Lemus-Galvan v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO LEMUS-GALVAN, 
Petitioner, No. 04-72651
v.
 Agency No.
A37-542-695
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 18, 2007—Pasadena, California
Filed March 11, 2008
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
2361
LEMUS-GALVAN v. MUKASEY 2363
COUNSEL
David B. Landry, San Diego, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Department of Justice, Washington, D.C.; Linda S. Wendt-
land, Assistant Director, Donald A. Couvillon, Office of
Immigration Litigation, Department of Justice, Washington,
D.C., for the respondent.
2364 LEMUS-GALVAN v. MUKASEY
OPINION
McKEOWN, Circuit Judge:
Gustavo Lemus-Galvan seeks review of the Board of Immi-
gration Appeals’ (“BIA”) summary affirmance of the Immi-
gration Judge’s (“IJ”) denial of deferral of removal under the
Convention Against Torture (“CAT”).1 Notwithstanding that
Lemus-Galvan was ordered removed on the basis of an aggra-
vated felony, we have jurisdiction over his deferral of removal
claim under the CAT. See Morales v. Gonzales, 478 F.3d 972
(9th Cir. 2007).
BACKGROUND
Lemus-Galvan is a native and citizen of Mexico who has
been a legal permanent resident of the United States since
1982. He was convicted of attempted second degree murder.
On the basis of that conviction, he was denied relief under
§ 212(c) of the Immigration and Nationality Act and ordered
deported in 1996.
After the BIA dismissed his appeal of that order, Lemus-
Galvan moved to reopen proceedings to apply for deferral of
removal under the CAT. He alleged that if he were returned
to Mexico, it was more likely than not that he would be tor-
tured by the Pimental family, a drug cartel that had been
involved in a violent turf war with members of Lemus-
Galvan’s extended family in the northern border regions of
Mexico.
In 1999, an IJ granted reopening but denied deferral of
removal under the CAT, finding that it was more likely than
not that Lemus-Galvan could safely relocate to another part of
1
Where the BIA summarily affirms the IJ’s decision, we review the IJ’s
decision. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1063 n.1 (9th Cir.
2003).
LEMUS-GALVAN v. MUKASEY 2365
Mexico. Lemus-Galvan appealed the IJ’s denial of deferral of
removal, and the BIA, without ruling on the merits of his
CAT claim, remanded on the basis of a change in the law con-
cerning eligibility for § 212(c) waivers. See 8 C.F.R.
§ 212.3(g) (allowing aliens whose deportation proceedings
began before April 24, 1996, to apply for § 212(c) relief).
On remand, the IJ denied Lemus-Galvan’s request for a
§ 212(c) waiver. Expressly incorporating his reasoning from
the 1999 decision, the IJ again denied Lemus-Galvan’s
request for deferral of removal under the CAT and ordered
removal on the basis of his aggravated felony conviction. The
BIA summarily affirmed the IJ’s opinion. Lemus-Galvan now
seeks review of the BIA’s denial of his deferral of removal
claim.
ANALYSIS
[1] We must first decide whether we are barred from
reviewing Lemus-Galvan’s petition by 8 U.S.C.
§ 1252(a)(2)(C), which states that we may not review “any
final order of removal against an alien who is removable by
reason of having committed” certain criminal offenses,
including aggravated felonies. Attempted second degree mur-
der, the offense for which Lemus-Galvan was convicted, is an
aggravated felony. See id. § 1227(a)(2)(A)(iii). Because the IJ
expressly premised removal on this conviction, the govern-
ment argues that we are precluded from reviewing Lemus-
Galvan’s petition. We disagree. The jurisdiction-stripping
provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive us of
jurisdiction over denials of deferral of removal under the
CAT, which are always decisions on the merits. See Morales,
478 F.3d at 980.
[2] It is significant that Lemus-Galvan seeks review only of
the IJ’s denial of deferral of removal. There are two forms of
relief under the CAT: withholding of removal and deferral of
removal. See 8 C.F.R. §§ 208.16(c), 208.17(a). If an IJ deter-
2366 LEMUS-GALVAN v. MUKASEY
mines that an aggravated felony constitutes a “particularly
serious crime,” and denies withholding of removal under the
CAT on the basis of the conviction, § 1252(a)(2)(C) bars our
review of the denial of withholding. See Unuakhaulu v. Gon-
zales, 416 F.3d 931, 937 (9th Cir. 2005) (holding that where
denial of withholding of removal is not predicated on petition-
er’s aggravated felony conviction, we have jurisdiction to
review). However, even if an alien has been convicted of a
“particularly serious crime,” and is ineligible for withholding
of removal under the CAT, an IJ is required to grant deferral
of removal if the alien can establish the likelihood of torture
upon return. See 8 C.F.R. § 208.17(a).
[3] The jurisdictional wrinkle here is that although the IJ
ordered removal on the basis of Lemus-Galvan’s felony con-
viction, he denied Lemus-Galvan’s request for deferral of
removal under the CAT because Lemus-Galvan failed to
establish that internal relocation within Mexico was impossi-
ble. Morales provides helpful guidance on this point: Absent
a procedural defect, because the determination of the likeli-
hood of torture is a decision on the merits, we have jurisdic-
tion over petitions seeking review of such decisions. Morales,
478 F.3d 972.
In Morales, the IJ ordered Morales’s removal on the basis
of a crime involving moral turpitude, and denied her applica-
tions for asylum and withholding of removal on the basis that
her offense was a “particularly serious crime.” Id. at 975. The
IJ also denied Morales’s request for deferral of removal2
under the CAT because she had not shown that it was more
likely than not that she would be tortured if she returned to
Mexico. The BIA affirmed.
2
Although we did not make explicit in Morales that the petitioner
sought deferral of removal under the CAT, it is apparent that she did. The
IJ ordered Morales’s removal on the basis that she had committed a “par-
ticularly serious crime.” 8 C.F.R. § 208.16(d)(2). Thus, the “only relief for
which Morales was possibly eligible was” deferral of removal under the
CAT. Morales, 972 F.3d at 977; see also 8 C.F.R. § 208.17(a).
LEMUS-GALVAN v. MUKASEY 2367
On appeal, we concluded that we had jurisdiction over
Morales’s claim for CAT relief: “[W]hen an IJ does not rely
on an alien’s conviction in denying CAT relief and instead
denies relief on the merits, none of the jurisdiction-stripping
provisions — § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or
§ 1252(a)(2)(C) — apply to divest this court of jurisdiction.”
Id. at 980. Because the IJ denied Lemus-Galvan’s request for
deferral of removal on the merits, we have jurisdiction over
his petition.3 Id.
[4] 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 IJ’s
decision to deny deferral of removal under the CAT. See
Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003).
PETITION DENIED.
3
Our decision in Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir.
2004), is not to the contrary. In Ruiz-Morales, we dismissed for lack of
jurisdiction over all of the claims, including a request for CAT relief,
because the alien had been removed on the basis of an aggravated felony.
Id. at 1222. We did not state in Ruiz-Morales whether the petitioner sought
withholding or deferral of removal under the CAT. As we note earlier in
this opinion, § 1252(a)(2)(C) may deprive us of jurisdiction over some
CAT withholding of removal claims. 8 U.S.C. § 1252(a)(2)(C); see
Unuakhaulu, 416 F.3d at 936. Therefore, Ruiz-Morales does not conflict
with Morales, nor does it foreclose the result that we reach here.