Francisco Cerna v. Loretta Lynch
669 F. App'x 481
| 9th Cir. | 2016Background
- Francisco Guadalupe Cerna, a Salvadoran national, was previously ordered removed in 2006 and later illegally reentered the United States.
- DHS issued a March 12, 2015 order reinstating Cerna’s October 4, 2006 removal order; Cerna sought review.
- An asylum officer referred Cerna’s claim for reasonable fear of persecution/torture to an immigration judge (IJ), who on August 4, 2015 found no reasonable fear under 8 C.F.R. § 1208.31(a).
- Cerna challenged the DHS reinstatement and the IJ’s negative reasonable-fear determination, and alleged due process violations.
- The Ninth Circuit’s review was limited: compliance with reinstatement regulations for DHS’s order and substantial-evidence review for the IJ’s factual findings.
- The panel dismissed in part and denied in part Cerna’s petition: upheld DHS reinstatement, declined to review collateral challenges to the 2006 removal order, and affirmed the IJ’s reasonable-fear and due-process determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of DHS reinstatement of 2006 removal order | Reinstatement improper / violated due process | Reinstatement proper because Cerna is an alien, had prior removal, and illegally reentered | Reinstatement valid; DHS complied with regulations; no due process right to hearing on reinstatement |
| Jurisdiction to review collateral challenges to 2006 removal order | Court should review underlying 2006 order on due process grounds | Review barred as untimely and not fitting an exception | Court lacks jurisdiction; petition untimely and no gross miscarriage of justice shown |
| Reasonable fear of persecution (nexus to protected ground) | Past/future gang violence creates reasonable possibility of persecution | Violence is criminal/gang-motivated and lacks nexus to protected ground | Substantial evidence supports IJ: no nexus; reasonable-fear denied |
| Claim of eligibility for protection from torture | Threats and past violence make torture claim reasonable | Evidence insufficient to show likelihood of torture upon return | IJ’s finding that Cerna failed to show reasonable possibility of torture is supported by substantial evidence |
| Due process challenges to asylum officer/IJ proceedings | Proceedings were procedurally flawed, prejudicing Cerna | Any alleged procedural errors caused no prejudice | Due process claims rejected; petitioner failed to show prejudice |
Key Cases Cited
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) (limits circuit review of reinstatement to three discrete inquiries)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (previously removed alien who reenters is not entitled to IJ hearing to determine reinstatement)
- Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (REAL ID Act requires protected ground be one central reason for persecution)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (desire to be free from criminal harassment or random gang violence lacks nexus to protected ground)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (standards for assessing torture claims on review)
- Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (petitioner must show prejudice to prevail on due process claim)
- Stone v. INS, 514 U.S. 386 (1995) (timeliness bars collateral challenges to prior removal orders)