Nelson Andrade-Garcia v. Loretta E. Lynch
2016 U.S. App. LEXIS 12634
| 9th Cir. | 2016Background
- Nelson Andrade-Garcia, a Guatemalan national, was previously removed and reentered the U.S. illegally in 2013; the government sought to reinstate his prior removal order under 8 U.S.C. § 1231(a)(5).
- Andrade-Garcia expressed fear of return based on gang threats demanding extortion payments and the prior murder of his aunt by gang members.
- At the reasonable-fear screening, he admitted no past physical harm to himself, denied fear based on a protected ground, and offered only general assertions that police corruption exists in Guatemala.
- The asylum officer found no reasonable possibility of persecution or torture and referred the case to an immigration judge (IJ); the IJ concurred, concluding Andrade-Garcia failed to show government acquiescence to torture.
- Andrade-Garcia petitioned for review, arguing the IJ erred by requiring more than the evidence he presented to show government acquiescence; the Ninth Circuit reviewed the IJ’s decision for substantial evidence and denied the petition.
Issues
| Issue | Andrade-Garcia's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether reinstated removal orders are subject to only Mandel’s “facially legitimate and bona fide” review or ordinary judicial review | Mandel standard should apply, limiting review | Reinstated orders are reviewable under §1252; Mandel’s narrow standard doesn’t apply | Court held Mandel standard does not apply; review is under §1252 substantial-evidence standard |
| Whether substantial evidence supports the IJ’s finding of no reasonable fear of torture under CAT | He argued gang threats and evidence of police corruption suffice to show government acquiescence | Govt argued petitioner offered only speculation and no evidence government was aware of or acquiesced to gang torture | Court held substantial evidence supported IJ’s decision: petitioner failed to show government awareness and breach of duty (acquiescence) |
| Whether general ineffectiveness or isolated corruption proves government acquiescence to torture | General corruption/ineffective policing establishes acquiescence | Only awareness of torturous activity plus failure to act meets regulatory definition of acquiescence | Court held general ineffectiveness or isolated bribery evidence insufficient to show acquiescence |
| Whether IJ erred by not granting further review or relief | Requested reversal/remand for CAT relief or withholding | Argued proper procedures followed and evidence insufficient | Petition denied; no compelled contrary conclusion for any reasonable adjudicator |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (limited judicial review of certain executive immigration decisions where facially legitimate and bona fide reason exists)
- Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012) (discussing CAT protection in the context of reinstated removal orders)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (noting reinstated-order bar does not necessarily preclude withholding claims)
- Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001) (treating reinstatement orders as reviewable final orders of removal)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (defining CAT requirement that torture be inflicted with government consent or acquiescence)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2013) (general government ineffectiveness insufficient to show acquiescence)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (reversal where evidence established government complicity in criminal activity)