Jose Bustos-Bustos v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALFREDO BUSTOS-BUSTOS, No. 20-70477
Petitioner, Agency No. A206-349-788
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2021
Seattle, Washington
Before: McKEOWN and PAEZ, Circuit Judges, and ORRICK,** District Judge.
Jose Alfredo Bustos-Bustos (“Bustos-Bustos”), a native and citizen of
Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”)
dismissal of his appeal from an Immigration Judge’s (“IJ”) denial of his motion to
reopen, so that he could apply for withholding of removal and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §
1252. We review the denial of a motion to reopen for abuse of discretion. See
Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). We grant the petition in
part, deny it in part, and remand to the BIA for further proceedings as to Bustos-
Bustos’ CAT claim.
1. In denying Bustos-Bustos’ motion to reopen, the IJ found that he was not
eligible for withholding of removal because his prior conviction for possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and § 841(b)(1)(A)(viii) was a particularly serious crime (“PSC”). An offense may
be presumptively classified as a PSC if it involved illicit drug trafficking,
regardless of the sentence imposed. See Matter of Y-L-, 23 I. & N. Dec. 270, 274
(A.G. 2002). To rebut this presumption, Bustos-Bustos bore the burden of
demonstrating “extenuating circumstances that are both extraordinary and
compelling.” Id.; see also Matter of N-A-M-, 24 I. & N. Dec. 336, 342–44 (B.I.A.
2007), overruled in part on other grounds by Blandino-Medina v Holder, 712 F. 3d
1338, 1347-48 (9th Cir. 2013). Here, the IJ properly found that Bustos-Bustos’
prior conviction was a PSC that rendered him ineligible for withholding of
removal. On appeal, the BIA determined that Bustos-Bustos’ motion to reopen
was “not accompanied by any evidence that would tend to rebut the presumption”
that his conviction was a PSC. We agree that Bustos-Bustos’s drug trafficking
2
conviction is a PSC that renders him ineligible for withholding of removal. 8
U.S.C. § 1231(b)(3)(B)(ii). We therefore deny the petition as to the claim for
withholding of removal.
2. To be eligible for CAT relief, an applicant bears the burden of
establishing that he will more likely than not be tortured with the consent or
acquiescence of a public official if removed to his native country. Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014). CAT’s implementing regulations
require the agency to consider “all evidence relevant to the possibility of future
torture,” and we have granted relief where the agency has failed to do so. See
Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018). Moreover, the BIA
must consider “the aggregate risk” that a petitioner faces if removed and failure to
do so is error. Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011). “Public officials
acquiesce in torture if they: ‘(1) have awareness of the activity (or consciously
close their eyes to the fact it is going on); and (2) breach their legal responsibility
to intervene to prevent the activity because they are unable or unwilling to oppose
it.’” Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting
Garcia-Milian, 755 F.3d at 1034). Because Bustos-Bustos was bringing a motion
to reopen, he needed to make a prima facie showing of eligibility for CAT relief.
See INS v. Doherty, 502 U.S. 314, 323 (1992). In assessing “all evidence relevant
to the possibility of future torture,” the IJ must consider “[e]vidence that the
3
applicant could relocate to a part of the country of removal where he or she is not
likely to be tortured.” 8 C.F.R. § 1208.16(c)(3)(ii).
Bustos-Bustos presented evidence that his family was threatened with
torture by gang members who were affiliated with local municipal government
police. The BIA’s CAT analysis does not discuss Bustos-Bustos’ evidence or
articulate why his family’s experiences with gang-affiliated police fail to establish
acquiescence. Nor did the BIA consider the threatening video Bustos-Bustos’
sister received, which stated that people seeking to harm him were “everywhere.”
Although the agency need not expressly address every single piece of evidence
presented by the petitioner, Lin v. Holder, 588 F.3d 981, 987–88 (9th Cir. 2009),
“failing to mention highly probative or potentially dispositive evidence”—such as
Bustos-Bustos’ evidence that gang-affiliated police have been willfully blind and
refused to investigate gang torture and threats against his family—demonstrates
that all evidence was not considered. See Pirir-Boc v. Holder, 750 F.3d 1077,
1086 (9th Cir. 2014) (quoting Cole, 659 F.3d at 772). We conclude that the BIA
did not adequately evaluate acquiescence and relocation and remand for further
proceedings as to Bustos-Bustos’ CAT claim.
The petition is GRANTED in part, DENIED in part, and REMANDED for
further proceedings consistent with this disposition. We also DENY as moot the
motion for a stay of removal.
4