Mendoza Gloria v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2024
• Docket: 23-3343
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASON ARTURO MENDOZA GLORIA, No. 23-3343 Agency No. Petitioner, A207-596-310 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Immigration Court

Submitted October 10, 2024** Las Vegas, Nevada

Before: BEA, BENNETT, and MILLER, Circuit Judges.

Jason Arturo Mendoza Gloria, a native and citizen of Mexico, petitions for

review of an order of an immigration judge affirming an asylum officer’s

determination that he lacks a reasonable fear of persecution or torture in Mexico.

* 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). That determination came after a reasonable fear screening interview. See generally

Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195 (9th Cir. 2021). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. As to the immigration judge’s order, Mendoza Gloria challenges only the

conclusion that he lacks a reasonable fear of torture under the Convention Against

Torture. We have jurisdiction to consider both legal and factual challenges to the

conclusion about torture. See Nasrallah v. Barr, 590 U.S. 573, 587 (2020);

Andrade v. Garland, 94 F.4th 904, 914 (9th Cir. 2024). We review legal

determinations de novo and factual findings for substantial evidence; under that

standard, Mendoza Gloria must “show that the record compels the conclusion that

the agency’s decision was incorrect.” Andrade, 94 F.4th at 914.

At the screening stage, an alien bears the burden to show a “reasonable

possibility,” defined as at least a 10 percent chance, that he would be tortured if

removed. Hermosillo v. Garland, 80 F.4th 1127, 1129 (9th Cir. 2023) (quoting

Alvarado-Herrera, 993 F.3d at 1195). For acts to constitute torture, they must be

inflicted by public officials or with the consent or acquiescence of public officials.

Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (quoting 8 C.F.R.

§ 1208.18(a)(1)).

Substantial evidence supports the immigration judge’s determination that

Mendoza Gloria failed to show a sufficient possibility that Mexican officials would

2 23-3343 acquiesce in any harm that might come to him. Mendoza Gloria’s only support for

acquiescence was his contention that Mexican police officers are corrupt and

overburdened. But police ineffectiveness is insufficient to show acquiescence.

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). And general

assertions of corruption, unsupported by a link between the corruption and specific

threats of harm, are similarly inadequate. See B.R. v. Garland, 26 F.4th 827, 845

(9th Cir. 2022); cf. Hermosillo, 80 F.4th at 1130 (sufficient possibility of

government acquiescence where alien’s family reported previous cartel attacks

against them to the police but the police refused to intervene); Alvarado-Herrera,

993 F.3d at 1197 (sufficient possibility of government acquiescence where alien

“offered details that corroborated his claim of widespread police corruption and

complicity”).

Mendoza Gloria argues that the immigration judge applied the standard of

proof appropriate for a full reasonable fear hearing—requiring him to show more

than a 50 percent probability of torture—rather than the 10 percent probability

appropriate in the screening interview context. That argument lacks support in the

record. The immigration judge expressly recognized the preliminary nature of the

proceedings, telling Mendoza Gloria’s counsel that “even at this juncture,” under

the “lower standard,” Mendoza Gloria had not met his burden.

2. Mendoza Gloria’s removal proceedings did not deprive him of due

3 23-3343 process. A removal proceeding violates due process if “(1) the proceeding was so

fundamentally unfair that the alien was prevented from reasonably presenting his

case, and (2) the alien demonstrates prejudice, which means that the outcome of

the proceeding may have been affected by the alleged violation.” Zetino v. Holder,

622 F.3d 1007, 1013 (9th Cir. 2010) (quoting Ibarra-Flores v. Gonzales, 439 F.3d

614, 620–21 (9th Cir. 2006)).

First, Mendoza Gloria asserts that the immigration judge violated due

process “[b]y demanding, but not accepting” additional evidence, including by

refusing to allow his counsel to question him at the hearing. But an immigration

judge “need not[] accept additional evidence and testimony from the non-citizen”

at a hearing to review an asylum officer’s reasonable fear determination. Alvarado-

Herrera, 993 F.3d at 1191 (citing Bartolome v. Sessions, 904 F.3d 803, 812–13

(9th Cir. 2018)); accord Dominguez Ojeda v. Garland, 112 F.4th 1241, 1245 (9th

Cir. 2024). Although the immigration judge implied that Mendoza Gloria should

have supported his reasonable fear claim with documentary evidence, she

ultimately did not require additional evidence because she accepted all of Mendoza

Gloria’s specific claims as true.

Second, Mendoza Gloria argues that the Department of Homeland Security

failed to afford him due process because it issued its final removal order at the

same time as its notice of intent to issue that order. Although DHS failed to give

4 23-3343 Mendoza Gloria the required 10-day opportunity to respond to the notice of intent,

see 8 C.F.R. § 238.1(c)(1), Mendoza Gloria has not shown that he was prejudiced

by DHS’s error. He does not dispute that he is an alien lacking permanent resident

status who has been convicted of an “aggravated felony,” making him

presumptively removable. 8 U.S.C. § 1228(c).

Third, Mendoza Gloria argues that he did not receive due process because

his reasonable fear interview and immigration judge review hearing were delayed.

The asylum officer conducted the screening interview more than three weeks after

Mendoza Gloria expressed a fear of persecution or torture in Mexico, and the

immigration judge held the review hearing more than a month after the matter was

referred to her. Both periods were significantly longer than the 10-day deadline

applicable to such proceedings “[i]n the absence of exceptional circumstances.” 8

C.F.R. § 208.31(b), (g). But as with his challenge to the timing of the removal

order, Mendoza Gloria has shown no prejudice resulting from these procedural

errors.

PETITION DENIED.

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