Baltazar Avalos v. Jefferson Sessions
703 F. App'x 572
| 9th Cir. | 2017Background
- Petitioner Baltazar Avalos, a Salvadoran national, sought asylum, withholding of removal, CAT protection, Temporary Protected Status (TPS), cancellation of removal, and NACARA special rule cancellation.
- An immigration judge denied all relief; the Board of Immigration Appeals (BIA) dismissed Avalos’s appeal. Avalos petitioned this Court for review under 8 U.S.C. § 1252.
- Avalos argued his fear of gang-related violence was on account of a protected ground and that the IJ/BIA erred in denying his protections and TPS.
- The agency found insufficient nexus to a protected ground for asylum/withholding and insufficient evidence of government torture for CAT.
- The Court concluded it lacked jurisdiction to review discretionary cancellation and NACARA eligibility determinations and rejected Avalos’s procedural and due-process challenges as failing to show prejudice.
- The Ninth Circuit remanded only the TPS claim for further proceedings because the record was unclear whether the persecutor bar was properly applied and membership alone cannot establish persecutor conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nexus for asylum/withholding: whether harm was on account of a protected ground | Avalos: gang persecution targeted him or was tied to a protected ground | Gov: violence was random/gang-motivated, no protected-ground nexus | Held: Substantial evidence supports denial; no nexus established |
| CAT: likelihood of torture with government consent/acquiescence | Avalos: likely to be tortured if returned | Gov: record does not show government torture or acquiescence | Held: Substantial evidence supports CAT denial |
| Cancellation of removal (discretionary relief) | Avalos: agency erred in discretionary denial | Gov: discretionary determinations not subject to review | Held: Court lacks jurisdiction to review discretionary cancellation |
| NACARA special rule cancellation eligibility | Avalos: BIA misapplied NACARA eligibility | Gov: eligibility decisions precluded from judicial review | Held: Jurisdiction barred; court cannot review NACARA eligibility |
| Due process and agency procedure (motions/reconsideration, IJ bias) | Avalos: agency improperly addressed motion for reconsideration; IJ biased | Gov: any procedural irregularities harmless; no prejudice shown | Held: No reversible error; due-process claim fails absent prejudice |
| TPS and persecutor bar application | Avalos: TPS denial improper (contested membership/persecutor bar) | Gov: persecutor bar may apply if persecutory conduct shown | Held: Remanded — record unclear about military membership and persecutor involvement; membership alone insufficient to trigger bar |
Key Cases Cited
- Khan v. Holder, 584 F.3d 773 (9th Cir.) (standard of review: substantial evidence for facts; de novo for law/constitutional claims)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir.) (random gang violence lacks nexus to a protected ground)
- Silaya v. Mukasey, 524 F.3d 1066 (9th Cir.) (CAT requires government involvement or acquiescence)
- Vilchez v. Holder, 682 F.3d 1195 (9th Cir.) (jurisdictional limits on review of discretionary cancellation)
- Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir.) (court retains review only for colorable constitutional claims)
- Lanuza v. Holder, 597 F.3d 970 (9th Cir.) (IIRIRA precludes review of NACARA eligibility determinations)
- Kumar v. Gonzales, 439 F.3d 520 (9th Cir.) (agency regulation violations reviewed for harmless error)
- Lata v. INS, 204 F.3d 1241 (9th Cir.) (due-process claim requires error plus prejudice)
- Kumar v. Holder, 728 F.3d 993 (9th Cir.) (persecutor bar requires particularized evaluation of personal involvement)
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir.) (mere membership in an organization insufficient to establish persecutor status)
- INS v. Ventura, 537 U.S. 12 (U.S.) (remand to agency for further proceedings)