Daniel Galdamez v. Merrick Garland
14-70422
| 9th Cir. | Sep 21, 2021Background
- Petitioner Daniel Vicente Galdamez, a native/citizen of El Salvador, sought review of the BIA’s dismissal of his appeal from an IJ denial of: NACARA special-rule cancellation, voluntary departure, asylum, withholding of removal, and CAT relief.
- The Ninth Circuit has jurisdiction under 8 U.S.C. § 1252; legal questions reviewed de novo, factual findings for substantial evidence.
- The BIA found Galdamez ineligible for NACARA relief because he failed to prove ABC-class membership or that he applied for asylum before April 1, 1990; the court held it lacks jurisdiction to review that factual determination.
- The agency concluded Galdamez’s 1994 conviction under Cal. Health & Safety Code § 11360(a) could not be shown not to be an aggravated felony based on the record, barring voluntary departure eligibility (applicant bears burden; inconclusive record insufficient).
- The agency found substantial evidence that Galdamez’s past and feared harms in El Salvador were not “on account of” a protected ground (including harm tied to current military membership), so asylum, humanitarian asylum, and withholding failed.
- The agency’s denial of CAT relief was supported by substantial evidence because Galdamez did not show it is more likely than not he would be tortured by or with the government’s consent or acquiescence.
Issues
| Issue | Plaintiff's Argument (Galdamez) | Defendant's Argument (Agency) | Held |
|---|---|---|---|
| NACARA eligibility | He is entitled to special‑rule cancellation under NACARA | He failed to show ABC class membership or timely asylum application | Court lacks jurisdiction to review agency’s factual denial of NACARA eligibility; petition dismissed as to this issue |
| Conviction as aggravated felony (voluntary departure) | Conviction should not be treated as aggravated felony; he is eligible for voluntary departure | Conviction record is inconclusive; applicant bears burden to prove eligibility | Agency did not err; inconclusive record insufficient under Pereida; voluntary departure denied |
| Asylum/withholding—nexus to protected ground | Harm he experienced/fears qualifies as persecution on account of a protected ground | Harm was not on account of a protected ground (e.g., tied to military membership); insufficient nexus | Substantial evidence supports denial; Galdamez did not rebut or challenge future‑fear ruling; asylum/withholding denied |
| CAT relief | He would more likely than not be tortured if returned | Record does not show likelihood of torture by or with government consent/acquiescence | Substantial evidence supports denial of CAT relief |
Key Cases Cited
- Jauregui-Cardenas v. Barr, 946 F.3d 1116 (9th Cir. 2020) (de novo review of legal questions, including aggravated‑felony characterization)
- Tamang v. Holder, 598 F.3d 1083 (9th Cir. 2010) (review standard for agency factual findings)
- Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) (court precluded from reviewing agency’s factual finding of NACARA ineligibility)
- Pereida v. Wilkinson, 141 S. Ct. 754 (U.S. 2021) (inconclusive conviction record insufficient to meet alien’s burden to show eligibility for relief)
- Cruz-Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000) (harm due to current military membership not persecution on account of a protected ground)
- Lopez-Vasquez v. Holder, 706 F.3d 1072 (9th Cir. 2013) (issues not raised in opening brief are waived)
- Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009) (standard for CAT relief: likelihood of torture with government consent or acquiescence)