Jorge Oseida v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 2 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE LUIS OSEIDA, Jr., No. 20-72393
Petitioner, Agency No. A213-204-226
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2021
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge MILLER
Jorge Oseida was convicted of an aggravated felony and ordered removed to
Guatemala under 8 U.S.C. § 1227(a)(2)(A)(iii). In reviewing the determination of
an asylum officer, the Immigration Judge (“IJ”) held that Oseida did not have a
reasonable fear of persecution or torture in Guatemala. Because Oseida was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
subject to expedited removal proceedings under 8 U.S.C. § 1228 and the IJ
concurred in the determination of the asylum officer, Oseida could not appeal to
the Board of Immigration Appeals. 8 C.F.R. § 1208.31(g)(1). Oseida petitions for
review in this court. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny
his petition for review.
Oseida contends that the asylum officer procedurally erred by failing to
“elicit all relevant information” pertinent to his claim for relief from removal. We
disagree. The asylum officer asked multiple open-ended questions over the course
of his interview. Those questions gave Oseida the opportunity to discuss any
personal history or personal characteristics that he feared could cause him to be
persecuted or tortured in Guatemala.
Oseida further contends that the IJ’s negative reasonable fear determination
is not supported by substantial evidence. We do not find evidence in the record,
including the country conditions report, that would compel “any reasonable
adjudicator” to conclude, contrary to the IJ’s determination, that Oseida has a
reasonable fear of persecution on account of a protected ground or of torture if
removed to Guatemala. 8 U.S.C. § 1252 (b)(4)(B).
PETITION DENIED.
2
FILED
Oseida v. Garland, No. 20-72393 DEC 2 2021
MOLLY C. DWYER, CLERK
MILLER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I join the court’s disposition except to the extent that it reaches the merits of
Oseida’s challenge to the agency’s determination that he did not establish a
reasonable fear of persecution. With respect to that issue, I would hold that we lack
jurisdiction and would dismiss the petition for review.
Under 8 U.S.C. § 1252(a)(2), we lack jurisdiction over factual challenges to
any final order of removal entered against an alien who, like Oseida, is removable
because of an aggravated-felony conviction. Nevertheless, we have created an
exception allowing us to review factual challenges to the denial of asylum or
withholding of removal where, as here, the agency “denies relief on the merits, for
failure to demonstrate the requisite factual grounds for relief, rather than in reliance
on the conviction.” Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). In
addition to being inconsistent with the statute, that exception is contrary to
Nasrallah v. Barr, 140 S. Ct. 1683 (2020), in which the Supreme Court stated
categorically that “the court of appeals may not review factual challenges to a final
order of removal” of an alien who is removable because of an aggravated-felony
conviction. Id. at 1690. Indeed, it is “clearly irreconcilable” with that decision.
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). I would hold that
Nasrallah has abrogated our “on the merits” exception to section 1252(a)(2).