Gloria Recinos-Ulloa v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA ESTELA RECINOS-ULLOA; No. 19-72003
KEVIN ADONAY RIVERA-RECINOS,
Agency Nos. A208-566-896
Petitioners, A208-566-895
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 16, 2022
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,**
District Judge.
Gloria Recinos-Ulloa (“Recinos-Ulloa”) and Kevin Rivera-Recinos (“Rivera-
Recinos”) seek review of the Board of Immigration Appeals (“BIA”) decision
dismissing their appeal of the Immigration Judge’s (“IJ”) denial of protection under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we review both the BIA and IJ decisions under the substantial evidence
standard. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We review de novo
“issues of law regarding CAT claims,” see Garay Reyes v. Lynch, 842 F.3d 1125,
1140 (9th Cir. 2016), including claims that due process was violated, see Jiang v.
Holder, 754 F.3d 733, 738 (9th Cir. 2014).
Substantial evidence supports the agency’s conclusion that Recinos-Ulloa did
not present particularized evidence that, upon returning to El Salvador, she would
likely face torture, with the acquiescence or willful blindness of a public official.
Recinos-Ulloa has not suffered torture in the past in El Salvador, see Alcaraz-
Enriquez v. Garland, 13 F.4th 848, 857 (9th Cir. 2021), and she has failed to show
a sufficient likelihood of future torture with the acquiescence of public officials, see
Arrey v. Barr, 916 F.3d 1149, 1160 (9th Cir. 2019). The threats that police
apparently made to others are too attenuated and vague to clear the significant bar to
compel a contrary conclusion, and Recinos-Ulloa testified that she never contacted
government officials about the threats, due to her “distrust” of the
authorities. Evidence of general government ineffectiveness in preventing torture,
or evidence of general violence or crime in a petitioner’s country of origin, does not
show that the petitioner is likely to be tortured with the acquiescence of the
government. See B.R. v. Garland, 2022 WL 534349, at *12–14 (9th Cir. 2022).
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Rivera-Recinos is in a different position than his mother. Unlike his mother,
Rivera-Recinos testified that soldiers and, repeatedly, the police, beat him with
batons and guns, apparently on behalf of the gang. This gives him a stronger CAT
claim (i.e., because of the potential acquiescence of public officials). Yet Rivera-
Recinos did not file his own CAT application, believing instead that his claim would
be included as a derivative of his mother’s application. The IJ did not disabuse
Rivera-Recinos of this notion and then denied Recinos-Ulloa’s CAT application
without addressing Rivera-Recinos’s circumstances. The IJ never advised Rivera-
Recinos (or his mother) that there is no derivative CAT relief and that Rivera-
Recinos needed to submit his own application in order to properly apply for CAT
relief.
An IJ’s failure to advise an immigrant of “apparent eligibility” to apply for
relief is a due process violation. See United States v. Rojas-Pedroza, 716 F.3d 1253,
1263 (9th Cir. 2013); see also 8 C.F.R. § 1240.11(a)(2). The IJ’s obligation comes
into play only where the immigrant has “a ‘plausible ground’ for that potential
relief.” United States v. Vidal-Mendoza, 705 F.3d 1012, 1016 (9th Cir. 2013). This
was the case here, as Rivera-Recinos’s testimony established plausible grounds for
CAT relief. Cf. C.J.L.G. v. Barr, 923 F.3d 622, 628 (9th Cir. 2019) (en banc). The
IJ knew (or should have known) that Rivera-Recinos mistakenly believed he was
applying for the CAT relief for which he was plausibly eligible.
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Implicit in the IJ’s obligation to inform Rivera-Recinos of his “apparent
eligibility” was an obligation to inform him of the “requirements [he] must meet” to
properly avail himself of his apparent eligibility. Martinez-De Bojorquez v.
Ashcroft, 365 F.3d 800, 804 (9th Cir. 2004). An IJ violates an immigrant’s due
process right where the IJ informs the immigrant of his “apparent eligibility” in such
a way that the immigrant “never ha[s] a genuine opportunity to apply for” relief.
United States v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (en banc). The
IJ’s obligation to inform an immigrant of “apparent eligibility” exists regardless of
whether the immigrant is represented by counsel. Moran-Enriquez v. INS, 884 F.2d
420, 422–23 (9th Cir. 1989); see also Castillo-Manzanarez v. INS, 65 F.3d 793, 796
(9th Cir. 1995). Thus, the IJ erred in failing to inform Rivera-Recinos that there is
no derivative CAT relief and that he needed to submit his own application. For the
reasons explained above, we grant Rivera-Recinos’s petition and remand for a new
hearing. Cf. C.J.L.G., 923 F.3d at 628.
PETITION GRANTED as to RIVERA-RECINOS and DENIED as to
RECINOS-ULLOA.
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