Ivan Sanchez-Arce v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2022
• Docket: 20-71935
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2022 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

IVAN SANCHEZ-ARCE, No. 20-71935 Petitioner, Agency No. A208-937-987 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 9, 2021 Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and BAKER,** Judge.

Ivan Sanchez-Arce, a citizen and native of Mexico, petitions for review of

the decision of the Board of Immigration Appeals (“BIA”) affirming the order of

the Immigration Judge (“IJ”) denying his application for deferral of removal under

the Convention Against Torture (“Torture Convention”). We have jurisdiction

under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We

review the agency’s factual findings for substantial evidence. Monjaraz-Munoz v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. INS, 327 F.3d 892, 895 (9th Cir. 2003). Under this standard, the agency’s factual

findings must be upheld unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Nasrallah v. Barr,

140 S. Ct. 1683, 1692 (2020) (holding that this same substantial-evidence review

standard applies to Torture Convention claims). We deny the petition.

1. Sanchez contends that the agency failed to give appropriate evidentiary

weight to the testimony of his country-conditions expert, Dr. Jeremy Slack. We

disagree.

As an initial matter, we need not decide whether Sanchez is correct in

contending that the credibility standards set forth in INA § 208 apply as a formal

matter to applications for deferral of removal under the Torture Convention. See

8 U.S.C. § 1158(b)(1)(B)(iii) (listing factors on which credibility determinations

may be based in the asylum context); id. § 1231(b)(3)(C) (applying the same

standards to determinations concerning withholding of removal). Even assuming

that they do not, the agency nonetheless properly weighed the credibility and

persuasiveness of Dr. Slack’s testimony using appropriate and common-sense

considerations, such as whether his expert opinions contained inaccuracies or

reflected sufficient familiarity with the circumstances of Sanchez’s case. See

Matter of D-R-, 25 I. & N. Dec. 445, 460 n.13 (BIA 2011) (“An Immigration Judge

who finds an expert witness qualified to testify may give different weight to the

2 testimony, depending on the extent of the expert’s qualifications or based on other

issues regarding the relevance, reliability, and overall probative value of the

testimony as to the specific facts in issue in the case.”).

Substantial evidence supports the IJ’s assessment that Dr. Slack’s opinions

were entitled to “significant, but less than full, evidentiary weight.” As the IJ

explained, “Dr. Slack’s declaration contained multiple errors about the extent of

Respondent’s cooperation with law enforcement officials in the United States,

indicating that Dr. Slack was either unfamiliar with the facts of this case or careless

in his evaluation and description of the facts in the record.” Sanchez contends that

this assessment is contrary to the record, which reveals only a “single error,”

namely that Dr. Slack had stated that Sanchez had cooperated with authorities. But

Dr. Slack’s report repeated this error in at least three different places, even stating

at one point—incorrectly—that Sanchez had testified in open court. And contrary

to what Sanchez contends, the IJ did not “discard[] entirely” Dr. Slack’s opinions.

The IJ’s discussion of Sanchez’s Torture Convention claim affirmatively quotes

from Dr. Slack’s report with respect to one point concerning the history of the

relevant criminal cartels in Mexico, but the IJ clearly did not find Dr. Slack’s

testimony to be persuasive when it came to assessing the extent of the

individualized risk of torture that Sanchez would face. Given that the latter point

was the issue as to which Dr. Slack had made multiple errors in his report, we

3 cannot say that the IJ’s assessment of the testimony was improper. See Garland v.

Ming Dai, 141 S. Ct. 1669, 1677 (2021) (stating that, under the substantial

evidence standard, “a reviewing court must be mindful too that the agency, like

any reasonable factfinder, is free to credit part of a witness’ testimony without

necessarily accepting it all”) (simplified).

2. Substantial evidence supports the agency’s ultimate conclusion that

Sanchez had failed to establish that he was entitled to deferral of removal under the

Torture Convention.

To qualify for such relief, Sanchez must show that “it is more likely than not

that he . . . would be tortured” if removed to Mexico. 8 C.F.R. § 1208.16(c)(2).

Sanchez’s theory was that, if he were removed to Mexico, a specific cartel would

torture him due to its suspicion that Sanchez had cooperated with authorities in

connection with a murder he witnessed that was committed in Washington by

members of the predecessor cartel. The IJ concluded that Sanchez’s risk of harm

from the relevant cartel was speculative, because (1) Sanchez had not testified or

cooperated with the authorities in Washington; (2) Sanchez’s family members in

Mexico had not been contacted or threatened; (3) cartel members had asked

Sanchez to assist their drug trafficking, which suggested that the cartel did not

view him as “a threat or a security risk”; (4) the actual perpetrators of the murder

had been prosecuted; and (5) Sanchez had not been harmed. With respect to each

4 of these considerations, Sanchez presents reasonable arguments as to why the IJ

should have assessed them differently. But “[o]ur task is to determine whether

there is substantial evidence to support the [agency’s] finding, not to substitute an

analysis of which side in the factual dispute we find more persuasive.” Marcu v.

INS, 147 F.3d 1078, 1082 (9th Cir. 1998); see also Don v. Gonzales, 476 F.3d 738,

744 (9th Cir. 2007) (upholding agency’s decision as supported by substantial

evidence, noting that the IJ was not required to “interpret the evidence in the

manner advocated” by the alien). On this record, we cannot say that “any

reasonable adjudicator would be compelled to conclude” that Sanchez would likely

be tortured if removed to Mexico. 8 U.S.C. § 1252(b)(4)(B).

PETITION DENIED.