Juan Garcia-Moreno v. Jefferson Sessions
13-72410
| 9th Cir. | Jan 8, 2018Background
- Juan Jose Garcia-Moreno, a Salvadoran national, first entered the U.S. without inspection in 2000, was ordered removed and physically removed the same month; he did not challenge that 2000 removal order.
- After alleged assault by Salvadoran criminals in 2002 for refusing gang recruitment, Garcia-Moreno returned to the U.S. without inspection in 2003 and was later convicted in California of being an accessory.
- In 2011 DHS reinstated the 2000 removal order based on Garcia-Moreno’s illegal reentry; he expressed fear of persecution/torture if returned to El Salvador and sought a reasonable-fear determination.
- A DHS officer found no reasonable fear of persecution or torture; an Immigration Judge (IJ) concurred after remand, concluding the harms lacked nexus to a protected ground and there was no evidence the government would torture him.
- Garcia-Moreno challenged the IJ’s legal standard and factual findings and raised due-process objections to the 2000 removal order and the 2011 reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ applied wrong legal standard on remand (credible fear v. reasonable fear) | Garcia-Moreno: IJ applied §1225(b)(1) "credible fear" standard instead of higher §208.31(a) "reasonable fear" standard, violating remand and due process | Government: Any error was harmless; reasonable-fear standard is higher, so misapplication benefitted petitioner and he shows no prejudice | Harmless error; petitioner suffered no prejudice and claim waived by agreement on remand |
| Whether substantial evidence supports negative reasonable-fear finding | Garcia-Moreno: Past beating and country conditions (gang control of police) establish reasonable fear/torture risk | Government: Past criminal violence lacks nexus to protected ground; petitioner offered no evidence of government involvement or torture risk | Substantial evidence supports IJ: past harm lacked protected-ground nexus; petitioner admitted no evidence gov’t would torture him and said not afraid of police |
| Whether court has jurisdiction to review the 2000 removal order | Garcia-Moreno: Challenges the original removal as unfair | Government: Reinstatement proceedings do not reopen prior removal; challenges are untimely and unexhausted | Court lacks jurisdiction: prior removal not reviewable in reinstatement and challenges are untimely/unexhausted |
| Whether reinstatement order (2011) was lawfully issued | Garcia-Moreno: Implied challenge to reinstatement validity | Government: Reinstatement review limited to three factual predicates (identity, prior removal, illegal reentry); petitioner admitted all three | Reinstatement valid; petitioner cannot plausibly challenge the three required determinations |
Key Cases Cited
- Andrade–Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) (standard of review for reasonable-fear determinations)
- Bondarenko v. Holder, 733 F.3d 899 (9th Cir. 2013) (prejudice requirement for due-process errors)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (criminal or theft-motivated violence lacks nexus to protected ground)
- Barrios v. Holder, 581 F.3d 849 (9th Cir. 2009) (resistance to gang recruitment does not necessarily create a cognizable social group)
- Quintanilla-Ticas v. I.N.S., 783 F.2d 955 (9th Cir. 1986) (harmless error doctrine in immigration proceedings)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reinstatement proceedings do not permit reopening prior removal order)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (scope of review in reinstatement cases)
- Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003) (three factual determinations required for reinstatement validity)
- Stone v. I.N.S., 514 U.S. 386 (1995) (jurisdictional nature of statutory judicial-review provisions)