Maria MacIas Rodriguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2019
• Docket: 16-73477
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 21 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA LUZ MACIAS RODRIGUEZ, No. 16-73477

Petitioner, Agency No. A096-867-056

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 6, 2019** San Francisco, California

Before: THOMAS, Chief Judge, PAEZ, Circuit Judge, and FEINERMAN,*** District Judge.

* 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). *** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. Maria Luz Macias Rodriguez, a native and citizen of Mexico, petitions for

review a decision by the Board of Immigration Appeals (“BIA”) affirming an

Immigration Judge’s (“IJ”) denial of her application for deferral of removal under

the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §

1252, and we deny the petition. Because the parties are familiar with the history of

the case, we need not recount it here.

Contrary to Macias’s argument, the IJ did provide proper notice that

additional corroboration was required before denying her application for deferral

of removal under CAT.1 See Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011)

(holding that an IJ may require corroborative evidence, but must provide the

applicant appropriate notice). With respect to her fear of her ex-partner and the

Zetas drug gang, the IJ provided notice on numerous occasions. The IJ explicitly

1 The government argues that Macias did not exhaust this issue. However, Macias challenged the IJ’s overall denial of CAT protection, which provided the BIA an opportunity to correct any notice errors connected to this claim. See Zhi v. Holder, 751 F.3d 1088, 1094 n.5 (9th Cir. 2014). And the BIA effectively addressed the notice issue in its opinion when it held that “the transcript of record reflects that the presiding Immigration Judge repeatedly informed the respondent of the types of evidence that she should consider presenting” and that the IJ “properly conducted the hearing and developed the record.” See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (“[W]e do not employ the exhaustion requirement in a formalistic manner, but rather inquire into whether the issue was before the BIA such that it had the opportunity to correct its error.”). Thus, we conclude that the claim was administratively exhausted, and that we have jurisdiction over the petition for review. 2 informed Macias that the corroborating documents were necessary to sustain her

CAT claim, and the record indicates that she understood this requirement.

The IJ was not required to provide notice with respect to her fear of the drug

traffickers for whom she worked because any corroborating evidence would have

been futile. Macias testified that she feared the drug traffickers, but that they had

not tried to contact her in approximately five years. Corroborating evidence would

not have impacted the IJ’s determination that there was no reason to believe that

they would target her at this point. Accordingly, because corroboration was

unnecessary, notice was unnecessary.2

PETITION DENIED.

2 Macias does not argue that the IJ erred, on the merits, in denying her CAT relief—i.e., that the evidence she did provide compelled the conclusion that she met her burden of proof in support of CAT. Accordingly, we need not and do not address this issue. See Tampubolon v. Holder, 610 F.3d 1056, 1058 n.3 (9th Cir. 2010) (concluding that the petitioner waived CAT claim by failing to advance any arguments in favor of relief).

3 FILED Maria Macias Rodriguez v. William Barr, 16-73477 FEB 21 2019 MOLLY C. DWYER, CLERK FEINERMAN, District Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent from the court’s denial of Macias’s petition for review,

and instead would dismiss the petition for lack of jurisdiction.

This court has jurisdiction only if Macias “exhausted all administrative

remedies available to [her] as of right.” 8 U.S.C. § 1252(d)(1); see Alvarado v.

Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (“[I]ssue exhaustion is a

jurisdictional requirement.”). Although “we do not employ the exhaustion doctrine

in a formalistic manner,” we do “require[] that the petitioner put the BIA on notice

as to the specific issues so that the BIA has an opportunity to pass on those issues.”

Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (alterations and internal

quotation marks omitted). “That is why a general challenge to the IJ’s decision

will not satisfy the exhaustion requirement … .” Ibid.

Macias failed to exhaust the only issue raised in her petition for review:

whether the IJ provided her with proper notice that she needed to submit

corroborating evidence beyond her testimony. Nothing Macias presented to the

BIA could have put it on notice of that issue. Neither her notice of appeal nor her

brief to the BIA argued that the IJ failed to give her notice that she needed to

submit corroborating evidence—indeed, neither submission said anything about

1 corroboration or credibility, except to mention that the IJ did not make a credibility

determination.

The court concludes that Macias exhausted the notice issue before the BIA

when “she challenged the IJ’s overall denial of CAT protection.” Supra, at 2 n.1.

But challenging the IJ’s overall denial of CAT protection is quintessentially “a

general challenge to the IJ’s decision.” Figueroa, 543 F.3d at 492. That challenge

is nothing like the challenge we found exhausted in Zhi v. Holder, 751 F.3d 1088

(9th Cir. 2014). There, we held that the petitioner’s challenge before the BIA to

“the IJ’s overall credibility determination” exhausted the notice issue because the

“notice requirement is a sub-part of that overall determination.” Id. at 1094 n.5

(internal quotation marks omitted). Here, by contrast, Macias did not present to

the BIA any issue related to the IJ’s credibility determination—which stands to

reason, as the IJ did not determine whether her testimony was credible. Rather,

Macias raised specific procedural issues unrelated to the notice issue and argued

that the IJ’s denial of CAT protection was incorrect on the merits. It is one thing to

say, as we did in Zhi, that challenging a credibility or corroboration determination

with which the notice issue is inextricably intertwined puts the notice issue in play.

See ibid. (explaining the links among credibility, corroboration, and notice). But it

is quite another to say, as the court does here, that generally challenging the IJ’s

denial of CAT protection on the merits gives the BIA “an opportunity to pass on”

2 any issue that might possibly have come up, but in fact did not come up, along the

way.

The court alternatively concludes that the BIA addressed the notice issue on

the merits. True, “claims addressed on the merits by the BIA are exhausted.”

Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). But the portions of

the BIA’s opinion quoted by the court do not address any argument directed to the

notice issue. The BIA framed the relevant discussion by noting that as to her

application for CAT protection, Macias “has raised only one issue on appeal”:

whether, because she had proceeded pro se, the IJ should have admitted State

Department Country Reports sua sponte. There is no reason to think that the BIA

meant to address anything more than that “one issue” in the subsequent paragraphs,

particularly given that the cited authorities relate only to an IJ’s duty to develop the

record when an applicant proceeds pro se.

Because Macias failed to exhaust the notice issue before the BIA, we lack

jurisdiction. I therefore would dismiss, not deny, the petition.