application for immigration relief if any

reasonable adjudicator could find that substantial evidence

supports the agency's decision. See Silva v. Gonzales,

(1st Cir. 2006) ("We must uphold the BIA's decision 'unless

any reasonable adjudicator would be compelled to conclude to the

contrary.'" (quoting

(b)(4)(B))). In the course of

doing so, the majority also violates the law that the rules of

evidence do not apply in immigration proceedings and that

reliability determinations are to be made by the immigration

- 58 - agencies. See Yongo v. I.N.S.,

(1st Cir. 2004);

see also Miranda-Bojorquez v. Barr,

(1st Cir. 2019)

("[S]ince the rules of evidence do not apply in immigration

proceedings, the evidentiary standards deployed by immigration

judges 'are generally more lax.'" (quoting Cabas v. Barr,

(1st Cir. 2019)).

II.

The majority tries unsuccessfully to justify its

reasoning by resorting to the principle of constitutional

avoidance. That is error. See Jennings v. Rodriguez,

, 842–43 (2018) (plurality opinion) (holding the court erred in

invoking the canon of constitutional avoidance when interpreting

an unambiguous immigration statute); see also Rodriguez v.

Robbins,

(9th Cir. 2013) ("[I]f the statute

does not raise constitutional concerns, then there is no basis for

employing the canon of constitutional avoidance.").

The majority focuses on the fact that the IJ -- not bound

by the rules of evidence -- did not exclude the gang database

evidence (which the majority terms the "gang package") offered to

rebut Diaz Ortiz's own testimony. The ruling denying exclusion of

the gang database is not even colorably a due process violation.

First, the gang package included a collection of, inter alia, law

enforcement field reports of the type commonly considered by

immigration courts. See Miranda-Bojorquez,

; see

- 59 - also Arias-Minaya v. Holder,

(1st Cir. 2015) ("[I]t

is settled beyond hope of contradiction that . . . immigration

courts may consider police reports even when they rest largely on

hearsay.").

Second, Diaz Ortiz was given an opportunity to review

those materials; admit, deny, or otherwise explain their content;

and introduce an expert's affidavit to challenge their

reliability. See Miranda-Bojorquez,

(rejecting a

due process argument over the admission of police reports in

immigration court in part because the IJ gave the petitioner an

opportunity to rebut their reliability); see also Davis v. Lynch,

(1st Cir. 2015) ("An immigration petitioner's

right to due process entails, at its core, the right to notice of

the nature of the charges and a meaningful opportunity to be

heard." (quotation marks and citation omitted)). With that

opportunity, Diaz Ortiz did not argue that the events documented

in the package did not occur. Nor did he ask that the officers

who summarized the data or who made the observations be called to

testify or be made available for cross-examination. This petition

for review does not state even a colorable due process claim and

the canon of avoidance is improperly invoked.

III.

In order to achieve the result it wants, the majority

substitutes its own opinion for that of the agency and

- 60 - mischaracterizes what the IJ and the BIA actually held as to the

adverse credibility finding.36 A reasonable adjudicator easily

could find, as the IJ did and the BIA affirmed, that Diaz Ortiz

was not credible because of inconsistencies in his testimony and

contradiction of his testimony through other evidence.

The record makes absolutely clear that the adverse

credibility finding did not rest primarily on the information in

the gang database, but rested on Diaz Ortiz's admissions,

inconsistencies, and not credible testimony.

When the IJ asked Diaz Ortiz what his method of

transportation in Boston was, Diaz Ortiz responded that he took

the train. When the IJ asked, "Always?", Diaz Ortiz stated: "Yes.

Well, when I lived in, in my house where I lived in, in East

Boston, I didn't because it was close, but when I lived in Boston,

I, I had to use the train." The IJ clarified again: "So, you never

36The majority focuses primarily on the point system contained in the gang database, but that focus is misplaced. Neither the IJ nor the BIA mention the point system in their respective decisions, or the high number of points assigned to Diaz Ortiz. Rather, the agency cites the uncontested evidence that Diaz Ortiz was found carrying a bike chain and padlock -- a gang-related weapon -- and was often seen associating with gang members and hanging around gang headquarters. An independent news article corroborated that chains and padlocks are used as gang weapons. Further, Diaz Ortiz never denied that the individuals with whom he associated were gang related, and his expert, Professor Thomas Nolan, has opined only that it is merely "possible" (as opposed to, e.g., more likely than not) that those individuals were mislabeled in the gang package as gang members and associates.

- 61 - traveled anywhere except by train, correct?" Diaz Ortiz confirmed:

"Yes, yes, only in train." Not once during that dialogue did Diaz

Ortiz tell the IJ that he traveled by bicycle.

Later in the hearing, the government asked Diaz Ortiz

about the occasion on which the police found a metal chain and

padlock -- a gang-related weapon -- on him while he was with two

gang members, and he told the officers the items were for a bike

that he was not currently using. The government asked: "Why did

you tell the police that you had the chain and the padlock for a

bicycle, yet you told the Court today that you only traveled around

by train?" Diaz Ortiz responded: "Well, when I lived in East

Boston, of course, I had the bicycle there to go around and, and

do things around there, but when I lived in Boston and I took the

train, I couldn't bring the bike anymore."

The IJ justifiably rejected that explanation. That the

IJ's "initial probing" into Diaz Ortiz's transportation was

inspired by information in the gang package is irrelevant. Diaz

Ortiz's testimony was plainly inconsistent and provided a specific

reason warranting a finding that Diaz Ortiz testified untruthfully

as to the reason he carried a favored MS-13 weapon. See Zaruma-

Guaman v. Wilkinson,

(1st Cir. 2021).

Further supporting that finding is Diaz Ortiz's

explanation as to why he was found carrying the bike chain and

padlock, but no bicycle. On top of the inconsistencies just

- 62 - described, Diaz Ortiz's response hardly had to be accepted as

credible or satisfactory. He merely stated: "Well that time, a,

a friend of mine had asked to borrow my bike because he had messed

up his bike, and the chain that he had, he told me to change it,

it was a chain that had numbers, a lock that had numbers, and he

said to take mine off and use this one. So, I took his own, the

one that had the numbers, that's what I was going to use." The IJ

did not find the explanation credible. And nothing in the record

would compel the IJ to accept the petitioner's lies.37 See Zaruma-

Guaman,

("[I]t is the purview of the IJ, within wide

limits, to accept or reject an explanation for demonstrated

testimonial inconsistencies.").38

37 The conclusion that the bike chain and padlock was a gang-related weapon is supported by a news article the IJ plainly was entitled to consider. See Allison Manning & Susan Zalkind, How Violent Street Gang MS-13 Operates in Massachusetts, Boston.com (Jan. 29, 2016), https://www.boston.com/news/local- news/2016/01/29/how-violent-street-gang-ms-13-operates-in- massachusetts.

38 The majority's attempt to preclude the use of a common law enforcement tool in cases such as this one will have a bad effect. See Dep't of Justice, Fifty-Six MS-13 Members Indicted (Jan. 29, 2016), https://www.justice.gov/usao-ma/pr/fifty-six-ms- 13-members-indicted (noting that MS-13 is known to "actively recruit[] prospective members . . . inside local high schools from communities with significant immigrant populations from Central America"); see also United States v. Pérez-Vásquez,

, 186–87 (1st Cir. 2021) (explaining that prospective gang members must commit a violent crime and then be "jumped" to become a full member); United States v. Sandoval,

(1st Cir. 2021) (similar); United States v. López,

, 304–05 (1st Cir. 2020); United States v. Leoner-Aguirre,

, 313–14 (1st Cir. 2019).

- 63 - IV.

We regret the majority has reached this conclusion and

dissent.

-DISSENTING OPINION FOLLOWS-

- 64 - GELPÍ, Circuit Judge, dissenting. The administrative

record convinces me that the decision of the Board of Immigration

Appeals affirming the Immigration Judge (IJ) is supported by

substantial evidence. Moreover, the IJ's credibility and

evidentiary determinations are to be given deference. In this

instance, the petitioner was represented by counsel and afforded

the opportunity to challenge the evidence presented by the

government, as well as to present his own evidence. As such, I

would affirm the administrative ruling below. I write separately,

however, to express my concern.

I am cognizant, as the majority points out, that the

Boston Police Department’s gang database is susceptible to promote

the disparate treatment of minorities. I am also troubled that it

lacks a mechanism to notify those included in the database or allow

challenges to the information therein. However, remanding this

matter to the administrative agency for further proceedings is not

the proper means to address such paramount concerns. Affirming

the decision of the agency below would in no way preclude future

challenges to the gang database in the appropriate state or federal

judicial forum.

- 65 -