Jose Manzanarez-Santos v. Jefferson Sessions

FILED
UNITED STATES COURT OF APPEALS
JAN 11 2018
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE MANZANAREZ-SANTOS, No. 15-70148
Petitioner, Agency No. A088-807-738
v.
ORDER
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
Before: WALLACE, TASHIMA, and WATFORD, Circuit Judges.
The respondent’s motion to amend is GRANTED. The memorandum
disposition filed on November 14, 2017, is amended as follows:
At page four, lines 2–3, change to .
Following amendment, the mandate shall issue forthwith.
FILED
NOT FOR PUBLICATION
JAN 11 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANZANAREZ-SANTOS, No. 15-70148
Petitioner, Agency No. A088-807-738
v.
AMENDED MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 12, 2017
San Francisco, California
Before: WALLACE, TASHIMA, and WATFORD, Circuit Judges.
1. The Board of Immigration Appeals (BIA) erred in denying Jose
Manzanarez-Santos’ application for cancellation of removal. An alien’s
acceptance of voluntary departure breaks his continuous physical presence only if
the decision to depart was knowing and voluntary. See Ibarra-Flores v. Gonzales,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 5
439 F.3d 614, 619 (9th Cir. 2006). Even if one refuses to credit Manzanarez-
Santos’ testimony that he was coerced into departing, as the BIA did, the record
nonetheless “must contain some evidence that the alien was informed of and
accepted” the terms of voluntary departure. Id. (emphasis in original) (citation
omitted). There is no such evidence in this case. Here, as in Ibarra-Flores, the
government was not able to produce a signed voluntary departure form. See id.
Nor is there any other evidence indicating that Manzanarez-Santos was advised of
the consequences of voluntary departure or that he accepted voluntary departure in
lieu of being placed in removal proceedings.
The government’s reliance on notations from the Utah state court’s record of
conviction is misplaced. At most, these bare notations are evidence that
Manzanarez-Santos knew he would be removed from the United States through
some unspecified process, and that he could not reenter unlawfully. But they are
not substantial evidence that Manzanarez-Santos was informed of and accepted
voluntary departure. Indeed, the notations make no reference to voluntary
departure at all.
Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012), on which the dissent relies,
is distinguishable. There, an alien was arrested for possessing a false identification
document when entering the United States. Id. at 1133. He was convicted in
Page 3 of 5
federal court and returned to Mexico. We held these proceedings broke the alien’s
continuous physical presence because the conviction “was a formal, documented
process that was the functional equivalent of an adjudication of inadmissibility.”
Id. at 1136 (internal quotation marks omitted).
While Manzanarez-Santos was subject to a formal proceeding in state court
before his return to Mexico, that proceeding was not “the functional equivalent of
an adjudication of inadmissibility.” Id. In Zarate, the court emphasized that the
defendant pleaded guilty to an offense that “directly relat[ed] to his attempted
reentry.” Id. at 1137. The resolution of the criminal charge effectively resolved
the question of admissibility as well. Not so here. The offense to which
Manzanarez-Santos pleaded guilty, making a false credit report, is unrelated to his
immigration status or the circumstances of his entry into the United States. And
even if the Utah court proceeding did purport to determine Manzanarez-Santos’
legal status, it could not constitute an adjudication of inadmissibility. Unlike in
Zarate, the proceeding here was before a state court, not a federal court. It is well
settled that state entities “enjoy no power with respect to the classification of
aliens.” Plyler v. Doe, 457 U.S. 202, 225 (1982). Accordingly, Ibarra-Flores, not
Zarate, guides this court’s analysis.
Page 4 of 5
Because it is undisputed that Manzanarez-Santos otherwise satisfies the
continuous physical presence requirement, we remand to the BIA with instructions
to remand to the immigration judge to determine whether Manzanarez-Santos
meets the remaining requirements to be eligible for cancellation of removal under 8
U.S.C. § 1229b(b).
2. Substantial evidence supports the BIA’s conclusion that a protected
ground is not one central reason for Manzanarez-Santos’ feared persecution. A
motive is a central reason if that reason, “standing alone,” would lead the
persecutor to harm the applicant. Parussimova v. Mukasey, 555 F.3d 734, 741 (9th
Cir. 2009). While the Los Zetas cartel targeted members of Manzanarez-Santos’
family in Mexico, the cartel’s central motive appears to have been desire for
money. Cartel members kidnapped Manzanarez-Santos’ aunt, apparently at
random, and demanded a ransom. And when the cartel members targeted other
members of the family, they continued to demand that the ransom be paid. Absent
this financial motive, there is no evidence that the cartel would have kidnapped and
killed members of Manzanarez-Santos’ family. Those financial motives do not
bear the requisite nexus to a protected ground. Zetino v. Holder, 622 F.3d 1007,
1015–16 (9th Cir. 2010).
Page 5 of 5
Since the BIA properly denied Manzanarez-Santos’ asylum application for
failure to establish nexus, we need not address whether the application was timely
filed.
3. The BIA denied Manzanarez-Santos’ application for withholding of
removal under the incorrect legal standard. Asylum applicants must demonstrate
that a protected ground is “one central reason” for their persecution, but applicants
for withholding of removal need only show that a protected ground is “a reason”
for their persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.
2017). The “a reason” standard is “less demanding.” Id. Because the BIA
erroneously considered Manzanarez-Santos’ withholding application under the
“one central reason” standard, we remand for reconsideration under the correct
standard.
PETITION GRANTED IN PART; DENIED IN PART; and
REMANDED.
FILED
Manzanarez-Santos v. Sessions, No. 15-70148
JAN 11 2018
WALLACE, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in parts 2 and 3 of the disposition but dissent from part 1.
To be eligible for cancellation of removal, an applicant must establish at
least ten years continuous physical presence in the United States immediately
preceding the date of application. 8 U.S.C. § 1229b(b)(1)(A). Our case law
provides several ways in which this period of continuous physical presence may be
interrupted, one of which is when the process culminating in an alien’s departure is
“sufficiently formal” to constitute a break in continuous physical presence. Zarate
v. Holder, 671 F.3d 1132, 1138 (9th Cir. 2012). Because I conclude that
Manzanarez-Santos’ conviction in state court and subsequent departure was a
sufficiently formal process to terminate his continuous physical presence, I
respectfully dissent from part 1 of the majority’s disposition.
My disagreement with the majority is, at root, a disagreement over the
proper frame of analysis. The majority treats this case as a “voluntary departure”
case controlled by our decision in Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th
Cir. 2008). In Ibarra-Flores, petitioner appealed from an immigration judge’s (IJ)
determination that he accepted “administrative voluntary departure” sufficient to
interrupt his continuous physical presence by signing an unidentified document.
We held this conclusion was not supported by substantial evidence because the
record contained no indication petitioner had “knowingly and voluntarily”
consented to the terms of a voluntary departure agreement. Id. at 620. We
remanded to the IJ with instructions to take additional evidence and testimony as to
whether petitioner knowingly and voluntarily consented to voluntary departure. Id.
The instant appeal is not an Ibarra-Flores type case. Instead, the issue
presented here is whether substantial evidence supports the Board of Immigration
Appeals’ (BIA) determination that the process leading to Manzanarez-Santos’
departure was sufficiently formal to break his continuous physical presence. That
makes this case more akin to Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012), than
to Ibarra-Flores. It is Zarate that should guide our analysis.
In Zarate, petitioner argued that the process culminating in his departure
from the United States was not the sort of formal, documented process that breaks
continuous physical presence. Id. at 1135. We disagreed. The petitioner in Zarate
had been arrested while attempting to reenter the United States and was convicted
in federal district court of possession of a false identification document. Id. at
1133. The petitioner’s sentence was conditioned, in part, on the expectation that
immigration authorities would “cause the defendant to leave” the country. Id.
Petitioner then served five days in jail, was returned to INS custody, and was then
transported back to the Mexican border and released. We held this sequence of
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events provided substantial evidence for the Board’s determination that petitioner’s
departure was “sufficiently formal” to constitute a break in his continuous physical
presence. Id. at 1138.
I would hold the same in this case. Here, Manzanarez-Santos (who was
represented by counsel) pleaded guilty in Utah state court to filing a false credit
report. Although the offense was not an immigration offense, Manzanarez-Santos’
immigration status was very much intertwined with his conviction and sentencing.
For example, Manzanarez-Santos stated he was aware at the time of his appearance
before the state judge that INS had an immigration detainer on him. In addition,
when the judge sentenced Manzanarez-Santos, he specifically took into account
Manzanarez-Santos’ anticipated removal by federal immigration authorities.
Furthermore, the conditions of Manzanarez-Santos’ probation provided that he was
“not [to] enter the United States without legal authorization.” Finally, after serving
his time in jail, Manzanarez-Santos was turned over to the INS, accepted voluntary
departure, and returned to Mexico. In my view, this sequence of events was
sufficiently formal to constitute a break in Manzanarez-Santos’ continuous
physical presence.
Viewing this case through the lens of Zarate renders beside the point the
majority’s conclusion that Manzanarez-Santos did not knowingly and voluntarily
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accept voluntary departure. Indeed, in Zarate we rejected this precise argument by
petitioner, explaining that the issue in the case was not whether petitioner departed
voluntarily but whether “the proceedings that did occur were sufficient to terminate
his continuous physical presence.” Zarate, 671 F.3d at 1137, n.5. Such is the case
here. The Board concluded that the sequence of events leading to
Manzanarez-Santos’ departure was “a sufficiently documented and formalized
process” that interrupted his continuous physical presence. The record does not
compel a contrary conclusion.
The majority argues that Zarate is inapposite because there we concluded
that petitioner’s conviction in federal court and subsequent departure was the
“functional equivalent of an adjudication of inadmissibility.” Id. at 1136 (internal
quotation marks omitted). It is true that an implicit finding of inadmissibility
formed part of our rationale in Zarate. But I do not read Zarate to require the
Board to make a finding of inadmissibility before concluding that a process
resulting in an alien’s departure was sufficiently formal to terminate continuous
physical presence. Nor did Zarate hold that only proceedings in federal court meet
the requisite level of formality. Instead, what Zarate requires is a holistic, context-
sensitive inquiry into the degree of formality of the process. Although an
adjudication of inadmissibility will certainly suggest sufficient formality, Zarate
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does not require it. Here, the process culminating in Manzanarez-Santos’
departure—which did not include an adjudication of inadmissibility but did include
a jail and probation sentence conditioned in part on Manzanarez-Santos’
immigration status—was “formal nonetheless,” Id. at 1136 (citation omitted), and
therefore sufficient to break his continuous physical presence.
To be sure, there are differences between Zarate and the instant case. For
one thing, the petitioner in Zarate was arrested while attempting to reenter the
United States without legal authorization, while here petitioner’s arrest and
conviction in state court did not stem directly from violation of the immigration
laws. For another, in Zarate, the evidence of record included a Record of
Deportable/Inadmissible Alien (Form I-213) stating that the petitioner falsely
claimed US citizenship, while here the record contains no such official
immigration documentation.
These differences, however, do not change my conclusion that
Manzanarez-Santos’ departure was “sufficiently formal to constitute a break in his
otherwise continuous physical presence.” Zarate, 671 F.3d at 1138 (alteration and
citation omitted). As we acknowledged in Zarate, the evidence required to show a
sufficiently formal departure “will vary from case to case.” Id. at 1135. Here,
Manzanarez-Santos returned to Mexico subsequent to a state court conviction and
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sentencing process that was intertwined with the issue of his immigration status.
On this record, I would hold the Board had substantial evidence to conclude
Manzanarez-Santos’ departure was sufficiently formal to break his continuous
physical presence. Therefore, I respectfully dissent from part 1 of the majority’s
disposition.
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