Lepe Estrada v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2025
• Docket: 24-6588
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 25 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC OMAR LEPE ESTRADA, No. 24-6588

Petitioner, Agency No. A078-079-972 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Immigration Judge’s Decision

Argued and Submitted August 14, 2025 San Francisco, California

Before: RAWLINSON and KOH, Circuit Judges, and FITZWATER,** District Judge.

Eric Omar Lepe Estrada (“Lepe Estrada”), a native and citizen of Mexico

currently detained in the custody of the Department of Homeland Security, petitions

for review of the decision of the Immigration Judge (“IJ”) affirming the negative

reasonable fear determination of an asylum officer (“AO”). We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. under 8 U.S.C. § 1252. See Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir.

2016). We review the factual findings underlying the IJ’s denial of Convention

Against Torture relief and determinations for withholding of removal for substantial

evidence. Id. at 833; Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018).

Administrative findings of fact are conclusive “unless any reasonable adjudicator

would be compelled to conclude to the contrary[.]” 8 U.S.C. § 1252(b)(4)(B). We

review questions of law, including due process challenges to reasonable fear

proceedings, de novo. Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019); Young Sun

Shin v. Mukasey, 547 F.3d 1019, 1023 (9th Cir. 2008). We grant the petition and

remand.

1. Lepe Estrada maintains that the IJ violated his due process rights when the

IJ did not provide “adequate reasoning” to show that he conducted a de novo review

of the AO’s determination; that the IJ applied a higher standard of proof than is

required for a reasonable fear review hearing; and that the IJ’s conclusions that Lepe

Estrada did not have a reasonable fear of persecution based on a protected ground or

a reasonable fear of torture were not supported by substantial evidence.

2. The IJ’s order indicates that, after considering the evidence, he found that

Lepe Estrada had “not established a reasonable possibility that [Lepe Estrada] would

be persecuted on the basis of a protected ground, or a reasonable possibility that [he]

-2- would be tortured in the country of removal.” This is the correct standard of proof for

a reasonable fear determination. See 8 C.F.R. § 208.31(c). But in explaining why he

concurred with the AO’s reasonable fear determination, the IJ stated that he “agrees

with the decision of the asylum officer that the applicant has not shown that he is

likely to [be] persecuted in the future on account of a basis described in section

101(a)(42) of the Immigration and Nationality Act. . . . Furthermore, the applicant has

not demonstrated that anyone in the government of Mexico is likely to torture him if

he returns to Mexico, or that the government would be willfully blind to such

treatment.” By indicating that he based his conclusion that Lepe Estrada had not

established a reasonable possibility of persecution on the basis of a protected ground

or of torture on the IJ’s conclusion that Lepe Estrada had not shown that either

outcome was likely, the IJ indicated that he was applying a higher standard of proof

than is required at this stage for a reasonable fear determination. The Ninth Circuit

has held that the “reasonable possibility” standard for a reasonable fear determination

requires only the determination that there is at least a 10% chance that the noncitizen

would be persecuted on the basis of a protected ground or tortured in the country of

removal. See Bartolome, 904 F.3d at 813. The IJ’s use of the term “likely” indicates

that he held Lepe Estrada to a higher burden than merely showing a 10% likelihood

of persecution or torture. See Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005)

-3- (finding that the IJ failed to make clear whether he applied the correct standard when

he concluded that the feared persecution was “not likely to be a threat” to petitioner).

Absent any indication in the record that this is a mere misstatement and that IJ actually

applied the proper standard,1 we conclude that the IJ applied an improperly high

standard of proof for a showing of reasonable fear in a reasonable fear review hearing.

Because the IJ erred by applying the wrong standard, we remand to the agency to

apply the correct standard. See Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1183

(9th Cir. 2023) (remanding to the agency to apply the correct standard). We remand

with instructions for the IJ to consider whether Lepe Estrada has shown that there is

a reasonable possibility that he will be persecuted in the future on the basis of a

protected ground or that he will be tortured if returned to Mexico. See Bartolome, 904

F.3d at 813.2

3. Because Lepe Estrada has shown that the IJ applied a higher standard of

proof than is necessary for a showing of reasonable fear in a reasonable fear review

hearing, we deem it unnecessary to address the remaining issues raised in this appeal.

1 In arguing that the IJ applied the correct standard of proof and that the use of “likely” in his explanation does not indicate that the wrong standard was used, the government cites Canales v. Garland, 2022 WL 14955179 (9th Cir. Oct. 26, 2022) (mem.). Canales is a non-precedential memorandum disposition that is also factually distinguishable. 2 We grant Lepe Estrada’s motion to stay removal.

-4- PETITION GRANTED; REMANDED.

-5-