Raul Medina Herrera v. Merrick Garland
16-70975
| 9th Cir. | Apr 18, 2022Background
- Petitioner Raul Medina Herrera, a Mexican national, sought cancellation of removal, asylum, withholding of removal, CAT relief, and administrative closure; IJ denied relief and BIA affirmed and denied administrative closure.
- Herrera received a Notice to Appear in 2010 that omitted the time and date of his hearing.
- Herrera filed for cancellation of removal in May 2014 and asserted at least ten years of continuous physical presence in the U.S.; the government treated prior voluntary returns as relevant but the BIA focused on a 2003 return.
- Herrera applied for asylum more than one year after his last arrival and claimed fear of returning to Mexico based on criminal violence in Michoacán and border towns.
- BIA found Herrera ineligible for asylum (untimely), held that "Mexican returnees from the United States" is not a protected social group for withholding, and denied CAT relief based on possibility of internal relocation and family members remaining unharmed.
- BIA denied administrative closure in light of Matter of Avetisyan factors and the suspension of DAPA, making alternative relief speculative.
Issues
| Issue | Plaintiff's Argument (Herrera) | Defendant's Argument (BIA/Government) | Held |
|---|---|---|---|
| Administrative closure | Request for administrative closure to pursue alternate relief (e.g., DAPA) | DAPA suspended; closure not warranted under Avetisyan factors | Denial affirmed; no abuse of discretion |
| Cancellation of removal (stop-time) | NTA did not include time/date, so did not trigger stop-time; Herrera meets 10-year presence | NTA in 2010 triggered stop-time, making Herrera ineligible | Reversed as to eligibility: NTA lacking time/date did not trigger stop-time; Herrera qualifies on continuous presence |
| Asylum (timeliness) | Delay excused by changed/extraordinary circumstances; began fearing return ~5 years ago | Filing was untimely and delay not for reasonable period | Denial affirmed; substantial evidence supports failure to excuse one-year deadline |
| Withholding of removal | Member of protected group (Mexican returnees) and face future persecution | "Mexican returnees" not a cognizable social group; no clear probability of persecution | Denial affirmed; group not cognizable and, alternatively, insufficient evidence of clear probability |
| CAT relief | Country conditions in Michoacán and border towns make torture likely on return | Voluntary departure avoids relocation to dangerous areas; internal relocation and family safety make torture unlikely | Denial affirmed; substantial evidence supports that torture is not more likely than not and relocation is possible |
Key Cases Cited
- Bhattarai v. Lynch, 835 F.3d 1037 (9th Cir. 2016) (standard of review: law de novo, facts for substantial evidence)
- Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018) (jurisdiction to review administrative closure where BIA set meaningful standard)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA missing time/date does not trigger stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (requirements for valid notice to appear)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (analysis of protected social groups)
- Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (social group and asylum analysis)
- Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (clear probability standard for withholding)
- Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (requirement to consider internal relocation in CAT claims)