Diaz-Cano v. Gonzales

Ninth Circuit

Diaz-Cano v. Gonzales

233 F. App'x 706

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 25, 2007

DocketNo. 04-73363

StatusPublished

This text of 233 F. App'x 706 (Diaz-Cano v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Diaz-Cano v. Gonzales, 233 F. App'x 706 (9th Cir. 2007).

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Opinion

MEMORANDUM

**

Given the liberal standard used to construe pro se litigants’ claims, DiazCano sufficiently raised his claim before the Board of Immigration Appeals (“BIA”) that the Immigration Judge (“IJ”) used the wrong legal standard in determining whether Diaz-Cano demonstrated a well-founded fear of past persecution. Therefore, he exhausted administrative remedies as to this claim. See Agyeman v. INS, 296 F.3d 871, 878 (9th Cir.2002).

The IJ’s use of the term “severe” in holding that Diaz-Cano failed to establish “severe past persecution” and the IJ’s citation to a case that applies the standard for humanitarian asylum, render it impossible to determine whether he applied the correct legal standard in considering Diaz[708]*708Cano’s claim of past persecution. We, therefore, remand to the BIA for clarification of the basis of its decision to affirm the IJ. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1191 (9th Cir.2005).

The IJ did not make an alternative holding that even if Diaz-Cano had demonstrated past persecution, in any event, the government had rebutted the presumption of a well-founded fear of future persecution. The IJ’s reference to the “two-prong ‘reasonable man’ ” standard shows that the IJ was discussing changed country circumstances in the context described in 8 C.F.R. § 208.13(b)(2). Therefore, there is no independent bar to Diaz-Cano’s claim. See Tarubac v. INS, 182 F.3d 1114, 1120 n. 5 (9th Cir.1999).

By failing to give Diaz-Cano notice and an opportunity to respond to the facts of which the IJ took administrative notice, the IJ may have abused his discretion. See Circu v. Gonzales, 450 F.3d 990, 993 (9th Cir.2006) (en banc). However, DiazCano failed to raise this issue before the BIA with an adequate level of specificity and, therefore, did not exhaust administrative remedies as to this issue. See Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753 (9th Cir.2004) (“[C]onclusory or generalized statements that the IJ abused his discretion or wrongfully ordered the alien’s removal fail to meet the specificity requirement, because they do not meaningfully direct the BIA in its review.”). We, therefore, lack jurisdiction to consider this issue now.

REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Given the liberal standard used to construe pro se litigants’ claims, DiazCano sufficiently raised his claim before the Board of Immigration Appeals (“BIA”) that the Immigration Judge (“IJ”) used the wrong legal standard in determining whether Diaz-Cano demonstrated a well-founded fear of past persecution. Therefore, he exhausted administrative remedies as to this claim. See Agyeman v. INS, 296 F.3d 871, 878 (9th Cir.2002).

The IJ’s use of the term “severe” in holding that Diaz-Cano failed to establish “severe past persecution” and the IJ’s citation to a case that applies the standard for humanitarian asylum, render it impossible to determine whether he applied the correct legal standard in considering Diaz[708]*708Cano’s claim of past persecution. We, therefore, remand to the BIA for clarification of the basis of its decision to affirm the IJ. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1191 (9th Cir.2005).

The IJ did not make an alternative holding that even if Diaz-Cano had demonstrated past persecution, in any event, the government had rebutted the presumption of a well-founded fear of future persecution. The IJ’s reference to the “two-prong ‘reasonable man’ ” standard shows that the IJ was discussing changed country circumstances in the context described in 8 C.F.R. § 208.13(b)(2). Therefore, there is no independent bar to Diaz-Cano’s claim. See Tarubac v. INS, 182 F.3d 1114, 1120 n. 5 (9th Cir.1999).

By failing to give Diaz-Cano notice and an opportunity to respond to the facts of which the IJ took administrative notice, the IJ may have abused his discretion. See Circu v. Gonzales, 450 F.3d 990, 993 (9th Cir.2006) (en banc). However, DiazCano failed to raise this issue before the BIA with an adequate level of specificity and, therefore, did not exhaust administrative remedies as to this issue. See Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753 (9th Cir.2004) (“[C]onclusory or generalized statements that the IJ abused his discretion or wrongfully ordered the alien’s removal fail to meet the specificity requirement, because they do not meaningfully direct the BIA in its review.”). We, therefore, lack jurisdiction to consider this issue now.

REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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