32 F.4th 696
9th Cir.2022Background
- Petitioner Jose Tzompantzi-Salazar, a Mexican national, was repeatedly apprehended trying to reenter the U.S.; he alleges two kidnappings in Tijuana/near the border in July–August 2011 while awaiting smugglers.
- After the first alleged kidnapping he was placed in expedited removal (July 2011); he later reentered (Sept. 2011) and was charged in immigration proceedings that ultimately proceeded as a withholding-only/NOR case.
- Petitioner sought withholding and CAT relief; the IJ and BIA denied relief (concerns about discrepancies in testimony and lack of protected ground for past persecution). The Ninth Circuit remanded the CAT claim in 2016 for further consideration.
- On remand the IJ (2018) and then the BIA (2020) again denied CAT relief, finding relocation to his home state (Tlaxcala) feasible and that country-conditions evidence was too generalized to show a particularized risk.
- Petitioner moved to reopen/remand based on Pereira v. Sessions (arguing a jurisdictional defect because the charging document lacked hearing time/date); the BIA denied the motion as Pereira inapplicable. The Ninth Circuit denied review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pereira invalidates jurisdiction and warrants reopening | Pereira means an NTA without time/date does not vest jurisdiction; petitioner's charging document lacked time/date so agency lacked jurisdiction | Proceedings were initiated by a Notice of Referral (NOR) and hearing time/date were later provided; Pereira is limited and inapplicable | Denied — Pereira does not apply; BIA did not abuse discretion in denying reopening (NOR + later notice supplied jurisdiction) |
| Whether petitioner is more likely than not to face torture in Mexico (CAT) | Two kidnappings (one allegedly by police) show a future torture risk | No threats since 2011; relocation to Tlaxcala is possible; country evidence is generalized and not particularized | Denied — substantial evidence supports BIA/IJ: relocation available; risk below 50% threshold |
| Whether past harms rose to level of "torture" sufficient to infer future torture | Kidnappings and beatings constitute torture supporting CAT protection | Alleged harm does not necessarily meet the statutory torture threshold; even if credible, they are historical and not predictive of future torture | Denied — record does not compel finding past events were torture or that they predict future torture |
| Whether country-conditions/generalized crime establishes particularized risk | High crime and corruption in Tijuana show petitioner faces elevated, ongoing risk | CAT requires particularized threat and government acquiescence; generalized violence insufficient | Denied — generalized evidence insufficient; no showing petitioner faces greater risk than Mexican populace |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (held NTA missing time/date is not an NTA for stop-time rule)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Pereira’s narrow holding does not deprive immigration court of jurisdiction when hearing details are later provided)
- Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (affirming jurisdiction where hearing information was provided before the hearing)
- Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (explaining relocation standard under CAT differs from asylum/INA standards)
- Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (family safety in hometown can support denial of CAT relief)
- INS v. Abudu, 485 U.S. 94 (1988) (standard for denying motions to reopen)
- Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018) (substantial-evidence standard governs review of CAT denials)