Cesar Alcaraz-Enriquez v. Merrick Garland
19 F.4th 1224
| 9th Cir. | 2021Background
- Cesar Alcaraz-Enriquez, a Mexican national, pleaded nolo contendere in 1999 to offenses including corporal injury on a cohabitant and meth possession; a probation report recounting his ex-girlfriend’s version of the incident was prepared but did not record Alcaraz’s later testimony.
- DHS introduced the probation report in removal proceedings; Alcaraz objected that DHS did not make the probation officer or the declarant (his ex-girlfriend) available for cross-examination; the IJ overruled the objection and admitted the report.
- The IJ found Alcaraz’s domestic conviction a particularly serious crime (barring withholding of removal) and denied CAT protection; the BIA adopted and affirmed the IJ’s decision.
- The Ninth Circuit initially granted review in part, holding the BIA erred by not forcing the government to make a good-faith effort to produce witnesses and by deeming Alcaraz’s testimony true absent an explicit adverse credibility finding; the Supreme Court reversed the latter holding in Garland v. Ming Dai.
- On remand, the Ninth Circuit reaffirmed that the BIA erred by relying on the probation report without giving Alcaraz an opportunity to cross-examine its author/declarant and that this error was prejudicial; the court remanded for a new hearing complying with 8 U.S.C. § 1229a(b)(4)(B).
- The Ninth Circuit affirmed the denial of CAT relief, concluding Alcaraz’s past police mistreatment did not rise to torture or show a likelihood of future torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS must make a good-faith effort to produce the probation report author and declarant for cross-examination under § 1229a(b)(4)(B) and due process | Alcaraz: DHS proffered the report but made no effort to produce witnesses, denying his right to confront and cross-examine | DHS/BIA: Hearsay presentence reports are admissible; no further production obligation asserted | Court: BIA erred; DHS must make good-faith effort to procure witnesses; remand for a hearing that affords cross-examination |
| Whether the Ninth Circuit’s practice of deeming petitioner’s testimony true absent an explicit adverse credibility finding is required on review | Alcaraz: Agency erred by crediting report over his testimony without explicit adverse credibility finding | DHS/BIA: BIA may credit other evidence; no automatic deemed-true rule | Held by Supreme Court in Ming Dai: Ninth Circuit rule inconsistent with INA; appellate review follows IJ findings, BIA presumption of credibility if no explicit adverse finding, and courts accept agency fact findings unless no reasonable adjudicator could agree. Ninth Circuit did not reapply rule here because cross-examination could affect credibility |
| Whether Alcaraz’s 1999 conviction constitutes a "particularly serious crime" barring withholding of removal | Alcaraz: His testimony (if credited) and lack of aggravating facts mean the conviction is not particularly serious | DHS/BIA: Probation report shows violent, aggravating details supporting a particularly serious-crime finding | Court: BIA’s reliance on the untested probation report was error and prejudicial; remand for reconsideration with cross-examination opportunity |
| Whether Alcaraz met the CAT standard (torture more likely than not if returned) | Alcaraz: Past severe police beatings in Mexico show likelihood of torture on return | DHS/BIA: Past mistreatment did not amount to torture or show likelihood of future torture | Court: Denial of CAT relief affirmed; record supports BIA’s conclusion that mistreatment did not rise to torture |
Key Cases Cited
- Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (explains proper appellate review and presumption of credibility where IJ makes no explicit adverse finding)
- Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997) (government must make good-faith effort to afford cross-examination of witnesses)
- Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009) (admission of evidence must be fundamentally fair; remand when alien prevented from presenting case)
- Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010) (agency may consider reliable information outside record of conviction for particularly serious-crime analysis)
- Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018) (multifactor analysis for determining "particularly serious crime")
- Gardner v. Florida, 430 U.S. 349 (1977) (cautions about reliability of presentence reports and risk of error)
- Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003) (presentence report narratives may be unreliable for deportation decisions)
- Alcaraz-Enriquez v. Sessions, [citation="727 F. App'x 260"] (9th Cir. 2018) (prior Ninth Circuit disposition addressing cross-examination and deemed-true rule)