Miguel Peralta Estrada v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2021
• Docket: 19-72811
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIGUEL EFRAIN PERALTA ESTRADA, No. 19-72811

Petitioner, Agency No. A099-826-431

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Miguel Efrain Peralta Estrada, a native and citizen of Mexico, petitions pro

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

* 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). (“CAT”), and the BIA’s order denying his motion to terminate proceedings. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th

Cir. 2014). We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d

1037, 1042 (9th Cir. 2016). We dismiss in part, deny in part, grant in part, and we

remand the petition for review.

We lack jurisdiction over Peralta Estrada’s contention that the IJ failed to

serve as an impartial adjudicator because he did not raise this claim before the

BIA. See De Mercado v. Mukasey, 566 F.3d 810, 815 n.4 (9th Cir. 2009)

(concluding the court lacked jurisdiction to review petitioner’s claim that the IJ

failed to serve as an impartial adjudicator and denied petitioner a full and fair

hearing because it was not raised to the BIA).

In his opening brief, Peralta Estrada does not raise any challenge to the

BIA’s denial of his motion to terminate or the BIA’s determination that his

conviction for possession with intent to distribute marijuana under 8 U.S.C.

§§ 841(a)(1), (b)(1)(B)(vii) was a particularly serious crime, barring him from

asylum and withholding of removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072,

1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s

opening brief are waived). Thus, Peralta Estrada’s asylum and withholding of

removal claims fail.

2 19-72811 As to deferral of removal under CAT, the agency misstated Peralta Estrada’s

testimony as to the police officers’ conduct in failing to protect him. Specifically,

the IJ’s findings that “there is no indication whatsoever that the Mexican police . . .

in any way have not taken any actions to protect [Peralta Estrada]” and that the

police “have done nothing to indicate that they would in any way shirk their duties

to protect [Peralta Estrada] if he were to go to Mexico” are contrary to the record

of testimony. Peralta Estrada testified that the police who witnessed his cousins

assault him “did not do anything” to assist him and instead were there “taking care

of [his] cousins” who worked for the cartel. Peralta Estrada further testified that

police told him “they were not able to do anything” when he submitted a police

report regarding the beating. The IJ did not make an explicit adverse credibility

finding, and the BIA adopted and affirmed the IJ’s decision under Matter of

Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Thus, the agency failed to

consider all relevant evidence. See Parada v. Sessions, 902 F.3d 901, 915-16 (9th

Cir. 2018) (remanding where “the agency erred by failing to consider all relevant

evidence” as to CAT relief); Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011)

(indications of the agency’s failure to properly consider all of the relevant evidence

“include misstating the record”).

Apart from these findings, it is unclear why the BIA denied Peralta Estrada’s

CAT claim. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (BIA

3 19-72811 must provide a reasoned explanation for its actions). Thus, we grant the petition

for review and remand Peralta Estrada’s CAT claim to the BIA for further

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam).

Peralta Estrada’s removal is stayed pending a decision by the Board of

Immigration Appeals.

The parties shall bear their own costs on appeal.

PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; REMANDED.

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