Sandy Caceros v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2022
• Docket: 20-73024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SANDY CRISTINA CACEROS, No. 20-73024

Petitioner, Agency No. A078-022-637

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

Respondent.

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

Argued and Submitted April 14, 2022 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,** District Judge.

Sandy Caceros, a citizen of Guatemala, petitions for review of a decision of

the Board of Immigration Appeals (BIA) dismissing her appeal of an order of an

Immigration Judge (IJ) that denied her application for deferral of removal under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. and deny the petition.

1. We review the BIA’s decision for substantial evidence. Dhital v. Mukasey,

532 F.3d 1044, 1051 (9th Cir. 2008). Caceros must establish that the evidence

compels the conclusion she is “more likely than not to be tortured” in the country of

removal due to a particularized threat of torture, inflicted by one acting with

government approval or acquiescence, beyond that of which all citizens of the

country of removal are at risk. Id. at 1051–52 (citation omitted). When, as here,

“the BIA issues its own decision but relies in part on the [IJ]’s reasoning, we review

both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). “If the

[BIA] rejects expert testimony, it must state in the record why the testimony was

insufficient to establish the probability of torture.” Castillo v. Barr, 980 F.3d 1278,

1283 (9th Cir. 2020) (citation and quotation marks omitted).

Caceros arrived in the United States and suffered abuse as a child. She

identifies as a lesbian woman, has multiple visible tattoos, and suffers from lupus,

post-traumatic stress disorder, depression, and anxiety. Immigration officers

commenced removal proceedings against her as a noncitizen convicted of an

aggravated felony after Caceros was convicted of assault with a deadly weapon and

attempted home invasion robbery.

Caceros has not been harmed in Guatemala, so her claim hinges on country

conditions, which do not compel the conclusion that Caceros will more likely than

2 20-73024 not suffer torture in Guatemala. Her expert testified that because public health

facilities lack resources, Caceros should visit private healthcare facilities that would

not want “people who scare other . . . paying customers in their waiting room.” But

this does not reflect the specific intent to torture her by denying her medical care.

See Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008). Though the BIA

acknowledged evidence detailing widespread violence and lack of legal protections

for LGBT individuals, it also noted that LGBT support organizations exist in

Guatemala and that an openly gay woman was recently elected to Congress. And

while “the BIA must consider the risk of torture posed by conspicuous tattoos that

display affiliation with a gang,” it need not find that “any tattoos are enough to justify

[CAT] relief.” Andrade v. Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015). Caceros’s

tattoos are not gang related, and tattoos, gang-related or not, are not mentioned in

Caceros’s country conditions evidence.

The BIA’s statements that her expert witness’s testimony was speculative

adequately explain its decision not to adopt the expert’s conclusions about the

aggregate risk of torture. The BIA reasonably rejected the expert’s conclusions that

relied on a series of suppositions, such as that Caceros would be forced into sex work

based on her tattoos and gender despite having some college education and Spanish

language ability. To show that the BIA failed to adequately explain why it rejected

her expert’s conclusions, Caceros points to a USAID report not mentioned by the

3 20-73024 BIA, describing how girls are targeted by gangs in Guatemala as sex slaves. This

evidence does not compel the conclusion that public agents acquiesce in torturing

women. As the IJ pointed out, the evidence showed that the Guatemalan government

has made headway in combatting violence against women. Caceros does not

identify other evidence that the BIA overlooked or how it failed to give reasoned

consideration to expert testimony. “[W]e cannot overturn the agency’s decision

based on mere disagreement” where, as here, the BIA has considered all the evidence

and found, as a reasonable factfinder could have, that the evidence supported an

opinion contrary to expert opinion. Rodriguez-Jimenez v. Garland, 20 F.4th 434,

439 (9th Cir. 2021).

Caceros alleges that the agency failed to consider the aggregate risk of torture

from all sources. But stating that the IJ “must consider all evidence relevant to the

likelihood of future torture” is sufficient if there is no indication that the IJ failed to

give reasoned consideration to potentially dispositive evidence. Benedicto v.

Garland, 12 F.4th 1049, 1065 (9th Cir. 2021). Here, the BIA stated that the IJ

“properly considered the totality of the record evidence” and her “aggregate risk of

torture in Guatemala based on [her] gender, sexual orientation, visible tattoos,

mental health disorders, lupus, and status as having lived in the United States.” Even

if its decision analyzed the possibilities of torture separately, nothing compels the

conclusion that the BIA failed to consider Caceros’s circumstances cumulatively.

4 20-73024 See id.

2. The government initially submitted unpaginated documents to prove

Caceros’s removability, but several documents were uncertified or did not reference

a case number. After Caceros moved to terminate proceedings for this reason, the

government resubmitted the documents with a corrected certification form. Caceros

argues that the improperly certified documents failed to establish her removability

and should have been excluded. Even if the initial filings were problematic, the

defects were not prejudicial, the corrected filings are independently sufficient to

establish Caceros’s removability, and the errors were harmless. See Khudaverdyan

v. Holder, 778 F.3d 1101, 1107 n.3 (9th Cir. 2015).

PETITION DENIED.

5 20-73024