Jose Manzanarez-Santos v. Jefferson Sessions

Opinion

FILED UNITED STATES COURT OF APPEALS JAN 11 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

JOSE MANZANAREZ-SANTOS, No. 15-70148

Petitioner, Agency No. A088-807-738

v. ORDER JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

Before: WALLACE, TASHIMA, and WATFORD, Circuit Judges.

The respondent’s motion to amend is GRANTED. The memorandum

disposition filed on November 14, 2017, is amended as follows:

At page four, lines 2–3, change

consider whether> to

immigration judge to determine whether>.

Following amendment, the mandate shall issue forthwith. FILED NOT FOR PUBLICATION JAN 11 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

v. AMENDED MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

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

Argued and Submitted September 12, 2017 San Francisco, California

1. The Board of Immigration Appeals (BIA) erred in denying Jose

Manzanarez-Santos’ application for cancellation of removal. An alien’s

acceptance of voluntary departure breaks his continuous physical presence only if

the decision to depart was knowing and voluntary. See Ibarra-Flores v. Gonzales,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5 439 F.3d 614, 619 (9th Cir. 2006). Even if one refuses to credit Manzanarez-

Santos’ testimony that he was coerced into departing, as the BIA did, the record

nonetheless “must contain some evidence that the alien was informed of and

accepted” the terms of voluntary departure. Id. (emphasis in original) (citation

omitted). There is no such evidence in this case. Here, as in Ibarra-Flores, the

government was not able to produce a signed voluntary departure form. See id.

Nor is there any other evidence indicating that Manzanarez-Santos was advised of

the consequences of voluntary departure or that he accepted voluntary departure in

lieu of being placed in removal proceedings.

The government’s reliance on notations from the Utah state court’s record of

conviction is misplaced. At most, these bare notations are evidence that

Manzanarez-Santos knew he would be removed from the United States through

some unspecified process, and that he could not reenter unlawfully. But they are

not substantial evidence that Manzanarez-Santos was informed of and accepted

voluntary departure. Indeed, the notations make no reference to voluntary

departure at all.

Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012), on which the dissent relies,

is distinguishable. There, an alien was arrested for possessing a false identification

document when entering the United States. Id. at 1133. He was convicted in Page 3 of 5 federal court and returned to Mexico. We held these proceedings broke the alien’s

continuous physical presence because the conviction “was a formal, documented

process that was the functional equivalent of an adjudication of inadmissibility.”

Id. at 1136 (internal quotation marks omitted).

While Manzanarez-Santos was subject to a formal proceeding in state court

before his return to Mexico, that proceeding was not “the functional equivalent of

an adjudication of inadmissibility.” Id. In Zarate, the court emphasized that the

defendant pleaded guilty to an offense that “directly relat[ed] to his attempted

reentry.” Id. at 1137. The resolution of the criminal charge effectively resolved

the question of admissibility as well. Not so here. The offense to which

Manzanarez-Santos pleaded guilty, making a false credit report, is unrelated to his

immigration status or the circumstances of his entry into the United States. And

even if the Utah court proceeding did purport to determine Manzanarez-Santos’

legal status, it could not constitute an adjudication of inadmissibility. Unlike in

Zarate, the proceeding here was before a state court, not a federal court. It is well

settled that state entities “enjoy no power with respect to the classification of

aliens.” Plyler v. Doe, 457 U.S. 202, 225 (1982). Accordingly, Ibarra-Flores, not

Zarate, guides this court’s analysis. Page 4 of 5 Because it is undisputed that Manzanarez-Santos otherwise satisfies the

continuous physical presence requirement, we remand to the BIA with instructions

to remand to the immigration judge to determine whether Manzanarez-Santos

meets the remaining requirements to be eligible for cancellation of removal under 8

U.S.C. § 1229b(b).

2. Substantial evidence supports the BIA’s conclusion that a protected

ground is not one central reason for Manzanarez-Santos’ feared persecution. A

motive is a central reason if that reason, “standing alone,” would lead the

persecutor to harm the applicant. Parussimova v. Mukasey, 555 F.3d 734, 741 (9th

Cir. 2009). While the Los Zetas cartel targeted members of Manzanarez-Santos’

family in Mexico, the cartel’s central motive appears to have been desire for

money. Cartel members kidnapped Manzanarez-Santos’ aunt, apparently at

random, and demanded a ransom. And when the cartel members targeted other

members of the family, they continued to demand that the ransom be paid. Absent

this financial motive, there is no evidence that the cartel would have kidnapped and

killed members of Manzanarez-Santos’ family. Those financial motives do not

bear the requisite nexus to a protected ground. Zetino v. Holder, 622 F.3d 1007,

1015–16 (9th Cir. 2010). Page 5 of 5 Since the BIA properly denied Manzanarez-Santos’ asylum application for

failure to establish nexus, we need not address whether the application was timely

filed.

3. The BIA denied Manzanarez-Santos’ application for withholding of

removal under the incorrect legal standard. Asylum applicants must demonstrate

that a protected ground is “one central reason” for their persecution, but applicants

for withholding of removal need only show that a protected ground is “a reason”

for their persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.

2017). The “a reason” standard is “less demanding.” Id. Because the BIA

erroneously considered Manzanarez-Santos’ withholding application under the

“one central reason” standard, we remand for reconsideration under the correct

standard.

PETITION GRANTED IN PART; DENIED IN PART; and

REMANDED. FILED Manzanarez-Santos v. Sessions, No. 15-70148 JAN 11 2018 WALLACE, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in parts 2 and 3 of the disposition but dissent from part 1.

To be eligible for cancellation of removal, an applicant must establish at

least ten years continuous physical presence in the United States immediately

preceding the date of application. 8 U.S.C. § 1229b(b)(1)(A). Our case law

provides several ways in which this period of continuous physical presence may be

interrupted, one of which is when the process culminating in an alien’s departure is

“sufficiently formal” to constitute a break in continuous physical presence. Zarate

v. Holder, 671 F.3d 1132, 1138 (9th Cir. 2012). Because I conclude that

Manzanarez-Santos’ conviction in state court and subsequent departure was a

sufficiently formal process to terminate his continuous physical presence, I

respectfully dissent from part 1 of the majority’s disposition.

My disagreement with the majority is, at root, a disagreement over the

proper frame of analysis. The majority treats this case as a “voluntary departure”

case controlled by our decision in Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th

Cir. 2008). In Ibarra-Flores, petitioner appealed from an immigration judge’s (IJ)

determination that he accepted “administrative voluntary departure” sufficient to

interrupt his continuous physical presence by signing an unidentified document.

We held this conclusion was not supported by substantial evidence because the record contained no indication petitioner had “knowingly and voluntarily”

consented to the terms of a voluntary departure agreement. Id. at 620. We

remanded to the IJ with instructions to take additional evidence and testimony as to

whether petitioner knowingly and voluntarily consented to voluntary departure. Id.

The instant appeal is not an Ibarra-Flores type case. Instead, the issue

presented here is whether substantial evidence supports the Board of Immigration

Appeals’ (BIA) determination that the process leading to Manzanarez-Santos’

departure was sufficiently formal to break his continuous physical presence. That

makes this case more akin to Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012), than

to Ibarra-Flores. It is Zarate that should guide our analysis.

In Zarate, petitioner argued that the process culminating in his departure

from the United States was not the sort of formal, documented process that breaks

continuous physical presence. Id. at 1135. We disagreed. The petitioner in Zarate

had been arrested while attempting to reenter the United States and was convicted

in federal district court of possession of a false identification document. Id. at

1133. The petitioner’s sentence was conditioned, in part, on the expectation that

immigration authorities would “cause the defendant to leave” the country. Id.

Petitioner then served five days in jail, was returned to INS custody, and was then

transported back to the Mexican border and released. We held this sequence of

2 events provided substantial evidence for the Board’s determination that petitioner’s

departure was “sufficiently formal” to constitute a break in his continuous physical

presence. Id. at 1138.

I would hold the same in this case. Here, Manzanarez-Santos (who was

represented by counsel) pleaded guilty in Utah state court to filing a false credit

report. Although the offense was not an immigration offense, Manzanarez-Santos’

immigration status was very much intertwined with his conviction and sentencing.

For example, Manzanarez-Santos stated he was aware at the time of his appearance

before the state judge that INS had an immigration detainer on him. In addition,

when the judge sentenced Manzanarez-Santos, he specifically took into account

Manzanarez-Santos’ anticipated removal by federal immigration authorities.

Furthermore, the conditions of Manzanarez-Santos’ probation provided that he was

“not [to] enter the United States without legal authorization.” Finally, after serving

his time in jail, Manzanarez-Santos was turned over to the INS, accepted voluntary

departure, and returned to Mexico. In my view, this sequence of events was

sufficiently formal to constitute a break in Manzanarez-Santos’ continuous

physical presence.

Viewing this case through the lens of Zarate renders beside the point the

majority’s conclusion that Manzanarez-Santos did not knowingly and voluntarily

3 accept voluntary departure. Indeed, in Zarate we rejected this precise argument by

petitioner, explaining that the issue in the case was not whether petitioner departed

voluntarily but whether “the proceedings that did occur were sufficient to terminate

his continuous physical presence.” Zarate, 671 F.3d at 1137, n.5. Such is the case

here. The Board concluded that the sequence of events leading to

Manzanarez-Santos’ departure was “a sufficiently documented and formalized

process” that interrupted his continuous physical presence. The record does not

compel a contrary conclusion.

The majority argues that Zarate is inapposite because there we concluded

that petitioner’s conviction in federal court and subsequent departure was the

“functional equivalent of an adjudication of inadmissibility.” Id. at 1136 (internal

quotation marks omitted). It is true that an implicit finding of inadmissibility

formed part of our rationale in Zarate. But I do not read Zarate to require the

Board to make a finding of inadmissibility before concluding that a process

resulting in an alien’s departure was sufficiently formal to terminate continuous

physical presence. Nor did Zarate hold that only proceedings in federal court meet

the requisite level of formality. Instead, what Zarate requires is a holistic, context-

sensitive inquiry into the degree of formality of the process. Although an

adjudication of inadmissibility will certainly suggest sufficient formality, Zarate

4 does not require it. Here, the process culminating in Manzanarez-Santos’

departure—which did not include an adjudication of inadmissibility but did include

a jail and probation sentence conditioned in part on Manzanarez-Santos’

immigration status—was “formal nonetheless,” Id. at 1136 (citation omitted), and

therefore sufficient to break his continuous physical presence.

To be sure, there are differences between Zarate and the instant case. For

one thing, the petitioner in Zarate was arrested while attempting to reenter the

United States without legal authorization, while here petitioner’s arrest and

conviction in state court did not stem directly from violation of the immigration

laws. For another, in Zarate, the evidence of record included a Record of

Deportable/Inadmissible Alien (Form I-213) stating that the petitioner falsely

claimed US citizenship, while here the record contains no such official

immigration documentation.

These differences, however, do not change my conclusion that

Manzanarez-Santos’ departure was “sufficiently formal to constitute a break in his

otherwise continuous physical presence.” Zarate, 671 F.3d at 1138 (alteration and

citation omitted). As we acknowledged in Zarate, the evidence required to show a

sufficiently formal departure “will vary from case to case.” Id. at 1135. Here,

Manzanarez-Santos returned to Mexico subsequent to a state court conviction and

5 sentencing process that was intertwined with the issue of his immigration status.

On this record, I would hold the Board had substantial evidence to conclude

Manzanarez-Santos’ departure was sufficiently formal to break his continuous

physical presence. Therefore, I respectfully dissent from part 1 of the majority’s

disposition.