NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERMAN JUAREZ RODAS, No. 20-73126
Petitioner, Agency No. A089-813-589
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Immigration Judge
Submitted January 11, 2022** Pasadena, California
Before: WALLACE, BOGGS,*** and FRIEDLAND, Circuit Judges.
German1 Juarez Rodas appeals from the order of an immigration judge
* 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 Danny J. Boggs, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 1 The Government’s brief repeatedly refers to the Petitioner, who has been in their custody, as “Germin.” His name is German, as nearly every page of the record denying his requests for relief from removal and finding that he had not established
a reasonable fear of persecution or torture in his home country. We have jurisdiction
under 8 U.S.C. § 1252(a)(1), and we now affirm.
Juarez Rodas, who is a native and citizen of Guatemala, has entered without
inspection and been removed from the United States multiple times since 1996.
During his most recent removal proceeding, he requested asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), claiming that
he had been threatened with death the last time he was in Guatemala and was afraid
to return home. The asylum officer found Juarez Rodas credible but concluded that
he had not established a reasonable fear of persecution or torture. Juarez Rodas
appealed to an immigration judge. Although Department of Homeland Security
regulations normally require review in such cases to be conducted within ten days,
it was three months before the immigration judge affirmed the adverse reasonable-
fear determination. See 8 C.F.R. § 208.31(g).
Juarez Rodas now argues that the delay in reviewing his claim renders the
immigration judge’s order invalid, and that the immigration judge should have
granted him CAT protection.2 We disagree on both counts.
reflects. 2 Because Juarez Rodas does not argue that he is entitled to asylum or withholding of removal before this court, any such claims are forfeited.
2 1. Construing Juarez Rodas’s claim of delay as an allegation that he was denied
due process, we review this challenge to his reasonable-fear proceeding de novo.
Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019) (per curiam).
The relevant DHS regulation states that “[i]n the absence of exceptional
circumstances,” review from the asylum officer’s decision “shall be conducted by
the immigration judge within 10 days.”3 8 C.F.R. § 208.31(g). The asylum officer
referred the case to the immigration judge on July 17, 2020, which started the clock
running. Ibid. A month later, counsel for Juarez Rodas requested an update and
stated that Juarez Rodas was in quarantine due to COVID-19. The asylum office, in
response to counsel’s requests, refiled the referral paperwork with the immigration
court on August 19 and again on September 17 (at which time the court finally
appears to have taken notice). However, at a scheduled hearing on September 24,
Juarez Rodas was again in quarantine; his counsel appeared without him.4 A hearing
was finally conducted with Juarez Rodas present on October 15.
The delays in this case are adequately explained by the “exceptional
3 The relevant timeline is ten days, not seven, because Juarez Rodas is an alien whose previous removal order was reinstated. Compare 8 C.F.R. § 208.31(g), with 8 C.F.R. § 1003.42(e). 4 It is unclear whether Juarez Rodas was continuously or sporadically in quarantine (or, indeed, whether he ever contracted COVID-19). The record reflects, however, that during all relevant communications in August and September, Juarez Rodas was quarantined and unavailable.
3 circumstances” of the COVID-19 pandemic. See 8 C.F.R. § 208.31(g). The case
was referred in July, but Juarez Rodas was in quarantine and unavailable to attend a
hearing in both August and September. When the hearing was finally held in
October, the immigration judge explained that “we could not get your case heard
within 24 hours or even 7 days . . . a pandemic like Covid-19 creates emergency
situations that we need to deal with.” The necessities of preventing the spread of a
novel virus likely qualify as “exceptional.” That being said, the record before us is
insufficient to determine whether Juarez Rodas was in quarantine for any portion of
the relevant regulatory period, i.e., the ten days immediately following the asylum
officer’s referral of Juarez Rodas’s case on July 17. While the August and
September delays seem exceptional and therefore justified, we are in the dark as to
July.
But even if the government did violate its own regulations, and exceptional
circumstances did not excuse all of the delay, Juarez Rodas is not entitled to relief.
“As a predicate to obtaining relief for a violation of procedural due process rights in
immigration proceedings, an alien must show that the violation prejudiced him.”
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc) (quoting
Padilla v. Ashcroft, 334 F.3d 921, 924–25 (9th Cir. 2003)). Prejudice is a showing
“that the alleged violation affected the outcome of the proceedings.” Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000). Juarez Rodas claims that the delay in this case
4 “prejudiced” him “because he no longer had a fresh recollection of the events of the
interview” with the asylum officer. But Juarez Rodas repeated essentially the same
facts to the immigration judge that he had asserted before the asylum officer:
someone called him at his home in Guatemala, referred to him by name, and
threatened to kill him because (Juarez Rodas suspected) his prior stay in the United
States had made him a target. Because nothing about the delay could have affected
how the immigration judge viewed the facts or law—after all, he also had access to
the asylum officer’s interview—Juarez Rodas cannot show that the delay prejudiced
him.
Therefore, the delay here did not deprive Juarez Rodas of due process.
2.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERMAN JUAREZ RODAS, No. 20-73126
Petitioner, Agency No. A089-813-589
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Immigration Judge
Submitted January 11, 2022** Pasadena, California
Before: WALLACE, BOGGS,*** and FRIEDLAND, Circuit Judges.
German1 Juarez Rodas appeals from the order of an immigration judge
* 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 Danny J. Boggs, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 1 The Government’s brief repeatedly refers to the Petitioner, who has been in their custody, as “Germin.” His name is German, as nearly every page of the record denying his requests for relief from removal and finding that he had not established
a reasonable fear of persecution or torture in his home country. We have jurisdiction
under 8 U.S.C. § 1252(a)(1), and we now affirm.
Juarez Rodas, who is a native and citizen of Guatemala, has entered without
inspection and been removed from the United States multiple times since 1996.
During his most recent removal proceeding, he requested asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), claiming that
he had been threatened with death the last time he was in Guatemala and was afraid
to return home. The asylum officer found Juarez Rodas credible but concluded that
he had not established a reasonable fear of persecution or torture. Juarez Rodas
appealed to an immigration judge. Although Department of Homeland Security
regulations normally require review in such cases to be conducted within ten days,
it was three months before the immigration judge affirmed the adverse reasonable-
fear determination. See 8 C.F.R. § 208.31(g).
Juarez Rodas now argues that the delay in reviewing his claim renders the
immigration judge’s order invalid, and that the immigration judge should have
granted him CAT protection.2 We disagree on both counts.
reflects. 2 Because Juarez Rodas does not argue that he is entitled to asylum or withholding of removal before this court, any such claims are forfeited.
2 1. Construing Juarez Rodas’s claim of delay as an allegation that he was denied
due process, we review this challenge to his reasonable-fear proceeding de novo.
Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019) (per curiam).
The relevant DHS regulation states that “[i]n the absence of exceptional
circumstances,” review from the asylum officer’s decision “shall be conducted by
the immigration judge within 10 days.”3 8 C.F.R. § 208.31(g). The asylum officer
referred the case to the immigration judge on July 17, 2020, which started the clock
running. Ibid. A month later, counsel for Juarez Rodas requested an update and
stated that Juarez Rodas was in quarantine due to COVID-19. The asylum office, in
response to counsel’s requests, refiled the referral paperwork with the immigration
court on August 19 and again on September 17 (at which time the court finally
appears to have taken notice). However, at a scheduled hearing on September 24,
Juarez Rodas was again in quarantine; his counsel appeared without him.4 A hearing
was finally conducted with Juarez Rodas present on October 15.
The delays in this case are adequately explained by the “exceptional
3 The relevant timeline is ten days, not seven, because Juarez Rodas is an alien whose previous removal order was reinstated. Compare 8 C.F.R. § 208.31(g), with 8 C.F.R. § 1003.42(e). 4 It is unclear whether Juarez Rodas was continuously or sporadically in quarantine (or, indeed, whether he ever contracted COVID-19). The record reflects, however, that during all relevant communications in August and September, Juarez Rodas was quarantined and unavailable.
3 circumstances” of the COVID-19 pandemic. See 8 C.F.R. § 208.31(g). The case
was referred in July, but Juarez Rodas was in quarantine and unavailable to attend a
hearing in both August and September. When the hearing was finally held in
October, the immigration judge explained that “we could not get your case heard
within 24 hours or even 7 days . . . a pandemic like Covid-19 creates emergency
situations that we need to deal with.” The necessities of preventing the spread of a
novel virus likely qualify as “exceptional.” That being said, the record before us is
insufficient to determine whether Juarez Rodas was in quarantine for any portion of
the relevant regulatory period, i.e., the ten days immediately following the asylum
officer’s referral of Juarez Rodas’s case on July 17. While the August and
September delays seem exceptional and therefore justified, we are in the dark as to
July.
But even if the government did violate its own regulations, and exceptional
circumstances did not excuse all of the delay, Juarez Rodas is not entitled to relief.
“As a predicate to obtaining relief for a violation of procedural due process rights in
immigration proceedings, an alien must show that the violation prejudiced him.”
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc) (quoting
Padilla v. Ashcroft, 334 F.3d 921, 924–25 (9th Cir. 2003)). Prejudice is a showing
“that the alleged violation affected the outcome of the proceedings.” Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000). Juarez Rodas claims that the delay in this case
4 “prejudiced” him “because he no longer had a fresh recollection of the events of the
interview” with the asylum officer. But Juarez Rodas repeated essentially the same
facts to the immigration judge that he had asserted before the asylum officer:
someone called him at his home in Guatemala, referred to him by name, and
threatened to kill him because (Juarez Rodas suspected) his prior stay in the United
States had made him a target. Because nothing about the delay could have affected
how the immigration judge viewed the facts or law—after all, he also had access to
the asylum officer’s interview—Juarez Rodas cannot show that the delay prejudiced
him.
Therefore, the delay here did not deprive Juarez Rodas of due process.
2. We review the decision of the immigration judge for substantial evidence.
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). As noted above, the
only issue before us is whether Juarez Rodas is entitled to relief under the CAT.
In order to demonstrate a reasonable fear of torture to trigger further
proceedings on eligibility for CAT protection, a petitioner must show, at the very
least, that there is a 10 percent likelihood that upon his return he will be tortured
“with the consent or acquiescence of a public official.” Alvarado-Herrera v.
Garland, 993 F.3d 1187, 1196 (9th Cir. 2021). Juarez Rodas has not met that burden
here. He makes no allegation that public officials were the ones who threatened him,
and he made it clear to the asylum officer that he filed a report with the national
5 police and the local district attorney regarding the incident. The mere fact that
officials were unable to identify the individuals who threatened Juarez Rodas by
telephone does not demonstrate their complicity or acquiescence, nor does the fact
that “the situation in [Guatemala] is really bad right now.” See Xochihua-Jaimes v.
Barr, 962 F.3d 1175, 1184 (9th Cir. 2020) (noting that while willful blindness by
public officials might show acquiescence, “a general ineffectiveness on the
government’s part to investigate and prevent crime will not suffice” (quoting
Andrade-Garcia, 828 F.3d at 836)). We have repeatedly held that serious, pervasive
crime alone is not enough to support CAT relief, because of the Convention’s
government-acquiescence requirement. Id. at 1184–85 (collecting cases).
There was substantial evidence for the immigration judge to determine that
Juarez Rodas had not demonstrated a reasonable fear of being tortured upon return
to Guatemala. He is therefore not entitled to CAT relief.
AFFIRMED.