Rodriguez-Jimenez v. Garland

20 F.4th 434 (Mem)

Jose Alfredo RODRIGUEZ-JIMENEZ, Petitioner,

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

No. 21-70064

United States Court of Appeals, Ninth Circuit.

Submitted November 16, 2021^*

Filed December 21, 2021 Phoenix, Arizona

Michael Franquinha, Aguirre Law Group LLP, Mesa, Arizona, for Petitioner.

Brian Boynton, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Rebecca Hoffberg Phillips, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald Lee Gilman,^*** Daniel A. Bress, and Lawrence VanDyke, Circuit Judges.

VANDYKE, Circuit Judge

In this case, Jose Alfredo Rodriguez-Jimenez claims that the Board of Immigration Appeals (BIA) (1) did not sufficiently consider the evidence relevant to his claim of future torture, and (2) denied him due process by not providing him an opportunity to explain his testimonial inconsistencies. But the record shows that the BIA and the Immigration Judge (collectively, the agency) considered the relevant evidence and "announce[d] its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted" to Rodriguez-Jimenez's claims. Najmabadi v. Holder , 597 F.3d 983, 990 (9th Cir. 2010) (citation omitted). This is all that is required; the agency need not provide a detailed explanation of every argument or piece of evidence in its decision. And Rodriguez-Jimenez's due process claim fails for lack of prejudice because substantial evidence supports the BIA's rejection of his CAT claim, irrespective of any testimonial inconsistencies. We therefore deny Rodriguez-Jimenez's petition.

BACKGROUND

I. Removal Proceedings

In February 2015, Rodriguez-Jimenez pled guilty to unlawful flight/eluding police and driving under the influence. A month later, the Department of Homeland Security (DHS) commenced removal proceedings. In the midst of his removal proceedings, Rodriguez-Jimenez pled guilty to two other criminal offenses: solicitation to commit forgery and possession of drug paraphernalia. Because of his criminal history, Rodriguez-Jimenez's sole basis for relief raised before the agency was deferral of removal under the Convention Against Torture (CAT).

In his application, Rodriguez-Jimenez expressed concern about returning to Mexico, and specifically his hometown of Altar, Sonora, because of problems that his cousin's family experienced in 2012. He wrote that "my cousin Mario Rodriguez .... informed me that ["hit men" for the cartel, or "sicarios"] had .... in January of 2012 ... entered [Mario's] home and pointed their guns at his wife ... and their children demanding from them that they turn my cousin over to them." Rodriguez-Jimenez wrote that Mario was not home at the time, and that his family left for the United States shortly thereafter—and again noted that the incident occurred in 2012. Rodriguez-Jimenez also wrote that another relative was kidnapped, and that the body was found cut up in pieces.

Rodriguez-Jimenez later testified before the Immigration Judge (IJ) in November of 2018. He began by swearing that all the information in his application was true and correct to the best of his knowledge. During his testimony, Rodriguez-Jimenez stated that some of his aunts, uncles, and cousins still lived in Altar, Sonora—the same place where the sicarios harassed Mario's family. Rodriguez-Jimenez didn't claim that the sicarios had harassed any other family members still living in Altar.

He then relayed his story about Mario's encounter with the sicarios. But he said he had forgotten Mario's last name and the names of most of Mario's three children, even though he had seen them in the past six months. He guessed that Mario's oldest child was about eight years old. Rodriguez-Jimenez also conceded that he knew of Mario's incident with the sicarios only indirectly through family members, and not through Mario himself—contrary to what he previously stated in his application. To clarify that Rodriguez-Jimenez lacked any direct knowledge of the incident upon which he predicated his claim for relief, the IJ asked Rodriguez-Jimenez to confirm his lack of direct knowledge at least six times—which Rodriguez-Jimenez did, each time he was asked. When asked why Mario, as one of the persons who the sicarios harassed, was not present to testify about the incident, Rodriguez-Jimenez claimed that he didn't know. But he guessed that Mario was scared, since Rodriguez-Jimenez had earlier conceded that Mario resided in the United States illegally. The IJ concluded, "[s]o, all you know is what somebody told you that they heard from somebody else." Rodriguez-Jimenez agreed. "This is hearsay on top of hearsay," the IJ observed.

Rodriguez-Jimenez further conceded that he had never encountered the sicarios personally, that no Mexican government official had ever threatened him, that he had never been tortured, and that he had not returned to Mexico in over twenty years. Even Rodriguez-Jimenez's counsel ultimately conceded that Rodriguez-Jimenez "only has secondhand information from his mother." The IJ asked if there was anything else, and Rodriguez-Jimenez's counsel responded in the negative.

Rodriguez-Jimenez's mother then testified. She stated that she, her husband, and Rodriguez-Jimenez left Mexico in 1995 "[b]ecause there was no work, and [they] decided to seek a better future for [Rodriguez-Jimenez]." Regarding the sicario's attempt to recruit Mario, she testified that it took place approximately 10 years ago, and that she knew of it only through Mario's wife. That meant the incident occurred around 2008—four years earlier than when Rodriguez-Jimenez, in his application, said it happened. She also testified that the police took a report, but that she wasn't aware if Mario's family identified the sicarios. A week after Mario's family filed the report, they left Mexico.

Rodriguez-Jimenez's mother further noted that Mario and his family now live in the United States, and that since the incident, none of them has had any contact with the sicarios. She also stated that Mario's oldest child was approximately 11 or 12. When the IJ pointed out that Rodriguez-Jimenez had testified that Mario's oldest child was approximately 8, his mother stated that she wasn't sure of his age.

Finally, Rodriguez-Jimenez's mother relayed how the sicarios targeted another relative, who went missing shortly thereafter. She conceded that the police both investigated the incident and told the family that they would inform them of any developments in the investigation. She also explained that a body was eventually found, but that it couldn't be identified as the missing relative's—again, in contrast to Rodriguez-Jimenez's statements in his application, where he wrote that the missing relative's body was found. She concluded her testimony by reiterating her fear that Rodriguez-Jimenez would be the victim of a crime "[b]ecause [of] the things happening ... within the family, and they want young men."

At the conclusion of the hearing, Rodriguez-Jimenez's counsel directed the IJ to country reports submitted in support of Rodriguez-Jimenez's application, arguing that the sicarios' harassment of young men occurs throughout Mexico and that local police would commonly acquiesce to drug-related violence. Upon the IJ's request, Rodriguez-Jimenez's counsel also pointed the IJ to certain page numbers of the country reports and proceeded to read a direct quote from that report. The government countered that Rodriguez-Jimenez's cited country report "is still too vague. It's not specific enough. It's ... [Rodriguez-Jimenez]'s burden to show that the Government would ... acquiescence to torture in his case, specifically in his case. And frankly, the facts just have not shown that."

II. Agency Determinations

In assessing Rodriguez-Jimenez's application and testimony, the IJ first acknowledged the numerous documents in the record, including the country conditions reports that Rodriguez-Jimenez submitted. The IJ then discussed various inconsistencies between Rodriguez-Jimenez's application and his and his mother's later testimony—including whether Rodriguez-Jimenez heard about the incident with Mario and the sicarios directly or through others, and whether it occurred in 2008 or 2012. The IJ also discussed Rodriguez-Jimenez's mother's testimony and declaration, noting that even the mother's testimony provided conflicting evidence as to when the incident with the sicarios occurred. The IJ further observed that Rodriguez-Jimenez failed to provide any evidence corroborating the incident.

Regarding government acquiescence in any possible future torture, the IJ concluded that Rodriguez-Jimenez's country conditions evidence was too speculative. The IJ found that "there is insufficient evidence in the record to establish that if [Rodriguez-Jimenez], who is 24 years old and has lived practically his entire life in the United States, would go back to Mexico, that he would be known to any criminals." "In fact, the majority of the information presented today indicates that the criminals in Mexico primarily look for young men to help them with their illegal activities. That would put the entire population of men in Mexico between the ages of 15 and 25 in danger ...." The IJ therefore concluded that Rodriguez-Jimenez failed to meet his burden of establishing it was more likely than not that he would be tortured with the acquiescence of Mexican authorities, and denied his request for deferral of removal under CAT.

Rodriguez-Jimenez appealed to the BIA, and the BIA dismissed his appeal. It first concluded that "[i]nsofar as the [IJ] denied [Rodriguez-Jimenez]'s claim based upon a negative credibility finding and lack of corroboration, the decision cannot be affirmed." It reasoned that the IJ did not provide Rodriguez-Jimenez with notice and opportunity to respond to perceived discrepancies and...