Carrillo Carrillo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-964
• Status: Unpublished

Opinion

Case: 21-964, 02/22/2023, DktEntry: 35.1, Page 1 of 4

FILED NOT FOR PUBLICATION FEB 22 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Octavio Carrillo Carrillo, No. 21-964

Petitioner, Agency No. A096-742-498

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 17, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.

Octavio Carrillo Carrillo, a native and citizen of Mexico, petitions for review

of a Board of Immigration Appeals (“BIA”) decision denying his appeal from an

immigration judge’s (“IJ”) decision denying Carrillo Carrillo relief under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Case: 21-964, 02/22/2023, DktEntry: 35.1, Page 2 of 4

Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C.

§ 1252. “Where, as here, the BIA cites [Matter of] Burbano [20 I. & N. Dec. 872

(BIA 1994)] and also provides its own review of the evidence and law, we review

both the IJ’s and BIA’s decisions.” Ruiz-Colmenares v. Garland, 25 F.4th 742,

748 (9th Cir. 2022) (quoting Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)).

Despite Carrillo Carrillo’s criminal convictions, we may review questions of

fact as to his CAT claim. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (the

limits on judicial review of removal orders for people with certain convictions do

not apply to CAT orders because CAT orders are “distinct” from “final order[s] of

removal” and “do[] not affect” removal orders’ “validity”).

We review an agency’s decision that a petitioner failed to establish

eligibility for CAT relief for substantial evidence, upholding the decision unless

“the evidence in the record compels a contrary conclusion.” Velasquez-Samayoa v.

Garland, 49 F.4th 1149, 1154 (9th Cir. 2022) (quoting Cole v. Holder, 659 F.3d

762, 770 (9th Cir. 2011)). However, when considering relief from removal, “we

review de novo . . . purely legal questions.” Cordoba v. Holder, 726 F.3d 1106,

1113 (9th Cir. 2013) (quoting Mendoza–Pablo v. Holder, 667 F.3d 1308, 1312 (9th

Cir. 2012)). Because the parties are familiar with the factual and procedural

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history of the case, we need not recount it here. We dismiss in part and deny in

part the petition for review.

I

We lack jurisdiction over “due process claims based on correctable

procedural errors unless the [noncitizen] raised them below.” Agyeman v. I.N.S.,

296 F.3d 871, 877 (9th Cir. 2002). Carrillo Carrillo failed to argue before the BIA

that the IJ violated his due process rights when the IJ failed to accommodate his

difficulty obtaining evidence while he was incarcerated during the COVID-19

pandemic. But, if asked, the BIA could have considered whether the IJ provided

Carrillo Carrillo sufficient opportunity to gather evidence, and the BIA could have

remanded if Carrillo Carrillo showed he required additional opportunity. Because

Carrillo Carrillo’s due process claim was a “correctable procedural error[]” that

was not raised below, the claim was not properly exhausted and cannot be

considered. See id.; Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Therefore, we dismiss this portion of the petition.

II

Carrillo Carrillo proffered two theories for why he would be tortured in

Mexico—his family connections and his status as a prominent musician. He

argues that the agency should have “aggregate[d] the risks posed by [these] two

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theories” when determining whether there was a “probability greater than 50

percent that [Carrillo Carrillo] will be tortured.” Velasquez-Samayoa, 49 F.4th at

1155–56. Instead, the agency erred by only considering Carrillo Carrillo’s family

connections when analyzing his risk of torture. See id. However, nothing in the

record compels a finding that the Mexican government would acquiesce in Carrillo

Carrillo’s torture. See B.R. v. Garland, 26 F.4th 827, 844–45 (9th Cir. 2022);

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Therefore, we deny

this portion of the petition.

“Because [Carrillo Carrillo] failed to satisfy this essential element, he is

ineligible for CAT protection, and we need not address his remaining assignments

of error. His petition for review as to his application for CAT protection is

denied.” B.R., 26 F.4th at 845.1

The temporary stay of removal remains in place until the mandate

issues. The motion for a stay of removal is otherwise denied.

PETITION DISMISSED in part and DENIED in part.

1 We reject Carrillo Carrillo’s argument that the absence of time and place of hearing on his Notice to Appear constitutes a “prejudicial claims processing violation” because he failed to timely raise that objection during proceedings before the agency, in which he attended his hearings and was represented by counsel. Manrique v. United States, 581 U.S. 116, 121 (2017) (explaining that “mandatory claim-processing rules may be forfeited” when “the party asserting the rule waits too long to raise the point” (cleaned up)). 4