Rafael Oliveira Vasconcelos v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL OLIVEIRA VASCONCELOS, No. 18-71574
20-70295
Petitioner,
Agency No. A093-138-181
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2022**
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,***
District Judge.
Petitioner Rafael Oliveira Vasconcelos (“Oliveira”) seeks review of two
decisions of the Board of Immigration Appeals (“BIA”). In Case No. 18-71574 (the
*
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).
***
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
“First Petition”), Petitioner contests the BIA’s denial of his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
In Case No. 20-70295 (the “Second Petition”), Petitioner challenges the BIA’s
denial of his motion to reopen proceedings in light of the Supreme Court’s decision
in Pereira v. Sessions, 138 S. Ct. 2105 (2018). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny both petitions for review.
I. The First Petition
Oliveira’s first petition arises from the BIA’s denial of asylum, withholding,
and CAT protection. Oliveira is a Brazilian citizen who overstayed his B-2 visitor
visa in 2001. In 2003, Oliveira agreed to become an informant for Immigration and
Customs Enforcement (“ICE”), and helped the agency investigate another Brazilian
immigrant known as “Salsicha” in exchange for a temporary work permit. When the
investigation was complete, ICE declined to renew Oliveira’s permit and placed him
into removal proceedings. Concerned that Salsicha would retaliate against him in
Brazil, Oliveira applied for asylum, withholding of removal, and CAT protections.
The BIA denied all three forms of relief.
To qualify for asylum, “the applicant must show that ‘(1) his treatment rises
to the level of persecution; (2) the persecution was on account of one or more
protected grounds; and (3) the persecution was committed by the government, or by
forces that the government was unable or unwilling to control.’” Plancarte Sauceda
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v. Garland, 23 F.4th 824, 832 (9th Cir. 2022) (quoting Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010)) (emphasis omitted); see 8 U.S.C. § 1101(a)(42)(A).
The applicant’s fear must be “subjectively genuine and objectively reasonable.”
Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007). Oliveira subjectively fears
that Salsicha has learned of his cooperation with ICE and would persecute him upon
his return to Brazil. This fear rests on two anonymous, threatening phone calls that
his family received eleven years ago. However, Oliveira offers no evidence that
these calls were from Salsicha or that Salsicha has become aware of his cooperation
with ICE. Additionally, he acknowledges that he never gave Salsicha his name, his
phone number, or any other identifying information. Accordingly, the BIA’s finding
that Oliveira’s fear was too speculative to sustain an asylum claim is supported by
substantial evidence. As Oliveira fails to meet the more lenient standard required to
sustain an asylum claim, he “necessarily fails to satisfy the more demanding standard
for withholding of removal.” Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020).
To qualify for relief under the Convention Against Torture, an applicant must
show that “it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir.
2004) (quoting 8 C.F.R. § 208.16(c)(2)); Khup v. Ashcroft, 376 F.3d 898, 907 (9th
Cir. 2004) (requiring 51% chance of torture). The applicant must demonstrate a
particularized and individualized likelihood of torture; “generalized evidence of
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violence and crime” will not suffice. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152
(9th Cir. 2010). Oliveira’s CAT claim is no less speculative than his asylum claim:
He asserts that Salsicha would torture him, and that this torture would occur with the
consent or acquiescence of the government. However, he fails to offer evidence that
Salsicha is aware of his work as an ICE informant, that Salsicha is connected to the
Brazilian government, or that government officials would otherwise acquiesce in his
torture. Accordingly, the BIA’s denial of Oliveira’s CAT claim is supported by
substantial evidence.
II. The Second Petition
Oliveira’s second petition arises from the BIA’s recent denial of his motion to
reopen proceedings in order to allow him to apply for cancellation of removal.
Motions to reopen are heavily disfavored, as “every delay works to the advantage of
the deportable [immigrant] who wishes merely to remain in the United States.” INS
v. Doherty, 502 U.S. 314, 323 (1992); accord INS v. Abudu, 485 U.S. 94, 108 (1988)
(emphasizing potential for an “endless delay of deportation” (quoting INS v. Jong
Ha Wang, 450 U.S. 139, 143 n.5 (1981)). “The BIA has broad discretion, conferred
by the Attorney General, ‘to grant or deny a motion to reopen.’” Kucana v. Holder,
558 U.S. 233, 250 (2010) (quoting 8 C.F.R. § 1003.2(a)). Accordingly, the denial of
a motion to reopen is reviewed for an abuse of discretion, Rubalcaba v. Garland,
998 F.3d 1031, 1035 (9th Cir. 2021), and may only be reversed if the Board acts
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“arbitrary, irrational, or contrary to the law” or if the BIA “fails to provide a reasoned
explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.
2014) (citation omitted).
Oliveira’s motion is predicated on the Supreme Court’s decision in Pereira v.
Sessions, which renders him eligible to seek cancellation of removal. 138 S. Ct. at
2110. In light of Pereira, Oliveira argues that the defects in his 2008 NTA deprive
the Immigration Court of jurisdiction over his removal proceedings altogether.
However, Pereira only addressed the effect of a defective NTA on the stop-time rule
and nowhere discussed the jurisdiction of the Immigration Court. Moreover, because
Oliveira was served a subsequent Notice of Hearing containing the requisite time
and date information following his defective NTA, this subsequent notice forecloses
any argument that the Immigration Court lacked jurisdiction over the proceedings.
See Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019).
Oliveira also contends that the BIA abused its discretion by finding that he
had failed to establish prima facie eligibility for cancellation of removal. The BIA
may deny a motion to reopen proceedings if “the movant has not established a prima
facie case for the underlying substantive relief sought.” Abudu, 485 U.S. at 104. A
prima facie case does not require “a conclusive showing . . . that eligibility for relief
has been established.” Tadevosyan v. Holder, 743 F.3d 1250, 1255 (9th Cir. 2014)
(quoting Matter of L-O-G-, 211 I. & N. Dec. 413, 418–19 (BIA 1996)). “A party
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demonstrates prima facie eligibility for relief ‘where the evidence reveals a
reasonable likelihood that the statutory requirements for relief have been satisfied.’”
Kaur v. Garland, 2 F.4th 823, 833 (9th Cir. 2021) (quoting Salim v. Lynch, 831 F.3d
1133, 1139 (9th Cir. 2016)).
An applicant for cancellation of removal must show that a qualifying relative
would suffer “exceptional and extremely unusual hardship” upon the applicant’s
removal. 8 U.S.C. § 1229b(b)(1)(D). Exceptional and extremely unusual hardship is
a “very demanding” standard, Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010),
requiring the petitioner to establish “evidence of harm . . . substantially beyond that
which ordinarily would be expected to result from [their] deportation.” Ramirez-
Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (quoting Matter of Monreal-
Aguinaga, 23 I. & N. Dec. 56, 56 (BIA 2001)). In support of his motion to reopen
proceedings, Oliveira stated that his wife suffers from “debilitating anxiety,” that
she was hospitalized following a severe anxiety attack after Oliveira met with ICE,
that she is taking anxiety medication, and that Oliveira helps with her medical needs.
Anxiety over a relative’s meeting with immigration officials is precisely the kind of
hardship “which ordinarily would be expected to result from . . . deportation.” Id.Accordingly, the BIA did not abuse its discretion by concluding that these
conditions, “[w]hile not insignificant . . . do not establish prima facie exceptional
and extremely unusual hardship.”
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In light of the foregoing analysis, the BIA did not err by failing to explicitly
address Oliveira’s requests for equitable tolling or sua sponte reopening. Although
the BIA abuses its discretion if it “fails to provide a reasoned explanation for its
actions,” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014), the BIA
concluded that Oliveira’s motion to reopen proceedings was likely to fail on the
merits even if the motion was timely, as he did not demonstrate prima facie eligibility
for cancellation of removal. Accordingly, equitable tolling or sua sponte reopening
would not impact the outcome of this case, and remand to the agency on the issue of
timeliness is inappropriate.
PETITIONS DENIED.
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