Haro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2023
• Docket: 21-648
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS CARDONA HARO, No. 21-648

Petitioner, Agency No. A092-034-371

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 7, 2023 Pasadena, California

Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges. Dissent by Judge FORREST.

Carlos Cardona Haro petitions for review of an order issued by the Board

of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) denial of

his claim for protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the petition.

When, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994), and expressly adopts and affirms the IJ’s decision, we “look

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. through the BIA’s decision and treat the IJ’s decision as the final agency

decision for the purposes of [the] appeal.”1 Tamang v. Holder, 598 F.3d 1083,

1088 (9th Cir. 2010). We review the IJ’s factual findings for substantial

evidence, meaning that the agency’s findings are “conclusive unless any

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

Salguero Sosa v. Garland, 55 F.4th 1213, 1218 (9th Cir. 2022) (quoting

Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)); 8 U.S.C. § 1252(b)(4)(B).

1. Substantial evidence supports the IJ’s finding that Haro failed to show

that he would be tortured in a mental health facility if removed to Mexico. “[T]o

establish a likelihood of torture for purposes of the CAT, a petitioner must show

that severe pain or suffering was specifically intended.” Villegas v. Mukasey,

523 F.3d 984, 989 (9th Cir. 2008); see also 8 C.F.R. § 1208.18(a)(5). The IJ

found that, even if Haro became confined to a mental health facility, the

conditions in that facility would not constitute torture within the meaning of the

CAT because Haro “ha[d] presented insufficient evidence that anyone in that

facility would specifically intend to harm him.” Although certainly suggestive

of deplorable conditions, the evidence introduced by Haro does not compel a

contrary conclusion—a showing required for reversal under our substantial

1 We therefore reject the Government’s contention that we may not review issues addressed by the IJ—and by the petitioner in this appeal—but not by the BIA. “If the BIA intends to constrict the scope of its opinion to apply to only one ground on which the IJ’s decision rested, the BIA can and should specifically state that it is so limiting its opinion.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005).

2 21-648 evidence review. See Villegas, 523 F.3d at 989; Tamang, 598 F.3d at 1095.

2. Haro also claimed before the IJ and the BIA that he would likely be

tortured at the hands of law enforcement or while in prison. Haro makes “no

substantive argument” regarding this issue in his opening brief, however, and he

has therefore forfeited it. Cui v. Garland, 13 F.4th 991, 999 n.6. (9th Cir. 2021)

(quoting Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005)).

PETITION DENIED.

3 21-648 FILED MAR 20 2023 Haro v. Garland, No. 21-648 MOLLY C. DWYER, CLERK Forrest, J., dissenting: U.S. COURT OF APPEALS

The court disposes of Carlos Cardona Haro’s petition on a dispositive ground

that the BIA did not address and the Government affirmatively waived—whether

Haro established that the Mexican mental-health institutions that he fears would

have the specific intent to torture him. Rather than reach this issue, I would remand

for the agency to address it in the first instance, as the Government recommends. See

United States v. Sineng-Smith, 140 S. Ct. 1575, 1579 (2020) (“[A]s a general rule,

our system is designed around the premise that parties represented by competent

counsel know what is best for them . . . .” (cleaned up)).

Where the Board of Immigration Appeals (BIA) cites Matter of Burbano, 20

I. & N. Dec. 872, 874 (BIA 1994), and “does not expressly disagree with” the

Immigration Judge (IJ), we generally review both the IJ’s and the BIA’s decision.

Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013). But the BIA may cite

Burbano and adopt the IJ’s decision “only in part.” Meihua Huang v. Mukasey, 520

F.3d 1006, 1008 (9th Cir. 2008) (per curiam). Where, as here, the BIA cites Burbano

and expressly agrees with only one of multiple issues decided by the IJ and does not

address a dispositive issue reached by the IJ, “the proper course . . . is to remand to

the agency for additional investigation or explanation.” INS v. Orlando Ventura, 537

U.S. 12, 16 (2002); see also Meihua Huang, 520 F.3d at 1008 (remanding to the

agency where the BIA cited Burbano but did not address potentially dispositive issue 1 decided by the IJ); cf. Parussimova v. Mukasey, 555 F.3d 734, 738 n.3 (9th Cir.

2009) (explaining that we treat the BIA’s decision as resting exclusively on one

ground where it cites Burbano and indicates its affirmance applies only to such

ground).

Remand is particularly warranted here where the Government conceded in its

Answering Brief that the “B[IA] did not . . . reach th[e] issue” on which the court

now resolves this case. Haro may have relied on this concession to his detriment in

choosing not to file a reply brief. The Government also reiterated at oral argument

that it could not “tell for sure that the B[IA] had endorsed” the IJ’s analysis of intent

to torture because the BIA “had not discussed that . . . alternative finding.” Where

the BIA did not discuss this dispositive issue but did discuss other issues decided by

the IJ and where the Government concedes that the intent-to-torture issue is not

properly before us, we should have remanded to the BIA. Orlando Ventura, 537 U.S.

at 16. For this reason, I respectfully dissent.