Elsa Diaz-Reyes v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELSA FLORIBETH DIAZ-REYES, AKA No. 19-70955
Elsa Floribet Diaz-Reyes, AKA Elsa
Florivet Diaz-Reyes, Agency No. A200-812-012
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
Elsa Floribeth Diaz-Reyes, a native and citizen of El Salvador, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s (“IJ”) decision denying her application for
relief under the Convention Against Torture (“CAT”). Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
We review for abuse of discretion the denial of a motion to remand. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part, grant in part,
and dismiss in part the petition for review, and we remand.
As to CAT, substantial evidence supports the agency’s determination that
Diaz-Reyes failed to show it is more likely than not she would be tortured by
family members or former guerrillas if returned to El Salvador. See Wakkary v.
Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture); see also
Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc) (agency must
consider possibility of relocation within country of removal as part of CAT
analysis). However, in denying CAT the agency failed to analyze Diaz-Reyes’s
claims that she fears future torture by Jaime Magana and by the father of her
children, Heriberto Coria Cerdo. See 8 C.F.R. § 208.16(c)(3) (agency must
consider “all evidence relevant to the possibility of future torture”); Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (the agency is “not free to ignore
arguments raised by a petitioner”). Thus, we grant the petition for review and
remand for further proceedings consistent with this disposition. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
The BIA did not abuse its discretion in denying Diaz-Reyes’s motion to
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remand for the IJ to consider newly introduced evidence, because Diaz-Reyes
failed to show that the evidence was previously unavailable. See Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010) (BIA may deny a motion to reopen
where petitioner fails to “introduce previously unavailable, material evidence”);
see also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008) (“The
formal requirements for a motion to reopen and a motion to remand are the
same.”). We lack jurisdiction to consider Diaz-Reyes’s contentions as to why this
evidence was previously unavailable that were not raised to the BIA. See Barron
v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to
review claims not raised to the agency).
In her reply brief, Diaz-Reyes states that she suffers from post-traumatic
stress disorder, chronic depression, anxiety, and claustrophobia. On remand, the
agency should consider Diaz-Reyes’s competency and whether procedural
safeguards are necessary. See Mejia v. Sessions, 868 F.3d 1118, 1121-22 (9th Cir.
2017) (if a petitioner shows an indicia of incompetency, the agency must determine
whether the petitioner is competent and whether procedural safeguards are
necessary).
The government must bear the costs for this petition for review.
Diaz-Reyes’s removal is stayed pending a decision by the BIA.
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PETITION FOR REVIEW DENIED in part; GRANTED in part;
DISMISSED in part; REMANDED.
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