Cesar Alcaraz-Enriquez v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR ALCARAZ-ENRIQUEZ, No. 15-71553
Petitioner,
Agency No. A 75-191-250
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2018
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and NYE**, District 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
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable David Nye, District Judge for the U.S. District Court for the
District of Idaho, sitting by designation.
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removal under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We grant the petition as to his claim for withholding of
removal only and remand to the BIA for reconsideration of that claim.1
1. We have jurisdiction to consider Alcaraz’s petition. Although we lack
jurisdiction “to evaluate discretionary decisions by the Attorney General,” 8 U.S.C.
§ 1252(a)(2)(B)(ii), we retain jurisdiction to review “questions of law raised upon a
petition for review,” § 1252(a)(2)(D). See Anaya-Ortiz v. Holder, 594 F.3d 673,
676 (9th Cir. 2010). The specific question here—whether the BIA relied on
improper evidence in reaching its determination—is a “question of law” that this
court has jurisdiction to review. Id. We review legal questions de novo. Pirir-Boc
v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
2. The BIA erred when it concluded that Alcaraz was convicted of a
“particularly serious crime” and thus barred from seeking withholding of removal.
The BIA’s “particularly serious crime” determination was based, at least in part, on
a probation report, which directly contradicts Alcaraz’s testimony. This was error
for two reasons.
First, we have repeatedly held that “[w]here the BIA does not make an
explicit adverse credibility finding, [the court] must assume that [the petitioner’s]
factual contentions are true.” Anaya-Ortiz, 594 F.3d at 679 (quoting Navas v. INS,
1
In light of this disposition, Petitioner’s motion to stay removal is granted.
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217 F.3d 646, 652 n.3 (9th Cir. 2000)); see also Kalubi v. Ashcroft, 364 F.3d 1134,
1137 (9th Cir. 2004) (“Testimony must be accepted as true in the absence of an
explicit adverse credibility finding.”). Here, the BIA erred when it credited the
probation report over Alcaraz’s testimony without making an explicit adverse
credibility finding as to Alcaraz.
Second, Congress has specifically provided that an alien in removal
proceedings must be given “a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own behalf, and to cross-
examine witnesses presented by the Government . . . .” 8 U.S.C. § 1229a(b)(4)(B);
see, e.g., Saidane v. INS, 129 F.3d 1063, 1066 (9th Cir. 1997) (holding that
petitioner was denied due process in a deportation proceeding when the
government “did not make a good faith effort to afford the alien a reasonable
opportunity to confront and to cross-examine the witness against him”). Here,
Alcaraz was never given any sort of opportunity to cross-examine the witnesses
whose testimony was embodied in the probation report, and upon which testimony
the BIA ultimately relied in denying his petition. The BIA’s failure to give
Alcaraz an opportunity to confront such witnesses against him was error.
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3. Alcaraz’s petition as to his application for deferral of removal under CAT
fails. As the Immigration Judge2 (“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.
For the foregoing reasons, we grant the petition as to Alcaraz’s claim for
withholding of removal and remand to the BIA. However, we deny his petition for
deferral of removal under CAT.
Each party shall bear their own costs.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART;
REMANDED.
2
Where the BIA adopts and affirms an IJ’s decision with further reasoning, this
court reviews both the decision of the IJ and the BIA. See Kwong v. Holder, 671
F.3d 872, 876 (9th Cir. 2011).
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