Nelson Andrade-Garcia v. Loretta E. Lynch , 820 F.3d 1076 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON ANDRADE-GARCIA, No. 13-74115
Petitioner,
Agency No.
v. A205-937-826
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an
Immigration Judge’s Decision
Submitted March 9, 2016*
Pasadena, California
Filed April 29, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Frederic Block,** Senior District Judge.
Opinion by Judge Ikuta
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 ANDRADE-GARCIA V. LYNCH
SUMMARY***
Immigration
The panel denied a petition for review of an immigration
judge’s decision affirming an asylum officer’s negative
reasonable fear determination in reinstated removal
proceedings.
The panel held that this court reviews an IJ’s negative
reasonable fear determination for substantial evidence, and
applying that standard concluded that petitioner failed to
establish a reasonable possibility of torture, because he did
not show that Guatemalan police were aware of gang
extortion activities and breached their legal responsibility to
stop it.
COUNSEL
Marina Alexandrovich, Marina Alexandrovich, Esq., PLLC.,
Tempe, Arizona, for Petitioner.
Joyce R. Branda, Acting Assistant Attorney General, Civil
Division; Blair T. O’Connor, Assistant Director; Scott M.
Marconda, Trial Attorney; Office of Immigration Litigation,
Washington, D.C., for Respondent.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ANDRADE-GARCIA V. LYNCH 3
OPINION
IKUTA, Circuit Judge:
Nelson Andrade-Garcia petitions for review of the
immigration judge’s determination, in a reasonable fear
proceeding, that he lacked a reasonable fear of torture and
therefore is not entitled to relief under the Convention
Against Torture (CAT) from his reinstated removal order.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). See Ortiz-
Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). Contrary
to the government’s argument, our review of the immigration
judge’s determination is not limited to the question whether
it was “facially legitimate and bona fide.” Kleindienst v.
Mandel, 408 U.S. 753, 769 (1972). Rather, we review the
decision for substantial evidence and now affirm.
I
The Immigration and Nationality Act (INA) provides for
the expedited removal of an alien who was previously subject
to a removal order but returned illegally to the United States.
Under 8 U.S.C. § 1231(a)(5), if the government “finds that an
alien has reentered the United States illegally” after being
removed or departing under a removal order, “the prior order
of removal is reinstated from its original date.” Id.1 In
1
8 U.S.C. § 1231(a)(5) states:
If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or
having departed voluntarily, under an order of removal,
the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed,
the alien is not eligible and may not apply for any relief
4 ANDRADE-GARCIA V. LYNCH
determining whether the alien may be removed under the
reinstated order, an immigration officer must make three
findings: (1) that the alien is subject to a prior order of
removal, (2) that the alien is in fact the alien who was
previously removed or voluntarily departed, and (3) that the
alien unlawfully reentered the United States. 8 C.F.R.
§ 241.8(a).
If the immigration officer determines that the alien is
properly subject to the reinstated removal order, the plain
language of the statute precludes relief. See 8 U.S.C.
§ 1231(a)(5) (stating that the reinstated removal order “is not
subject to being reopened or reviewed, the alien is not eligible
and may not apply for any relief under [the INA], and the
alien shall be removed under the prior order at any time after
the reentry”). Despite this language, aliens are not barred
from all relief. Given Congress’s subsequent ratification of
CAT, see Foreign Affairs Reform and Restructuring Act of
1998 (FARRA), Pub. L. No. 105–277, Div. G., Title XXII,
§ 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also
8 C.F.R. §§ 208.18, 1208.18,2 the Executive may not remove
an alien subject to a reinstated removal order if it is more
likely than not that the alien will be tortured in the country of
removal. See Ortiz-Alfaro, 694 F.3d at 956 n.1 (assuming
without deciding that an alien subject to a reinstated removal
order may receive relief under CAT). Further, the Supreme
under this chapter, and the alien shall be removed under
the prior order at any time after the reentry.
2
Many provisions of 8 C.F.R. § 208 and 8 C.F.R. § 1208 are identical,
but section 208 was promulgated by the Department of Homeland Security
and section 1208 was promulgated by the Executive Office of Immigration
Review.
ANDRADE-GARCIA V. LYNCH 5
Court has noted that an illegally returning alien subject to a
removal order may seek withholding of removal under
8 U.S.C. § 1231(b)(3)(A), “[n]otwithstanding the absolute
terms in which the bar on relief is stated” in § 1231(a)(5).
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006).
Because an alien subject to a reinstated removal order
may be able to obtain CAT protection or other withholding of
removal if eligible, the government has promulgated
regulations providing administrative review of these claims.
Under 8 C.F.R. § 241.8(e), if an alien “expresses a fear of
returning to the country designated” in the reinstated order of
removal, the alien must be “immediately referred to an
asylum officer for an interview to determine whether the alien
has a reasonable fear of persecution or torture.” If the asylum
officer concludes that the alien has demonstrated “a
reasonable possibility that he or she would be persecuted on
account of his or her race, religion, nationality, membership
in a particular social group or political opinion, or a
reasonable possibility that he or she would be tortured in the
country of removal,” 8 C.F.R. §§ 208.31(c), 1208.31(c), the
asylum officer must refer the case to an immigration judge
(IJ), see id. §§ 208.31(e), 1208.31(e). These provisions are
intended to give aliens subject to a reinstated removal order
under § 1231(a)(5) the opportunity to seek withholding of
removal and protection under CAT. See 8 C.F.R. § 241.8(e)
(providing an exception to the immediate reinstatement of a
removal order to allow an alien to seek withholding of
removal); id. § 208.16 (providing for withholding of removal
under 8 U.S.C. § 1231(b)(3)(B) and CAT); see also
Regulations Concerning the Convention Against Torture,
64 Fed. Reg. 8478, 8485 (Feb. 19, 1999) (stating that the
“new reasonable fear of persecution or torture screening
process will ensure proper consideration of applications for
6 ANDRADE-GARCIA V. LYNCH
withholding under [§ 1231(b)(3)] and under the Convention
Against Torture, and of deferral of removal when appropriate,
in cases subject to reinstatement of a previous removal
order”).
The alien may appeal an asylum officer’s determination
that there is not a reasonable possibility of persecution or
torture to an IJ. 8 C.F.R. §§ 208.31(f)–(g), 1208.31(f)–(g).
If the IJ concurs with the asylum officer’s conclusion, the
alien may not appeal the decision to the Board of Immigration
Appeals. Id. §§ 208.31(g)(1), 1208.31(g)(1). If the IJ
disagrees with the asylum officer, the IJ must give the alien
a full hearing on the merits of the alien’s withholding or CAT
claim. Id. §§ 208.31(g)(2), 1208.31(g)(2).
II
Nelson Andrade-Garcia is a native and citizen of
Guatemala who entered the United States illegally in 1998,
2005, and 2013. He was apprehended and ordered removed
on June 19, 2013, and was removed a day later.
Two weeks later, on July 4, 2013, Andrade-Garcia
reentered the United States again and was apprehended near
the border. He conceded that he entered the country illegally
and admitted that he had previously been removed pursuant
to a removal order. The government issued him a notice of
intent to reinstate the prior removal order. Andrade-Garcia
expressed a fear of returning to Guatemala, so the
government referred his case to an asylum officer for a
reasonable fear hearing.
At the hearing, Andrade-Garcia testified that he had
decided to return to the United States to avoid paying the
ANDRADE-GARCIA V. LYNCH 7
members of a Guatemalan gang the 50,000 quetzals (about
$6,500) that they demanded in phone calls to him. He stated
he was afraid to return because the gang members had
threatened to shoot him and cut off his arm. He believed this
threat because they had killed his aunt three years before for
not paying the money they demanded. Andrade-Garcia
testified that the police had investigated his aunt’s murder,
but his cousin decided “not to do anything because she was
already dead and they thought that they would not find
anything out.” In response to the asylum officer’s questions,
Andrade-Garcia testified that he had not been physically
harmed, nor had he suffered any psychological or emotional
harm. He also testified that he would not be harmed because
of his religion, political opinion, membership in any group or
organization, or family relationships. Further, he testified
that his parents, wife, and children remained in Guatemala
and had not been physically harmed or threatened. Although
Andrade-Garcia stated that he did not know of any
connection between the gang members and the Guatemalan
government, he speculated that the gang members are able to
influence the police because the Guatemalan government is
corrupt and he had seen cases where a robber is caught and
then released the same day after bribing the police.
The asylum officer determined that Andrade-Garcia failed
to demonstrate either a reasonable fear of future persecution
on account of a protected ground or a reasonable fear of
torture. On appeal, the IJ concurred with the asylum officer’s
determination. The IJ ruled that Andrade-Garcia failed to
demonstrate a reasonable possibility of past or future
persecution on account of a protected ground and did not
demonstrate a reasonable possibility of future torture under
CAT because he did not establish torture by the government
or torture inflicted with the government’s acquiescence.
8 ANDRADE-GARCIA V. LYNCH
Andrade-Garcia timely petitioned for review on the
ground that the IJ erred in concluding that he had failed to
demonstrate that the Guatemalan government had acquiesced
in any torturous actions against him.
III
Although “[r]einstatement orders are not literally orders
of removal,” we have jurisdiction to review them under
8 U.S.C. § 1252(a)(1). Castro-Cortez v. INS, 239 F.3d 1037,
1044 (9th Cir. 2001), abrogated on other grounds by
Fernandez-Vargas, 548 U.S. 30. We may therefore review
“constitutional claims or questions of law” that are “raised in
the context of reinstated removal orders.” Garcia de Rincon
v. Dep’t of Homeland Sec., 539 F.3d 1133, 1137 (9th Cir.
2008); see also Villa-Anguiano v. Holder, 727 F.3d 873, 875
(9th Cir. 2013). An IJ’s negative determination regarding the
alien’s reasonable fear makes the reinstatement order final,
see 8 C.F.R. § 208.31(g)(1), and thus subject to review under
8 U.S.C. § 1252. See Villa-Anguiano, 727 F.3d at 875; see
also Ortiz-Alfaro, 694 F.3d at 958. Under § 1252, we may
decide the petition for review “only on the administrative
record on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A). We review “factual findings underlying the
[IJ]’s denial of CAT relief,” as well as determinations for
withholding of removal, for substantial evidence. Vinh Tan
Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014);
Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).
Therefore, we must uphold the IJ’s conclusion that Andrade-
Garcia did not establish a reasonable fear of torture unless,
based on the evidence, “any reasonable adjudicator would be
compelled to conclude to the contrary.” Ai Jun Zhi v. Holder,
751 F.3d 1088, 1091 (9th Cir. 2014).
ANDRADE-GARCIA V. LYNCH 9
The government argues that rather than reviewing the IJ’s
negative reasonable fear determination under § 1252 for
substantial evidence, we should apply a more deferential
standard and uphold the IJ’s determination so long as there is
a “facially legitimate and bona fide reason” for determining
that Andrade-Garcia did not have a reasonable fear of
persecution or torture. We disagree.
The “facially legitimate” standard of review sought by the
government has been applied in a related, but different,
context. The Supreme Court has “long recognized the power
to expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political departments
largely immune from judicial control.” Fiallo v. Bell,
430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei,
345 U.S. 206, 210 (1953)). Congress has “plenary power to
make rules for the admission of aliens and to exclude those
who possess those characteristics which Congress has
forbidden.” Mandel, 408 U.S. at 766 (quoting Boutilier v.
INS, 387 U.S. 118, 123 (1967)). When Congress delegates
this plenary power to the Executive, the Executive’s decisions
are likewise generally shielded from administrative or judicial
review. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970,
971 (9th Cir. 1986). As we have explained, “[t]he doctrine of
nonreviewability of a consul’s decision to grant or deny a visa
stems from the Supreme Court’s confirming that the
legislative power of Congress over the admission of aliens is
virtually complete.” Id. at 970.
Despite these rulings, “courts have identified a limited
exception to the doctrine [of consular nonreviewability]
where the denial of a visa implicates the constitutional rights
of American citizens.” Bustamante v. Mukasey, 531 F.3d
1059, 1061 (9th Cir. 2008). In Mandel, the Court considered
10 ANDRADE-GARCIA V. LYNCH
the reviewability of the Attorney General’s decision not to
waive the inadmissibility of a Belgian revolutionary and
therefore not to issue him a temporary visa to enter the United
States. 408 U.S. at 766–70. Certain American citizens
wishing to communicate with the Belgian revolutionary had
challenged the Attorney General’s denial on First
Amendment grounds. Id. at 762. The Court indicated that a
decision in this context was subject to only limited review: so
long as the Executive exercises its broad authority “on the
basis of a facially legitimate and bona fide reason, the courts
will neither look behind the exercise of that discretion, nor
test it by balancing its justification against” the constitutional
rights of American citizens. Id. at 770.3 Accordingly, we
have held “that under Mandel, a U.S. citizen raising a
constitutional challenge to the denial of a visa is entitled to a
limited judicial inquiry regarding the reason for the decision,”
and “[a]s long as the reason given is facially legitimate and
bona fide the decision will not be disturbed.” Bustamante,
531 F.3d at 1062; see also Noh v. INS, 248 F.3d 938, 942 (9th
Cir. 2001) (“We need not decide whether the Secretary’s
[visa] revocation decision would be unreviewable in all cases,
3
The Court has applied the same test to Congress’s direct exercise of its
authority to admit or exclude aliens and will uphold “congressional policy
choices in the immigration context” against a constitutional challenge if
Congress has exercised its broad power “on the basis of a facially
legitimate and bona fide reason.” Fiallo, 430 U.S. at 793–95. Following
Fiallo, we have also applied the “facially legitimate” standard to
constitutional challenges to immigration statutes. See An Na Peng v.
Holder, 673 F.3d 1248, 1258–59 (9th Cir. 2012) (applying the facially
legitimate standard where an alien brought an equal protection challenge
to a statute imposing a continuous-presence requirement on lawful
permanent residents (LPRs) but not on non-LPRs); Padilla-Padilla v.
Gonzales, 463 F.3d 972, 978–79 (9th Cir. 2006) (applying the facially
legitimate standard where an alien brought a due process challenge to a
statute imposing a ten-year presence requirement for relief from removal).
ANDRADE-GARCIA V. LYNCH 11
because the Secretary offered a facially legitimate and bona
fide reason for revoking Noh’s visa, namely that the visa had
been obtained illegally, thereby rendering his decision in this
case unreviewable.”). We have extended the reasoning of
Mandel to adjudicate an official’s decision to deny an alien’s
request to be granted temporary admission into this country
by means of parole. See Nadarajah v. Gonzales, 443 F.3d
1069, 1082 (9th Cir. 2006) (“[I]mmigration officials clearly
have the authority to deny parole to unadmitted aliens if they
can advance a facially legitimate and bona fide reason for
doing so.” (quoting Jean v. Nelson, 472 U.S. 846, 853
(1985))); Mason v. Brooks, 862 F.2d 190, 193–94 (9th Cir.
1988) (“[A] rejection of parole will be upheld if the agency
advanced a facially legitimate and bona fide reason for the
denial.”).
These principles are not applicable, however, to an alien’s
challenge to a reinstated order of removal. Although
Congress has indicated its intent to delegate discretionary
authority to the Attorney General to make visa and parole
decisions,4 see, e.g., 8 U.S.C. § 1229 (initiation of removal
4
See, e.g., 8 U.S.C. § 1182(d)(3)(A) (“[A]n alien . . . may, after approval
by the Attorney General of a recommendation by the Secretary of State or
by the consular officer that the alien be admitted temporarily despite his
inadmissibility, be granted such a visa and may be admitted into the
United States temporarily as a nonimmigrant in the discretion of the
Attorney General.” (emphasis added)); id. § 1182(d)(5)(A) (“The Attorney
General may, except as provided in subparagraph (B) [excluding refugees
“unless the Attorney General determines that compelling reasons . . .
require that the alien be paroled”] or in section 1184(f) of this title
[excluding crewmembers in certain labor disputes], in his discretion parole
into the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United
States.” (emphasis added)).
12 ANDRADE-GARCIA V. LYNCH
proceedings); id. § 1229a (removal proceedings); id. §§ 1158,
1229b (relief from removal), Congress limited the
Executive’s discretion to impose a reinstated order of
removal by authorizing aliens to seek relief under CAT, see
FARRA, Pub. L. No. 105–277, Div. G., Title XXII,
§ 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also
8 C.F.R. §§ 208.18, 1208.18, and possibly other forms of
relief, see Fernandez-Vargas, 548 U.S. at 35 n.4. And if the
alien has met the relevant burden of proof, both CAT
protection and withholding of removal are mandatory forms
of relief. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.
2005) (CAT relief); Al-Harbi v. INS, 242 F.3d 882, 888 (9th
Cir. 2001) (withholding of removal).
Moreover, while Congress has limited courts’ authority to
review discretionary visa and parole decisions,5 Congress has
expressly provided for judicial review of a final order of
removal. See 8 U.S.C. § 1252(a). Because we treat
reinstatement orders as final orders of removal, see Castro-
Cortez, 239 F.3d at 1044, reinstatement orders are subject to
judicial review under 8 U.S.C. § 1252. See, e.g., Villa-
Anguiano, 727 F.3d at 875; Ortiz-Alfaro, 694 F.3d at 958.
Because there is no basis for holding that reinstated
removal orders are subject to the consular nonreviewability
doctrine, see Li Hing of Hong Kong, Inc., 800 F.2d at 971,
there is also no basis for limiting judicial review of the
5
See 8 U.S.C. § 1252(a)(2)(B) (stating that “no court shall have
jurisdiction to review” certain denials of discretionary relief, including
“any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the Secretary
of Homeland Security”).
ANDRADE-GARCIA V. LYNCH 13
immigration judge’s determination to the “facially legitimate
and bona fide” standard. Accordingly, we review reinstated
removal orders under the standard applicable to final orders
of removal.
IV
We now turn to the IJ’s negative reasonable fear
determination, and we conclude that substantial evidence in
the record supports the IJ’s conclusion that Andrade-Garcia
failed to demonstrate a reasonable fear of torture. We
therefore deny Andrade-Garcia’s petition.
The regulations provide that, in accordance with the
United States’ obligations under CAT, “[t]he alien shall be
determined to have a reasonable fear of persecution or torture
if the alien establishes a reasonable possibility that he or she
would be persecuted on account of his or her race, religion,
nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she
would be tortured in the country of removal.” 8 C.F.R.
§§ 208.31(c), 1208.31(c); see also id. § 208.16(c)
(implementing CAT). Under CAT, a person must
demonstrate that the torture was “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.” Zheng
v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting
8 C.F.R. § 208.18(a)(1)) (emphasis omitted). “Acquiescence
of a public official requires that the public official, prior to
the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).
Here, the IJ’s determination that Andrade-Garcia had not
shown that the police were aware of the gang’s extortion
14 ANDRADE-GARCIA V. LYNCH
activities and breached their legal responsibility to stop it was
supported by substantial evidence. We have stated that a
general ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show
acquiescence. Garcia-Milian v. Holder, 755 F.3d 1026, 1034
(9th Cir. 2013). By Andrade-Garcia’s own testimony, the
police actively investigated his aunt’s death, but stopped that
investigation in accordance with his cousin’s decision
because “they thought that they would not find anything out.”
The inability to bring the criminals to justice is not evidence
of acquiescence, as defined by the applicable regulations. Id.
Nor does Andrade-Garcia’s testimony that a Guatemalan
police officer took a bribe from a robber and released him
demonstrate that the government was aware of and
acquiesced in the torturous activity that constitutes the basis
for Andrade-Garcia’s claim. See Madrigal v. Holder,
716 F.3d 499, 509 (9th Cir. 2013) (official need not have
“actual knowledge of the specific incident of torture” but
must have “‘awareness’ of the torturous activity”); Afriyie v.
Holder, 613 F.3d 924, 937 (9th Cir. 2010) (remanding for
reconsideration of CAT claim when petitioner presented
“evidence indicating that the government of Ghana was aware
of the danger [he] was facing”). We have reversed agency
determinations that future torture is not likely only when the
agency failed to take into account significant evidence
establishing government complicity in the criminal activity.
See, e.g., Madrigal, 716 F.3d at 510 (evidence that police
officers and prison guards often worked directly on behalf of
the cartels); Zheng, 332 F.3d at 1190–91 (petitioner
personally saw smugglers give three cartons of cigarettes to
police before they were allowed to board their boat in the
harbor, and he often saw smugglers feasting and
nightclubbing with local police). Andrade-Garcia points to
no such evidence here.
ANDRADE-GARCIA V. LYNCH 15
We therefore hold that substantial evidence supports the
IJ’s conclusion that Andrade-Garcia failed to demonstrate
government acquiescence in torture sufficient to establish a
reasonable possibility of future torture under CAT.
PETITION DENIED.