Cesar Alcaraz-Enriquez v. Merrick GarlandCesar Alcaraz-Enriquez v. Merrick Garland
SUMMARY**
**Immigration
On remand from the Supreme Court, the panel granted in part and denied in part Cesar Alcaraz-Enriquez‘s petition for review of a decision of the Board of Immigration Appeals, and remanded, concluding that: (1) in the absence of an opportunity to cross-examine the author of a probation report or the underlying declarant, the Board erred in relying on the report to conclude that Alcaraz had been convicted of a particularly serious crime; and (2) the Board did not err in denying Alcaraz‘s application for deferral of removal under the Convention Against Torture.
The panel first addressed the Board‘s determination that Alcaraz‘s conviction for inflicting corporal injury on a cohabitant, in violation of
Observing that the Supreme Court in Ming Dai did not alter the law as it relates to the panel‘s prior holding on cross-examination, the panel re-affirmed its conclusion that the Board erred in relying on the probation report without giving Alcaraz any sort of opportunity to cross-examine the witnesses whose testimony was embodied in that report, and without the Department of Homeland Security making any effort—good faith or not—to procure the witnesses after Alcaraz preserved his right by adequate objection. The panel concluded that this rendered the Board‘s procedure fundamentally unfair, especially given that probation reports may not offer a highly reliable basis on which to make important immigration decisions. The panel concluded that this error caused Alcaraz prejudice because if the probation report had been found to be unreliable on cross-examination, it is possible that the IJ could have found, based on Alcaraz‘s version of events and the lack of an adverse credibility finding, that his conviction was not for a particularly serious crime. The panel remanded for a new hearing.
Noting that Ming Dai upended the panel‘s second ground for granting the petition and laid out the proper procedure on petition for review when there is no explicit adverse credibility determination, the panel concluded that it would be futile to analyze this issue before a new hearing is held. The panel explained that cross-examination of the author of the probation report (or the declarant) could affect both the IJ‘s credibility determination as to Alcaraz and the Board‘s decision to credit the probation report‘s version of events over Alcaraz‘s.
The panel reaffirmed its prior holding denying Alcaraz‘s petition as to his application for deferral of removal under CAT.
COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.
John W. Blakeley, Assistant Director; Erica B. Miles and Aimee J. Carmichael, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
BEA, Circuit Judge:
Petitioner Cesar Alcaraz-Enriquez (“Alcaraz“), a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals (“BIA“), which denied his applications for withholding of removal and deferral of removal under the Convention Against Torture (“CAT“).
On remand, we again grant Alcaraz‘s petition for review in part.
I
A
Alcaraz was born in Mexico in 1979 but entered the United States illegally when he was eight years old. In July 1999, Alcaraz, who still lacked legal immigration status, was involved in a domestic incident with his live-in girlfriend, Esmeralda Alvarado, with whom Alcaraz had a child. This altercation led to a nolo contendere California felony conviction—but the facts of that altercation are subject to two competing narratives.
A probation report, written by a probation officer (who interviewed Alcaraz and Alvarado at the scene), recounted Alvarado‘s narrative. Under her version of events, Alcaraz had locked her in the bedroom, threatened to kill her if she tried to escape, punched and kicked her repeatedly, and forced her to have sex with him.
Alcaraz admitted to punching his girlfriend once but denied that it was “the way she describes.” According to his version, relayed in his testimony before the IJ, Alcaraz witnessed his girlfriend physically abusing their young daughter, which led Alcaraz to punch his girlfriend in anger. Alcaraz also denied the other allegations against him, including the allegations that he locked her in her bedroom, threatened her life, and forced her to have sex with him. The probation officer interviewed Alcaraz multiple times, and the probation report discusses Alcaraz‘s contemporary statements, but the probation report does not include Alcaraz‘s version of events as Alcaraz testified before the IJ.
As a result of the incident, Alcaraz was charged with felony violations of
In 2003, Alcaraz reentered the U.S. illegally. In 2007, Alcaraz was arrested, detained, and prosecuted for illegal reentry. Alcaraz was ultimately convicted of illegally re-entering the United States and was again deported to Mexico. In 2013, while in Mexico, Alcaraz was involved in another physical altercation, this time with his neighbor. Alcaraz was arrested and spent two days in jail. According to Alcaraz,
On December 23, 2013, Alcaraz was caught trying to cross the border at the San Ysidro, California port of entry. Immigration officials took him into custody and initiated the instant removal proceedings.
B
On April 21, 2014, the Department of Homeland Security (“DHS“) served Alcaraz with a Notice to Appear and initiated removal proceedings against him. The DHS filed a charge of inadmissibility against Alcaraz, claiming that he is removable under
On December 5, 2014, the IJ issued a decision denying Alcaraz relief. First, the IJ held that Alcaraz‘s 1999 conviction for inflicting corporal injury on a cohabitant was “an aggravated felony as defined under [Immigration and Nationality Act] Section 101(a)(43)(F),” thus making him ineligible for asylum. Alcaraz does not appeal that finding.
Second, the IJ determined that the same 1999 conviction for inflicting corporal injury on a cohabitant also constituted a conviction for a “particularly serious crime” under
Third, the IJ denied Alcaraz‘s application for deferral of removal under CAT, which required Alcaraz to establish “more likely than not that he would be tortured if returned to the country of removal.” Although the IJ found Alcaraz “credible as far as testifying to the harm he suffered while in the custody of the [Mexican] police,” the IJ determined that Alcaraz had not proven that “the harm he suffered is tantamount to torture,” nor that it is “more likely than not” to recur if he returns. Alcaraz therefore failed to establish his entitlement to CAT protection.
On appeal, the BIA adopted and affirmed the decision of the IJ.2 Notably,
In our now-vacated memorandum disposition, we granted in part Alcaraz‘s petition. We concluded that BIA erred as to its finding that Alcaraz‘s assault was a “particularly serious crime” in two respects. First, we held that the agency acted contrary to law—
We have repeatedly held that where the BIA does not make an explicit adverse credibility finding, the court must assume that the petitioner‘s factual contentions are true. Here, the BIA erred when it credited the probation report over Alcaraz‘s testimony without making an explicit adverse credibility finding as to Alcaraz.
Alcaraz-Enriquez, 727 F. App‘x at 261 (cleaned up). However, we denied the petition for review regarding Alcaraz‘s CAT claim.
The Supreme Court granted certiorari. Barr v. Alcaraz-Enriquez, 141 S. Ct. 222 (2020). The Court addressed only the second basis on which we granted Alcaraz‘s petition and reversed our decision. Ming Dai, 141 S. Ct. at 1681. The Court vacated all of our opinion and remanded the case for further proceedings. Id. In so doing, the Court acknowledged our first basis for granting the petition:
Separately, the Ninth Circuit held that the BIA erred by failing to give Mr. Alcaraz-Enriquez the opportunity to cross-examine the witnesses whose testimony was embodied in the probation report. . . . Remaining disputes over the merits . . . can be addressed on remand.
II
Preliminarily, we observe that the Supreme Court in Ming Dai did not alter the law as it relates to our holding as to the cross-examination of declarants to the probation report. However, because all of our prior opinion was vacated, we must address again Alcaraz‘s argument that he was denied a fair hearing because the government proffered the report even though Alcaraz was never given an opportunity to cross-examine the report‘s author or the declarant, his former girlfriend. We reaffirm our prior holding.
We review the BIA‘s conclusion, that Alcaraz‘s conviction constitutes a particularly serious crime, for abuse of discretion. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). “While we cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard.” Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir. 2018) (cleaned up). Thus, we must “ensur[e] that the agency relied on the ‘appropriate factors’ and ‘proper evidence’ to reach [its] conclusion.” Avendano-Hernandez, 800 F.3d at 1077 (alteration omitted)
We previously held in Anaya-Ortiz that an IJ may consider “all reliable information . . . in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction.” 594 F.3d at 678 (quoting Matter of N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007)). This reliability question is particularly important when the IJ is relying on a probation officer‘s impressions or summaries of witnesses. As the Supreme Court has recognized, “consideration must be given to the quality, as well as the quantity, of the information” provided in presentence reports, given the “manifest” “risk that some of the information accepted in confidence may be erroneous, or may be misinterpreted[] by the investigator.” Gardner v. Florida, 430 U.S. 349, 359 (1977); see also Dickson v. Ashcroft, 346 F.3d 44, 54 (2d Cir. 2003) (“Because the factual narratives contained in the [presentence report] are prepared by a probation officer on the basis of interviews . . . they may well be inaccurate . . . . Such a narrative is not a highly reliable basis for a decision of such importance as deportation.“).
Separately, we have recognized that the evidence introduced into removal proceedings remains subject to other statutory and constitutional limitations. For instance, the admission of evidence must be “fundamentally fair.” Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009). And because Congress has specifically provided that an alien in removal proceedings must be given “a reasonable opportunity . . . to cross-examine witnesses presented by the Government,”
These principles—reliable evidence and fundamental fairness—converge when it comes to Alcaraz‘s probation report. Alcaraz was never given any sort of opportunity to cross-examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied in denying his appeal. Nor was any effort made—good faith or not—by the DHS to procure the witnesses, after Alcaraz preserved his right by adequate objection. This rendered the BIA‘s procedure fundamentally unfair, especially given that probation reports may not offer a “highly reliable basis” on which to make important immigration decisions. Dickson, 346 F.3d at 54. So in light of the BIA‘s failure to give Alcaraz an opportunity to confront the witnesses against him, the BIA‘s reliance on the probation officer‘s report was error.
This error was also prejudicial. “To warrant a new hearing, the alien must also show prejudice, which means that ‘the outcome of the proceeding may have been affected by the alleged violation.‘” Cinapian, 567 F.3d at 1074 (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). The BIA‘s multifactored analysis for determining whether a crime is “particularly serious” under
Based on the BIA‘s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz‘s cross-examination and the prejudice generated therefrom, we grant in part Alcaraz‘s petition and remand for a hearing that comports with the requirements of
III
In Ming Dai, the Supreme Court addressed the other basis for which we previously granted Alcaraz‘s petition. In our now-vacated memorandum disposition, we held, based on our long-extant rule, that the BIA erred when it credited the probation report over Alcaraz‘s testimony without making an explicit adverse credibility finding as to Alcaraz. Alcaraz-Enriquez, 727 F. App‘x at 261. The Supreme Court determined that our rule was not supported by the text of the Immigration and Nationality Act (“INA“). Instead, the Court laid out the proper procedure on petition for review when there is no explicit adverse credibility determination:
The Ninth Circuit‘s deemed-true-or-credible rule cannot be reconciled with the INA‘s
terms. Instead, immigration cases like these should proceed as follows. First, the fact-finder—here the IJ—makes findings of fact, including determinations as to the credibility of particular witness testimony. The BIA then reviews those findings, applying a presumption of credibility if the IJ did not make an explicit adverse credibility determination. Finally, the court of appeals must accept the agency‘s findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
The Supreme Court‘s opinion in Ming Dai thus upends our second ground
Although the Supreme Court reversed our prior disposition on this point and remanded, we need not engage in further analysis on this point at this time. As previously noted, we also granted Alcaraz‘s petition on entirely separate grounds: the agency‘s failure to make a good faith effort to procure the author of, and the declarant to, the probation report for cross-examination. On remand, cross-examination of the author of the probation report (or the declarant) could affect both the IJ‘s credibility determination as to Alcaraz and the BIA‘s decision to credit the probation report‘s version of events over Alcaraz‘s. Therefore, it would be futile for us to reexamine this issue on remand before a new hearing is held.
IV
We also reaffirm our prior holding, which denied Alcaraz‘s petition as to his application for deferral of removal under CAT. As the IJ observed, although Alcaraz “has shown that he had been subjected to past harm by the police,” he failed to show that “the harm he suffered is tantamount to torture.” See In re J-E-, 23 I. & N. Dec. 291, 298 (BIA 2002) (finding that because “the act must be specifically intended to inflict severe physical or mental pain or suffering,” certain “rough and deplorable treatment, such as police brutality, does not amount to torture“). Alcaraz failed to prove that the BIA‘s finding that he suffered only from police mistreatment, and not “torture,” was unsupported by substantial evidence. The BIA did not err in denying Alcaraz‘s application for deferral of removal under CAT, and we deny this portion of the petition for review.
V
The petition for review is GRANTED IN PART and DENIED IN PART. The case is REMANDED for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.