Rogelio Sarmiento-Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2021
• Docket: 20-71988
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 12 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGELIO SARMIENTO-HERNANDEZ, No. 20-71988 AKA Perdo Verdier, Agency No. A206-784-435 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 8, 2021** Seattle, Washington

Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,*** 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 Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. Rogelio Sarmiento-Hernandez, a native and citizen of Mexico, seeks review

of a decision of the Board of Immigration Appeals (BIA) affirming the decision of

an Immigration Judge (IJ) to deny his application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition for review in

part.

The BIA erred by failing to address Sarmiento’s argument that he was

eligible for asylum and withholding of removal because he has a well-founded fear

of persecution from private actors in Mexican mental institutions whom the

Mexican government was unable or unwilling to control. See Rahimzadeh v.

Holder, 613 F.3d 916, 920 (9th Cir. 2010). Because “IJs and the BIA are not free

to ignore arguments raised by a petitioner,” the agency must address this argument

on remand. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007)

(quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).

The BIA’s determination that Sarmiento did not establish a well-founded

fear of future persecution at the hands of the Mexican authorities is supported by

substantial evidence.

Substantial evidence also supports the agency’s determination that

Sarmiento is not eligible for CAT relief because he did not establish that it is more

2 likely than not that he will be tortured by or with the acquiescence of a public

official upon return to Mexico. See 8 C.F.R. § 1208.16(c)(2); Duran-Rodriguez v.

Barr, 918 F.3d 1025, 1029 (9th Cir. 2019). The country conditions reports do not

demonstrate that Sarmiento is personally at risk of future torture or that any

Mexican official had the specific intent to inflict suffering upon patients with

chronic mental health issues required to establish an entitlement to relief under

CAT. See Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014); Acevedo Granados

v. Garland, 992 F.3d 755, 765 (9th Cir. 2021). Sarmiento failed to point to any

other evidence in the record to support his claim. See Garcia v. Holder, 749 F.3d

785, 792 (9th Cir. 2014).

PETITION GRANTED IN PART, DENIED IN PART.1

1 Costs shall be taxed against the respondent. 3