Willian Matias Rauda v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAN MATIAS RAUDA, No. 19-72868
Petitioner, Agency No. A209-189-278
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 13, 2021
San Francisco, California
Before: BEA and M. SMITH, Circuit Judges, and RESTANI,** Judge.
Willian Matias Rauda, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) final order of removal,
which adopted and affirmed the Immigration Judge’s (“IJ”) denial of a motion to
suppress, denial of a motion for issuance of a subpoena, and denial of eligibility for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252(a)(1). For the following reasons, we deny the petition.
Matias Rauda entered the United States without authorization in 2014 and
settled initially in San Francisco. Soon after relocating to Maryland, Matias Rauda
was arrested by local police in connection with a gang-related shooting. Matias
Rauda pleaded guilty to a first-degree assault charge and received a suspended
sentence of twenty years imprisonment. Local officials refused to honor an
immigration detainer filed by Immigration and Customs Enforcement (“ICE”) and
released Matias Rauda in 2017. Thereafter, Matias Rauda moved into a residence
near San Francisco with his now-wife, the couples’ infant child, and several other
individuals.
ICE subsequently located Matias Rauda and dispatched officers to the
residence to execute an outstanding immigration warrant. ICE officers entered the
residence with the consent of a co-occupant, located Matias Rauda in a bedroom
shared with his now-wife and two infant children, and placed him under arrest.
While in custody, Matias Rauda admitted to his Salvadoran alienage and to his
unlawful entry into the United States. ICE officials recorded the factual narrative
of Matias Rauda’s arrest and post-arrest statements in an agency form known as
the Record of Deportable/Inadmissible Alien (“Form I-213”).
During removal proceedings, Matias Rauda moved to suppress the Form I-
2
213 on the ground that ICE officers violated the law by invading the residence
without a judicial warrant and by using excessive force to execute the arrest.
Matias Rauda also moved to subpoena a panoply of documents and live testimony
pertaining to his arrest and ICE’s operational policies. The IJ denied both motions
without a suppression hearing because the affidavits Matias Rauda submitted in
support of the motions failed to establish a prima facie case for relief. The IJ
ultimately sustained the charge of removability based on Matias Rauda’s post-
arrest admissions recorded in the Form I-213.
Matias Rauda then moved for deferral of removal under the CAT based on
prior torture experienced as a teenager at the hands of the Mara Salvatrucha gang
(“MS-13”) and Salvadoran police and military officials and the risk of future
torture by both groups upon his return to El Salvador. Despite crediting Matias
Rauda’s account of prior torture, the IJ found Matias Rauda failed to establish a
likelihood of future torture by or with the acquiescence of the Salvadoran
government. The BIA adopted the decisions of the IJ with additional reasoning
and dismissed the appeal. See Matter of Burbano, 20 I. & N. Dec. 872 (1994).
Matias Rauda timely petitioned for review.
Where, as here, the BIA adopts the IJ’s decision, cites Matter of Burbano,
and contributes its own reasoning, our scope of review includes both decisions.
Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020). We review the denial of
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a motion to suppress in an immigration proceeding de novo, Martinez-Medina v.
Holder, 673 F.3d 1029, 1033 (9th Cir. 2011), and the refusal to issue a subpoena
for an abuse of discretion, Kaur v. INS, 237 F.3d 1098, 1099 (9th Cir. 2001).
We review issues of law related to the denial of CAT relief de novo and factual
findings supporting the denial for substantial evidence. Arteaga v. Mukasey, 511
F.3d 940, 944 (9th Cir. 2007). Under the substantial evidence standard, we must
affirm the factual findings of the BIA and the IJ “unless the evidence in the record
compels a contrary conclusion.” Id.; see 8 U.S.C. § 1252(b)(4)(B).
1. The BIA and the IJ did not err in denying Matias Rauda’s motion to
suppress without an additional hearing. Because the exclusionary rule is generally
inapplicable to immigration proceedings, a petitioner must show an “egregious
violation” of his Fourth Amendment rights or a violation of federal regulations
promulgated for his benefit to obtain a suppression remedy. See INS v. Lopez-
Mendoza, 468 U.S. 1032, 1041–50 (1984); Perez Cruz v. Barr, 926 F.3d 1128,
1137 (9th Cir. 2019). Longstanding agency regulations require an alien to allege
a prima facie case for suppression through sworn declarations before the IJ may
require the Government to produce additional discovery and defend its actions at
a suppression hearing. See Matter of Barcenas, 19 I. & N. Dec. 609 (1988).
Matias Rauda’s first suppression claim is that ICE officers acted unlawfully
by knocking on the front door of his residence for the purpose of effectuating an
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arrest without a judicial warrant. See Florida v. Jardines, 569 U.S. 1, 6 (2013); 8
C.F.R. § 287.8(f)(2). Here, however, the ICE officers were privileged to approach
the residence to execute an immigration warrant that authorized Matias Rauda’s
arrest in public areas or in private areas with the consent of a co-occupant. See 8
U.S.C. § 1226(a); 8 C.F.R. § 236.1(b). We decline Matias Rauda’s invitation to
extend our holding in United States v. Lundin, 817 F.3d 1151, 1160 (9th Cir.
2016), which held that police officers violated the Fourth Amendment by
approaching a home to effectuate a warrantless arrest based on probable cause that
the occupant had committed several felonies. The immigration warrant licensed
the officers to solicit consent to entry for the limited purpose of enforcing the civil
immigration laws, a context that implicates distinct constitutional interests from
those involved in a criminal case. See Lopez-Mendoza, 468 U.S. at 1042.
Matias Rauda’s second suppression claim is that the ICE officers unlawfully
entered the residence without a judicial search warrant. See Payton v. New York,
445 U.S. 573, 586–87 (1980); 8 C.F.R. § 287.8(c)(2)(vii), (f)(2). However, the
Form I-213 clearly indicates that a co-occupant voluntarily consented to entry and
twice confirmed this consent during a conversation in her native language with an
officer at the front door. The declarations submitted by Matias Rauda and his now-
wife failed to contest this narrative because both admit they were in the bedroom
when officers entered the home. Thus, Matias Rauda failed to establish a prima
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facie case that ICE agents acted outside the consent exception to the Fourth
Amendment’s warrant requirement. See United States v. Matlock, 415 U.S. 164,
170–71 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973).
Matias Rauda’s final suppression claim is that the ICE officers used
excessive force by drawing their firearms when entering his home and placing him
under arrest. See Graham v. Connor, 490 U.S. 386, 394–95 (1989); 8 C.F.R.
§ 287.8(a)(ii)–(iii). We judge the reasonableness of a use of force under “the facts
and circumstances of each particular case” from the perspective of “a reasonable
officer on the scene.” Graham, 490 U.S. at 396; see also Thompson v. Rahr, 885
F.3d 582, 586 (9th Cir. 2018). Here, Matias Rauda’s declarations allege that
officers pointed their firearms at Matias Rauda, his now-wife, and one of his
children for at least fifteen seconds while securing the scene. This relatively high
use of force was reasonable under the circumstances because the arresting officers
knew Matias Rauda’s criminal record included the admitted use of a firearm in a
gang-related shooting. Officers reasonably sought to secure the scene and Matias
Rauda’s person until they could assure their own safety and the safety of other
individuals in the residence. See, e.g., Yanez-Marquez v. Lynch, 789 F.3d 434,
471–73 (4th Cir. 2015).
2. The BIA correctly determined that the IJ did not abuse its discretion in
refusing to issue a subpoena. Federal regulations authorize IJs to issue subpoenas
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on behalf of aliens in immigration proceedings when “satisfied” that the evidence
requested is “essential.” 8 C.F.R. § 1003.35(b)(3); see Cuadras v. INS, 910 F.2d
567, 573 (9th Cir. 1990). Here, the requested subpoena was not “essential” to the
question of removability. The post-arrest admissions recorded in the Form I-213
were sufficient to establish alienage and unauthorized entry, and Matias Rauda
failed to undermine the presumption of reliability to which the Form I-213 is
entitled for immigration purposes. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.
1995). Nor was the requested subpoena “essential” to deciding the suppression
motion. Because Matias Rauda failed to allege a prima facie case for relief, the
Government was not obligated to produce discovery or to respond on the merits.
We disagree with Matias Rauda’s reading of the Third Circuit’s decision in Oliva-
Ramos v. Attorney General, 694 F.3d 259, 273 (3d Cir. 2012), that requiring
a claimant to establish a prima facie case prior to compelling discovery and
a response on the merits is fundamentally unfair. It is not unfair in civil
proceedings to require a claimant to allege facts sufficient to support relief before
putting the opposing party to the burden of discovery. See generally Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
3. The BIA and the IJ did not err in denying eligibility for withholding
of removal under the CAT. To establish eligibility for CAT relief, an applicant
must show “it is more likely than not that he or she would be tortured if removed to
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the proposed country of removal.” 8 C.F.R. § 208.16(c)(2), (c)(4). Relief from
deportation is available only if the torture would likely be “inflicted by” or “with
the consent or acquiescence of” public officials in the receiving country. Id.§ 208.18(a)(1); see Barajas-Romero v. Lynch, 846 F.3d 351, 361 (9th Cir. 2017).
Matias Rauda raises several challenges to the BIA’s adoption of the IJ’s
findings of fact, but each lacks merit. Substantial evidence supports the
determination that the Salvadoran police and military targeted Matias Rauda for
torture as a teenager only because of his involvement in MS-13’s violent criminal
activities, including drug smuggling and the extortion of local businesses.
Substantial evidence also supports the determination that Salvadoran officials
would not acquiesce to torture by MS-13 upon Matias Rauda’s return given the
government’s significant law enforcement, judicial, and paramilitary efforts to
fight corruption and punish gang violence. Although these efforts have been met
with mixed success, the test for governmental acquiescence is good faith effort, not
efficacy. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
Matias Rauda further argues that the BIA and the IJ ignored evidence that
El Salvador subjects deportees from the United States to increased scrutiny for
former gang activity. This argument fails because the BIA and the IJ did consider
country condition reports and expert testimony by Thomas Boerman discussing the
Salvadoran government’s enhanced scrutiny program and reasonably determined
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that such scrutiny would not likely rise to the level of torture. Nor did the BIA and
the IJ ignore evidence that El Salvador’s programs to stamp out gang violence have
not always prevented MS-13 from torturing former gang members and non-
compliant community members. To the contrary, the BIA and the IJ took this
evidence into account and reasonably concluded that evidence of the Salvadoran
government’s meaningful efforts to combat gang violence meant Matias Rauda
failed to establish the likelihood of acquiescence to future torture required to prove
eligibility for CAT relief.
Finally, Matias Rauda argues that the BIA and the IJ erred by denying CAT
relief despite crediting his account of prior torture by MS-13 and by Salvadoran
police and military officials. In the CAT context, prior torture does not give rise to
a presumption of future torture. See Barajas-Romero, 846 F.3d at 363; see also
Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc). The BIA and
the IJ considered all relevant evidence and determined that Matias Rauda’s
increased maturity and renouncement of future gang activity made it unlikely that
Salvadoran officials would subject him to torture upon his return. As we have
explained, changed personal circumstances may outweigh evidence of past torture
when assessing an applicant’s risk of future torture on the entire administrative
record. See Konou v. Holder, 750 F.3d 1120, 1126 (9th Cir. 2014).
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PETITION DENIED.1
1
Matias Rauda’s Motion for Stay of Removal [Dkt. Nos. 1, 7] is denied as moot.
The temporary stay of removal remains in effect until issuance of the mandate.
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