Maricela Mora Alvarez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2020
• Docket: 17-71093
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARICELA MORA ALVAREZ; et al., No. 17-71093 19-70540 Petitioners,

v. Agency Nos. A206-373-867 A206-373-868 WILLIAM P. BARR, Attorney General, A206-373-869 A206-373-870 Respondent.

MEMORANDUM*

On Petitions for Review of Orders of the Board of Immigration Appeals

Submitted May 14, 2020** San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.

Petitioners Maricela Mora Alvarez and her three children are natives and

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. citizens of Mexico. The Immigration Judge (“IJ”) granted Petitioners protection

under the Convention Against Torture (“CAT”). The Board of Immigration

Appeals (“BIA”) vacated the IJ’s decision and ordered Petitioners removed from

the United States. Petitioners filed a motion for reconsideration and termination of

their removal proceedings, which the BIA denied. We deny the petitions for

review challenging the BIA’s decisions.

1. The BIA did not abuse its discretion by denying Petitioners’ motion for

reconsideration and termination of their removal proceedings. Our decision in

Karingithi v. Whitaker, 913 F.3d 1158, 1160-61 (9th Cir. 2019), forecloses

Petitioners’ argument that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ

lacked jurisdiction because their Notices to Appear did not contain time

information for their removal proceedings.1 Although Petitioners contend that

Karingithi was wrongly decided, we are bound by that decision given the absence

of any “intervening higher authority” which is “clearly irreconcilable” with it.

Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).

2. The BIA’s analysis of government acquiescence in any future torture

relied on an “overly narrow construction of the ‘acquiescence’ standard.” See

Parada v. Sessions, 902 F.3d 901, 916 (9th Cir. 2018). We have made clear that

1 Petitioners’ briefing states that their Notices to Appear also lacked place information, but the record belies this assertion.

2 the BIA must consider “the ‘efficacy of the government’s efforts to stop the drug

cartels’ violence,’ not just the willingness of the national government to do so.”

Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting Madrigal v.

Holder, 716 F.3d 499, 509 (9th Cir. 2013)). The BIA therefore erred by asserting

that “the government is actively working to combat criminal activity and

corruption” without addressing whether those efforts had actually been effective.

We have also explained that “the acquiescence standard is met where the record

demonstrates that public officials at any level—even if not at the federal level—

would acquiesce in torture the petitioner is likely to suffer.” Parada, 902 F.3d at

916. The BIA’s failure to give due consideration to evidence of corruption at the

state and local levels in Mexico was thus erroneous. See id. (noting that

“[e]vidence showing widespread corruption . . . can be highly probative” with

respect to the acquiescence inquiry).

These errors were harmless, however, because substantial evidence supports

the BIA’s determination that Petitioners failed to show that they would more likely

than not be tortured (with or without government acquiescence) if they were

removed to Mexico. Cf. Garcia-Milian v. Holder, 755 F.3d 1026, 1035 & n.5 (9th

Cir. 2014). The record does not compel the conclusion that Petitioners would be

unable to relocate outside Michoacán, Mexico. Mora Alvarez testified in

immigration court that she had no family outside Michoacán who could help her

3 relocate, and no contacts outside Michoacán who could help her find work. But

she never testified that she would be unable to relocate outside Michoacán. And

the record does not compel the conclusion that conditions in Mexico generally are

so dangerous that Petitioners would be likely to be tortured regardless of where

they lived in that country. See United States v. Reyes-Bonilla, 671 F.3d 1036,

1051-52 (9th Cir. 2012) (indicating that evidence of “widespread abuse” in a

country can, on its own, “support CAT relief”). Nor does the record evidence

about the past abuse Petitioners suffered in Michoacán from the Knights Templar

cartel (which other residents of Michoacán also suffered) compel the conclusion

that Petitioners face a particularized threat of torture that satisfies the standard for

CAT protection, especially if Petitioners could relocate outside Michoacán. Cf.

Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir 2019) (“That [petitioner] suffered

persecution in the past does not necessarily mean he will be tortured in the

future.”).

PETITIONS FOR REVIEW DENIED.