Cesar Alcaraz-Enriquez v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR ALCARAZ-ENRIQUEZ, No. 15-71553
Petitioner,
Agency No.
v. A075-191-250
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Remand from the United States Supreme Court
Filed September 16, 2021
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
and David C. Nye, * District Judge.
Opinion by Judge Bea
*
The Honorable David C. Nye, Chief United States District Judge
for the District of Idaho, sitting by designation.
2 ALCARAZ-ENRIQUEZ V. GARLAND
SUMMARY **
Immigration
On remand from the Supreme Court, the panel granted
in part and denied in part Cesar Alcaraz-Enriquez’s petition
for review of a decision of the Board of Immigration
Appeals, and remanded, concluding that: (1) in the absence
of an opportunity to cross-examine the author of a probation
report or the underlying declarant, the Board erred in relying
on the report to conclude that Alcaraz had been convicted of
a particularly serious crime; and (2) the Board did not err in
denying Alcaraz’s application for deferral of removal under
the Convention Against Torture.
The panel first addressed the Board’s determination that
Alcaraz’s conviction for inflicting corporal injury on a
cohabitant, in violation of California Penal Code § 273.5(a),
constituted a particularly serious crime rendering him
ineligible for withholding of removal. In concluding that he
had been convicted of a particularly serious crime, the
agency credited a probation report recounting only Alcaraz’s
girlfriend’s narrative of the domestic incident, over
Alcaraz’s testimony at his immigration hearing. The panel
previously granted Alcaraz’s petition on two bases: (1) that
the Board erred in not requiring the Department of
Homeland Security to make a good-faith effort to make
available for cross-examination the author of, and declarant
to, the probation report; and (2) that in the absence of any
express adverse credibility determination from the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALCARAZ-ENRIQUEZ V. GARLAND 3
immigration judge, the Board erred in not deeming true
Alcaraz’s testimony. In Garland v. Ming Dai, 141 S. Ct.
1669 (2021), the Supreme Court reversed the panel’s second
basis for granting the petition, vacated the panel’s entire
decision, and remanded for further proceedings.
Observing that the Supreme Court in Ming Dai did not
alter the law as it relates to the panel’s prior holding on cross-
examination, the panel re-affirmed its conclusion that the
Board erred in relying on the probation report without giving
Alcaraz any sort of opportunity to cross-examine the
witnesses whose testimony was embodied in that report, and
without the Department of Homeland Security making any
effort—good faith or not—to procure the witnesses after
Alcaraz preserved his right by adequate objection. The panel
concluded that this rendered the Board’s procedure
fundamentally unfair, especially given that probation reports
may not offer a highly reliable basis on which to make
important immigration decisions. The panel concluded that
this error caused Alcaraz prejudice because if the probation
report had been found to be unreliable on cross-examination,
it is possible that the IJ could have found, based on Alcaraz’s
version of events and the lack of an adverse credibility
finding, that his conviction was not for a particularly serious
crime. The panel remanded for a new hearing.
Noting that Ming Dai upended the panel’s second ground
for granting the petition and laid out the proper procedure on
petition for review when there is no explicit adverse
credibility determination, the panel concluded that it would
be futile to analyze this issue before a new hearing is held.
The panel explained that cross-examination of the author of
the probation report (or the declarant) could affect both the
IJ’s credibility determination as to Alcaraz and the Board’s
4 ALCARAZ-ENRIQUEZ V. GARLAND
decision to credit the probation report’s version of events
over Alcaraz’s.
The panel reaffirmed its prior holding denying Alcaraz’s
petition as to his application for deferral of removal under
CAT.
COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San
Francisco, California, for Petitioner.
John W. Blakeley, Assistant Director; Erica B. Miles and
Aimee J. Carmichael, Senior Litigation Counsel; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
BEA, Circuit Judge:
Petitioner Cesar Alcaraz-Enriquez (“Alcaraz”), a native
and citizen of Mexico, petitions for review of the order of
the Board of Immigration Appeals (“BIA”), which denied
his applications for withholding of removal and deferral of
removal under the Convention Against Torture (“CAT”).
We previously granted Alcaraz’s petition on two bases:
(1) that the BIA erred in not requiring the DHS to make a
good-faith effort to make available key government
witnesses for Alcaraz’s cross-examination; and (2) that the
BIA erred in not deeming true Alcaraz’s testimony before
the Immigration Judge (“IJ”) in light of the absence of any
ALCARAZ-ENRIQUEZ V. GARLAND 5
express adverse credibility determination from the IJ.
Alcaraz-Enriquez v. Sessions, 727 F. App’x 260, 261 (9th
Cir. 2018). However, the Supreme Court reversed our
judgment upon the second basis for granting the petition,
vacated all of our decision, and remanded for further
proceedings. Garland v. Ming Dai, 141 S. Ct. 1669 (2021). 1
On remand, we again grant Alcaraz’s petition for review
in part.
I
A
Alcaraz was born in Mexico in 1979 but entered the
United States illegally when he was eight years old. In July
1999, Alcaraz, who still lacked legal immigration status, was
involved in a domestic incident with his live-in girlfriend,
Esmeralda Alvarado, with whom Alcaraz had a child. This
altercation led to a nolo contendere California felony
conviction—but the facts of that altercation are subject to
two competing narratives.
A probation report, written by a probation officer (who
interviewed Alcaraz and Alvarado at the scene), recounted
Alvarado’s narrative. Under her version of events, Alcaraz
had locked her in the bedroom, threatened to kill her if she
tried to escape, punched and kicked her repeatedly, and
forced her to have sex with him.
Alcaraz admitted to punching his girlfriend once but
denied that it was “the way she describes.” According to his
1
The Supreme Court heard Garland v. Alcaraz-Enriquez alongside
Ming Dai and issued an opinion for both under the Ming Dai caption.
6 ALCARAZ-ENRIQUEZ V. GARLAND
version, relayed in his testimony before the IJ, Alcaraz
witnessed his girlfriend physically abusing their young
daughter, which led Alcaraz to punch his girlfriend in anger.
Alcaraz also denied the other allegations against him,
including the allegations that he locked her in her bedroom,
threatened her life, and forced her to have sex with him. The
probation officer interviewed Alcaraz multiple times, and
the probation report discusses Alcaraz’s contemporary
statements, but the probation report does not include
Alcaraz’s version of events as Alcaraz testified before the IJ.
As a result of the incident, Alcaraz was charged with
felony violations of California Penal Code (“CPC”)
§ 273.5(a) (willfully inflicting corporal injury on a spouse or
cohabitant), CPC § 236/237 (false imprisonment), and
California Health & Safety Code § 1377(A) (possession of
methamphetamine). He pleaded nolo contendere to all three
charges on September 29, 1999, and was convicted and
sentenced to two years in prison for each, to be served
concurrently. In 2001, Alcaraz finished his prison sentence
and was immediately transferred to immigration custody for
deportation, which was accomplished that same year.
In 2003, Alcaraz reentered the U.S. illegally. In 2007,
Alcaraz was arrested, detained, and prosecuted for illegal
reentry. Alcaraz was ultimately convicted of illegally re-
entering the United States and was again deported to
Mexico. In 2013, while in Mexico, Alcaraz was involved in
another physical altercation, this time with his neighbor.
Alcaraz was arrested and spent two days in jail. According
to Alcaraz, upon his release from jail, he returned to his
apartment where he had just fought with his neighbor to
collect his things, but the locks had changed. The police
soon arrived. Alcaraz claims that five policemen beat him
“all over” with “[t]heir clubs” for “about eight hours” before
ALCARAZ-ENRIQUEZ V. GARLAND 7
taking him to jail. Alcaraz subsequently pleaded guilty in
Mexico to assaulting his neighbor.
On December 23, 2013, Alcaraz was caught trying to
cross the border at the San Ysidro, California port of entry.
Immigration officials took him into custody and initiated the
instant removal proceedings.
B
On April 21, 2014, the Department of Homeland
Security (“DHS”) served Alcaraz with a Notice to Appear
and initiated removal proceedings against him. The DHS
filed a charge of inadmissibility against Alcaraz, claiming
that he is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II)
based on his controlled substance conviction for possession
of methamphetamine. Alcaraz conceded inadmissibility, but
applied for asylum, withholding of removal, and protection
under CAT. Alcaraz testified before the IJ, who did not
make an adverse credibility determination. During those
proceedings, Alcaraz objected to the introduction of the
probation report produced after his 1999 convictions
because the DHS did not make available “the person who
made both statements here for cross-examination, and it’s
like [a] triple hearsay document.” The IJ overruled that
objection, commenting that hearsay evidence is permitted in
immigration proceedings but not addressing whether the
author of the report or the underlying declarant (Alcaraz’s
ex-girlfriend) should or could have been made available for
cross-examination.
On December 5, 2014, the IJ issued a decision denying
Alcaraz relief. First, the IJ held that Alcaraz’s 1999
conviction for inflicting corporal injury on a cohabitant was
“an aggravated felony as defined under [Immigration and
8 ALCARAZ-ENRIQUEZ V. GARLAND
Nationality Act] Section 101(a)(43)(F),” thus making him
ineligible for asylum. Alcaraz does not appeal that finding.
Second, the IJ determined that the same 1999 conviction
for inflicting corporal injury on a cohabitant also constituted
a conviction for a “particularly serious crime” under
8 U.S.C. § 1231(b)(3), thereby making Alcaraz ineligible for
withholding of removal. In reaching this second finding, the
IJ relied on the probation report which recounts only the
girlfriend’s narrative of the 1999 domestic incident, and not
that of Alcaraz. The IJ, crediting the probation report over
Alcaraz’s testimony, found that “the facts and circumstances
surrounding the conviction involve the use of force and
violence.” The IJ thus found that Alcaraz “was convicted of
a particularly serious crime” and, for that reason, is
“ineligible for consideration of withholding of removal.”
Third, the IJ denied Alcaraz’s application for deferral of
removal under CAT, which required Alcaraz to establish
“more likely than not that he would be tortured if returned to
the country of removal.” Although the IJ found Alcaraz
“credible as far as testifying to the harm he suffered while in
the custody of the [Mexican] police,” the IJ determined that
Alcaraz had not proven that “the harm he suffered is
tantamount to torture,” nor that it is “more likely than not”
to recur if he returns. Alcaraz therefore failed to establish
his entitlement to CAT protection.
On appeal, the BIA adopted and affirmed the decision of
the IJ. 2 Notably, the BIA specifically mentioned that the IJ
“properly considered all evidence of record in assessing the
2
Where the BIA adopts and affirms an IJ’s decision with further
reasoning, this court reviews both the decision of the IJ and the BIA. See
Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).
ALCARAZ-ENRIQUEZ V. GARLAND 9
seriousness of [Alcaraz’s] conviction, including weighing
and comparing [his] testimony at the hearing and the
probation officer’s report issued during the time of his
conviction.” It further opined that “[i]n weighing the
evidence of record, the Immigration Judge was not required
to adopt the respondent’s version of events over other
plausible alternatives.” Thereafter, Alcaraz filed his petition
for review in this court.
In our now-vacated memorandum disposition, we
granted in part Alcaraz’s petition. We concluded that BIA
erred as to its finding that Alcaraz’s assault was a
“particularly serious crime” in two respects. First, we held
that the agency acted contrary to law—8 U.S.C.
§ 1229a(b)(4)(B)—by not requiring that the DHS make a
good faith effort to procure Alcaraz’s ex-girlfriend and the
author of the probation report for cross-examination, since
the government had proffered the evidence of the two
witnesses through its introduction of the probation report.
Second, we applied our decades-old rule that required us to
take a petitioner’s factual contentions as true unless the
agency made an explicit adverse credibility finding. We
said:
We have repeatedly held that where the BIA
does not make an explicit adverse credibility
finding, the court must assume that the
petitioner’s factual contentions are true.
Here, the BIA erred when it credited the
probation report over Alcaraz’s testimony
without making an explicit adverse
credibility finding as to Alcaraz.
10 ALCARAZ-ENRIQUEZ V. GARLAND
Alcaraz-Enriquez, 727 F. App’x at 261 (cleaned up).
However, we denied the petition for review regarding
Alcaraz’s CAT claim.
The Supreme Court granted certiorari. Barr v. Alcaraz-
Enriquez, 141 S. Ct. 222 (2020). The Court addressed only
the second basis on which we granted Alcaraz’s petition and
reversed our decision. Ming Dai, 141 S. Ct. at 1681. The
Court vacated all of our opinion and remanded the case for
further proceedings. Id. In so doing, the Court
acknowledged our first basis for granting the petition:
Separately, the Ninth Circuit held that the
BIA erred by failing to give Mr. Alcaraz-
Enriquez the opportunity to cross-examine
the witnesses whose testimony was embodied
in the probation report. . . . Remaining
disputes over the merits . . . can be addressed
on remand.
Id. at 1675 n.1.
II
Preliminarily, we observe that the Supreme Court in
Ming Dai did not alter the law as it relates to our holding as
to the cross-examination of declarants to the probation
report. However, because all of our prior opinion was
vacated, we must address again Alcaraz’s argument that he
was denied a fair hearing because the government proffered
the report even though Alcaraz was never given an
opportunity to cross-examine the report’s author or the
declarant, his former girlfriend. We reaffirm our prior
holding.
ALCARAZ-ENRIQUEZ V. GARLAND 11
We review the BIA’s conclusion, that Alcaraz’s
conviction constitutes a particularly serious crime, for abuse
of discretion. Avendano-Hernandez v. Lynch, 800 F.3d
1072, 1077 (9th Cir. 2015). “While we cannot reweigh
evidence to determine if the crime was indeed particularly
serious, we can determine whether the BIA applied the
correct legal standard.” Gomez-Sanchez v. Sessions,
892 F.3d 985, 990 (9th Cir. 2018) (cleaned up). Thus, we
must “ensur[e] that the agency relied on the ‘appropriate
factors’ and ‘proper evidence’ to reach [its] conclusion.”
Avendano-Hernandez, 800 F.3d at 1077 (alteration omitted)
(quoting Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir.
2010)).
We previously held in Anaya-Oritz that an IJ may
consider “all reliable information . . . in making a
particularly serious crime determination, including the
conviction records and sentencing information, as well as
other information outside the confines of a record of
conviction.” 594 F.3d at 678 (quoting Matter of N-A-M-,
24 I. & N. Dec. 336, 342 (BIA 2007)). This reliability
question is particularly important when the IJ is relying on a
probation officer’s impressions or summaries of witnesses.
As the Supreme Court has recognized, “consideration must
be given to the quality, as well as the quantity, of the
information” provided in presentence reports, given the
“manifest” “risk that some of the information accepted in
confidence may be erroneous, or may be misinterpreted[] by
the investigator.” Gardner v. Florida, 430 U.S. 349, 359
(1977); see also Dickson v. Ashcroft, 346 F.3d 44, 54 (2d
Cir. 2003) (“Because the factual narratives contained in the
[presentence report] are prepared by a probation officer on
the basis of interviews . . . they may well be inaccurate . . . .
Such a narrative is not a highly reliable basis for a decision
of such importance as deportation.”).
12 ALCARAZ-ENRIQUEZ V. GARLAND
Separately, we have recognized that the evidence
introduced into removal proceedings remains subject to
other statutory and constitutional limitations. For instance,
the admission of evidence must be “fundamentally fair.”
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009).
And because Congress has specifically provided that an alien
in removal proceedings must be given “a reasonable
opportunity . . . to cross-examine witnesses presented by the
Government,” 8 U.S.C. § 1229a(b)(4)(B), we have held that
the government deprives the alien of a fundamentally fair
hearing when it fails “to make a good faith effort to afford
the alien a reasonable opportunity to confront and to cross-
examine the witness against him.” Saidane v. INS, 129 F.3d
1063, 1066 (9th Cir. 1997); see also Cinapian, 567 F.3d at
1074. To make this good faith effort, the government may
not “effectively . . . shift the burden of producing its witness
onto [the alien.]’” Saidane, 129 F.3d at 1065 (quoting
Cunanan, 856 F.2d at 1375. This good faith requirement
typically requires the government to make some affirmative
effort to procure the live testimony of declarants. See, e.g.,
Saidane, 129 F.3d at 1065 (holding that the hearing was
fundamentally unfair because the INS “made no effort to call
an admittedly available witness and relied instead on that
witness’s damaging hearsay affidavit”).
These principles—reliable evidence and fundamental
fairness—converge when it comes to Alcaraz’s probation
report. Alcaraz was never given any sort of opportunity to
cross-examine the witnesses whose testimony was embodied
in the probation report, and upon whose testimony the BIA
ultimately relied in denying his appeal. Nor was any effort
made—good faith or not—by the DHS to procure the
witnesses, after Alcaraz preserved his right by adequate
objection. This rendered the BIA’s procedure fundamentally
unfair, especially given that probation reports may not offer
ALCARAZ-ENRIQUEZ V. GARLAND 13
a “highly reliable basis” on which to make important
immigration decisions. Dickson, 346 F.3d at 54. So in light
of the BIA’s failure to give Alcaraz an opportunity to
confront the witnesses against him, the BIA’s reliance on the
probation officer’s report was error.
This error was also prejudicial. “To warrant a new
hearing, the alien must also show prejudice, which means
that ‘the outcome of the proceeding may have been affected
by the alleged violation.’” Cinapian, 567 F.3d at 1074(quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000)). The BIA’s multifactored analysis for determining
whether a crime is “particularly serious” under 8 U.S.C.
§ 1231(b)(3)(B)(ii) invites the IJ to consider “the
circumstances and underlying facts of the conviction.”
Gomez-Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir.
2018) (quoting Matter of Frentescu, 18 I. & N. Dec. 244,
247 (BIA 1982)). “[T]he record in most proceedings will
have to be analyzed on a case-by-case basis.” Id. (quoting
Matter of Frentescu, 18 I. & N. Dec. at 247). Here, the IJ’s
determination that Alcaraz’s domestic assault was a
particularly serious crime relied in at least some measure on
the aggravating facts of the probation report. If the probation
report had been found to be unreliable on cross-examination,
it is possible that the IJ could have found, based on Alcaraz’s
version of events and the lack of an adverse credibility
finding, that his conviction was not for a particularly serious
crime, and that Alcaraz was not barred from seeking
withholding of removal.
Based on the BIA’s failure to require the DHS to make a
good faith effort to present the author of the probation report
or the declarant for Alcaraz’s cross-examination and the
prejudice generated therefrom, we grant in part Alcaraz’s
petition and remand for a hearing that comports with the
14 ALCARAZ-ENRIQUEZ V. GARLAND
requirements of § 1229a(b)(4)(B). 3 See Cinapian, 567 F.3d
at 1074 (“Remand is generally necessary when an alien is
prevented from reasonably presenting her case or when an
IJ’s actions prevent the introduction of significant
testimony.”). We express no opinion or finding as to whether
Alcaraz may be found to be entitled to withholding of
removal and make no determination as to the merits of
Alcaraz’s persecution claim.
III
In Ming Dai, the Supreme Court addressed the other
basis for which we previously granted Alcaraz’s petition. In
our now-vacated memorandum disposition, we held, based
on our long-extant rule, that the BIA erred when it credited
the probation report over Alcaraz’s testimony without
making an explicit adverse credibility finding as to Alcaraz.
Alcaraz-Enriquez, 727 F. App’x at 261. The Supreme Court
determined that our rule was not supported by the text of the
Immigration and Nationality Act (“INA”). Instead, the
Court laid out the proper procedure on petition for review
when there is no explicit adverse credibility determination:
The Ninth Circuit’s deemed-true-or-credible
rule cannot be reconciled with the INA’s
3
Alcaraz’s argument on appeal that the probation report was
unreliable because it was never authenticated is forfeited because he did
not raise that issue before the IJ. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004). Alcaraz’s argument that the agency erred by not
finding the probation report unreliable simply because it contains
hearsay is without merit. See Rojas-Garcia v. Ashcroft, 339 F.3d 814,
823 (9th Cir. 2003) (“[H]earsay is admissible in immigration
proceedings.”); Anaya-Ortiz, 594 F.3d at 677–78. On remand, the BIA
may also address potential forfeiture issues. See Ming Dai, 141 S. Ct.
at 1675 n.1.
ALCARAZ-ENRIQUEZ V. GARLAND 15
terms. Instead, immigration cases like these
should proceed as follows. First, the fact-
finder—here the IJ—makes findings of fact,
including determinations as to the credibility
of particular witness testimony. The BIA
then reviews those findings, applying a
presumption of credibility if the IJ did not
make an explicit adverse credibility
determination. Finally, the court of appeals
must accept the agency’s findings of fact as
“conclusive unless any reasonable
adjudicator would be compelled to conclude
to the contrary.”
Ming Dai, 141 S. Ct. at 1681.
The Supreme Court’s opinion in Ming Dai thus upends
our second ground for granting the petition for review. The
BIA did not err in failing to credit Alcaraz’s version of
events simply because the IJ made no explicit adverse
credibility determination.
Although the Supreme Court reversed our prior
disposition on this point and remanded, we need not engage
in further analysis on this point at this time. As previously
noted, we also granted Alcaraz’s petition on entirely separate
grounds: the agency’s failure to make a good faith effort to
procure the author of, and the declarant to, the probation
report for cross-examination. On remand, cross-
examination of the author of the probation report (or the
declarant) could affect both the IJ’s credibility determination
as to Alcaraz and the BIA’s decision to credit the probation
report’s version of events over Alcaraz’s. Therefore, it
would be futile for us to reexamine this issue on remand
before a new hearing is held.
16 ALCARAZ-ENRIQUEZ V. GARLAND
IV
We also reaffirm our prior holding, which denied
Alcaraz’s petition as to his application for deferral of
removal under CAT. As the IJ observed, although Alcaraz
“has shown that he had been subjected to past harm by the
police,” he failed to show that “the harm he suffered is
tantamount to torture.” See In re J-E-, 23 I. & N. Dec. 291,
298 (BIA 2002) (finding that because “the act must be
specifically intended to inflict severe physical or mental pain
or suffering,” certain “rough and deplorable treatment, such
as police brutality, does not amount to torture”). Alcaraz
failed to prove that the BIA’s finding that he suffered only
from police mistreatment, and not “torture,” was
unsupported by substantial evidence. The BIA did not err in
denying Alcaraz’s application for deferral of removal under
CAT, and we deny this portion of the petition for review.
V
The petition for review is GRANTED IN PART and
DENIED IN PART. The case is REMANDED for further
proceedings consistent with this opinion. The parties shall
bear their own costs on appeal.