Edgar G.C. v. Garland

109 F.4th 1230

EDGAR G.C., Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-1228

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 2, 2024 Pasadena, California

Filed July 30, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX4-332

Estelle M. McKee (argued), Supervising Attorney; Alyssa Kastner (argued), Certified Law Student; Cornell Law School, Asylum and Convention Against Torture Appellate Clinic, Ithaca, New York; for Petitioner.

Aric A. Anderson (argued), Trial Attorney; Kohsei Ugumori, Senior Litigation Counsel; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; Holly M. Smith, Assistant Director; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Ryan D. Nelson, Lawrence VanDyke, and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge VanDyke;

Partial Concurrence and Partial Dissent by Judge Sanchez

OPINION

VANDYKE, Circuit Judge:

Petitioner G.C.¹ petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of his claims for asylum, withholding of removal, and Convention Against Torture (CAT) deferral. His petition, which details the litany of abuses he suffered during childhood at the hands of his now-deported father, contends that he is entitled to withholding and CAT relief based on a risk of future persecution and torture by his father and the Los Zetas cartel, of which his father is a member.

The record does not compel reversal of the agency's denial of G.C.'s claims for withholding and CAT relief. First, the BIA did not abuse its discretion in determining that G.C.'s assault conviction constituted a particularly serious crime, which rendered him ineligible for withholding relief. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077-78 (9th Cir. 2015). For that reason, we need not consider G.C.'s challenges to the BIA's alternative holding that his withholding claim failed on the merits. And as for his CAT claim, substantial evidence supports the BIA's conclusion that G.C. has failed to show his father would "more likely than not" torture or kill him upon his return to Mexico. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1023-24 (9th Cir. 2023). We thus deny G.C.'s petition for review.

I. Background

A. Events Leading Up to G.C.'s Removal Proceedings

G.C. is a native and citizen of Mexico. He was born in 1995 and entered the United States without valid entry documents shortly thereafter, sometime in 1996. He has resided in the United States ever since. For much of his childhood G.C. had no lawful status in the United States, but in 2012 he obtained lawful permanent residency after filing a Special Immigrant Juvenile petition.

In February 2018, G.C. was convicted of petty theft under California Penal Code §§ 484(a)-488 and sentenced to 10 days' imprisonment. Later that year, he was charged with felony assault with force likely to produce great bodily injury under California Penal Code § 245(a)(4). He pled guilty and was sentenced to 270 days in county jail and 3 years of probation. In December 2018, the Department of Homeland Security served him with a notice to appear charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct."

G.C. initially appeared before an Immigration Judge ("IJ") pro se. But after an inquiry into his competency pursuant to Franco-Gonzalez v. Holder, No. CV-10-02211, 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014), the IJ appointed a qualified representative to represent him during the remainder of the removal proceedings. Through his qualified representative, G.C. contested removability. After a contested removal hearing, the IJ sustained the charge based on his underlying theft and assault convictions.

G.C. then applied for asylum, withholding of removal, and CAT relief, arguing that he has a well-founded fear of future persecution and torture upon his return to Mexico arising from several sources, including (1) the police, (2) his now-deported father and the Los Zetas cartel, (3) other cartels, and (4) Mexico's inadequate psychiatric facilities. He also claimed membership in three different proposed classes of particular social groups ("PSGs"): (1) "Sons of [G.C.'s Father]," (2) "Mexican Criminal Deportees with Visible Markers of Gang Membership," and (3) Mexicans with Perceptible Mental Illness."

In support of his application, G.C. offered (1) his own testimony, (2) the testimony of his mother, (3) the testimony of an expert witness, Dr. Robert Kirkland, (4) a psychological evaluation produced by a licensed clinical social worker, Deana Gullo, and (5) various declarations from friends and family members. The IJ found that G.C., his mother, and Dr. Kirkland all testified credibly, and the BIA did not disturb those credibility determinations.

After arriving in the United States, G.C. lived with his mother and sporadically with his father, who was in and out of prison during his childhood. His father physically, emotionally, and sexually abused G.C. and his siblings. He was particularly abusive toward G.C. He made fun of G.C.'s learning and speech disabilities, forced him to use drugs and to steal, molested him, and regularly called him vulgar names—notably for present purposes including the word "bitch."

Though G.C.'s family left Mexico to escape the threat of violence caused by his father's involvement with Los Zetas, his father remained involved with gangs and selling drugs in the United States. When G.C. was 14, his father was deported for drug offenses to Mexico, where he remains a member of the Los Zetas cartel. G.C. has not seen his father since his father's arrest and deportation.

Though his father has not abused him since he was deported, G.C.'s mental health has suffered because of the abuse he suffered in childhood. He has regularly used drugs and has attempted suicide several times. At one point he belonged to a gang. Gullo, the licensed clinical social worker who examined G.C., diagnosed him with Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, Unspecified Schizophrenia Spectrum and Other Psychotic Disorder, Specific Learning Disorder, and Opioid Use Disorder. The record elsewhere indicates a prior diagnosis for Bipolar Disorder. He suffers from panic attacks, sees shadows, and experiences auditory hallucinations of his father repeating insults from his childhood. These symptoms persist regardless of whether G.C. takes his prescribed medication. G.C.'s childhood history of abuse has led to anger-management issues, and he responds poorly to being called names his father once called him, including the "b-word."

The parties dispute the extent to which this evidence of G.C.'s mental health and anger-management issues is relevant to analyzing whether his 2018 assault conviction constitutes a particularly serious crime. G.C., who was homeless at the time of the assault, was drinking and doing drugs with two other men on the roof of a parking garage.² One of the men called him a "bitch," and in response, G.C. "snapped," "blacked out," and "started just beating him up." G.C. testified that he punched the man, knocking him over, and continued to kick him after he had fallen to the ground. A police report of the incident corroborates this testimony, noting that G.C. continued to kick or knee the victim in the head from behind after he had fallen over. G.C. was under the influence of drugs at the time of the assault.

B. G.C.'s Fear of Harm Upon Returning to Mexico

The evidence regarding G.C.'s father's intentions toward him is mixed. G.C. and his family believe that his father resides in the Tijuana area and remains an active member of the Los Zetas cartel. In his declaration, G.C. stated that during his childhood his father repeatedly threatened to kill him, but he has obviously never followed through on such threats. G.C.'s mother and brother testified that his father has made more recent death threats toward G.C. since his deportation. On the other hand, G.C.'s mother testified that on at least one occasion, G.C.'s father expressed a desire to help him, but his mother explained she did not believe his father's offer to help given his continued involvement with the cartel and the prior death threats.

As further evidence of his father's hostility, G.C. noted that his father recently orchestrated an assault on G.C.'s maternal grandmother, who lives in Mexico. G.C.'s mother, however, attributed the assault to his father's motivation to force her to reunite with him, not to any hostility toward G.C. Overall, the record is not entirely clear regarding who in G.C.'s family his father seeks to harm and what his motives are for doing so.

Should he be deported, G.C. and Dr. Kirkland anticipate that his father will easily be able to determine G.C.'s whereabouts because the United States shares information about criminal deportees with the Mexican government, and Los Zetas is readily able to obtain such information through its government contacts. Cartels like Los Zetas are particularly active around Tijuana and other ports of entry, and Los Zetas has "a strong presence in about 17 Mexican states—or half the country." Moreover, G.C. has visible, gang-related tattoos, and he testified that other cartels will associate him with his father and the Zetas because (1) his last name is uncommon and therefore recognizable and (2) his father is well known.

The evidence regarding resources available to G.C. to mitigate these risks is also mixed. On one hand, Kirkland testified that G.C. may have a difficult time obtaining police protection because of his criminal record and because he will not have lived in Mexico for a long time after his deportation. But on the other hand, Kirkland testified that the Mexican National...