Hernandez Garcia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 22-234
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS FERNANDO HERNANDEZ No. 22-234 GARCIA, Agency No. A204-722-936 Petitioner,

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 27, 2023 San Francisco, California

Before: BOGGS,** M. SMITH, and OWENS, Circuit Judges.

Petitioner Luis Fernando Hernandez-Garcia, a native and citizen of

Mexico, challenges the Board of Immigration Appeals’ (BIA) dismissal of his

appeal from the Immigration Judge’s (IJ) denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the Court of Appeals, Sixth Circuit, sitting by designation. (CAT). The parties are familiar with the facts, so we do not recount them here.

We deny the petition for review.

1. The agency did not abuse its discretion in finding that Petitioner’s

convictions were particularly serious crimes (PSC) that render him ineligible for

asylum relief. To determine whether a crime is particularly serious for purposes

of asylum eligibility, the agency must consider (1) “the nature of the

conviction,” (2) “the type of sentence imposed,” and (3) “the circumstances and

underlying facts of the conviction.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir.

2020). Our review of a PSC determination is “limited to ensuring that the

agency relied on the ‘appropriate factors’ and ‘proper evidence’ to reach [its]

conclusion.” Id. We “cannot reweigh evidence to determine if the crime was

indeed particularly serious.” Id. at 966.

The agency found that Petitioner’s conviction by guilty plea of four

felony counts of unlawful sexual intercourse with a person under 18 in violation

of California Penal Code § 261.5(d), for which he was sentenced to seven years

imprisonment, constituted a PSC. In so finding, the agency considered police

reports related to Petitioner’s arrests underlying those convictions, which

contained allegations of forcible rape. Because Petitioner was convicted only of

statutory rape, he claims that the reports “ha[ve] nothing to do with [his] actual

convictions” and the agency erred in considering them.

Petitioner’s argument is foreclosed by our decision in Bare v. Barr.

There, the petitioner argued that the agency, in determining whether his felon-

2 in-possession conviction was a PSC, should not have considered “facts which

did not directly go to an element of” his conviction, such as the fact that he had

an arms-dealing business, or instances where he had made threats or had been

violent. Bare, 975 F.3d at 964-65. We rejected this argument, noting that this

was “information [] within the realm of what the IJ and BIA could consider”

when making a PSC determination. Id. at 965. Here too, the agency was

permitted to consider the circumstances underlying Petitioner’s convictions as

stated in the police reports, even though Petitioner was not convicted of forcible

rape. And like the petitioner in Bare, Petitioner does not argue that the report is

unreliable in any specific respect. Id. The agency therefore did not abuse its

discretion. See id. at 966.

2. Petitioner, who is deaf and mute, was not denied due process due to

inadequate translation. “Due process requires that an applicant be given

competent translation services.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.

2003). However, “an IJ may ameliorate the damage caused by an incompetent

translation by asking for ‘[c]larification or repetition,’” or otherwise

accommodating the Petitioner’s needs. Perez-Lastor v. INS, 208 F.3d 773, 782

(9th Cir. 2000) (alteration in original).

Here, Petitioner initially appeared to not understand some questions asked

by the IJ through a sign language interpreter during his hearing, which was

conducted virtually over WebEx. However, the record shows that the IJ made

repeated efforts to (1) ask Petitioner whether he understood what was being

3 said, (2) tell Petitioner to inform him if he did not understand, (3) repeat and re-

phrase questions so that Petitioner could understand, and (4) have the camera

zoom in so that Petitioner could see the translator’s signing better. Petitioner

also affirmed multiple times that he understood what was said, and was able to

request clarification from the interpreter when he did not understand. These

facts present a far cry from those in Perez-Lastor, where incompetent

translation violated due process and the IJ “aggressively cross-examin[ed] the

petitioner.” Id. at 776, 782.

Petitioner’s claim also fails because he cannot “demonstrate that a better

translation likely would have made a difference in the outcome.” Gutierrez–

Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002), amended by 337 F.3d 1023

(9th Cir. 2003). Petitioner does not state any facts about his convictions that

would have been revealed or negated if he had a better interpreter, nor how

those facts would have affected the outcome. Moreover, the IJ considered other

factors in making his PSC determination, including that “sexual offenses

perpetrated in [sic] children have been traditionally deemed to be exceptionally

serious crimes,” and that Petitioner’s sentence of seven years was “an

extremely, extraordinarily large and excessive term of imprisonment and

highlights the gravity of respondent’s crime.” Because Petitioner cannot show

prejudice, the BIA did not err in rejecting his due process challenge.

3. Finally, substantial evidence supports the agency’s denial of

Petitioner’s CAT claim. To establish relief under CAT, an applicant must

4 establish that it is “more likely than not” that he will be tortured by or with the

acquiescence of a public official if removed. Singh v. Whitaker, 914 F.3d 654,

662-63 (9th Cir. 2019). “Torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading

treatment.” 8 C.F.R. § 1208.18(a)(2).

Petitioner argues that the agency erred by “ignoring the evidence set forth

in the country conditions [reports]” purportedly showing “widespread abuse”

against deaf individuals. As a threshold matter, however, the IJ did review the

evidence that Petitioner provided about discrimination against the deaf.

Moreover, the agency correctly concluded that Petitioner was not entitled to relief

because the discrimination Petitioner feared did not rise to the level of torture.

See Acevedo Granados v. Garland, 992 F.3d 755, 764-65 (9th Cir. 2021).

PETITION FOR REVIEW DENIED.