Bernardo Salado-Alva v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 17 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARDO SALADO-ALVA, AKA Nos. 15-71847
Bernie Salado, 15-72758
Petitioner, Agency No. A024-221-509
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2019**
Pasadena, California
Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.
Bernardo Salado-Alva, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (BIA) denial of his third motion to reopen
his removal proceedings and the BIA’s denial of his motion for reconsideration of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
that decision. Although Salado’s motion to reopen was untimely and numerically
barred, see 8 U.S.C. § 1229a(c)(7), Salado asserted a change in country conditions,
see id. § 1229a(c)(7)(C)(ii), and invoked the BIA’s discretionary authority to
reopen proceedings sua sponte, see 8 C.F.R. § 1003.2(a).
We have jurisdiction under 8 U.S.C. § 1252. See Bonilla v. Lynch, 840 F.3d
575, 581–82, 588 (9th Cir. 2016); Mohammed v. Gonzales, 400 F.3d 785, 791 (9th
Cir. 2005); see also Agonafer v. Sessions, 859 F.3d 1198, 1202–03 (9th Cir. 2017)
(explaining that 8 U.S.C. § 1252(a)(2)(C) does not preclude jurisdiction in the
circumstances presented here). We review the BIA’s denial of a motion to reopen
premised on changed country conditions for an abuse of discretion, Agonafer, 859
F.3d at 1203, but review the BIA’s denial of sua sponte reopening only “for legal
or constitutional error,” Bonilla, 840 F.3d at 588. We review the BIA’s denial of a
motion for reconsideration for an abuse of discretion. Mohammed, 400 F.3d at
791.
1. The BIA did not abuse its discretion in denying Salado’s motion to
reopen based on changed country conditions. To prevail on this ground, the
movant must establish a “material” change in country conditions that, together with
previously submitted evidence, demonstrate “prima facie eligibility for the relief
sought.” Agonafer, 859 F.3d at 1204 (citation omitted); see 8 C.F.R.
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§ 1003.2(c)(3)(ii).
First, the BIA did not abuse its discretion in concluding that Salado failed to
demonstrate prima facie eligibility for withholding of removal under 8 U.S.C.
§ 1231(b)(3). We have already rejected Salado’s proposed “particular social
group” of “Americanized Mexican deportees.” See Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1228–29 (9th Cir. 2016); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1150–52 (9th Cir. 2010). And his evidence regarding persecution on account of
his membership in this proposed social group consists of a “general,
undifferentiated claim” of violence in Mexico, which is insufficient. Wakkary v.
Holder, 558 F.3d 1049, 1066 (9th Cir. 2009) (quoting Lolong v. Gonzales, 484
F.3d 1173, 1179 (9th Cir. 2007) (en banc)).
Second, the BIA did not abuse its discretion in concluding that Salado failed
to demonstrate prima facie eligibility for protection under the Convention Against
Torture (CAT). Salado has presented only “generalized evidence of violence and
crime in Mexico,” which does not “establish prima facie eligibility for [CAT]
protection.” Delgado-Ortiz, 600 F.3d at 1152; see Ramirez-Munoz, 816 F.3d at
1230.
Third, the BIA did not abuse its discretion in concluding that Salado’s
evidence of changed conditions in Mexico was not material. Salado’s new
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evidence—describing the assassinations of two public officials in a rural town in
Jalisco—is not “qualitatively different” from his previously submitted evidence,
and it “simply recounts generalized conditions” in the region that are not tethered
to Salado’s “particular circumstances.” Najmabadi v. Holder, 597 F.3d 983,
990–91 (9th Cir. 2010).
2. The BIA did not commit legal or constitutional error in denying
Salado’s request for sua sponte reopening to the extent he argued that his
conviction under California Penal Code § 288(a) is not an “aggravated felony”
conviction for “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). We
have “repeatedly held that California Penal Code § 288(a) categorically involves
‘sexual abuse of a minor’ under 8 U.S.C. § 1101(a)(43)(A).” United States v.
Farmer, 627 F.3d 416, 420 (9th Cir. 2010) (citing United States v. Baron-Medina,
187 F.3d 1144, 1147 (9th Cir. 1999)); see also United States v. Castro, 607 F.3d
566, 568 (9th Cir. 2010) (explaining that “a conviction under section 288(a)
categorically constitutes ‘sexual abuse of a minor’”); United States v.
Medina-Villa, 567 F.3d 507, 512–16 (9th Cir. 2009) (same); United States v.
Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003) (same).
Salado has not identified any “intervening higher authority” that is “clearly
irreconcilable” with this controlling precedent. Miller v. Gammie, 335 F.3d 889,
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893 (9th Cir. 2003) (en banc). He relies primarily on Descamps v. United States,
570 U.S. 254 (2013), but that case held that “the modified categorical approach”
applies when the statute of conviction contains a “divisible” list of “multiple,
alternative elements” rather than “a single, indivisible set of elements,” regardless
of the particular facts underlying the conviction. Id. at 263–65 (emphasis added).
The holding in Descamps has no bearing here, because we have concluded that
§ 288(a) “categorically” fits within the federal definition of “sexual abuse of a
minor.” Medina-Villa, 567 F.3d at 512 (emphasis added). Salado also argues that
the term “sexual abuse of a minor” in § 1101(a)(43)(A) is unconstitutionally vague
under Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya,
138 S. Ct. 1204 (2018), but those cases involved residual clauses that required
imagining “an idealized ordinary case of the crime” and “the level of risk that
makes a crime ‘violent,’” two features that “conspired” together to make the
clauses “unconstitutionally vague.” Id. at 1215–16 (quoting Johnson, 135 S. Ct. at2557–58, 2561). The term “sexual abuse of a minor” does not have those
conspiring features.
The remaining authorities cited by Salado—e.g., Menendez v. Whitaker, 908
F.3d 467 (9th Cir. 2018); Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015);
People v. Tuck, 139 Cal. Rptr. 3d 407 (Ct. App. 2012)—addressed different federal
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or state statutes, and in any event do not constitute “intervening higher authority,”
Miller, 335 F.3d at 893 (emphasis added).
3. The BIA committed legal error in denying Salado’s request for sua
sponte reopening for purposes of adjusting his status and obtaining a waiver of
inadmissibility under 8 U.S.C. § 1182(h). The BIA concluded that Salado failed to
establish prima facie eligibility for a hardship waiver under § 1182(h)(1)(B) in part
because his sons and daughter (who are United States citizens) “are all over the age
of 21 and no longer qualify as ‘children’” as defined in 8 U.S.C. § 1101(b)(1). As
the government admits, the BIA’s conclusion is legally erroneous because the
definition of the term “child” in § 1101(b)(1) is inapplicable to waivers under
§ 1182(h)(1)(B), which uses the terms “spouse, parent, son, or daughter.”
The government contends that the BIA’s error was harmless because Salado
has not shown that his removal would result in extreme hardship to his sons and
daughter. But the BIA did not reach that issue, and “we cannot deny a petition for
review on a ground that the BIA itself did not base its decision.” Hernandez-Cruz
v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011). Rather, when “the Board base[s]
its decision on a legal error,” as it did in this case, we “remand to the Board to
exercise its discretion against the correct legal framework.” Bonilla, 840 F.3d at
592.
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* * *
We grant Salado’s petition for review of the BIA’s denial of his motion to
reopen (Case No. 15-71847) with respect to his claim for an adjustment of status
and a waiver of inadmissibility, deny the petition with respect to all other claims,
and remand. We deny Salado’s petition for review of the BIA’s denial of his
motion for reconsideration (Case No. 15-72758) with respect to any issues not
presented by the first petition, and dismiss the remainder as moot. The parties shall
bear their own costs.
Case No. 15-71847 is GRANTED IN PART, DENIED IN PART, AND
REMANDED.
Case No. 15-72758 is DENIED IN PART AND DISMISSED IN PART.
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