Cedillo-Burgos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 1, 2024
• Docket: 23-218
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS CEDILLO-BURGOS, No. 23-218 Agency No. Petitioner, A071-643-569 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted September 12, 2024 Pasadena, California

Before: FRIEDLAND and DESAI, Circuit Judges, and SCHREIER, District Judge.**

Jose Luis Cedillo-Burgos (“Cedillo”), a native and citizen of Mexico,

petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing

his appeal of an immigration judge’s (“IJ”) denial of his withholding of removal and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. Convention Against Torture (“CAT”) claims. Cedillo seeks protection because he

fears persecution at the hands of a police officer in Mexico with whom he got into a

physical altercation in 1992. He alleges that the police officer has been involved in

kidnapping several of his family members and would harm or kill him upon his

return to Mexico. At Cedillo’s hearing, the IJ expressed skepticism about the

reliability and value of Cedillo’s witnesses and indicated that he would not accept

witness testimony that deviated from their written affidavits. Although Cedillo

intended to call six witnesses, only two testified. The IJ denied Cedillo’s claims, and

Cedillo appealed to the BIA, alleging that the IJ committed several due process

violations at the hearing. The BIA dismissed Cedillo’s appeal on the grounds that he

could not demonstrate prejudice from the alleged due process violations.

We review due process challenges de novo, Benedicto v. Garland, 12 F.4th

1049, 1058 (9th Cir. 2021), and the denial of withholding of removal and CAT

protection for substantial evidence, Garcia-Milian v. Holder, 755 F.3d 1026, 1031

(9th Cir. 2014). To establish prejudice from a due process violation, a petitioner need

only show that a due process violation “potentially . . . affect[ed] the outcome” of

his claim. Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (citation

omitted). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part

and deny in part.

1. Substantial evidence supports the denial of Cedillo’s withholding of

2 23-218 removal claim because he fails to establish a nexus between harm and a protected

ground. 8 C.F.R. § 1208.16(b)(2). Cedillo testified that he fears persecution on

account of an individual’s personal vendetta, not his family status or any other

protected ground. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013)

(“[M]istreatment motivated purely by personal retribution will not give rise to a valid

asylum claim.”). The BIA thus did not err by concluding that there is no prejudice

resulting from the alleged due process violations. See Pagayon v. Holder, 675 F.3d

1182, 1192 (9th Cir. 2011) (holding that a due process violation did not prejudice

the petitioner’s claim when the petitioner’s testimony “portray[ed] a personal

vendetta against someone” and the petitioner could not “plausibly claim that the

additional evidence would have contradicted his own testimony by suggesting a

different motive”). We thus deny the petition as to Cedillo’s withholding of removal

claim.

2. The BIA erred by concluding that the alleged due process violations did

not prejudice Cedillo’s CAT claim. The agency denied Cedillo’s CAT claim because

he failed to offer enough reliable evidence that he would likely be subject to torture

in Mexico and that he was unable to relocate within Mexico.1 It is possible that

testimony from Cedillo’s other witnesses could provide reliable evidence to support

1 Our precedent makes clear the petitioner does not have the burden to demonstrate that relocation is impossible. Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc).

3 23-218 his CAT claim. Because the court “may infer prejudice even absent any allegations

as to what the petitioner or his witnesses might have said if the IJ had not cut off or

refused to permit their testimony,” Cedillo establishes that the due process violation

at least “potentially . . . affect[ed] the outcome of the proceedings.” Zolotukhin, 417

F.3d at 1075–77 (citation omitted) (holding that a due process violation prejudiced

petitioner’s claim because the witnesses “could have corroborated his claims for

relief by recounting the past persecution”).

Petition GRANTED in part and DENIED in part.

4 23-218