Esteban Lopez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2024
• Docket: 23-855
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ADRIAN ESTEBAN LOPEZ, No. 23-358 Agency No. Petitioner, A077-279-151 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

ADRIAN ESTEBAN LOPEZ, No. 23-855 Petitioner, Agency No. v. A077-279-151

MERRICK B. GARLAND, Attorney General,

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

Argued and Submitted February 15, 2024 San Francisco, California

Before: S.R. THOMAS, BEA, and CHRISTEN, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BEA.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Petitioner Adrian Esteban Lopez, a native and citizen of Mexico, petitions for

review of two orders of the Board of Immigration Appeals (BIA): (1) an order that

dismissed his appeal from an immigration judge’s (IJ) denial of his application for

deferral of removal under the Convention Against Torture (CAT) (No. 23-358); and

(2) an order that denied his motion to reopen his removal proceedings to continue to

pursue his application for deferral of removal under the CAT (No. 23-855).

We have jurisdiction under 8 U.S.C. § 1252. “Because the BIA expressly

adopted the IJ’s decision under Matter of Burbano, [20 I. & N. Dec. 872 (BIA

1994),] but also provided its own review of the evidence and the law, we review both

the IJ and the BIA’s decision.” Joseph v. Holder, 600 F.3d 1235, 1240 (9th Cir.

2010). “We review factual findings underlying the BIA’s denial of [CAT] relief for

substantial evidence,” Park v. Garland, 72 F.4th 965, 980 (9th Cir. 2023), and “BIA

denials of motions to reopen for an abuse of discretion,” Israel v. INS, 785 F.2d 738,

740 (9th Cir. 1986). We deny the first petition (No. 23-358) and grant the second

petition (No. 23-855).1

1. Petitioner, an applicant for deferral of removal under the CAT, had the

burden “to establish that it is more likely than not that he . . . would be tortured if

removed” to Mexico. 8 C.F.R. § 1208.16(c)(2). “Torture is defined as any act by

1 Accordingly, we deny Petitioner’s motion for a stay of removal in No. 23-358 (Dkt. 2), and grant Petitioner’s motion for a stay of removal in No. 23-855 (Dkt. 2).

2 23-358 which severe pain or suffering, whether physical or mental, is intentionally inflicted

on a person . . . by, or at the instigation of, or with the consent or acquiescence of, a

public official acting in an official capacity or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1). In assessing Petitioner’s application for CAT

relief, the IJ and BIA were required to consider “all evidence relevant to the

possibility of future torture,” which includes “[e]vidence of past torture,”

“[e]vidence that [Petitioner] could relocate to a part of [Mexico] where he . . . is not

likely to be tortured,” “[e]vidence of gross, flagrant or mass violations of human

rights within [Mexico],” and “[o]ther relevant information regarding conditions in

[Mexico].” 8 C.F.R. § 1208.16(c)(3).

Substantial evidence supports the agency’s finding that Petitioner suffered no

past torture in Mexico, as the harm he purportedly suffered there—having money

taken from him by a police officer and having a gun drawn on him by a cartel

member after he beat the cartel member in a dispute over a girlfriend—was not “an

extreme form of cruel and inhuman treatment” sufficient to constitute torture. 8

C.F.R. § 1208.18(a)(2); see Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1233 (9th

Cir. 2021) (distinguishing “police mistreatment” from torture); Hernandez v.

Garland, 52 F.4th 757, 769 (9th Cir. 2022).

Substantial evidence supports the agency’s finding that Petitioner could

relocate to a part of Mexico where he is not likely to be tortured. See Aguilar Fermin

3 23-358 v. Barr, 958 F.3d 887, 893 (9th Cir. 2020). Petitioner argues the agency disregarded

“substantial” country conditions evidence in making this finding, but he identifies

no record evidence that compels a conclusion contrary to that of the agency. See

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

Substantial evidence supports the agency’s finding that there was no record

evidence of human rights violations in Mexico sufficiently gross, flagrant, or

widespread, and relevant to Petitioner’s situation to establish that he would likely be

tortured if removed there. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th

Cir. 2010) (per curiam).

Substantial evidence supports the agency’s finding that public officials are

unlikely to acquiesce to Petitioner being tortured if he is removed to Mexico.

Petitioner argues the agency erred because it: (1) did not consider whether attempts

by the Mexican authorities to combat cartel violence have been successful, and (2)

ignored record evidence regarding local government collusion with cartels. “We

have reversed agency determinations that future torture is not likely only when the

agency failed to take into account significant evidence establishing government

complicity in the criminal activity.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836

(9th Cir. 2016). We have also recognized that “[a] government does not acquiesce

to torture where the government actively, albeit not entirely successfully, combats

the illegal activities.” Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir.

4 23-358 2016) (per curiam) (internal quotation marks omitted) (emphasis added). Here, the

IJ based its finding on record evidence showing that, since 2018, the Mexican

government has actively combatted cartels and corrupt police officers. Hence, the

agency rested its finding on substantial evidence, and we cannot conclude that “any

reasonable adjudicator would be compelled to conclude to the contrary.” Garcia v.

Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)).

2. The BIA abused its discretion by denying Petitioner’s motion to

reopen because it applied the wrong legal standard. The BIA can deny a motion to

reopen “on any one of ‘at least’ three independent grounds—‘failure to establish a

prima facie case for the relief sought, failure to introduce previously unavailable,

material evidence, and a determination that even if these requirements were

satisfied, the movant would not be entitled to the discretionary grant of relief

which he sought.’” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)

(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). We recently clarified that the

proper standard for a petitioner to demonstrate prima facie eligibility for relief is

whether he has shown “a reasonable likelihood that [he] would prevail on the

merits if the motion to reopen were granted.” Fonseca-Fonseca v. Garland, 76

F.4th 1176, 1179 (9th Cir. 2023). We held that requiring a petitioner to show his

new evidence “‘would likely change’ the result” in his case is error as it “is a

5 23-358 substantively higher bar than requiring petitioners to show a reasonable likelihood

of eligibility for relief.” Id.

Here, Petitioner presented two types of evidence in support of his motion to

reopen: (1) his testimony that he continued to fear drug cartels and police in Mexico

because of his tattoos; and (2) evidence that his brother, who also had gang tattoos

and looked like him, was kidnapped by known cartel members and “disappeared” in

Mexico. The BIA properly dismissed the first ground because Petitioner’s fear of

drug cartels and police was not “new material evidence.” Doherty, 502 U.S. at 324

(emphasis added). The BIA did, however, err in addressing Petitioner’s second

ground for reopening. The BIA improperly asked whether Petitioner’s information

about his brother, which it assumed was “unavailable previously,” would

“demonstrate prima facie eligibility for relief such that reopening would likely

change the result in his case.”2 The BIA thus applied the incorrect “would likely

change the result” standard to Petitioner’s case. Where “the Board base[s] its

decision on a legal error,” we “remand to the Board to exercise its discretion against

2 The dissent remarks that this evidence may have been previously available because Petitioner had a merits hearing ten days after his brother’s disappearance was reported. But the BIA did not decide this issue, and our review is limited “to the actual grounds relied upon by the BIA.” Najmabadi, 597 F.3d at 986 (quoting Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009)). Moreover, Petitioner stated in his motion to reopen that he had only recently obtained evidence of his brother’s abduction, and nothing in the record contradicts this assertion.

6 23-358 the correct legal framework.” Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016);

see also INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam). While we express no

opinion on the ultimate merits of his motion to reopen, Petitioner is nevertheless

entitled to have the agency “apply the correct standard in the first instance.”

Fonseca-Fonseca, 76 F.4th at 1183; see also Azanor v. Ashcroft, 364 F.3d 1013,

1021 (9th Cir. 2004) (noting that where the BIA “applie[s] an overly strict legal

standard,” it “must be given the opportunity to evaluate petitioner’s . . . claim under

the proper legal standard” (alteration in original) (quoting Martinez-Sanchez v. INS,

794 F.2d 1396, 1399 (9th Cir. 1986))).

PETITION DENIED in 23-358, and PETITION GRANTED in 23-855.

7 23-358 FILED MAR 26 2024 Adrian Esteban Lopez v. Merrick Garland (23-358, 23-855) MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BEA, Circuit Judge, concurring in part and dissenting in part:

I agree Petition No. 23-358 (review of the Board of Immigration Appeals’

(BIA) dismissal of the petitioner’s appeal from an immigration judge’s denial of the

petitioner’s application for Convention Against Torture (CAT) relief) should be

denied. But I disagree Petition No. 23-855 (review of the BIA’s denial of the

petitioner’s motion to reopen) should be granted. Thus, I respectfully dissent.

I am in accord with my colleagues’ position that, in light of Fonseca-Fonseca

v. Garland, 76 F.4th 1176 (9th Cir. 2023), the BIA erroneously required the

petitioner to demonstrate prima facie eligibility for relief by establishing “that

reopening would likely change the result in his case.” Fonseca-Fonseca instructs

that the proper formulation of the standard is whether a petitioner has established “a

reasonable likelihood that [he] would prevail on the merits if the motion to reopen

were granted.” See Fonseca-Fonseca, 76 F.4th at 1179. But I cannot agree remand

is warranted account this error because, in my view, the error was harmless.1

1 Notably, the Fonseca-Fonseca panel did not pass upon whether, in that case, the BIA’s application of the “would likely change the results” standard, as opposed to the “reasonable likelihood of success on the merits” standard, was harmless error. The panel granted the petition and remanded for the BIA to apply the right standard in the first instance on the ground that “the BIA applied the wrong burden of proof.” Fonseca-Fonseca, 76 F.4th at 1181. The panel reasoned that “the ‘would likely change’ standard requires a petitioner to establish that it is at least more probable than not that the new evidence would change the outcome of the claim,” and that it therefore “plainly places a heavier burden on the petitioner than the ‘reasonable

1 Here, the government raises harmless error, arguing that the petitioner “failed

to make any showing [that] he was prima facie eligib[le] for deferral of removal

under the CAT based on his brother or his gang tattoos, no matter what standard the

Court applies.”

This Circuit “appl[ies] traditional administrative law principles in reviewing

immigration agency decisions, which include the rule that reviewing courts shall

take due account of the rule of prejudicial error,” i.e., the harmless error rule. See

Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021) (internal quotation marks

and citation omitted). The Supreme Court has explained that the harmless error rule

applies “when a mistake of the administrative body is one that clearly had no bearing

on . . . the substance of [the] decision reached,” see Massachusetts Trustees of E.

Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248 (1964), such that

“remand[ing] would be an idle and useless formality,” see NLRB v. Wyman-Gordon

Co., 394 U.S. 759, 766 n.6 (1969) (noting courts are not required to “convert judicial

review of agency action into a ping-pong game”). Indeed, “[w]e have recognized

that remand is an ‘idle and useless formality’ when the BIA applies the wrong legal

standard if, as a result of its factual findings, ‘neither the result nor the BIA’s basic

likelihood’ standard.” Id. at 1183. But the panel did not explain why the BIA’s misapplication of the standard made any difference in that case given the evidence submitted in support of the motion to reopen. See id.

2 reasoning would change.’” See Park v. Garland, 72 F.4th 965, 978 (9th Cir. 2023)

(quoting Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (per curiam)).

I conclude that the BIA’s misapplication of the legal standard clarified in

Fonseca-Fonseca was harmless because it could not have affected the BIA’s

decision to deny the petitioner’s motion to reopen. In my view, regardless whether

the BIA applied the “would likely change the results” standard or the “reasonable

likelihood of success on the merits” standard, neither the result nor the BIA’s basic

reasoning would have changed. The BIA found no basis for reopening in the

“limited evidence” the petitioner proffered because that evidence was vague and

inconclusive, and any CAT claim based thereon would impermissibly turn on the

petitioner’s speculative assertions. As all judges on the panel agree, the BIA

properly dismissed the petitioner’s first ground for his motion to reopen—his

testified-to fear of harm due to his tattoos—on the ground that it was not supported

by “new material evidence.” Hence, the sole evidence remaining for the BIA to

consider is the petitioner’s proffered evidence of his brother’s purported kidnapping.

But the BIA explained that this evidence was likely previously available.

Specifically, the BIA noted that the petitioner had an individual hearing before the

immigration judge ten days after the date on which he stated his brother was

3 kidnapped.2 I fail to see how the petitioner could demonstrate a “realistic chance”

of establishing that he will more likely than not be tortured if removed to Mexico

based on evidence that was likely previously available and which demonstrated only

that his brother entered a car and was never seen again. See Fonseca-Fonseca, 76

F.4th at 1183; see also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)

(explaining that a petitioner’s failure to proffer previously unavailable, material

evidence provides “independent grounds” for the BIA to deny a motion to reopen).

The proffered evidence did not include any identification of the supposed kidnappers

or a ransom demand, but only the petitioner’s assertion that the car’s occupants were

kidnappers. I therefore am unable to join my colleagues in concluding that the

petitioner’s evidence could have “reveal[ed] a reasonable likelihood that the

statutory requirements for relief ha[d] been satisfied.” See Sarkar v. Garland, 39

F.4th 611, 622 (9th Cir. 2022) (quoting Tadevosyan v. Holder, 743 F.3d 1250, 1255

(9th Cir. 2014)).

Because I would have merely pointed out the BIA’s error without a time-

wasting remand, I respectfully dissent.

2 In fact, the petitioner’s proffered evidence provided that his brother had been missing for weeks before being reported missing on October 15, 2022. The petitioner’s last individual hearing was on October 25, 2022, at least a month after the purported abduction. Thus, the petitioner’s evidence concerned events that happened before his last individual hearing, and his motion failed to give any reason why this evidence was incapable of discovery prior to October 25, 2022. See Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007).