Juan Torres-Torres v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2020
• Docket: 18-71349
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN ALBERTO TORRES-TORRES, No. 18-71349 AKA Juan Alberto Torres, Agency No. A041-765-869 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 17, 2020** San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

Juan Alberto Torres Torres, a legal permanent resident and a citizen of

Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) decision

affirming an immigration judge’s (“IJ”) denial of withholding of removal and

denial of relief under the Convention Against Torture (“CAT”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1252.

1. Torres Torres challenges the IJ’s finding that his conviction for

conspiracy to distribute cocaine in violation of federal law was a “particularly

serious” crime. “We have jurisdiction to review for abuse of discretion the BIA’s

conclusion that an offense constitutes a particularly serious crime. Our review is

limited to ensuring that the agency relied on the appropriate factors and proper

evidence . . . . We may not reweigh the evidence and reach our own determination

about the crime’s seriousness.” Avendano-Hernandez v. Lynch, 800 F.3d 1072,

1077 (9th Cir. 2015) (citations and quotation omitted).

The Attorney General has created “an extraordinarily strong presumption

that drug trafficking offenses are particularly serious crimes.” Miguel-Miguel v.

Gonzales, 500 F.3d 941, 947 (9th Cir. 2007). Under In Re Y-L-, 23 I. & N. Dec.

270, 274 (2002) overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186,

1196 (9th Cir. 2003), “aggravated felonies involving unlawful trafficking in

controlled substances” are presumptively particularly serious crimes, and “[o]nly

under the most extenuating circumstances that are both extraordinary and

compelling would departure from this interpretation be warranted or permissible.”

To overcome the In re Y-L- presumption, a petitioner must demonstrate

at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement . . . in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or

2 threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.

In Re Y-L-, 23 I. & N. Dec. at 276–77. The IJ’s finding that Torres Torres was

only able to demonstrate that there was no violence associated with his crime was

supported by substantial evidence. Thus, the BIA did not abuse its discretion in

holding that Torres Torres failed to rebut the presumption.1

2. We have jurisdiction to review a denial of CAT relief where, as here,

the petitioner brings a factual challenge. Nasrallah v. Barr, 140 S. Ct. 1683, 1694

(2020). We “review the factual findings behind the agency’s conclusion for

substantial evidence.” Avendano-Hernandez, 800 F.3d at 1078. We “must uphold

those findings unless the record compels a contrary result.” Eneh v. Holder, 601

F.3d 943, 946 (9th Cir. 2010).

Torres Torres did not provide evidence of past torture. He did credibly

testify and offer evidence regarding two intertwined concerns related to future

torture and whether he could safely relocate within Mexico. First, he testified that

he cooperated with the U.S. government after his arrest, including taping phone

1 Because we hold that the BIA did not abuse its discretion in finding that Torres Torres’s conviction was for a “particularly serious crime,” we need not consider whether Torres Torres met his burden to establish a probability of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b).

3 calls about drug deals and informing on individuals involved with the New

Generation cartel. Second, Torres Torres testified that his family in Mexico had an

ongoing feud with another family, the Mendozas. Two of Torres Torres’s family

members have been killed after being deported to Mexico, and the fiancé of one of

the murdered men was disappeared.

As the IJ noted, however, deferral under the CAT requires that Torres Torres

shows that the Mexican government would acquiesce in his torture. The record

contains only generalized evidence of government corruption and failure to defeat

cartels that is not particular to Torres Torres. Therefore, the record does not

compel a conclusion that Torres Torres is more likely than not to be tortured in

Mexico.

3. Torres Torres argues that the IJ violated his due process rights by

declining to qualify Dr. Thomas Boerman as an expert on country conditions. “We

review de novo due process challenges to immigration decisions.” Padilla v.

Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003).

There is no evidence the IJ prejudged Dr. Boerman’s credibility or the

probative value of his testimony. See Lopez-Umanzor v. Gonzales, 405 F.3d 1049,

1056 (9th Cir. 2005). To the contrary, the IJ heard Dr. Boerman’s testimony on his

credentials; had a lengthy, on the record colloquy with Torres Torres’s counsel

4 regarding Dr. Boerman’s credentials; and reviewed Dr. Boerman’s submitted

materials.

Similarly, the IJ’s denial of the opportunity for Dr. Boerman to offer

substantive oral testimony did not render Torres Torres’s hearing “so

fundamentally unfair that the alien was prevented from reasonably presenting [his]

case.” Lopez-Umanzor, 405 F.3d at 1056 (quotation omitted). The IJ accepted Dr.

Boerman’s report and, because Dr. Boerman planned to testify consistently with

the submitted report and on issues as to which he was not recognized as an expert,

the IJ properly declined to hear his oral testimony.

In any event, for us “to grant the petition for review on due process grounds,

[Torres Torres] must show prejudice, which means that the outcome of the

proceeding may have been affected by the alleged violation.” Zolotukhin v.

Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (quotation omitted). The IJ made

clear that even if he had given Dr. Boerman’s report weight, he would have

reached the same outcome. The IJ’s actions thus did not prejudice Torres Torres.

4. Finally, Torres Torres raises an Eighth Amendment challenge. The

Supreme Court has long held that an “order of deportation is not a punishment for

crime” and thus is not subject to Eighth Amendment protections. Fong Yue Ting v.

United States, 149 U.S. 698, 730 (1893). Binding precedent makes clear that

5 “deportation is not ‘cruel and unusual punishment even though the ‘penalty’ may

be severe.” Briseno v. I.N.S., 192 F.3d 1320, 1323 (9th Cir. 1999).

The petition is DENIED.