Aurelio Gonzalez-Ortega v. Merrick Garland
19-70143
| 9th Cir. | Jun 22, 2021Background
- Aurelio Gonzalez Ortega, a Mexican national, petitioned for review of the BIA’s dismissal of his appeal from an IJ’s denial of withholding of removal and CAT relief; he abandoned asylum claims before the BIA.
- He has a 2013 domestic-violence conviction that the IJ and BIA found to be a "particularly serious crime," rendering him ineligible for withholding of removal.
- Gonzalez Ortega claimed due process violations: the IJ used a Spanish rather than a Huichol interpreter, allegedly failed to consider expert testimony, and relied on a 2013 probation report he challenges.
- The BIA assumed Gonzalez Ortega was credible and the IJ expressly reviewed and credited the expert testimony; counsel did not object to the probation report at the hearing and had opportunity to respond.
- The BIA also denied CAT relief, finding Gonzalez Ortega did not show it was more likely than not he would be tortured or that the Mexican government would acquiesce.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process (interpreter/expert/probation report) | Interpreter should have been Huichol; IJ ignored expert; probation report admission violated fairness | Spanish translation adequate; petitioner presented declaration; IJ reviewed expert; counsel did not object to report and had chance to respond | No due process violation; petitioner failed to show prejudice or that outcome was affected |
| Withholding of removal — "particularly serious crime" | 2013 domestic-violence conviction is not a particularly serious crime or IJ misweighed evidence | IJ and BIA applied Frentescu factors and found crime particularly serious; discretionary weighing is not reviewable here | Dismissed for lack of jurisdiction to review fact-weighting; BIA applied correct legal standard |
| CAT relief (torture risk) | More likely than not will be tortured if returned to Mexico | Record does not compel finding of likely torture or government acquiescence | Denial of CAT relief supported by substantial evidence |
Key Cases Cited
- Padilla-Martinez v. Holder, 770 F.3d 825 (9th Cir. 2014) (standard of review for due process claims in immigration proceedings)
- Colmenar v. I.N.S., 210 F.3d 967 (9th Cir. 2000) (due process requires showing fundamental unfairness and prejudice)
- Acewicz v. U.S. I.N.S., 984 F.2d 1056 (9th Cir. 1993) (petitioner must show translation errors affected outcome)
- Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009) (prejudice requirement for due process claims)
- Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (court limited to reviewing whether BIA applied correct legal standard for particularly serious crime)
- Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (standard for review of CAT determinations)