Jose Zamora-Chavez v. Loretta E. Lynch
666 F. App'x 684
| 9th Cir. | 2016Background
- Petitioner Jose Zamora-Chavez, a Mexican citizen and lawful permanent resident, pleaded no contest to a controlled-substance offense in August 1996 and removal proceedings began in December 1996.
- AEDPA § 440(d) (1996) removed § 212(c) eligibility for aliens deportable for certain crimes; BIA found that bar applied to Zamora-Chavez at the time of his plea.
- Zamora-Chavez sought a § 212(c) waiver and CAT deferral of removal; the IJ denied relief and the BIA independently reviewed and dismissed his appeal.
- For § 212(c), Zamora-Chavez relied on St. Cyr and Pascua doctrines to argue continued eligibility despite statutory changes; BIA found he was never eligible because AEDPA barred relief at plea time.
- For CAT, Zamora-Chavez argued risk of torture on return based on mental illness (medication access), bisexuality (persecution risk), and foreign/Americanized appearance; the BIA held evidence was speculative and insufficient to meet the more-likely-than-not standard.
- The Ninth Circuit reviewed the BIA decision (de novo for law, substantial evidence for facts) and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for § 212(c) waiver | Zamora-Chavez: St. Cyr/Pascua preserve waiver eligibility despite statutory changes | Government: AEDPA § 440(d) withdrew § 212(c) eligibility at time of plea; he was never eligible | BIA/Ninth Cir.: AEDPA barred eligibility at plea time; St. Cyr/Pascua do not help those never eligible; waiver denied |
| CAT deferral (risk of torture) | Zamora-Chavez: likely torture due to untreated mental illness (medication unavailability), bisexuality discrimination, and targeting for being foreign/Americanized | Government: evidence is speculative, harassment/discrimination does not rise to torture or show likelihood specific to him | BIA/Ninth Cir.: substantial evidence supports denial; claims speculative and not shown to meet government-intent or likelihood standards |
Key Cases Cited
- Hosseini v. Gonzales, 471 F.3d 953 (9th Cir.) (scope of review — BIA decision controls when it conducts independent review)
- Garcia v. Holder, 749 F.3d 785 (9th Cir.) (standards of review for BIA factual and legal conclusions)
- INS v. St. Cyr, 533 U.S. 289 (2001) (preserves relief for aliens eligible at time of plea despite later statutory changes)
- Pascua v. Holder, 641 F.3d 316 (9th Cir.) (applies St. Cyr principles to certain post-IIRIRA convictions)
- Xiao Fei Zheng v. Holder, 644 F.3d 829 (9th Cir.) (claims based on speculative risk of harm are insufficient)
- Maroufi v. INS, 772 F.2d 597 (9th Cir.) (rejecting conclusory/speculative asylum claims)
- Villegas v. Mukasey, 523 F.3d 984 (9th Cir.) (government intent required for CAT claims involving institutional conditions)
- Alphonsus v. Holder, 705 F.3d 1031 (9th Cir.) (burden to show persecution/torture and likelihood for LGBT claim)