Haro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS CARDONA HARO, No. 21-648
Petitioner, Agency No. A092-034-371
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 7, 2023
Pasadena, California
Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.
Dissent by Judge FORREST.
Carlos Cardona Haro petitions for review of an order issued by the Board
of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) denial of
his claim for protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the petition.
When, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994), and expressly adopts and affirms the IJ’s decision, we “look
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
through the BIA’s decision and treat the IJ’s decision as the final agency
decision for the purposes of [the] appeal.”1 Tamang v. Holder, 598 F.3d 1083,
1088 (9th Cir. 2010). We review the IJ’s factual findings for substantial
evidence, meaning that the agency’s findings are “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
Salguero Sosa v. Garland, 55 F.4th 1213, 1218 (9th Cir. 2022) (quoting
Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)); 8 U.S.C. § 1252(b)(4)(B).
1. Substantial evidence supports the IJ’s finding that Haro failed to show
that he would be tortured in a mental health facility if removed to Mexico. “[T]o
establish a likelihood of torture for purposes of the CAT, a petitioner must show
that severe pain or suffering was specifically intended.” Villegas v. Mukasey,
523 F.3d 984, 989 (9th Cir. 2008); see also 8 C.F.R. § 1208.18(a)(5). The IJ
found that, even if Haro became confined to a mental health facility, the
conditions in that facility would not constitute torture within the meaning of the
CAT because Haro “ha[d] presented insufficient evidence that anyone in that
facility would specifically intend to harm him.” Although certainly suggestive
of deplorable conditions, the evidence introduced by Haro does not compel a
contrary conclusion—a showing required for reversal under our substantial
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We therefore reject the Government’s contention that we may not review
issues addressed by the IJ—and by the petitioner in this appeal—but not by the
BIA. “If the BIA intends to constrict the scope of its opinion to apply to only
one ground on which the IJ’s decision rested, the BIA can and should
specifically state that it is so limiting its opinion.” Abebe v. Gonzales, 432 F.3d
1037, 1040 (9th Cir. 2005).
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evidence review. See Villegas, 523 F.3d at 989; Tamang, 598 F.3d at 1095.
2. Haro also claimed before the IJ and the BIA that he would likely be
tortured at the hands of law enforcement or while in prison. Haro makes “no
substantive argument” regarding this issue in his opening brief, however, and he
has therefore forfeited it. Cui v. Garland, 13 F.4th 991, 999 n.6. (9th Cir. 2021)
(quoting Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005)).
PETITION DENIED.
3 21-648
FILED
MAR 20 2023
Haro v. Garland, No. 21-648
MOLLY C. DWYER, CLERK
Forrest, J., dissenting: U.S. COURT OF APPEALS
The court disposes of Carlos Cardona Haro’s petition on a dispositive ground
that the BIA did not address and the Government affirmatively waived—whether
Haro established that the Mexican mental-health institutions that he fears would
have the specific intent to torture him. Rather than reach this issue, I would remand
for the agency to address it in the first instance, as the Government recommends. See
United States v. Sineng-Smith, 140 S. Ct. 1575, 1579 (2020) (“[A]s a general rule,
our system is designed around the premise that parties represented by competent
counsel know what is best for them . . . .” (cleaned up)).
Where the Board of Immigration Appeals (BIA) cites Matter of Burbano, 20
I. & N. Dec. 872, 874 (BIA 1994), and “does not expressly disagree with” the
Immigration Judge (IJ), we generally review both the IJ’s and the BIA’s decision.
Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013). But the BIA may cite
Burbano and adopt the IJ’s decision “only in part.” Meihua Huang v. Mukasey, 520
F.3d 1006, 1008 (9th Cir. 2008) (per curiam). Where, as here, the BIA cites Burbano
and expressly agrees with only one of multiple issues decided by the IJ and does not
address a dispositive issue reached by the IJ, “the proper course . . . is to remand to
the agency for additional investigation or explanation.” INS v. Orlando Ventura, 537
U.S. 12, 16 (2002); see also Meihua Huang, 520 F.3d at 1008 (remanding to the
agency where the BIA cited Burbano but did not address potentially dispositive issue
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decided by the IJ); cf. Parussimova v. Mukasey, 555 F.3d 734, 738 n.3 (9th Cir.
2009) (explaining that we treat the BIA’s decision as resting exclusively on one
ground where it cites Burbano and indicates its affirmance applies only to such
ground).
Remand is particularly warranted here where the Government conceded in its
Answering Brief that the “B[IA] did not . . . reach th[e] issue” on which the court
now resolves this case. Haro may have relied on this concession to his detriment in
choosing not to file a reply brief. The Government also reiterated at oral argument
that it could not “tell for sure that the B[IA] had endorsed” the IJ’s analysis of intent
to torture because the BIA “had not discussed that . . . alternative finding.” Where
the BIA did not discuss this dispositive issue but did discuss other issues decided by
the IJ and where the Government concedes that the intent-to-torture issue is not
properly before us, we should have remanded to the BIA. Orlando Ventura, 537 U.S.
at 16. For this reason, I respectfully dissent.
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