Norma Corona Moreno v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMA PATRICIA CORONA MORENO, No. 19-72341
Petitioner, Agency No. A205-052-428
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 14, 2021
San Francisco, California
Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,** District Judge.
Norma Corona Moreno, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals affirming the denial of her
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
§ 1252(a)(1), and we grant the petition and remand for further proceedings.
1. The government argues that Corona Moreno’s claims for withholding
of removal and protection under the CAT are moot because she has been removed
to Mexico. But under ICE Policy Directive 11061.1, the government ordinarily
facilitates the return to the United States of aliens who are granted relief by this
court or who obtain a remand that eventually results in a grant of relief by the
agency. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 936 (9th Cir. 2016) (per
curiam). Because granting Corona Moreno’s petition would “at least increase [her]
chances” of returning to the United States, her claims are not moot. Id.
2. The Board abused its discretion when it determined that Corona
Moreno’s conviction for burglary, in violation of California Penal Code § 459, is a
particularly serious crime rendering her ineligible for asylum and withholding of
removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R.
§ 1208.16(d)(2). Although we lack jurisdiction over the ultimate determination of
whether a crime is particularly serious, we retain jurisdiction to review whether the
Board applied the wrong legal standard or relied on inappropriate factors or
improper evidence to reach its conclusion. Flores-Vega v. Barr, 932 F.3d 878, 884
(9th Cir. 2019).
Under Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982), the Board
must decide “whether ‘the nature of the conviction, the underlying facts and
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circumstances and the sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.’” Avendano-Hernandez v. Lynch, 800
F.3d 1072, 1077 (9th Cir. 2015) (quoting Delgado v. Holder, 648 F.3d 1095, 1107
(9th Cir. 2011) (en banc)). The Board erred when it relied on Corona Moreno’s
sentence of one year of imprisonment without considering that her sentence had
been suspended so that she spent only two months in jail. See Flores-Vega, 932
F.3d at 885–86.
Contrary to the Board’s determination, Corona Moreno’s criminal history
confirms that her sentence was suspended, and her sworn asylum declaration states
that she spent only “about two months” in jail. The Board’s oversight may have
been outcome-determinative. See Matter of Frentescu, 18 I. & N. Dec. at 247
(burglary conviction was not particularly serious where the alien entered an
unoccupied dwelling, was unarmed, presented no aggravating circumstances, and
received a suspended sentence after spending three months in jail); see also
Alphonsus v. Holder, 705 F.3d 1031, 1044, 1048 (9th Cir. 2013) (holding that the
Board must provide reasons for treating factually identical cases differently). On
remand, the Board must consider all reliable information in the record, including
the evidence demonstrating that Corona Moreno’s sentence was suspended. See
Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010).
3. Despite assuming the credibility of her testimony, the Board
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concluded that Corona Moreno “did not establish that it is more likely than not that
she will be tortured” if returned to Mexico. To the contrary, the record compels the
conclusion that it is more likely than not that Corona Moreno will be tortured by or
with the acquiescence of Mexican officials if returned to Mexico. See Xochihua-
Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020); see also 8 U.S.C.
§ 1252(b)(4)(B) (standard of review).
Corona Moreno’s husband beat and raped her for years and threatened to kill
her if she left him. Corona Moreno filed more than ten reports with both local and
federal police, but the police did nothing because her husband was a cartel member
and former police officer. Her husband has been released from prison and has
contacted her family to ask for her whereabouts. The record compels the
conclusion that Corona Moreno’s past rape and physical abuse with the
acquiescence of police officers constitutes past torture and that she is more likely
than not to be subjected to future torture at the hands of her husband. See
Xochihua-Jaimes, 962 F.3d at 1188.
Corona Moreno also testified that she was waterboarded “about seven times”
by Mexican police in retaliation for filing a human rights complaint against police
officers and soldiers who threatened to kill her infant son while interrogating and
arresting her husband. She was released only after her brother, who had been
tortured alongside her, bribed the police by offering to work as an undercover
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informant. Three months later, her brother and his girlfriend were murdered.
Corona Moreno’s human-rights complaint was also dismissed, but not until after
she personally identified the officers involved in the raid. Corona Moreno’s
treatment constitutes past torture at the hands of Mexican officials. And the
officials and the cartel are more likely than not to target her if she returns, as
explained by Dr. Benjamin Smith, whose testimony the immigration judge would
have given “full weight” if he had found Corona Moreno credible.
The Board also erred when it determined that Corona Moreno could relocate
to avoid future torture because she had previously been able to live in hiding. See
Akosung v. Barr, 970 F.3d 1095, 1102 (9th Cir. 2020). In any event, Dr. Smith
explained that the police and cartels would be able to track Corona Moreno
throughout Mexico.
Therefore, if Corona Moreno’s account is credible, the record compels her
entitlement to protection under the CAT. We remand to the Board to consider the
issue of credibility in the first instance and to reevaluate its particularly serious
crime determination taking into consideration the suspended nature of Corona
Moreno’s sentence.
PETITION GRANTED and REMANDED.
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