Roberto Maldonado v. Eric Holder, Jr. ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO CURINSITA MALDONADO, No. 09-71491
Petitioner,
Agency No.
v. A017-263-848
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc
September 19, 2014—San Francisco, California
Filed March 27, 2015
Before: Alex Kozinski, Kim McLane Wardlaw, Ronald M.
Gould, Richard A. Paez, Richard R. Clifton, Milan D.
Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Morgan
Christen, Paul J. Watford, and Michelle T. Friedland,
Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Gould;
Dissent by Judge M. Smith
2 MALDONADO V. HOLDER
SUMMARY*
Immigration
The en banc court overruled Hasan v. Ashcroft, 380 F.3d
1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d
1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th
Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th
Cir. 2011), to the extent they conflict with the plain text of the
regulations governing internal relocation and deferral of
removal under the Convention Against Torture.
The en banc court first determined that the petition was
not moot, notwithstanding petitioner’s removal after filing his
petition for review, because there was solid evidence that
petitioner is currently present in the United States.
The en banc court held that Hasan and Lemus-Galvan are
inconsistent with 8 C.F.R. §§ 1208.16(c)(2) and (3) because
they improperly place the burden on the petitioner to prove
that internal relocation is impossible. The en banc court also
concluded that Singh departs from § 1208.16(c)(3) because
the regulation does not specify that the inability to relocate
safely is an element of claim for deferral of removal for
which a petitioner bears the burden of proof, and that Perez-
Ramirez improperly applied to the CAT context the burden-
shifting scheme for internal relocation applicable to asylum
claims.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MALDONADO V. HOLDER 3
The en banc court held that neither the petitioner nor the
government bear the burden of proof as to internal relocation,
rather such evidence, if relevant, must be considered in
assessing whether it is more likely than not that the petitioner
would be tortured if removed. The court remanded to the
Board for reconsideration of petitioner’s eligibility for
deferral of removal.
Dissenting, Judge Gould, joined by Judges Clifton, Ikuta,
and N.R. Smith, would dismiss the case as moot because
petitioner has not been in touch with his attorney and it is not
clear that petitioner is currently in the United States.
Dissenting, Judge M. Smith, joined by Judge Clifton, also
believes that the case is moot, but wrote separately to state
that even if he agreed with the majority that Maldonado’s
petition for review continues to present a justiciable
controversy, which he does not, he would affirm the denial of
deferral of removal because the Board cited other appropriate
factors in denying relief. He agrees with the majority that
Perez-Ramirez must be overruled, and that the Board may
have interpreted language in Lemus-Galvan as requiring a
petitioner to establish that internal relocation is impossible,
but he does not agree that Hasan and Singh, and the substance
of Lemus-Glavan, conflict with the regulations.
4 MALDONADO V. HOLDER
COUNSEL
Haitham Edward Ballout (argued), and Mairead C. Donahey,
Law Offices of Haitham E. Ballout, Burlingame, California,
for Petitioner.
Andrew C. MacLachlan (argued), Senior Litigation Counsel,
and Ilissa M. Gould, Attorney, United States Department of
Justice, Office of Immigration Litigation, Washington D.C.,
for Respondent.
OPINION
PAEZ, Circuit Judge:
Roberto Curinsita Maldonado (“Maldonado”) petitions
for review of the Board of Immigration Appeals’ (“BIA”)
decision dismissing his appeal of an immigration judge’s
(“IJ”) denial of his application for deferral of removal under
the Convention Against Torture (“CAT”). Although the IJ
found that Maldonado testified credibly that he was tortured
by corrupt Mexican police officers after he was deported in
2000, the BIA concluded that Maldonado was not “eligible
for deferral of removal under [CAT] because he failed to
establish that internal relocation within Mexico was
impossible.”
In this proceeding, Maldonado argues that, although he
bears the ultimate burden to prove he would be tortured if
returned to Mexico, the BIA’s ruling on internal relocation is
inconsistent with the plain text of the governing regulation, 8
C.F.R. § 1208.16(c)(3). He also challenges our framework in
Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.
MALDONADO V. HOLDER 5
2008), which the BIA cited in support of its ruling. We
acknowledge that our case law on internal relocation under
CAT departs from the text of § 1208.16(c)(3). We therefore
take this opportunity sitting en banc to clarify our case law
and to restore the integrity of § 1208.16(c)(3) in the analysis
of a claim for deferral of removal under CAT. In light of the
BIA’s reliance on our interpretation of § 1208.16(c)(3), we
grant the petition for review and remand to the BIA for
further proceedings consistent with this opinion.
While this petition for review was pending, Maldonado
was removed to Mexico. This development prompted us to
question whether this petition is moot. After considering the
government’s response to our post-argument inquiry, we
conclude, as explained below, that this petition is not moot
and proceed to the merits.
I. Background
Factual Basis for Torture Claim1
Maldonado entered the United States in 1966 as a young
child. He obtained lawful permanent resident status through
his father. As the result of a first degree burglary conviction
in 1991, he was stripped of that status in 1997 and ordered
deported to Mexico.2
1
Because the IJ deemed Maldonado credible, we take his testimony to
be true. See, e.g., Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).
2
Although Maldonado’s declaration in support of his CAT claim states
that he was ordered deported “[i]n or around 1998,” he testified that he did
not leave the United States until 2000. The government, however,
clarified that he was ordered removed on June 17, 1997, and was actually
removed on November 7, 1998.
6 MALDONADO V. HOLDER
After Maldonado returned to Mexico, he attempted to
settle in his family’s hometown, Ciudad Hidalgo, in the state
of Michoacan. As he passed through inspection at the airport
in nearby Morelia, he was detained by what Maldonado
described as “Mexican officers” or “Mexican judicial police”3
who were inspecting individuals arriving after removal from
the United States. The officers handcuffed him and took him
to a police station. They questioned him about tattoos on his
body, which they insisted were proof that he had been in a
Mexican prison before relocating to Michoacan. As the
police officers questioned Maldonado, they beat him, drove
screwdrivers into his legs, and burned him with cigarettes,
leaving multiple scars. At other points during his detention,
the police officers administered shocks to his testicles and
placed a bag filled with water over his head such that he
believed he was choking. For approximately one month, the
police detained Maldonado in a cell at the station without
access to a phone. While in custody, they continued to
torture him. Eventually, Maldonado was able to contact his
father, who paid $15,000 for his release. The police officers
did not release Maldonado to his father. Instead, they moved
Maldonado by helicopter to a prison and demanded more
money for his release.
After three months of captivity and torture, the police
informed Maldonado that they would release him only on the
condition that he guide other recent deportees into their
hands. When Maldonado refused, they stabbed him in the leg
and beat him for two days. Fearing for his life, he agreed to
participate. Maldonado’s role in the criminal enterprise was
3
Maldonado used these English-language terms along with two
additional Spanish-language terms, “judiciales” and “policiales,” to
describe the corrupt Mexican police officers who seized him.
MALDONADO V. HOLDER 7
to approach recent deportees at the airport, promise to assist
them, and guide them to hotels that had been chosen by the
police. Maldonado would instruct the deportees to wait for
him in the hotel. Instead of returning, Maldonado would
notify the police, who would then go to the hotel and take the
deportees into custody where, according to Maldonado, they
likely suffered a fate similar to his own. Maldonado received
modest payments for his assistance. After he had saved
enough money, Maldonado fled the enterprise and re-entered
the United States illegally.
Between 2000 and 2007, Maldonado returned to the
United States and was deported three separate times. Each
time he returned to Mexico, he was subjected to further
torture and abuse in retaliation for leaving the criminal
enterprise. When he returned to Ciudad Hidalgo after his
removal in 2007, the enterprise had grown in sophistication
and was apprehending deportees from airports across Mexico
and taking them to prisons and other locations in Michoacan.
The corrupt officers had also expanded the enterprise to
include kidnapping elected officials’ children. Wanting
nothing more to do with the criminal enterprise, Maldonado
tried to sever his ties. When he attempted to leave the
enterprise, however, he suffered further abuse. He suspected
that he was being monitored and followed by the enterprise’s
operatives.
Maldonado approached his only relative in the area, a
cousin, for help. His cousin provided Maldonado with a
small amount of money, which he used to travel by bus to
Sonora, near the United States-Mexico border. In 2007,
Maldonado attempted to enter the United States by foot
through the Arizona desert, where he was apprehended.
8 MALDONADO V. HOLDER
Maldonado asserts that if he is returned to Mexico, the
enterprise will kill him because he “know[s] too much of
what they were doing.” In particular, Maldonado fears that
he would be targeted because he overheard discussions of the
enterprise’s plans to begin pursuing government officials and
their families. Maldonado suspects that photographs of him
have been distributed to federal police “all over the place.”
Administrative Proceedings
On July 23, 2008, the Department of Homeland Security
reinstated Maldonado’s June 17, 1997, removal order
pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.
Because Maldonado feared that he would be tortured if
returned to Mexico, the matter was referred to an asylum
officer for a reasonable fear determination. See 8 C.F.R.
§ 241.8(e). An asylum officer interviewed Maldonado, found
him credible, and determined that he had a reasonable fear of
being tortured by the corrupt “Mexican judicial police” if he
were returned to Mexico. Maldonado’s matter was next
referred to an immigration judge for a hearing on his claim of
torture and request for relief under CAT. See 8 C.F.R.
§ 208.31(e). In pursuit of such relief, Maldonado filed a
formal application with the IJ, which he supported with a
declaration outlining the above facts and other documentary
evidence regarding country conditions and official corruption
in Mexico.
In considering Maldonado’s request for deferral of
removal under CAT, the only relief he sought, the IJ credited
Maldonado’s testimony. The IJ, however, denied his
application because Maldonado “has available to him the
opportunity to relocate in the country without fear of harm.”
The IJ acknowledged Maldonado’s testimony that the
MALDONADO V. HOLDER 9
enterprise had expanded its scope by entrapping deportees
from across Mexico, but reasoned that, because the enterprise
had to transport those deportees to its principal base in
Michoacan, its authority did not extend nationwide. The IJ
determined that relocation was possible because, although
police corruption in Mexico was “rampant,” the government
was “taking steps to investigate and prosecute those involved
in corruption.” The IJ thus suggested that Maldonado could
trade evidence of the corruption he witnessed for the Mexican
government’s protection from the enterprise. Maldonado
timely appealed to the BIA.
In affirming the IJ’s decision, the BIA “agree[d] with the
. . . finding that the respondent is not eligible for deferral of
removal under [CAT] because he failed to establish that
internal relocation within Mexico was impossible.” The BIA
further explained that Maldonado “did not show that the
influence of the corrupt police officers in Morelia extended
country wide.” According to the BIA, Maldonado’s evidence
that the enterprise was run by federal officers, and not city or
state officers, was “speculative and unpersuasive.” It
reasoned that “even if corrupt federal officers were involved,
the respondent has not shown that they could locate him in
every area of Mexico.” The BIA relied, in part, on
documentary evidence that the Mexican government was
prosecuting police corruption as further evidence that
Maldonado could safely relocate. Thus, Maldonado “failed
to satisfy the requirements for eligibility for deferral of
removal under [CAT].”
Petition for Review and Removal
Maldonado filed a timely petition for review. He filed a
motion for a stay of removal pending review, which a
10 MALDONADO V. HOLDER
motions panel of this court denied. At oral argument, after
confirming that Maldonado had been removed to Mexico, we
raised the question of whether this petition was moot. We
ordered the government to submit documentary proof that
Maldonado was actually removed from the United States, and
allowed the parties to present evidence of Maldonado’s
current presence in the United States. The government’s
response included documentation that on October 28, 2009,
an immigration officer removed Maldonado to Mexico. The
government’s response also included documentation from the
California Department of Motor Vehicles that Maldonado
updated his driver’s license in April 2010. Maldonado filed
a response, but his counsel was unable to offer any evidence
of Maldonado’s present whereabouts. Neither the
government nor Maldonado argues that the petition is moot.
II. Standard of Review
The BIA agreed with the IJ’s decision but did not adopt
it. Where, as here, the BIA “conduct[ed] its own review of
the evidence and law rather than adopting the IJ’s decision,
our review is limited to the BIA’s decision.” Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (quoting
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006))
(internal quotation marks omitted).
III. Jurisdiction
We have jurisdiction to review petitions for relief under
CAT. 8 U.S.C. § 1252(a)(4).4 Our jurisdiction encompasses
4
In Nuru, we also explained that we have jurisdiction to review a claim
for CAT relief under the Foreign Affairs Reform and Restructuring Act of
MALDONADO V. HOLDER 11
legal and constitutional issues arising from claims for deferral
of removal under CAT. 8 U.S.C. § 1252(a)(2)(D).
When there are developments in a proceeding that suggest
that it may be moot, we have an obligation to inquire whether
a case or controversy under Article III of the Constitution
continues to exist. North Carolina v. Rice, 404 U.S. 244, 246
(1971) (per curiam). Of concern here is Maldonado’s
removal to Mexico after he filed his petition for review.
After considering the government’s response to our concern,
we conclude that our review of Maldonado’s petition has not
been rendered moot by his removal.
“Mootness is a jurisdictional issue.” Blandino-Medina v.
Holder, 712 F.3d 1338, 1341 (9th Cir. 2013). It can be
described as “the doctrine of standing set in a time frame.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n.22 (1997)). For a
dispute to remain live without being dismissed as moot,
“[t]he parties must continue to have a personal stake in the
outcome of the lawsuit.” Lewis v. Cont’l Bank Corp., 494
U.S. 472, 478 (1990) (internal quotation marks omitted).
Maldonado’s petition for review continues to present a
case or controversy because there is solid evidence that he is
currently present in the United States. According to the
government’s response, since Maldonado’s removal in
October 2009, he has updated his California driver’s license.
Obtaining deferral of removal under CAT would allow
Maldonado to remain in the United States, giving him a clear
1998 (“FARRA”), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112
Stat. 2681-822 (codified at 8 U.S.C. § 1231). 404 F.3d at 1215.
12 MALDONADO V. HOLDER
“personal stake in the outcome of the lawsuit.” See Lewis,
494 U.S. at 478 (internal quotation marks omitted).5
It is highly unlikely that Maldonado left the United States
since he renewed his driver’s license in 2010. See Gould
dissent 21. Maldonado applied for CAT relief because he
fears that, if he returns to Mexico, the enterprise will kill him.
Indeed, every time he was removed to Mexico since 2000, the
enterprise found and tortured him. Maldonado has little
reason to return to Mexico.
We disagree with Judge Gould’s dissent that we should
invoke the fugitive disentitlement doctrine to dismiss
Maldonado’s petition. See Gould dissent 22–23. “The
fugitive disentitlement doctrine allows us to dismiss a
criminal defendant’s appeal if he flees while the appeal is
pending.” Antonio-Martinez v. INS, 317 F.3d 1089, 1091 (9th
Cir. 2003). We have exercised our discretion to apply this
equitable doctrine to immigration petitioners, noting the
similarity between “[a]n alien subject to a stayed deportation
order” and “a criminal defendant on bail pending appeal.” Id.
at 1093. The alien, like the defendant, “remains subject to the
court’s authority and must surrender any time the court deems
5
We disagree with Judge Gould’s dissent that this case warrants
dismissal under the prudential mootness doctrine for several reasons. See
Gould dissent 21–22. First, if Maldonado ultimately prevails before the
agency, he will obtain meaningful relief—deferral of removal to Mexico.
Second, we have not adopted prudential mootness per se. Hunt v.
Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th Cir. 2009)
(noting that some of our sister circuits have adopted the prudential
mootness doctrine and, even assuming we could apply it, declining to do
so). Third, we have applied prudential mootness only in the bankruptcy
context, when there are no assets left to distribute. See Deutsche Bank
Nat’l Trust Co. v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014).
MALDONADO V. HOLDER 13
it appropriate.” Id. Thus, in the immigration context, “we
have dismissed petitions for review by aliens who have fled
custody and cannot be located when their appeals come
before this court.” Wenqin Sun v. Mukasey, 555 F.3d 802,
804 (9th Cir. 2009) (emphasis added); see also Zapon v. U.S.
Dep’t of Justice, 53 F.3d 283, 285 (9th Cir. 1995) (discussing
fugitive status where an alien “fail[ed] to surrender . . .
despite a lawful order of deportation”). Here, Maldonado is
not a fugitive because he did not flee. He complied with his
deportation order and was removed to Mexico.
We are thus satisfied that this case is not moot6 and that
it does not otherwise warrant our discretionary dismissal. We
proceed to the merits.
IV. CAT Claim
In 1988, the United States signed the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
6
Although we give great respect to dicta of the United States Supreme
Court, see United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17
(9th Cir. 2000) (en banc), we are not persuaded by Judge Gould’s dissent
that the Court’s statement in Ellis v. Dyson warrants a determination of
mootness here. 421 U.S. 426, 434 (1975); Gould Dissent 20–21. In the
context of a civil rights case about the constitutionality of a local loitering
statute, the Court “observe[d] in passing” that a case or controversy may
not exist on remand for several reasons, including lack of knowledge of
the petitioners’ whereabouts. Id. The Court also noted that “if petitioners
no longer frequent Dallas, it is most unlikely that a sufficiently genuine
threat of prosecution for possible future violations of the Dallas ordinance
could be established.” Id. In other words, if the petitioners were no
longer in Dallas, prevailing would in no way affect them. By contrast,
what is at issue here is Maldonado’s eligibility for deferral of removal
under CAT, and that determination is not affected by his location within
the United States.
14 MALDONADO V. HOLDER
Punishment. 1465 U.N.T.S. 85 (1988). Article 3 of CAT
states that a signatory nation must not “expel, return . . . or
extradite” a person to a country “where there are substantial
grounds for believing that he would be in danger of being
subjected to torture.” Id. at 114. In 1998, the United States
passed the FARRA, which implemented Article 3 in the
United States. See Khourassany v. I.N.S., 208 F.3d 1096,
1099 (9th Cir. 2000). The FARRA and its implementing
regulations allow for relief under CAT. The implementing
regulations define torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally
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.” 8 C.F.R. § 1208.18(a)(1).
One of the available remedies under CAT is deferral of
removal.7 Under the applicable regulations:
An alien who: has been ordered removed; has
been found under § 1208.16(c)(3) to be
entitled to protection under [CAT]; and is
subject to the provisions for mandatory denial
of withholding of removal . . . shall be granted
7
The other remedy is withholding of removal. Determining whether an
alien is entitled to either form of protection under CAT requires the same
analysis, so we discuss both types of cases as precedents. However,
unlike deferral of removal, withholding of removal may not be granted if
the alien has been convicted of a “particularly serious crime.” 8 C.F.R.
§ 1208.16(d)(2). Both parties agree that Maldonado is only eligible for
deferral of removal because his 1991 first degree burglary conviction
qualifies as such a crime.
MALDONADO V. HOLDER 15
deferral of removal to the country where he or
she is more likely than not to be tortured.
Id. § 1208.17(a). Section 1208.16(c)(3) further explains:
In assessing whether it is more likely than not
that an applicant would be tortured in the
proposed country of removal, all evidence
relevant to the possibility of future torture
shall be considered, including, but not limited
to: (i) Evidence of past torture inflicted upon
the applicant; (ii) Evidence that the applicant
could relocate to a part of the country of
removal where he or she is not likely to be
tortured; (iii) Evidence of gross, flagrant or
mass violations of human rights within the
country of removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
Id. § 1208.16(c)(3). Section 1208.16(c)(2) further explains:
“The burden of proof is on the applicant for withholding of
removal . . . to establish that it is more likely than not that he
or she would be tortured if removed to the proposed country
of removal.” Id. § 1208.16(c)(2).
Although the BIA has not interpreted the internal
relocation provision of § 1208.16(c)(3), we have addressed it
on several occasions. In Hasan v. Ashcroft, we explained that
“in the CAT context, . . . the petitioners have the burden of
presenting evidence to show that internal relocation is not a
possibility.” 380 F.3d 1114, 1123 (9th Cir. 2004). Citing this
statement, we later denied a petition for review of an IJ
decision denying deferral of removal under CAT because the
16 MALDONADO V. HOLDER
petitioner “failed to establish that internal relocation within
Mexico was impossible.” Lemus-Galvan, 518 F.3d at 1084.
Similarly, in Singh v. Gonzales, we denied a petition for
review of a BIA decision denying withholding of removal
under CAT in part because the petitioner did not meet his
“burden of proving he ‘would be unable to live elsewhere in
the country safely.’” 439 F.3d 1100, 1113 (9th Cir. 2006)
(quoting Hasan, 380 F.3d at 1123).
Our interpretation of § 1208.16(c)(3) in Hasan,8 Lemus-
Galvan, and Singh departs from the plain text of the
regulation. Although § 1208.16(c)(2) places the burden on
the petitioner “to establish that it is more likely than not that
he or she would be tortured if removed to the proposed
country of removal,” see also Kamalthas v. I.N.S., 251 F.3d
1279, 1282 (9th Cir. 2001), neither that provision nor
§ 1208.16(c)(3) requires the petitioner to prove anything as to
internal relocation. Rather, § 1208.16(c)(3) provides that, if
such evidence is relevant, it must be considered in assessing
whether it is more likely than not that the petitioner would be
tortured if removed. The text of § 1208.16(c)(3) differs from
the standard set forth in Hasan and Lemus-Galvan because
neither that section nor § 1208.16(c)(2) requires an applicant
for deferral of removal to prove that internal relocation is
“impossible.” See Lemus-Galvan, 518 F.3d at 1084. Further,
Singh departs from § 1208.16(c)(3) because the regulation
does not specify that the inability to relocate safely is an
element of a claim for deferral of removal for which a
8
Hasan cites to the Department of Homeland Security regulations
governing CAT claims. 8 C.F.R. § 208.16. These are the same as the
Executive Office for Immigration Review regulations. 8 C.F.R.
§ 1208.16.
MALDONADO V. HOLDER 17
petitioner bears a “burden of pro[of].” See Singh, 439 F.3d at
1113.
We recently addressed internal relocation under CAT in
Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011). In
that case, we added a new gloss on the issue of internal
relocation in § 1208.16(c)(3). Drawing from the asylum
context, we held that “the BIA improperly placed the burden
on petitioner to show that he could not relocate within
Mexico and failed to apply the presumption of a nationwide
threat.” Id. at 958. In so holding, we relied on the burden-
shifting scheme for internal relocation in the context of an
asylum claim. Id. (citing Melkonian v. Ashcroft, 320 F.3d
1061, 1070 (9th Cir. 2003)). The regulations governing
asylum, however, differ markedly from those governing
deferral of removal under CAT; they explicitly shift the
burden to the government after the petitioner has established
a well-founded fear of persecution:
In cases in which the persecutor is a
government or is government-sponsored, or
the applicant has established persecution in
the past, it shall be presumed that internal
relocation would not be reasonable, unless the
Service establishes by a preponderance of the
evidence that, under all the circumstances, it
would be reasonable for the applicant to
relocate.
8 C.F.R. § 1208.13(b)(3)(ii); see Henriquez-Rivas v. Holder,
707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). The
regulations governing CAT deferral, unlike the asylum
regulation, do not call for any burden shifting. As in Hasan,
Lemus-Galvan, and Singh, our interpretation of
18 MALDONADO V. HOLDER
§ 1208.16(c)(3) in Perez-Ramirez departs substantially from
the text of the regulation.
Hasan, Lemus-Galvan, Singh, and Perez-Ramirez run
afoul of the regulations at issue here. Section 1208.16(c)(2)
provides that an applicant for deferral of removal must
demonstrate that it is more likely than not that he or she will
be tortured if removed. In deciding whether the applicant has
satisfied his or her burden, the IJ must consider all relevant
evidence, including but not limited to the possibility of
relocation within the country of removal. Section
1208.16(c)(2) does not place a burden on an applicant to
demonstrate that relocation within the proposed country of
removal is impossible because the IJ must consider all
relevant evidence; no one factor is determinative. See
§ 1208.16(c)(3)(i)–(iv); Kamalthas, 251 F.3d at 1282. Nor do
the regulations shift the burden to the government because
they state that the applicant carries the overall burden of
proof. To the extent that Hasan, Lemus-Galvan, Singh, and
Perez-Ramirez conflict with the plain text of the regulations,
they are hereby overruled.
In its supplemental briefs the government argues that
there may be certain terms in the regulations that the BIA
may ultimately need to clarify, but the government stresses
that clarification should be the task of the BIA in the first
instance. We do not quarrel with that principle. Indeed, we
have said that “interpretation of BIA regulations is ‘a matter
that is placed primarily in agency hands.’” Brezilien v.
Holder, 569 F.3d 403, 413 (9th Cir. 2009) (quoting I.N.S. v.
Ventura, 537 U.S. 12, 16 (2002) (per curiam)) (brackets
omitted). If the BIA were to provide a new interpretation of
the regulations, we would give that interpretation an
appropriate level of deference. See Auer v. Robbins, 519 U.S.
MALDONADO V. HOLDER 19
452, 461 (1997). Indeed, the BIA is not precluded from
reading § 1208.16(c)(3) as requiring a CAT petitioner to
show that he is unable to safely relocate within the country of
removal. See Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 171 (2007) (“an agency’s interpretation of its
own regulations is controlling unless plainly erroneous or
inconsistent with the regulations being interpreted”) (internal
quotation marks omitted).
Here, the BIA relied on Lemus-Galvan in affirming the
denial of CAT relief, reasoning that Maldonado failed to
show that internal relocation within Mexico was impossible.
Although the BIA performed its own analysis, it ultimately
affirmed the IJ’s decision precisely because Maldonado failed
to prove that relocation within Mexico was impossible.
Indeed, according to the BIA, Maldonado’s “fail[ure] to show
that internal relocation within Mexico is impossible”
constituted the very “circumstances” under which the IJ
“properly found that the respondent failed to satisfy the
requirements for eligibility for deferral of removal under
[CAT].” The BIA’s conclusion demonstrates that failure to
meet the burden stated in Lemus-Galvan was the
determinative blow to Maldonado’s petition. Because Lemus-
Galvan’s interpretation of the CAT regulations is no longer
controlling, we grant the petition for review and remand to
the BIA for reconsideration of Maldonado’s claim for deferral
of removal.
PETITION GRANTED and REMANDED.
20 MALDONADO V. HOLDER
GOULD, Circuit Judge, with whom CLIFTON, IKUTA, and
N.R. SMITH, Circuit Judges, join, dissenting:
Maldonado for years has not been in touch with the
lawyer who advocated before us. In such circumstances I
believe that our proceeding to render a decision on the merits
is essentially to give an advisory opinion. With the party not
before us, we are engaging in what might be called “ghost
ship” ruling, with the case careening along unmanned by the
party seeking relief. We thus have the “ghost” of the prior
controversy but not a real and actual controversy. The
Supreme Court since the early days of our country has made
clear that it is not the province of federal courts to give
advisory opinions, even in matters of importance to society.
See Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (“The rule
against advisory opinions was established as early as 1793.”);
see generally William R. Casto, The Early Supreme Court
Justices’ Most Significant Opinion, 29 Ohio N.U. L. Rev. 173
(2002) (detailing the history of the Jay Court’s 1793 letter to
George Washington declining a request for an advisory
opinion).
As the majority correctly recites, mootness is a
jurisdictional issue we must address. See Blandino-Medina
v. Holder, 712 F.3d 1338, 1341 (9th Cir. 2013). But I regret
that after this recognition, the balance of what the majority
says on jurisdiction is not in my view correct. In Ellis v.
Dyson, the Supreme Court confronted a case in which counsel
for petitioners had not had contact with their clients for a year
and the petitioners were not informed regarding the progress
of the litigation. 421 U.S. 426, 434 (1975). The Court
expressed “reservations . . . as to whether a case or
controversy” existed. Id. The Court said that unless the
petitioners were found by the time the matter was considered
MALDONADO V. HOLDER 21
on remand, “it [was] highly doubtful that a case or
controversy could be held to exist; it is elemental that there
must be parties before there is a case or controversy.” Id.
Although the statement in Ellis v. Dyson on which I rely
might be argued to be a dictum, we have square precedent
stating that we give great respect even to dicta of the United
States Supreme Court. See United States v. Montero-
Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en
banc). Further, what the Court said in Ellis is right on the
money so far as I am concerned.
The majority argues that there is a clear indication that
Maldonado is in the country because he renewed a driver’s
license after the date of his removal. But even if he was here
in 2010, that does not necessarily mean that he remained here
to the present day. Because I do not believe our court may
properly rule on cases where a party is not present—either in
person or through a lawyer who is in reasonable
communication with the party—I would dismiss this case as
moot for lack of a present justiciable controversy under
Article III.
But even if the case is not moot in a constitutional sense,
we should dismiss under the doctrine of prudential mootness,
which allows a court to dismiss an appeal, even if not
technically moot, “if circumstances have changed since the
beginning of litigation that forestall any occasion for
meaningful relief.” Deutsche Bank Nat’l Trust Co. v.
F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014) (quoting Hunt
v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th
Cir. 2009)); see also Ali v. Cangemi, 419 F.3d 722, 723–24
(8th Cir. 2005) (dismissing an appeal as prudentially moot
where an immigrant’s whereabouts were unknown after he
22 MALDONADO V. HOLDER
failed to notify immigration authorities of his change of
address).
We have applied similar prudential reasoning in
immigration cases involving the fugitive disentitlement
doctrine. For example, in Antonio-Martinez v. INS we said:
Those who disregard their legal and
common-sense obligation to stay in touch
while their lawyers appeal an outstanding
deportation order should be sanctioned. The
prospect of disentitlement provides a strong
incentive to maintain contact with the INS and
counsel, rather than taking one’s continued
presence in the country for granted. . . . By
failing to report his change of address to
either his lawyer or the INS for an extended
period of time, [petitioner] has effectively put
himself beyond the jurisdiction of the court.
Because no one has any clue where
[petitioner] is, his petition has the same
“heads I win, tails you’ll never find me”
quality that justifies disentitlement in other
contexts.
317 F.3d 1089, 1093 (9th Cir. 2003). Although it might be
argued that Maldonado’s compliance with his removal order,
even if he later returned to the United States, distinguishes his
case from the petitioner’s in Antonio-Martinez, I think the
two cases are fundamentally similar in the most important
respects. We cannot give Maldonado an effective remedy,
just as none could be given to the petitioner in Antonio-
Martinez. Had today’s majority reached a conclusion that
would deny him any relief, Maldonado would remain as
MALDONADO V. HOLDER 23
unaffected by it as he is by the majority’s granting the
petition as they do. I think that our prudential mootness
doctrine can be adapted here to function like the fugitive
disentitlement doctrine.
There are many actual or potential litigants in our system
who have not yet been removed and who can petition for
review on the merits issues presented in this case. Moreover,
there will be others who will return after removal, and who
can present the same issues while staying in contact with their
counsel. We don’t need to engage in “ghost ship”
jurisprudence to give a ruling in a case where there is no one
on board the ship of the dispute presented. Instead, we
should limit invoking the awesome power of the federal
courts to decide important immigration law matters to cases
where parties also remain within the effective reach of our
court’s jurisdiction so that we can give meaningful relief. We
should await such a case before deciding the issue that the
majority does today. I respectfully dissent.
M. SMITH, Circuit Judge, with whom CLIFTON, Circuit
Judge, joins, dissenting:
I agree with Judge Gould that we lack jurisdiction to
review Maldonado’s claim because his attorney is no longer
in contact with him, and there is no evidence that Maldonado
is presently in the United States. The only evidence in the
record that Maldonado was in the United States subsequent
to the date of his removal in 2009 is Maldonado’s 2010
application for a driver’s license in Palo Alto, California, and
it was the government, not Maldonado’s counsel, that
supplied that evidence. Even if we assume that Maldonado
24 MALDONADO V. HOLDER
personally submitted such an application in 2010, that act
tells us nothing definitive about whether Maldonado has
remained in the United States since then. We do know for
certain that petitioner’s counsel has not heard from his client
in some time, and that when petitioner’s counsel recently
contacted Maldonado’s immediate family seeking sworn
declarations from them concerning petitioner’s location, the
family refused to communicate further with him. Thus, there
is simply no evidence in the record that Maldonado is
currently in the United States, and counsel confirms that he
has not been in contact with the petitioner. Under the
circumstances, the case is moot.
I write separately from Judge Gould because even if I
agreed with the majority that Maldonado’s petition for review
continues to present a justiciable controversy, which I do not,
I would affirm the decision of the BIA denying Maldonado
relief under the Convention Against Torture, 1465 U.N.T.S.
85 (1988) (CAT). Article 3 of CAT provides that no country
shall “expel, return . . . or extradite a person to another State
where there are substantial grounds for believing that he
would be in danger of being subjected to torture.” 1465
U.N.T.S. 85 (1988). The INS’s regulations implementing
CAT state that in determining “[e]ligibility for withholding of
removal under the Convention Against Torture[,] . . . [t]he
burden of proof is on the applicant . . . to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). In making that determination, the
immigration judge shall consider
all evidence relevant to the possibility of
future torture . . . including, but not limited to:
(i) Evidence of past torture inflicted upon the
MALDONADO V. HOLDER 25
applicant; (ii) Evidence that the applicant
could relocate to a part of the country of
removal where he or she is not likely to be
tortured; (iii) Evidence of gross, flagrant or
mass violations of human rights within the
country of removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
8 C.F.R. § 1208.16(c)(3).
The petitioner is not required to prove that internal
relocation is impossible; rather, that is just one factor the
immigration judge must consider in assessing the likelihood
of future torture. I agree with the majority that our decision in
Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), must
be overruled because it improperly imported into the CAT
context the burden-shifting scheme for asylum claims, which
places the burden on the government to show that a
previously tortured petitioner can safely relocate within the
country of removal. Id. at 958. I also agree that the BIA may
have interpreted language in our decision in Lemus-Galvan v.
Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), as setting a
standard that a petitioner must “establish that internal
relocation . . . [is] impossible,” although that was not the
intent of our opinion. However, I do not agree that our
decisions in Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir.
2004), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and
the substance of our opinion in Lemus-Galvan, conflict with
the governing regulations. In overruling these precedents, the
majority throws the baby out with the bath water, and reaches
a conclusion that distorts the BIA’s carefully reasoned
decision in Maldonado’s case.
26 MALDONADO V. HOLDER
Our decisions in Hasan, Singh, and Lemus-Galvan did not
alter the burden of proof set forth in 8 C.F.R. § 1208.16(c)(3).
In Hasan, we noted that “the Hasans have not presented
substantial grounds for believing that they would be unable
to live elsewhere in the country safely,” and placed equal
emphasis on the fact that “there was no substantial evidence
offered that the future persecution the Hasans would
experience would rise to the level of torture.” 380 F.3d at
1123. Similarly, in Singh, we concluded that “[t]he record
evidence does not compel a finding that it is more likely than
not that Mr. Singh will be tortured upon returning to India.”
439 F.3d at 1113. Moreover, we noted that:
If Mr. Singh’s fear is based on the mistaken
belief of police in a certain area, he would
presumably be safe in another area of India
where the police do not take him for a
separatist. The record contains no evidence
that simply being an apolitical Sikh would
cause police to torture Mr. Singh if they do
not believe he is a separatist.
Id. In Lemus-Galvan, the petitioner sought CAT relief,
alleging that if he were returned to Mexico, he would be
tortured by a drug cartel family because they “had been
involved in a violent turf war with members of Lemus-
Galvan’s extended family in the northern border regions of
Mexico.” 518 F.3d at 1083. On appeal, we concluded:
Lemus-Galvan failed to establish that internal
relocation within Mexico was impossible. See
8 C.F.R. § 208.16(c)(3)(ii); see also Hasan v.
Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004).
Substantial evidence therefore supports the
MALDONADO V. HOLDER 27
IJ’s decision to deny deferral of removal
under the CAT. See Zheng v. Ashcroft,
332 F.3d 1186, 1194 (9th Cir. 2003).
Id. at 1084. “Evidence that the applicant could relocate to a
part of the country of removal where he or she is not likely to
be tortured” is one of four non-exhaustive factors that the
immigration judge shall consider in assessing “all evidence
relevant to the possibility of future torture.” 8 C.F.R.
§ 1208.16(c)(3) (emphasis added). Lemus-Galvan does not
stand for the proposition that the ability to relocate is
dispositive of a CAT petitioner’s claim.
The BIA did not reject Maldonado’s claim solely because
he failed to prove that internal relocation within Mexico was
impossible. The majority overstates the issue when it says
that, “[A]ccording to the BIA, Maldonado’s ‘fail[ure] to show
that internal relocation within Mexico is impossible’
constituted the very ‘circumstances’ under which the IJ
‘properly found that the respondent failed to satisfy the
requirements for eligibility for deferral of removal under
[CAT].’” Instead, the BIA cited Maldonado’s failure to refute
evidence that he could relocate to a different part of Mexico
as just one factor supporting the denial of his CAT petition:
In assessing whether it is more likely than not
that the respondent would be tortured in
Mexico, all evidence relevant to the
possibility of future torture shall be
considered, including evidence of past torture
inflicted upon the respondent and evidence
that the respondent could relocate where
torture is unlikely. See 8 C.F.R.
§ 208.16(c)(3)(ii).
28 MALDONADO V. HOLDER
The BIA credited Maldonado’s testimony that the police
in Michoacán had previously tortured him, but concluded that
Maldonado “did not show that the influence of the corrupt
police officers located in Morelia extended country wide.”
The BIA went on to analyze the other factors, explaining that
“the 2007 Country Report indicates that the Mexican
government is aggressively prosecuting those who are
involved in police corruption . . . . Therefore, the Mexican
government will provide protection to the respondent from
any corrupt police officers.” The BIA determined that record
evidence of other human rights violations in Mexico was not
relevant to Maldonado’s CAT claim because these violations
were perpetrated against members of organized drug gangs,
and Maldonado does not claim to be a member of such an
organization. In denying Maldonado’s petition, the BIA
ultimately concluded: “Given that the respondent has not
shown that the corrupt police officers could locate him
anywhere in Mexico, and the Mexican government is
aggressively prosecuting police corruption, the respondent
has failed to show that internal relocation within Mexico is
impossible.”
A CAT petitioner is not required to conclusively prove
that internal relocation is impossible—but the BIA did not
hold Maldonado to such a standard here. I would dismiss this
case as moot, but were I to reach the merits, I would affirm
the decision of the BIA.
I respectfully dissent.