Francisco Aldana-Cano v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2020
• Docket: 17-71092
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO ALDANA-CANO, AKA No. 17-71092 Rafael Aldana, AKA Francisco Cano, AKA Jose Francisco Lopez, AKA Perro Silva, Agency No. A029-159-490

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted October 8, 2020 Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and CARDONE,** District Judge.

Petitioner asks this court to reverse a Board of Immigration Appeals (BIA)

final removal order and remand for further proceedings. The parties are familiar

with the facts, so we do not recite them here, except as necessary to provide context

to our ruling. We have jurisdiction under 8 U.S.C. § 1252.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 1. Petitioner first argues that the BIA erred in affirming an Immigration Judge’s

(IJ) decision to reopen and cancel his asylum. Here, Petitioner contends that the IJ

and BIA improperly used his 1993 California conviction for sexual abuse of a minor

as grounds to retroactively apply the Illegal Immigration Reform and Immigration

Responsibility Act of 1996’s (IIRIRA) asylum termination provisions to such status

conferred in 1989.

IIRIRA’s “definitional statute,” codified as 8 U.S.C. § 1101(a)(43), which

makes sexual abuse of minors an aggravated felony, is retroactive. Ledezma-Galicia

v. Holder, 636 F.3d 1059, 1079 (9th Cir. 2006). However, the “effective date” clause

in IIRIRA’s definitional statute does not control IIRIRA’s substantive immigration

consequences, even if those consequences turn on an aggravated felony conviction.

Id. Rather, cancellation of asylum due to an aggravated felony conviction involves

another part of IIRIRA, codified as 8 U.S.C. §§ 1158(b)(2)(B)(i) and 1158(c)(2)(B).

See Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2011). These provisions do

not contain language permitting their retroactive application. See Ixcot v. Holder,

646 F.3d 1202, 1207–08 (9th Cir. 2011). They only pertain to asylum requested on

or after April 1, 1997. See 8 C.F.R. § 208.24(a)(2) (2013). In addition, a contrary

reading would attach new legal consequences to pre-IIRIRA crimes. See Ixcot, 646

F.3d at 1208–09. Thus, IIRIRA cannot be used to retroactively terminate asylum

applied for on or before March 31, 1997. See id. at 1207–09.

2 In adjudicating Petitioner’s immigration case, the IJ rejected the government’s

IIRIRA-centric arguments for canceling asylum granted in 1989. This decision to

set IIRIRA aside was correct as Petitioner obtained asylum before IIRIRA took

effect on April 1, 1997. Instead, the IJ applied regulations governing termination of

asylum applied for on or before March 31, 1997. See 8 C.F.R. § 208.24(a)(3) (2013);

8 C.F.R. § 208.14(c)(1) (1993); 8 C.F.R. § 208.8(f)(iv) (1989). These regulations

authorize IJs to cancel asylum if the alien committed an act that would have justified

denial of asylum, such as a “particularly serious crime.” When IIRIRA does not

apply, “particularly serious crimes” are defined using the test set out in Matter of

Frentescu, 18 I. & N. Dec. 244 (BIA 1982). Blandino-Medina v. Holder, 712 F.3d

1338, 1342–49 (9th Cir. 2013). The IJ properly analyzed Petitioner’s 1993 sexual

abuse of a minor conviction under the Matter of Frentescu test, and deemed it a

“particularly serious crime” warranting termination of asylum Petitioner secured in

1989. The BIA upheld the IJ’s decision to cancel Petitioner’s asylum on the same

ground. Because there is no error here, we cannot reverse cancellation of the asylum

that Petitioner was granted in 1989. See Pechenkov, 705 F.3d at 449.

2. Petitioner also argues that the IJ and BIA wrongly used a “reason to believe”

standard in finding that his 1985 marijuana distribution conviction made him a drug

trafficker subject to non-waivable inadmissibility that barred adjustment of status.

But this court has repeatedly explained that the “reason to believe” standard serves

3 that exact purpose. See Rodriguez v. Holder, 683 F.3d 1164, 1168 (9th Cir. 2012);

Gomez-Granillo v. Holder, 654 F.3d 826, 831 (9th Cir. 2011); Lopez-Molina v.

Ashcroft, 368 F.3d 1206, 1209 (9th Cir. 2004); Alcaron-Serrano v. INS, 220 F.3d

1116, 1119 (9th Cir. 2000). And the IJ’s decision to deny Petitioner a waiver of

inadmissibility, as well as the BIA’s affirmance, correctly applied the “reason to

believe” standard. Accordingly, we cannot reverse denial of Petitioner’s request for

a waiver of inadmissibility for adjustment of status.

3. In addition, Petitioner contends that the IJ and BIA improperly failed to give

preclusive effect to credibility determinations and fact findings made in response to

1989 testimony during a 2015 hearing in which Petitioner’s 2012 asylum application

was denied. Here, Petitioner relies on the collateral estoppel doctrine, which does

not apply if the controlling facts or law have changed. Oyeniran v. Holder, 672 F.3d

800, 806–07 (9th Cir. 2012). Petitioner offered very different facts in support of his

1989 and 2012 asylum applications. Further, the REAL ID Act of 2005 governed

the credibility determinations made in Petitioner’s 2015 hearing. Shrestha v. Holder,

590 F.3d 1034, 1039–40 (9th Cir. 2010). Because the relevant facts and law both

changed between 1989 and 2015, the IJ and BIA did not err in declining to apply

collateral estoppel, so we cannot reverse denial of Petitioner’s 2012 asylum request.

4. Finally, Petitioner argues that the IJ and BIA wrongly denied him relief under

the United Nations Convention Against Torture (CAT) by allowing an adverse

4 credibility determination made with respect to his 2012 asylum application to “wash

over” his CAT claim. Petitioner also alleges that this adverse credibility finding was

the only basis for rejection of his CAT claim. However, Petitioner’s requests for

asylum and CAT relief were based on the same statements, and IJs can extend

adverse credibility determinations to all claims supported by the same testimony.

Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015). In addition, adverse credibility

determinations only wash over CAT claims if other relevant evidence, such as

country conditions, is ignored. See Shrestha, 590 F.3d at 1048–49. Here, however,

the IJ carefully considered country conditions before denying Petitioner CAT relief.

Furthermore, Petitioner’s testimony did not indicate that he would be personally

targeted for torture if returned to Guatemala. The only other evidence that Petitioner

submitted in support of his CAT claim consisted of a series of generalized Amnesty

International, Human Rights Watch, and State Department reports describing issues

with the Guatemalan police. These general materials do not compel a conclusion

that Petitioner would be tortured as a result of deportation. See id. Thus, the IJ and

BIA did not improperly discard Petitioner’s CAT claim.

For the above reasons, the judgment of the BIA is AFFIRMED.