Escobar v. Garland

55 F.4th 662

Eduardo ESCOBAR, Petitioner

v.Merrick B. GARLAND, Attorney General of the United States and the Executive Office of Immigration Review, Respondent

No. 22-1249

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2022

Filed: December 15, 2022

Counsel who presented argument on behalf of the petitioner and on the brief was Kelly Marie Hewitt, of Shawnee, KS.

Counsel who presented argument on behalf of the respondent and on the brief was Stephanie Leigh Groff, US DOJ, OIL, of Washington, DC.

Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Eduardo Escobar is a 31-year-old man alleged to be a native and citizen of Honduras present in the United States without being lawfully admitted. Escobar petitions for review of an order of the Board of Immigration Appeals (BIA) upholding the decision of an immigration judge (IJ) that found Escobar removable and denied his application for deferral of removal under the Convention Against Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

I.

Escobar entered the United States as a child but claims to know little about the circumstances of his birth or his entry into the country. Escobar has also struggled with mental illness, having been diagnosed with schizophrenia, and he has a significant criminal record.

While Escobar has offered little information about his past, the record indicates that he was brought to the United States as a young child by his mother, Maria Elsomina Escobar, a Honduran citizen. Soon after her entry into the United States in the early 1990s, Maria Escobar stole the identity of an American citizen named Maria Mateo. In 2013, Maria Escobar accepted a plea agreement on charges of possessing and falsifying immigration documents. In sworn statements included in her plea agreement, Maria Escobar stated that all but one of her children, including Eduardo Escobar, were born in Honduras. She also admitted that she was born in Honduras and has been residing illegally in the United States since she entered the country.

Between 2010 and 2021, Eduardo Escobar sustained multiple convictions: a first-degree assault charge, two burglary charges, a drug possession charge, a felon-in-possession charge, and a second-degree robbery charge. In May 2021, after years of investigation, the Department of Homeland Security (DHS) initiated removal proceedings against Escobar while he was serving a term of involuntary commitment at a Missouri mental health facility.

In the Notice to Appear (NTA), DHS alleged that Escobar is a native and citizen of Honduras who entered the United States unlawfully at an unknown location and date. The NTA also detailed Escobar's criminal history dating back to 2010: six charges resulting in an aggregate sentence of 16 years incarceration. The NTA charged Escobar with removability under the Immigration and Nationality Act as an alien present in the United States without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i) ; as an alien convicted of a controlled substance-related offense, id. § 1182(a)(2)(A)(i)(II) ; and as an alien convicted of two or more offenses for which the aggregate sentence is five or more years of incarceration, id. § 1182(a)(2)(B). In June 2021, DHS added further grounds for removability as an alien who has been convicted of a crime involving moral turpitude. Id. § 1182(a)(2)(A)(i)(I). Escobar appeared before an IJ and, through counsel, filed a motion to terminate the proceedings, arguing that DHS had not met its burden of proof to establish alienage by clear and convincing evidence.

After finding Escobar competent to participate in the proceedings, the IJ considered evidence and heard testimony from Escobar and DHS on the issue of removability. Escobar objected to some of the evidence offered by DHS, including his mother's sworn statement in her 2013 plea agreement. The IJ overruled these objections, finding that all the contested evidence met the threshold for admissibility in removal proceedings. Moreover, the IJ noted that any inconsistencies in the evidence spoke to the weight to be given to that evidence, not its admissibility.

After reviewing the evidence, the IJ found that DHS had satisfied its burden to prove Escobar's removability by clear and convincing evidence. The IJ's analysis focused primarily on Escobar's argument that DHS failed to establish alienage. The IJ found that, unlike a typical removal case, the Form I-213 submitted by DHS was "not, by itself, sufficient proof of [Escobar's] alienage." Thus, the IJ turned to other evidence submitted by DHS, including Escobar's mother's plea agreement, evidence of Escobar's relationship with his mother, and several Honduran birth documents allegedly identifying Escobar and his family members. The IJ found that, though these documents "individually[ ] may not be sufficient to meet [DHS's] burden," together they provided clear and convincing evidence of Escobar's alienage. The IJ noted that, in making this determination, he used "common sense inferences" to piece together documents that were not always "perfectly congruent." Thus, the IJ concluded that DHS had satisfied its burden of proof and that Escobar had come forward with no evidence demonstrating that he was lawfully present in the United States. Accordingly, the IJ denied Escobar's motion to terminate and found Escobar to be removable to Honduras.

Escobar also sought deferral of removal under CAT, arguing that he would be subject to torture upon his arrival in Honduras. Specifically, Escobar pointed to his schizophrenia and the inhumane conditions to which he would be subject within Honduran prisons and mental health hospitals. However, the IJ rejected Escobar's CAT argument, finding that though "conditions in Honduran psychiatric hospitals and prisons are far below the standard of care found in the United States, they do not satisfy the threshold for torture under CAT." In particular, the IJ found that Escobar's torture argument was speculative because it relied on a "series of events that he contends will lead to his torture." Further, the IJ found that Escobar could not show that the Honduran government will specifically intend to torture him or acquiesce in that torture. Thus, the IJ denied CAT relief.

Escobar appealed to the BIA. Before the BIA, he challenged the IJ's decision to admit certain documents into the record, the IJ's finding that DHS had proven alienage by clear and convincing evidence, and the IJ's denial of deferral of removal under CAT. In a brief three-page opinion, the BIA largely adopted the IJ's reasoning and findings but supplemented the IJ's decision with its own analysis. In particular, the BIA rejected Escobar's argument that the IJ improperly relied on inferences to find that DHS had carried its burden to prove alienage. The BIA agreed with the IJ that the evidence was "not perfectly congruent" but found that Escobar could not show that the IJ's alienage finding was clearly erroneous, as required for reversal. See 8 C.F.R. § 1003.1(d)(3)(i). The BIA also affirmed the IJ's conclusion that Escobar had not demonstrated entitlement to CAT relief because he had not shown that he would be tortured within the meaning of the regulations. Accordingly, the BIA affirmed the IJ on all claims and dismissed Escobar's appeal. Escobar now petitions this Court for review.

II.

Before us, Escobar asserts that the BIA erred both with respect to the alienage determination and the denial of CAT relief. In removal cases, we review "questions of law de novo " and "factual determinations under the substantial evidence standard, reversing only if ‘the evidence is so compelling that no reasonable factfinder could fail to find in favor of the petitioner.’ " Gilbertson v. Garland, 7 F.4th 700, 704 (8th Cir. 2021) (citation omitted). Put differently, we must affirm the BIA's factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." Etchu-Njang v. Gonzales, 403 F.3d 577, 580 (8th Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B) ). "Though we ordinarily review only the BIA's decision, ‘we also review the IJ's decision as part of the final agency action’ if ‘the BIA adopted the findings or the reasoning of the IJ.’ " Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation omitted). Because the BIA adopted the findings and reasoning of the IJ here, we consider both decisions on this petition for review.

A.

Escobar first argues that the IJ and BIA erred in finding that DHS sufficiently proved Escobar's alienage. In removal proceedings, DHS "bears the burden of establishing removability by clear and convincing evidence." Garcia-Torres v. Holder, 660 F.3d 333, 335 (8th Cir. 2011). In the case of a noncitizen allegedly present in the United States without being lawfully admitted, DHS "must first establish the alienage" of that individual by "clear and convincing evidence." 8 C.F.R. § 1240.8(a), (c). If DHS establishes alienage by clear and convincing evidence, "then the burden shifts to the alien to prove he is lawfully present in the United States pursuant to a prior admission." Puc-Ruiz v. Holder, 629 F.3d 771, 781 (8th Cir. 2010) (citation omitted).

As a preliminary matter, Escobar contends that the IJ violated his due process rights by admitting unreliable evidence. For example, the birth certificates provided by DHS included inconsistencies in name and date of birth, and Escobar insists that the form of the birth certificates indicates possible fraud. Further, Escobar argues that the sworn statements by Maria Escobar are inherently unreliable because she later admitted to using a false identity.

We disagree. It is well established that "traditional rules of evidence do not apply in immigration proceedings, except to the extent that due process is implicated." Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009). To satisfy due process in a removal proceeding, "evidence must be...