52 F.4th 757
9th Cir.2022Background
- Hernandez, a Mexican national with schizophrenia, was convicted in California (assault with a deadly weapon), sentenced to 240 days in jail and three years’ probation, and removed; he later reentered and applied for asylum, withholding, and CAT protection.
- DHS Form I-213 recounted the arresting officer’s probable-cause declaration that Hernandez had “attempted to stab the victim with a knife multiple times.”
- At his merits hearing Hernandez testified to multiple sexual assaults by private actors in Mexico and several incidents of police abuse (punch, stick blows, groping/hair cutting, being driven to a desert and kicked); he also testified he did not obtain mental-health treatment in Mexico.
- The immigration judge admitted and relied on the Form I-213, found the conviction a "particularly serious crime" (barring asylum/withholding), and denied CAT relief; the BIA affirmed.
- Hernandez petitioned the Ninth Circuit, arguing (1) the Form I-213 was improperly relied upon and admission denied fundamental fairness; (2) the agency failed to consider his low sentence; (3) the CAT denial lacked substantial evidence, including government acquiescence to sexual assaults, failure to consider country-conditions/mental‑illness evidence, and failure to aggregate risks.
- The Ninth Circuit denied the petition: the Form I-213 was presumptively reliable and not challenged; the agency considered the sentence; and substantial evidence supported denial of CAT relief (police conduct not torture; no government acquiescence; Board adequately considered evidence and aggregated risks).
Issues
| Issue | Hernandez's Argument | Garland's Argument | Held |
|---|---|---|---|
| Admissibility/reliability of Form I-213 in particularly-serious-crime analysis | I-213 is unreliable and not presumptively admissible for this purpose | I-213 is a government-prepared document entitled to presumption of reliability | Court: I-213 presumptively reliable; admissible for the determination |
| Fundamental fairness / right to cross-examine declarants | Admission was unfair because Hernandez could not cross-examine arresting/DHS officers | No cross-examination required where alien offers no rebuttal or specific challenge | Court: No due-process violation; Hernandez never disputed accuracy, so no right to cross-examine; no prejudice shown |
| Consideration of sentence (Frentescu factors) | Agency ignored "low-level" 240-day jail term when assessing seriousness | Agency considered sentence; record shows sentence was noted and weighed | Court: Agency expressly stated the 240-day sentence — consideration requirement satisfied; court will not reweigh |
| Police abuse as past torture under CAT | Repeated beatings, groping, hair-cutting, desert beating constitute past torture | Conduct did not rise to CAT’s severe/torture threshold | Court: Incidents do not amount to torture; fall short of precedents requiring "severe" harm |
| Government acquiescence to private sexual assaults | Police turned blind eye / punished victim; acquiescence exists | No evidence police were aware of or willfully blind to assaults; many assaults not reported | Court: Substantial evidence supports no acquiescence — police stopped the van and arrested parties; Hernandez did not inform police of sexual nature of attacks |
| Board’s treatment of country-conditions, mental‑illness evidence, and aggregation of risks | Board ignored or failed to consider highly probative expert and country evidence and did not aggregate multiple risk sources | Board considered evidence, need not discuss duplicative/non-dispositive items, and IJ aggregated risks; BIA adopted IJ’s reasoning | Court: Board adequately considered evidence, was not required to discuss duplicative expert report, and reasonably adopted IJ’s aggregate-risk analysis |
Key Cases Cited
- Espinoza v. INS, 45 F.3d 308 (9th Cir. 1995) (authenticated immigration forms presumed reliable absent alien’s rebuttal)
- Sanchez v. Holder, 704 F.3d 1107 (9th Cir. 2012) (evidence probative and admission must be fundamentally fair)
- Alcaraz-Enriquez v. Garland, 19 F.4th 1224 (9th Cir. 2021) (due-process cross-examination analysis where agency relied on probation report)
- Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010) (agency may consider evidence outside record of conviction in particularly-serious-crime analysis)
- Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (limited review of agency’s discretionary particularly-serious-crime determination)
- Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007) (serious physical abuse may still fall short of CAT torture)
- Tzompantzi-Salazar v. Garland, 32 F.4th 696 (9th Cir. 2022) (past beatings insufficient for CAT relief)
- Velasquez-Samayoa v. Garland, 38 F.4th 734 (9th Cir. 2022) (must consider aggregate probability of multiple torture sources)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (standard for CAT acquiescence and review of agency determinations)