Aviles-Tavera v. Garland ( 2022 )

Case: 20-60587 Document: 00516153414 Page: 1 Date Filed: 01/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 4, 2022
No. 20-60587
Lyle W. Cayce
Clerk
Renferi Aviles-Tavera,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
Agency No. 077-401-890
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Renferi Aviles-Tavera (Aviles) appeals the determination by the
Board of Immigration Appeals (BIA) that he is statutorily ineligible for
withholding of removal and not entitled to protection under the Convention
Against Torture (CAT). We deny Aviles’s petition for review.
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I
Aviles is a native citizen of Mexico. Aviles has an extensive history
before immigration courts in the United States. He first entered the United
States illegally in 1988. In 1994, Aviles received notice that he was subject to
deportation. Aviles filed an application for an extension of time to deport
voluntarily, which was granted. He failed to leave by the required date. Aviles
was again served with notice that he was subject to deportation in October
1998. An immigration judge (IJ) subsequently ordered his removal in 2000.
Aviles also has a criminal history, and his felony assault conviction is
at issue in the case before us. In 2001, while his removal case was still
pending, Aviles was convicted of Misdemeanor Assault with Injury in Texas
state court and sentenced to 30 days’ imprisonment. In 2004, Aviles was
convicted of Felony Assault – Family Violence in Texas state court and was
sentenced to 2.5 years’ imprisonment; the victim was his sister. After Aviles
was released from prison, he was deported.
In October 2013, Aviles reentered the United States and expressed
fear of returning to Mexico. In November 2013, he was served with notice
that he was subject to removal. In 2015, an IJ denied Aviles’s application for
asylum, withholding of removal, and protection under CAT. Important to
this appeal, the 2015 IJ found that Aviles’s felony assault conviction was not
a “particularly serious crime” which would have made Aviles automatically
ineligible under the withholding of removal statute. The 2015 IJ reasoned that
the offense would ordinarily be classified as a misdemeanor and was only
enhanced to a felony due to Aviles’s prior misdemeanor conviction.
However, the 2015 IJ determined on the merits that Aviles was not entitled
to withholding of removal or protection under CAT. Aviles was deported.
In March 2017, Aviles once again presented himself and requested
entry into the United States. In May 2018, he was served with a notice that
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he was subject to removal. Aviles applied for asylum, withholding of removal,
and protection under CAT. This application is the subject of the current
appeal.
Aviles’s application and hearing describe various attacks in Mexico by
an individual, police, and the military due to his cognitive disabilities and
mental health issues. During the merits hearing before the 2019 IJ, Aviles
testified that he had been attacked and cut with a knife in Mexico. He further
alleged that an “organized group and the military” repeatedly attacked and
threatened him with a gun. Aviles finally testified that rather than helping
him, police officers harassed him, threatened him, tied him up, and sexually
assaulted him. Aviles fears he will be tortured, institutionalized, or killed if
he returns to Mexico. However, due to his mental health conditions, Aviles’s
application does not have precise details or dates of these alleged attacks.
At the hearing, a professional counselor testified on Aviles’s behalf.
He testified that he had visited Aviles on three occasions and that Aviles
showed signs of schizophrenia, autism, delusions, and cognitive or
intellectual disabilities. But the counselor could not provide an exact
diagnosis. He further stated that he believed that Aviles would be abused in
Mexico due to these conditions. Finally, he testified that, in his view, Aviles
was not aggressive and posed no threat to the public. Various family members
also testified on Aviles’s behalf.
The 2019 IJ denied Aviles’s application, concluding that she was not
precluded from determining that Aviles’s felony assault conviction was a
“particularly serious crime.” The 2019 IJ also found that Aviles was not
entitled to protection under CAT because Aviles did not introduce evidence
showing it was more likely than not that he would be tortured or
institutionalized if he returned to Mexico, nor did he show that the Mexican
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government would acquiesce in the alleged torture. The 2019 IJ ordered
Aviles removed to Mexico.
Aviles appealed to the BIA, but the BIA dismissed the appeal. The
BIA held that Aviles was statutorily ineligible for both asylum and
withholding of removal, finding that the 2019 IJ did not err by reconsidering
whether Aviles was statutorily ineligible for withholding of removal. The BIA
also held that Aviles did not meet his burden to show he was entitled to
protection under CAT because Aviles failed to show that it was more likely
than not that he would be tortured at the instigation of or with the
acquiescence of the Mexican government. Aviles timely filed a petition for
review on his withholding of removal and CAT claims.
II
When reviewing a decision by the BIA, we only consider the IJ’s
decision if it influenced the BIA.1 We review de novo questions of law but
give deference to the BIA’s interpretation of immigration statutes and
regulations.2 “We review an immigration court’s findings of fact for
substantial evidence.”3 Reversal is improper unless we determine that the
evidence not only supports a contrary conclusion, but that it compels
reversal.4
III
Aviles first argues that the 2019 IJ was precluded from reconsidering
whether his felony assault conviction was a “particularly serious crime”
1
Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
2
Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012).
3
Singh, 880 F.3d at 224.
4
Orellana-Monson, 685 F.3d at 518.
4
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because the 2015 IJ had already determined it was not. “A final decision by
an immigration judge has a preclusive effect on future litigation and agency
decisions.”5 However, issue preclusion does not apply “unless the facts and
the legal standard used to assess them are the same in both proceedings.”6
When the same factual circumstances are involved in two actions, but the
legal significance of those facts differs because of a significant or
demonstratable difference in the applicable legal standard, preclusion does
not apply.7 The government asserts that the applicable legal standard to
determine whether Aviles’s felony assault conviction was a particularly
serious crime has changed such that issue preclusion does not apply.
The overarching test for determining whether a crime is particularly
serious remains unchanged. An applicant is statutorily ineligible for
withholding of removal if he has “been convicted by a final judgment of a
particularly serious crime.”8 There is both a categorical and a case-by-case
test for determining whether a crime is particularly serious; here, only the
latter is at issue. However, there is some degree of overlap between the first
“nature of the conviction” factor of the case-by-case test and the categorical
test.
A categorically particularly serious crime is “an aggravated felony”
“for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years.”9 The statute defines an aggravated felony
5
Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013). See also Medina v. INS,
993 F.2d 499, 502–04 (5th Cir. 1993), superseded by statute on other grounds, 8 U.S.C. § 1252.
6
Id.7
Talcott v. Allahabad Bank, Ltd., 444 F.2d 451, 459 n.8 (5th Cir. 1971).
8
8 U.S.C. § 1231(b)(3)(B)(ii).
9
Id.5
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to include “a crime of violence . . . for which the term of imprisonment [is]
at least one year.”10 The Attorney General also has discretion to determine
on a case-by-case basis whether a conviction is a particularly serious crime by
considering the following factors: the nature of the conviction, the type of
sentence imposed, and the circumstances and underlying facts of the
conviction.11 Under the first factor analyzing the nature of the conviction or
elements of the offense, an IJ may evaluate whether a crime is an aggravated
felony, but the IJ is not limited to solely this consideration in the case-by-case
test.12
So while the overarching factors of the case-by-case test remain
unchanged, United States v. Gracia-Cantu changed how courts interpret the
first factor. In analyzing the factors, the 2015 IJ found that Aviles’s felony
assault conviction was not a particularly serious crime. However, the 2015
IJ’s determination predated Gracia-Cantu. Gracia-Cantu held that Assault –
Family Violence was a “crime of violence” under 18 U.S.C. § 16(a).13 Aviles
concedes that caselaw interpreting what constitutes an aggregated felony has
changed. Nevertheless, he argues that Gracia-Cantu would not have affected
the 2015 IJ’s determination because, while the 2015 IJ found Aviles’s felony
assault conviction was not a particularly serious crime, the IJ still found that
the conviction was a crime of violence. We disagree.
18 U.S.C. § 16 provides two definitions of crime of violence: “(a) an
offense that has as an element the use, attempted use, or threatened use of
10
Id. § 1101(a)(43)(F).
11
Vetcher v. Barr, 953 F.3d 361, 368–69 (5th Cir. 2020); In re N-A-M-, 24 I. & N.
Dec. 336, 342 (BIA 2007); Samba v. Lynch, 641 F. App’x 376, 381 (5th Cir. 2016) (per
curiam).
12
In re N-A-M-, 24 I. & N. Dec. 336 at 343.
13
United States v. Gracia-Cantu, 920 F.3d 252, 254 (5th Cir. 2019) (per curiam).
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physical force against the person or property of another” and “(b) any other
offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.”14 Gracia-Cantu creates a significant or
demonstratable change to the nature of the conviction factor by changing the
analysis that Aviles’s felony assault conviction was a crime of violence under
§ 16(a). The 2015 IJ relied on the (now unconstitutional) § 16(b) crime of
violence definition based on the persuasive authority of Matter of Ombura to
find that Aviles’s felony assault conviction was a crime of violence.15 But the
2015 IJ did not consider whether Aviles’s felony assault conviction was a
crime of violence under § 16(a).
Thereafter, Gracia-Cantu clearly established that Aviles’s felony
assault conviction was a crime of violence under § 16(a). Gracia-Cantu also
significantly relaxed the standard for determining whether a crime is a crime
of violence by removing the directness of force requirement under § 16(a).16
Therefore, post-Gracia-Cantu, the nature of the conviction factor weighs
more heavily in favor of finding Aviles’s felony assault conviction to be a
particularly serious crime than it did at the time of the 2015 IJ’s
determination. Because Gracia-Cantu created a significant or demonstratable
change to the analysis of the nature of the conviction or elements of the
offense factor, issue preclusion does not apply.
Finally, for the first time in a supplemental brief, Aviles asserts that
Borden v. United States reverts the case-by-case analysis to that in place prior
14
18 U.S.C. § 16.
15
Matter of Ombura, 2007 WL 1153996 (BIA Feb. 8, 2007) (unpublished); See
Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018) (finding the § 16(b) definition to be
unconstitutionally vague in the immigration context).
16
Gracia-Cantu, 920 F.3d at 254.
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to Gracia-Cantu. Borden held that an offense requiring only a mens rea of
recklessness could not qualify as a violent felony under 18 U.S.C. § 924.17Aviles forfeited this argument because he failed to raise the substantive
argument of Borden in his opening brief.18 The BIA did not err by holding that
the 2019 IJ could reexamine whether Aviles’s felony assault conviction was a
particularly serious crime.
IV
Aviles alternatively argues that the BIA erred by determining on the
merits that he was ineligible for withholding of removal. Here, we first
address our jurisdiction to review the BIA’s finding that Aviles was ineligible
for withholding of removal. Then we address Aviles’s alleged points of error.
A
Under Kucana v. Holder,19 we have jurisdiction to review the BIA’s
determination that Aviles’s assault conviction was a particularly serious
crime making him statutorily ineligible for withholding of removal. In
Kucana, the Supreme Court held that under 8 U.S.C. § 1252(a)(2)(B)(ii),
Congress intended to bar review of discretionary decisions only when
Congress “set out the Attorney General’s discretionary authority in the
statute.”20 While Kucana does not address “the precise language Congress
must use to endow the Attorney General or the Secretary of Homeland
Security with discretion,” “the majority of other circuits [] have held that,
under Kucana, a statutory provision must expressly and specifically vest
17
Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (plurality).
18
Edwards v. Johnson, 209 F.3d 772, 775 n.1 (5th Cir. 2000).
19
Kucana v. Holder, 558 U.S. 233, 247 (2010).
20
Id.8
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discretion in the Attorney General.”21 Under the withholding of removal
statute, the Attorney General is given the authority by Congress to “decide”
whether an applicant’s conviction constitutes a particularly serious crime;
but both parties agree that this language does not expressly and specifically
vest discretion in the Attorney General such that we lack jurisdiction to
review the BIA’s determination.22 We therefore have jurisdiction to review
the merits of the BIA’s determination that Aviles was statutorily ineligible
for withholding of removal.
B
Aviles argues that the BIA erred in determining on the merits that he
was statutorily ineligible for withholding of removal because his felony
assault conviction was a particularly serious crime. He raises three errors:
that the facts giving rise to his felony assault conviction are less severe than
the those presented in the cases cited by the 2019 IJ; that the 2019 IJ erred by
referring to the Affidavit for Warrant of Arrest as being the affidavit of the
victim when it was in fact prepared by an officer; and that the IJ disregarded
testimony offered by Aviles’s other sister, stating that he was not a violent or
aggressive person. However, Aviles fails to show how each of these errors
compel reversal of the BIA.23 We therefore affirm the BIA’s determination
that Aviles’s felony assault conviction was a particularly serious crime
making him ineligible for withholding of removal.
Aviles also argues the BIA erred in failing to consider whether he
would face persecution on account of his belonging to a particular social
group. If an applicant is not statutorily ineligible for withholding of removal,
21
Valerio-Ramirez v. Sessions, 882 F.3d 289, 294 (1st Cir. 2018).
22
8 U.S.C. § 1231(b)(3)(B).
23
Orellana-Monson, 685 F.3d at 518.
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the applicant must demonstrate a clear probability of persecution on account
of his race, religion, nationality, membership in a particular social group, or
political opinion if he returned to his home country to be entitled to
withholding of removal.24 The BIA never reached this issue because it
determined that Aviles was statutorily ineligible for withholding of removal.
Because we are not permitted to consider reasons other than those given by
the BIA,25 we decline to consider this argument.
V
Aviles finally argues that the BIA erred by finding that Aviles was
ineligible for protection under CAT. To receive a deferral of removal under
CAT, a petitioner must show that it is more likely than not that he would be
tortured if he returned to his home country.26 A petitioner must also show
sufficient state action involved in that torture.27 However, a foreign
government’s “failure to apprehend the persons threatening the alien” or
“the lack of financial resources to eradicate the threat or risk of torture” do
not constitute sufficient state action.28
24
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); Efe v. Ashcroft, 293 F.3d
899, 906 (5th Cir. 2002) (quoting 8 C.F.R. § 208.16(b)(1)).
25
Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981).
26
8 C.F.R. § 1208.17(a). “Torture is defined as any act by which severe pain or
suffering . . . is intentionally inflicted on a person . . . for any reason . . . when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” Tamara-Gomez v. Gonzales,
447 F.3d 343, 350 (5th Cir. 2006) (quoting 8 C.F.R. § 1208.18(a(1)).
27
Tamara-Gomez, 447 F.3d at 350–51.
28
Id. at 351.
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Aviles fails to show that the evidence compels a reversal of the BIA’s
denial of protection under CAT.29 Aviles fails to show that he would more
likely than not be institutionalized if he returned to Mexico. The counselor
who evaluated Aviles could not conclusively determine what specific
diagnosis Aviles suffered from, nor did the counselor testify that Aviles’s
conditions more likely than not would result in institutionalization.
Additionally, Aviles fails to show sufficient state action. It is not enough that
the Mexican government knows about poor conditions in an institution but
fails to address them due to limited resources.30 We affirm the BIA’s holding
that Aviles is not entitled to protection under CAT.
* * *
Aviles-Tavera’s petition for review is DENIED.
29
Orellana-Monson, 685 F.3d at 518.
30
See Tamara-Gomez, 447 F.3d at 351.
11