Javier Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 5, 2022
• Docket: 21-70763
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 5 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAVIER MARTINEZ, No. 21-70763

Petitioner, Agency No. A040-200-753

v.

MERRICK B. GARLAND, MEMORANDUM*

Respondent.

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

Argued and Submitted July 5, 2022 Seattle, Washington

Before: CLIFTON and BUMATAY, Circuit Judges, and CHEN,** District Judge. Partial Dissent by Judge BUMATAY

Petitioner Javier Martinez, a native of Costa Rica and a citizen of Nicaragua,

petitions for review of the Board of Immigration Appeals’ (BIA) denial of his claim

for relief under the Convention Against Torture (CAT), as well as the BIA’s denials

of his requests for a continuance and for administrative closure. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. jurisdiction under 8 U.S.C. § 1252(a). As the parties are familiar with the facts and

procedural history, we do not recount them here. Because we conclude that the

agency committed legal error by failing to consider the aggregate risk of torture from

all sources and by making its own factual finding regarding the 2002 grant of

withholding of removal, we grant Martinez’s petition for review and remand on the

CAT claim. On remand, the agency should also consider Martinez’s request for

administrative closure. We deny Martinez’s petition for review as to the agency’s

denial of a continuance.

1. The CAT’s implementing regulations require the agency to consider

“all evidence relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3).

We have interpreted this requirement to mean that “CAT claims must be considered

in terms of the aggregate risk of torture from all sources, and not as separate,

divisible CAT claims.” Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir.

2015) (citing Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011)). In other words, a

petitioner need only show that “taking into account all possible sources of torture,

he is more likely than not to be tortured.” Cole, 659 F.3d at 775. “Thus, in assessing

a CAT claim from an applicant who has posited multiple theories for why he might

be tortured, the relevant inquiry is whether the total probability that the applicant

will be tortured—considering all potential sources of and reasons for torture—

exceeds 50 percent.” Velasquez-Samayoa v. Garland, 38 F.4th 734, 738 (9th Cir.

2 2022) (emphasis in original).

In support of his CAT claim, Martinez identified several sources of torture:

(1) by drug gangs and the police due to his mental health conditions; (2) by police

officers and armed civilian groups who may target him as a suspected gang member;

(3) by the same groups because of his family connections as an opponent of President

Daniel Ortega; and (4) by the Santos family and Sinaloa drug cartel, who may

believe that he “ratted on them” and cooperated with law enforcement in the United

States. The decisions of the BIA and IJ, taken collectively, address some of these

sources of torture, but do so separately. The agency did not aggregate the risk of

torture from all sources and thus failed to assess Martinez’s overall risk of being

tortured.

With regard to Martinez’s drug addiction, the BIA concluded that Martinez

failed to demonstrate that it was more likely than not that he would be tortured due

to his drug addiction. The BIA reached this conclusion by reasoning that the “drug-

addiction based claim relies on a series of events, all of which must happen for

torture to occur” and concluding that the evidence did not establish that any event

was “more likely than not to happen, let alone that the entire chain[s] will come

together to result in the probability of future torture.” (citing Medina-Rodriguez v.

Barr, 979 F.3d 738, 750–51 (9th Cir. 2020)). As to the risk of torture from the

Santos family and Sinaloa cartel, the BIA affirmed the IJ’s finding that Martinez has

3 not shown that “his individual risk of torture from Karla, the Sinaloa Cartel, or any

other person or organization is ‘more likely than not.’” The BIA did not assess

Martinez’s asserted risk of torture stemming from his family’s opposition to

President Ortega. The agency thus failed to assess whether the aggregation of all

risks “results in a probability greater than 50 percent that he will be tortured.”

Velasquez-Samayoa, 38 F.4th at 740.

2. In assessing the risk of torture, the BIA gave no weight to the prior grant

of withholding of removal from 2002 because it found the withholding was rendered

under “different circumstances” that “provide[d] little, if any, context into

[Martinez’s] present situation.” The BIA did not in this regard review a finding of

fact by the IJ as none was made. Instead, the BIA made its own factual finding in

the first instance. In so doing, the BIA exceeded its authority. See 8 C.F.R.

§ 1003.1(d)(3)(iv)(A)) (“The Board will not engage in factfinding in the course of

deciding cases . . .”); see also Brezilien v. Holder, 569 F.3d 403, 414 (9th Cir. 2009)

(remanding where “[t]he BIA improperly relied upon its own factual findings to

conclude that Brezilien had not established a well-founded fear of future

persecution”); Alanniz v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) (“[N]either the

BIA nor the Ninth Circuit is authorized to undertake the initial factfinding necessary

to determine” the viability of a proposed social group).

3. In denying Martinez’s request for administrative closure, the BIA relied

4 on Matter of Castro-Tum which found that IJs and the BIA lacked the authority to

administratively close cases. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 282–

83 (A.G. 2018). Castro-Tum was subsequently overruled by Cruz-Valdez, which

restored administrative closure. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326,

329 (A.G. 2021). The government concedes that Cruz-Valdez applies retroactively.

See Barrios v. Garland, 854 F. App’x 116 (9th Cir. 2021) (remanding to BIA for

further consideration in light of Cruz-Valdez).

While acknowledging that the BIA did not analyze the merits of Martinez’s

request for administrative closure, the government argues that remand would be

futile since the agency denied his request for a continuance. See Vista Hill Found.,

Inc. v. Heckler, 767 F.2d 556, 566 n.9 (9th Cir. 1985) (remand not required when it

“would be an idle and useless formality”) (quotation omitted). Remand is not futile

here because the BIA’s decision to deny a continuance was driven in part by concern

over administrative inefficiencies, a concern not relevant to the decision regarding

administrative closure.

4. We deny Martinez’s petition for review as to the BIA’s denial of a

continuance. Martinez argues that the agency abused its discretion by failing to

evaluate the likelihood of success of his U-visa application. But both the IJ and BIA

noted their “concerns” that Martinez’s criminal record made it less likely the U-visa

would be granted. Because the agency properly weighed the likelihood of success

5 as well as the administrative inefficiencies of a continuance, there was no abuse of

discretion.

PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, AND REMANDED.

6 FILED Javier Martinez v. Garland, No. 21-70763 AUG 5 2022 BUMATAY, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree with granting the petition and remanding to the BIA solely on the issue

of Javier Martinez’s request for administrative closure. After the BIA ruled, but

before this appeal, the Attorney General changed the law governing administrative

closures. See Matter of Cruz-Valdez, 28 I. & 2 N. Dec. 326, 329 (A.G. 2021). While

I am less certain of this, the government says that Cruz-Valdez must apply

retroactively to Martinez’s case. Given that concession, we must remand for the

BIA to consider Cruz-Valdez in the first instance. While the government asserts that

we could apply the futility doctrine, that would violate SEC v. Chenery Corp., 332

U.S. 194, 196 (1947).

I dissent in part because I disagree with the panel majority’s conclusion that

the BIA failed to properly consider the evidence of potential torture Martinez would

face if removed to Nicaragua or Costa Rica.

1. The majority holds that the BIA ignored Martinez’s argument that he was

likely to be tortured because he would be perceived as an opponent to Nicaraguan

president Daniel Ortega. But we lack jurisdiction to consider this argument because

Martinez failed to sufficiently brief it to the BIA. Our jurisdiction extends only to

those claims exhausted before the BIA. 8 U.S.C. § 1252(d)(1). Exhaustion requires

that the BIA be put “on notice so that it ha[s] an opportunity to pass on th[e] issue.”

Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (simplified). Martinez did not 1 mention his political opinion argument in his brief to the BIA except for a one-line

parenthetical describing his fear of Ortega and a factual recitation of his asylum

petition. These fleeting references were not enough to put the BIA on notice that

Martinez was advancing a political opinion argument and so we lack jurisdiction to

consider the claim.

2. I also disagree with the majority’s conclusion that the BIA should have

given more weight to Martinez’s grant of withholding of removal in 2002.

Withholding of removal involves different factual questions and different legal

standards than relief under the Convention Against Torture. Compare 8 U.S.C.

1231(b)(3)(A) (Withholding of removal is appropriate if “the alien’s life or freedom

would be threatened” if removed to the alien’s home country “because of the alien’s

race, religion, nationality, membership in a particular social group, or political

opinion), with 8 C.F.R. § 1208.17(a) (CAT relief is appropriate if the applicant

shows he “is more likely than not to be tortured” if removed.). If substantial

evidence supports the BIA’s conclusion that he would not be tortured with the

acquiescence of government officials if returned to Nicaragua or Costa Rica (as I

think the record compels), it is irrelevant that an immigration judge also found he

established a fear of persecution back in 2002.

3. Finally, I disagree that the BIA failed to consider the aggregate risk of

torture. We know that the BIA did consider the aggregate risk to Martinez because

2 the BIA said it did. As the BIA clearly stated in its decision, “We have considered

all relevant factors in this case, in the aggregate, in reaching this decision.” And

“[w]hen nothing in the record or the BIA’s decision indicates a failure to consider

all the evidence, a general statement that [the agency] considered all the evidence

before [it] may be sufficient.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011).

While we might disagree with the BIA’s analysis of the evidence, nothing indicates

that it failed to consider all the evidence properly before it.