Alcaraz-Enriquez v. Garland

19 F.4th 1224

Cesar ALCARAZ-ENRIQUEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 15-71553

United States Court of Appeals, Ninth Circuit.

Filed December 14, 2021

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

John W. Blakeley, Assistant Director; Erica B. Miles and Aimee J. Carmichael, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye,^** District Judge.

Order; Opinion by Judge Bea

ORDER

The Opinion filed on September 16, 2021, is WITHDRAWN and replaced with a superseding Opinion filed concurrently with this Order.

The panel unanimously voted to deny the petition for panel rehearing. Accordingly, appellant's petition for panel rehearing filed December 1, 2021, is DENIED. Fed. R. App. P. 35. No further petitions for rehearing or rehearing en banc will be entertained.

IT IS SO ORDERED.

BEA, Circuit Judge:

Petitioner Cesar Alcaraz-Enriquez ("Alcaraz"), a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals ("BIA"), which denied his applications for withholding of removal and deferral of removal under the Convention Against Torture ("CAT").

We previously granted Alcaraz's petition on two bases: (1) that the BIA erred in not requiring the DHS to make a good-faith effort to make available key government witnesses for Alcaraz's cross-examination; and (2) that the BIA erred in not deeming true Alcaraz's testimony before the Immigration Judge ("IJ") in light of the absence of any express adverse credibility determination from the IJ. Alcaraz-Enriquez v. Sessions , 727 F. App'x 260, 261 (9th Cir. 2018). However, the Supreme Court reversed our judgment upon the second basis for granting the petition, vacated all of our decision, and remanded for further proceedings. Garland v. Ming Dai , ––– U.S. ––––, 141 S. Ct. 1669, 210 L.Ed.2d 11 (2021).¹

On remand, we again grant Alcaraz's petition for review in part.

I

A

Alcaraz was born in Mexico in 1979 but entered the United States illegally when he was eight years old. In July 1999, Alcaraz, who still lacked legal immigration status, was involved in a domestic incident with his live-in girlfriend, Esmeralda Alvarado, with whom Alcaraz had a child. This altercation led to a nolo contendere California felony conviction—but the facts of that altercation are subject to two competing narratives.

A probation report, written by a probation officer (who interviewed Alcaraz and Alvarado at the scene), recounted Alvarado's narrative. Under her version of events, Alcaraz had locked her in the bedroom, threatened to kill her if she tried to escape, punched and kicked her repeatedly, and forced her to have sex with him.

Alcaraz admitted to punching his girlfriend once but denied that it was "the way she describes." According to his version, relayed in his testimony before the IJ, Alcaraz witnessed his girlfriend physically abusing their young daughter, which led Alcaraz to punch his girlfriend in anger. Alcaraz also denied the other allegations against him, including the allegations that he locked her in her bedroom, threatened her life, and forced her to have sex with him. The probation officer interviewed Alcaraz multiple times, and the probation report discusses Alcaraz's contemporary statements, but the probation report does not include Alcaraz's version of events as Alcaraz testified before the IJ.

As a result of the incident, Alcaraz was charged with felony violations of California Penal Code ("CPC") § 273.5(a) (willfully inflicting corporal injury on a spouse or cohabitant), CPC § 236/237 (false imprisonment), and California Health & Safety Code § 1377(A) (possession of methamphetamine). He pleaded nolo contendere to all three charges on September 29, 1999, and was convicted and sentenced to two years in prison for each, to be served concurrently. In 2001, Alcaraz finished his prison sentence and was immediately transferred to immigration custody for deportation, which was accomplished that same year.

In 2003, Alcaraz reentered the U.S. illegally. In 2007, Alcaraz was arrested, detained, and prosecuted for illegal reentry. Alcaraz was ultimately convicted of illegally re-entering the United States and was again deported to Mexico. In 2013, while in Mexico, Alcaraz was involved in another physical altercation, this time with his neighbor. Alcaraz was arrested and spent two days in jail. According to Alcaraz, upon his release from jail, he returned to his apartment where he had just fought with his neighbor to collect his things, but the locks had changed. The police soon arrived. Alcaraz claims that five policemen beat him "all over" with "[t]heir clubs" for "about eight hours" before taking him to jail. Alcaraz subsequently pleaded guilty in Mexico to assaulting his neighbor.

On December 23, 2013, Alcaraz was caught trying to cross the border at the San Ysidro, California port of entry. Immigration officials took him into custody and initiated the instant removal proceedings.

B

On April 21, 2014, the Department of Homeland Security ("DHS") served Alcaraz with a Notice to Appear and initiated removal proceedings against him. The DHS filed a charge of inadmissibility against Alcaraz, claiming that he is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) based on his controlled substance conviction for possession of methamphetamine. Alcaraz conceded inadmissibility, but applied for asylum, withholding of removal, and protection under CAT. Alcaraz testified before the IJ, who did not make an adverse credibility determination. During those proceedings, Alcaraz objected to the introduction of the probation report produced after his 1999 convictions because the DHS did not make available "the person who made both statements here for cross-examination, and it's like [a] triple hearsay document." The IJ overruled that objection, commenting that hearsay evidence is permitted in immigration proceedings but not addressing whether the author of the report or the underlying declarant (Alcaraz's ex-girlfriend) should or could have been made available for cross-examination.

On December 5, 2014, the IJ issued a decision denying Alcaraz relief. First, the IJ held that Alcaraz's 1999 conviction for inflicting corporal injury on a cohabitant was "an aggravated felony as defined under [Immigration and Nationality Act] Section 101(a)(43)(F)," thus making him ineligible for asylum. Alcaraz does not appeal that finding.

Second, the IJ determined that the same 1999 conviction for inflicting corporal injury on a cohabitant also constituted a conviction for a "particularly serious crime" under 8 U.S.C. § 1231(b)(3), thereby making Alcaraz ineligible for withholding of removal. In reaching this second finding, the IJ relied on the probation report which recounts only the girlfriend's narrative of the 1999 domestic incident, and not that of Alcaraz. The IJ, crediting the probation report over Alcaraz's testimony, found that "the facts and circumstances surrounding the conviction involve the use of force and violence." The IJ thus found that Alcaraz "was convicted of a particularly serious crime" and, for that reason, is "ineligible for consideration of withholding of removal."

Third, the IJ denied Alcaraz's application for deferral of removal under CAT, which required Alcaraz to establish "more likely than not that he would be tortured if returned to the country of removal." Although the IJ found Alcaraz "credible as far as testifying to the harm he suffered while in the custody of the [Mexican] police," the IJ determined that Alcaraz had not proven that "the harm he suffered is tantamount to torture," nor that it is "more likely than not" to recur if he returns. Alcaraz therefore failed to establish his entitlement to CAT protection.

On appeal, the BIA adopted and affirmed the decision of the IJ.² Notably, the BIA specifically mentioned that the IJ "properly considered all evidence of record in assessing the seriousness of [Alcaraz's] conviction, including weighing and comparing [his] testimony at the hearing and the probation officer's report issued during the time of his conviction." It further opined that "[i]n weighing the evidence of record, the Immigration Judge was not required to adopt the respondent's version of events over other plausible alternatives." Thereafter, Alcaraz filed his petition for review in this court.

In our now-vacated memorandum disposition, we granted in part Alcaraz's petition. We concluded that the BIA erred as to its finding that Alcaraz's assault was a "particularly serious crime" in two respects. First, we held that the agency acted contrary to law— 8 U.S.C. § 1229a(b)(4)(B) —by not requiring that the DHS make a good faith effort to procure Alcaraz's ex-girlfriend and the author of the probation report for cross-examination, since the government had proffered the evidence of the two witnesses through its introduction of the probation report. Second, we applied our decades-old rule that required us to take a petitioner's factual contentions as true unless the agency made an explicit adverse credibility finding. We said:

We have repeatedly held that where the BIA does not make an explicit adverse credibility finding, the court must assume that the petitioner's factual contentions are true. Here, the BIA erred when it credited the probation report over Alcaraz's testimony without making an explicit adverse credibility finding as to Alcaraz.

Alcaraz-Enriquez , 727 F. App'x at 261 (cleaned up). However, we denied the petition for review regarding Alcaraz's CAT claim.

The Supreme Court granted certiorari. Barr v. Alcaraz-Enriquez , ––– U.S. ––––, 141 S. Ct. 222, 207 L.Ed.2d 1165 (2020). The Court addressed only the second basis on which we granted Alcaraz's petition and reversed our decision. Ming Dai , 141 S. Ct. at 1681. The...