Esteban v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2024
• Docket: 21-730
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN PASCUAL ESTEBAN, No. 21-730 Agency No. Petitioner, A087-743-738 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 12, 2024** Pasadena, California

Before: TALLMAN and BENNETT, Circuit Judges, and LASNIK, District Judge.***

Juan Pascual Esteban petitions for review of the immigration judge’s (“IJ”)

negative reasonable fear determinations. We have jurisdiction under 8 U.S.C.

* 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). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. § 1252(a)(1) and review the IJ’s factual determinations for substantial evidence. See

Alvarado-Herrera v. Garland, 993 F.3d 1187, 1191, 1195 (9th Cir. 2021). Esteban

also argues that his underlying removal order from 2009, which was reinstated, was

invalid based on a defective Notice to Appear (“NTA”). We have “jurisdiction under

8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on the underlying removal

order only in cases of ‘gross miscarriage of justice.’” Lopez v. Garland, 17 F.4th

1232, 1233 (9th Cir. 2021). We dismiss the petition in part, deny it in part, and grant

it in part.

1. We have no jurisdiction over Esteban’s collateral attack on his 2009

removal order, as he fails to show a gross miscarriage of justice. He argues that the

NTA, which lacked the date, time, and location of his hearing, deprived the

immigration court of adjudicatory authority and thus there was a gross miscarriage

of justice. This argument is foreclosed by United States v. Bastide-Hernandez, 39

F.4th 1187, 1193 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023)

(holding that an NTA, which lacks date and time information, does not affect an

immigration court’s adjudicatory authority).

2. Esteban challenges the IJ’s negative reasonable fear determinations for

both persecution and torture. During the reasonable fear screening process, the non-

citizen must show a “reasonable fear of persecution or torture,” 8 C.F.R. § 208.31(c),

“which has been defined to require a ten percent chance that the non-citizen will be

2 21-730 persecuted or tortured if returned to his or her home country,” Alvarado-Herrera,

993 F.3d at 1195.

a. Persecution. Esteban argues that substantial evidence does not support

the IJ’s determination that he failed to establish a reasonable fear of persecution.

More specifically, the IJ found that the evidence failed to show that any harm

Esteban might suffer at the hands of the cartels would occur on account of his “race,

religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 208.31(c).

The IJ’s finding is supported by substantial evidence, as Esteban testified both

before the asylum officer and the IJ that the cartels targeted him and his son because

they wanted to increase their ranks. Given this testimony, the record does not

compel a conclusion contrary to the one reached by the IJ. See INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992).

Esteban also appears to argue that the IJ legally erred by applying an incorrect

nexus standard. There was no legal error. The IJ correctly explained that Esteban

had to show “a reasonable possibility of persecution . . . on account of one of the

enumerated grounds.” The IJ also explained why the evidence failed to satisfy that

standard: “They harmed [Esteban] because they wanted [Esteban’s son] to join their

ranks. . . . [T]hese criminal elements want young men to fight for them. That’s the

motivation.”

3 21-730 b. Torture. Esteban challenges the IJ’s determination that he failed to

establish a reasonable fear of torture because he did not show that any torture would

be inflicted by the government or with its consent or acquiescence. See 8 C.F.R.

208.18(a)(1), (7). “‘Acquiescence’ requires only that public officials were aware of

the torture but ‘remained willfully blind to it, or simply stood by because of their

inability or unwillingness to oppose it.’” Bromfield v. Mukasey, 543 F.3d 1071, 1079

(9th Cir. 2008) (quoting Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir.

2006)). The government does not dispute that the harm Esteban fears would

constitute torture if he established that the police would acquiesce in the cartel’s

efforts.

Esteban’s testimony before the asylum officer established that he tried to

report the cartel’s threats to the police, the police ignored his attempt, and the police

had ignored similar complaints by others. The asylum officer found Esteban

credible. Under our precedent, Esteban’s credible testimony compels a finding that

there is at least a ten percent chance that the police would be unwilling to address

cartel violence against him. See Alvarado-Herrera, 993 F.3d at 1197 (reversing IJ’s

no-acquiescence finding because petitioner provided a specific account of an attack

by gang members who were dressed in police uniforms and displayed police badges,

along with anecdotal evidence of police corruption). Like the petitioner in Alvarado-

Herrera, Esteban provided a specific account and anecdotal evidence of police

4 21-730 unwillingness to address cartel violence. We therefore grant the petition as to the

negative reasonable fear of torture determination and remand “to the agency with

instructions to provide [Esteban] a hearing before an immigration judge only as to

the merits of his claim for protection under CAT.” Id.

PETITION DISMISSED IN PART, DENIED IN PART, AND

GRANTED IN PART; REMANDED WITH INSTRUCTIONS.1

1 The parties shall bear their own costs on appeal.

5 21-730