Julio Benedicto v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO ENRIQUE BENEDICTO, AKA No. 18-73237
Julio Enrique Garcia-Benedicto,
Petitioner, Agency No.
A021-389-277
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 13, 2021
Seattle, Washington
Filed September 9, 2021
Before: David M. Ebel, * Carlos T. Bea, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
*
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 BENEDICTO V. GARLAND
SUMMARY **
Immigration
Dismissing in part and denying in part Julio Enrique
Benedicto’s petition for review of a decision of the Board of
Immigration Appeals, the panel held that: 1) Benedicto, a
U.S. lawful permanent resident who had been found
mentally incompetent, received all possible safeguards in his
removal proceedings; 2) he failed to exhaust his claim
regarding the “particularly serious crime” determination;
and 3) the denial of deferral of removal under the
Convention Against Torture (CAT) was supported by
substantial evidence.
After finding Benedicto incompetent, an immigration
judge appointed a qualified representative (QR), denied
Benedicto’s motion to terminate, and found him removable
for an aggravated felony. The IJ also concluded that his
conviction was a particularly serious crime barring
withholding of removal under CAT and the Immigration and
Nationality Act, and denied deferral of removal under CAT.
The BIA dismissed Benedicto’s appeal, and amicus counsel
was appointed to support Benedicto before this court.
Amicus counsel argued both that the IJ should have
instituted additional safeguards to protect Benedicto’s due
process rights, and ultimately, given insufficient protections,
should have terminated proceedings. The panel concluded
it lacked jurisdiction to consider the unexhausted claim
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BENEDICTO V. GARLAND 3
regarding additional safeguards. The panel also concluded
that the IJ’s safeguards sufficed such that termination was
not required, explaining that the IJ: (1) appointed a QR,
(2) granted every continuance requested, (3) compelled
document productions from the Department of Homeland
Security, (4) ensured that Benedicto’s QRs were able to file
written pleadings and applications for relief, (5) personally
questioned Benedicto to further ensure a fulsome, developed
record, and (6) reviewed record evidence submitted to
support Benedicto’s claims for relief. Rejecting amicus
counsel contention that proceedings should have been
terminated because Benedicto was not able to obtain further
information that might have helped him, the panel explained
that the IJ’s safeguards enabled Benedicto to present
sufficient relevant information, and that the potential further
information that amicus counsel proposed did not meet the
narrow set of reasons for which an IJ may terminate under
8 C.F.R. § 1239.2(f).
Next, the panel concluded that it could not review amicus
counsel’s arguments regarding the particularly serious crime
determination because the QR did not challenge that
determination, which was the express reason the BIA relied
on in finding no basis to disturb it. Were it able to review
the unexhausted claim, the panel explained that amicus
counsel’s argument was that Benedicto’s counsel was
ineffective for failing to make specific arguments regarding
the IJ’s weighing of the facts. The panel explained that a
particularly serious crime determination is inherently
discretionary and that jurisdiction to review such
determinations exists only when the petitioner raises a
constitutional or legal question, not simply where he asks for
re-weighing of factors.
4 BENEDICTO V. GARLAND
The panel also rejected the contention that the IJ erred,
under Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir.
2018), by not referencing Benedicto’s mental illness in
making the particularly serious crime determination. The
panel explained that Gomez-Sanchez does not require the IJ
to always reference a petitioner’s mental health in this
context; rather, consideration of mental illness is required
only where the petitioner presents evidence directly
attributing the crime to his mental illness. As that was not
the case here, and the IJ did not explicitly exclude mental
health from her analysis, but instead considered all reliable
information, the panel was not convinced of any legal error.
Finally, the panel concluded that the evidence did not
compel reversal of the denial of deferral of removal under
CAT. Observing that the IJ and BIA agreed that Benedicto
would more likely than not be arrested after he is deported,
the panel explained that the record did not compel the
conclusion Benedicto is more likely than not to suffer
torture. As to police custody, the panel explained that the IJ
and the BIA reasonably concluded that, while police in the
Dominican Republic do injure detainees, the government
does not demonstrate intentional complicity and the record
does not compel the conclusion that any individual detainee
is more likely than not to be tortured. As to prison
conditions, the panel explained that the record demonstrated
the Dominican Republic’s substantive attempts at prison
reform, such that the record did not compel an inference of
torturous intent. The panel also rejected the contention that
the IJ failed to analyze Benedicto’s cumulative risk of
torture.
BENEDICTO V. GARLAND 5
COUNSEL
Grace Leeper (argued), Jenya Godina, and Andrew Hellman,
O’Melveny & Myers LLP, Washington, D.C.; Anton
Metlitsky, O’Melveny & Myers LLP, New York, New York;
Amicus Curiae Counsel on behalf of Petitioner.
Rachel L. Browning (argued), Trial Attorney; Keith I.
McManus, Assistant Director; Brian Boynton, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
VANDYKE, Circuit Judge:
INTRODUCTION
Julio Enrique Benedicto (Petitioner or Benedicto)
petitions for review of the Board of Immigration Appeals’
(BIA) dismissal of his due process claims, the denial of his
motion to terminate, and the denial of his application for
withholding or deferral of removal under the Convention
Against Torture (CAT). For the reasons stated below, we
dismiss Petitioner’s due process claims and deny his
petition.
BACKGROUND AND PROCEDURAL HISTORY
I. FACTS
Petitioner is a native and citizen of the Dominican
Republic who was admitted to the United States on a B-2
visitor visa when he was about 16 or 17 years old. He
6 BENEDICTO V. GARLAND
adjusted status to a lawful permanent resident on September
9, 1980, when he was 22 years old. While living in New
York, Benedicto was twice convicted for promoting
gambling in 1983 and 1984, and convicted for disorderly
conduct sometime around 1988. He testified that he used
heroin daily for about two years from 1989–1991. After he
moved to California, he was convicted of felony first degree
burglary in 1991 and of burglary again in 1992.
On November 5, 2003, Benedicto was convicted in
Washington State of two counts of domestic violence assault
in the second degree (receiving 57 months for each offense)
and one count of felony domestic violence harassment, for
which he was sentenced to incarceration for 43 months.
These sentences were to run concurrently with each other.
DHS charged him as removable for being convicted of an
aggravated felony for a term of imprisonment exceeding one
year.
II. PROCEDURAL HISTORY
Benedicto appeared for his first hearing in July 2016,
where the IJ found him incompetent and appointed him a
qualified representative (QR). At a subsequent hearing two
months later, Benedicto “act[ed] rather aggressively and
hostilely toward” his QR such that the court “proceed[ed]
without” Benedicto in that hearing, and granted the QR a
continuance. And in the next hearing in November 2016,
Benedicto again was not present due to “derogatory
language toward” the QR. At that point, his QR filed a
motion to terminate proceedings, arguing he could not
adequately represent Benedicto, which DHS opposed. The
IJ granted instead the QR’s motion to withdraw as counsel
at the next hearing because Benedicto punched the QR in the
face. But the IJ denied the motion to terminate and reset the
hearing “for another [QR] to see if that is possible and to see
BENEDICTO V. GARLAND 7
if perhaps [Benedicto] can be assisted with any type of
treatment or medical assistance.”
In the hearing in February 2017, a new QR appeared
telephonically and, although she had “review[ed] the entire
physical record,” she requested a continuance because in her
prior conversations with Benedicto he “indicate[d] that he
[would] … now sign” authorization so that the QR could
obtain further records. The continuance was granted. The
same QR appeared telephonically on March 9, 2017, while
Benedicto appeared in person and provided the court with
FOIA-requested results documenting his prior immigration
proceedings in California in 1994. The QR stated she now
intended to file a motion to terminate, because although she
“spoke[] to [Benedicto] on various occasions” and that “[i]t
seems that cooperation might be imminent,” he still refused
to authorize the QR to obtain documents on his behalf. The
IJ granted a further continuance.
On March 24, 2017, the IJ ordered DHS to produce
documents requested by Benedicto relating both to his
immigration status and prior proceedings and ordered the
QR to file written pleadings and applications for relief. DHS
made two document productions on March 27 and May 4 of
2017, and another prior to the merits hearing in August. In
May 2017, the QR requested a further continuance to
“explor[e] a possible readjustment if … [she could] locate
adult U.S. citizen children,” which the IJ granted. The QR
subsequently filed written pleadings contesting removability
and an application for asylum, withholding of removal, and
protection under CAT. In August 2017, the IJ took
testimony on Benedicto’s application for asylum-related
8 BENEDICTO V. GARLAND
relief. After further briefing, the IJ denied relief and ordered
Benedicto removed. 1
A. IJ Decision
i. Removability
The IJ determined that Benedicto was removable as an
alien who “has been convicted of an aggravated felony …, a
crime of violence, for which a term of imprisonment ordered
is at least one year.” The IJ determined that Benedicto’s
conviction for felony harassment–domestic violence was
divisible under the modified categorical approach and, based
on the record of conviction, concluded “that the record
necessarily establishes that [Benedicto] was … convicted”
under the portion of the statute that “requires a knowing
threat of intent to kill another person.” The IJ concluded this
conviction was “an aggravated felony crime of violence”
sufficient to sustain removal.
ii. Testimony
Benedicto testified that he was subject to an immigration
proceeding in California in 1994 and that the hearing
transcript should show the IJ acknowledged that he has
American citizenship “because of his father.” While the IJ
1
In September 2017, DHS added to the charges in the NTA,
claiming that other convictions in Benedicto’s record also demonstrated
removability under (1) INA § 237(a)(2)(A)(ii) for being convicted of two
or more crimes involving moral turpitude (CIMT), and (2) INA
§ 237(a)(2)(E)(i), as an alien who has been convicted of a crime of
domestic violence or child abuse. The IJ found Benedicto removable for
having been convicted of two or more CIMTs, but declined to find him
removable under INA § 237(a)(2)(E)(i). The BIA ultimately relied only
on DHS’s original removability charge for an aggravated felony crime
of violence.
BENEDICTO V. GARLAND 9
“acknowledged [Benedicto] was in immigration proceedings
in 1994 and his case was administratively closed pending
state prosecution,” she concluded that Benedicto “was
ineligible to derive citizenship from his father at the time
because [he] had already turned eighteen years old on May
25, 1976 prior to his father’s naturalization.”
Benedicto testified that he was afraid to return to the
Dominican Republic because “his cousin [Freddy Garcia]
has been running the government,” was “waiting for him,”
and would “kill him … in order to get all of the money” he
inherited from his mother.
When asked about the circumstances underlying his
felony domestic violence conviction, Benedicto testified he
“was defending himself from his ex-girlfriend and her son
who were jumping him,” and that they were working with
the Washington State police, who “followed him for three
years and tapped his phone.” Benedicto averred that he was
competent, had no mental health problems, and did not need
a lawyer.
iii. Competency
The IJ determined Benedicto was “not competent to
represent himself.” The IJ decided that she must “implement
appropriate safeguards to ensure that [his] rights are
protected,” and that she had “discretion to determine which
safeguards are appropriate.” The IJ catalogued that she had
granted all continuance requests from Benedicto’s QR “to
gather evidence and complete an application for relief,”
provided two explanations of Benedicto’s rights and the
charges in the Notice to Appear, “allowed counsel to appear
telephonically, [and] independently questioned” Benedicto
herself during the merits hearing. Notwithstanding these
numerous safeguards, Benedicto’s QR moved for
10 BENEDICTO V. GARLAND
termination because she felt Benedicto “was not afforded
due process.”
The IJ denied the QR’s request for termination because
she found that the court “implemented sufficient safeguards
to ensure [Benedicto] receive[d] a fundamentally fair
hearing.” The IJ noted she “can only terminate under a
limited set of circumstances …. [n]one of which apply here.”
The IJ found “the country conditions evidence … sufficient
for the Court to make a ruling on the merits” and determined
DHS “met its burden of proving [Benedicto] is removable.”
iv. Credibility
Acknowledging that credibility for individuals with
mental illness “should be addressed on a case-by-case
basis,” the IJ “accept[ed] [Benedicto’s] testimony as an
accurate depiction of his subjective understanding of his
fears of future harm in the Dominican Republic.” But
because some of his testimony may “be the result of
[Benedicto’s] mental health difficulties …. [t]he Court
look[ed] to the objective evidence in the record to determine
whether or not [Benedicto] … met his burden of proof for
relief.”
v. Withholding of Removal under INA and
CAT 2
The IJ observed that Benedicto would be ineligible for
withholding of removal under INA and CAT if the IJ
determined, in her discretion, that his aggravated felony
2
Because the IJ found Benedicto was convicted of an aggravated
felony, she determined he was statutorily ineligible to apply for either
cancellation of removal or asylum.
BENEDICTO V. GARLAND 11
qualified as a “particularly serious crime.” The IJ looked
first to the elements of the crime, which “demonstrate[d] the
serious nature of the offense.” The IJ then evaluated the
“circumstances and underlying facts,” which involved “all
reliable evidence in the record” including “the judgment of
conviction and sentence, second amended information,
certificate for determination of probable cause, and
Prosecuting Attorney Case Summary and Request for Bail
and/or Conditions of Release.” Testimony included in this
information demonstrated that Benedicto threatened his
partner with a handgun and “‘grabbed her by the shoulders
and threw her to the ground.’ When [the son] tried to
intervene to protect his mother, [Benedicto] struck him twice
in the head with the gun causing him to bleed from the head
and seek medical care.” This information combined with
“the severity of [Benedicto’s] sentence” led the IJ to
conclude that the conviction was for a particularly serious
crime and deny Benedicto’s application for withholding of
removal under INA and CAT.
vi. Deferral of Removal under CAT
The IJ “consider[ed] all evidence relevant to the
likelihood of future torture,” given that Benedicto “never
claimed he was harmed in the past in the Dominican
Republic.” The IJ considered Benedicto’s testimony that his
cousin, Freddy Garcia, was in charge of the Dominican
Republic and “wants to kill him.” Although the IJ did “not
dispute the sincerity and credibly [sic] of [Benedicto’s]
testimony, …. none of the evidence in the record supports
[Benedicto’s] belief[s].” The IJ observed the current
president of the Dominican Republic was Danilo Medina,
who was elected through a “generally free and orderly”
process and “there is no indication that an individual by the
12 BENEDICTO V. GARLAND
name of Freddy Garcia has the power … over the national
security forces to order such a targeted assassination.”
Evaluating torture by the police or prison system in the
Dominican Republic, the IJ agreed that, given his past
history, Benedicto was “more likely than not” to be arrested
by “law enforcement following … a crime.” But although
police in the Dominican Republic at times use tactics that
“would undoubtedly constitute torture,” the record did not
demonstrate the regularity of such tactics or that the tactics
target the mentally ill. Furthermore, “the Dominican
government is actively monitoring prisoner treatment and
responding to allegations of torture.” The IJ also observed
that the prison system did not “demonstrate … [a] specific
intent to constitute torture.” The prison system had not
worsened significantly, and it was “entirely possible that
given [Benedicto’s] mental illness, he would be placed in
one of the improved ‘model’ prisons, which … includ[e]
mental health treatment.”
The IJ concluded by noting it was not “more likely than
not” that Benedicto would be institutionalized at the only
mental health hospital in the country, both because he
“refuse[s] treatment” and because “[t]here is no evidence in
the record showing that law enforcement involuntarily
commit mentally ill individuals.” For all those “foregoing
reasons, the court [found] that [Benedicto] has not
established he will more likely than not be tortured in the
Dominican Republic with the consent … of the Dominican
government.”
B. BIA Decision
The BIA similarly denied the motion to terminate and
dismissed Benedicto’s appeal. Reviewing for clear error, the
BIA determined that despite Benedicto’s schizophrenia
BENEDICTO V. GARLAND 13
diagnosis, refusal to cooperate with his QRs, and disruptive
behavior in court, the IJ had provided sufficient safeguards
and, moreover, had “no inherent authority to terminate.”
The safeguards regarding “the issue of alienage were
sufficient” because the IJ “appoint[ed] a QR,” “requested
that the DHS submit evidence … relevant to [Benedicto’s]
status,” and received “no evidence to substantiate”
Benedicto’s citizenship claim. The safeguards provided
regarding removability ensured Benedicto through his QR
was able to deny the factual allegations and “fully brief the
legal issues.” The safeguards regarding the applications for
relief were also sufficient because the QR received
“liberal[]” continuances and submitted an application for
relief. The IJ personally asked Benedicto questions “during
the merits hearing,” “credited [his] subjective beliefs” about
persecution from his cousin, and compared it to the
“objective evidence of record.” Because additional facts
regarding Benedicto’s claims of future torture could “be
developed without the need for [Benedicto’s] testimony,”
the BIA concluded he “was afforded a fundamentally fair”
process.
On the merits, the BIA affirmed that Benedicto was
removable because his felony harassment–domestic
violence conviction constituted “an aggravated felony under
[INA] section 101(a)(43)(F).” The BIA observed Benedicto
did “not challenge” the IJ’s determination that Benedicto’s
aggravated felony constituted a particularly serious crime
barring him from withholding of removal and “therefore
[found] no basis to disturb it.”
The BIA concluded that Benedicto also failed to “set
forth a valid claim for deferral of removal under” CAT.
Agreeing that “it is more likely than not that [Benedicto] will
enter police custody” after he is returned to the Dominican
14 BENEDICTO V. GARLAND
Republic, the BIA observed that the instances of torture in
the record do not “establish that [Benedicto] is more likely
than not to be subjected to a torturous level of harm” while
in custody. Even if Benedicto was imprisoned in an
overcrowded prison, he did not “establish” that the
Dominican government had a “specific intent to torture
inmates” or those with mental illness. 3 The BIA dismissed
Benedicto’s appeal.
DISCUSSION
I. Benedicto Received Due Process.
Given Benedicto’s mental health issues, amicus counsel
was appointed to support him in his proceedings before this
court. Benedicto’s amicus counsel alleges that the IJ failed
to provide adequate safeguards to ensure due process after
deeming Benedicto not competent to represent himself. This
court reviews due process allegations de novo, Cinapian v.
Holder, 567 F.3d 1067, 1073 (9th Cir. 2009), the “critical
question [being] ‘[w]hether the IJ’s actions prevented the
introduction of significant testimony.’” Oshodi v. Holder,
729 F.3d 883, 890 (9th Cir. 2013) (citation omitted). This
court must determine whether, after the IJ’s mental
incompetency finding, Benedicto received adequate
“safeguards to protect [his] rights and privileges” during the
proceedings, such that he could “have a reasonable
opportunity to examine the evidence” and “to present
evidence on [his] own behalf.” 8 U.S.C. § 1229a(b)(3), (4);
see also Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA
3
The BIA agreed with the IJ that “there is insufficient evidence”
that a man named Freddy Garcia would harm Benedicto or that
Benedicto would “either voluntarily seek treatment or be involuntarily
committed to a mental health facility.”
BENEDICTO V. GARLAND 15
2011). “[T]he ultimate determination of which safeguards
to implement and whether they are adequate to ensure the
fairness of proceedings is discretionary.” Matter of M-J-K-,
26 I. & N. Dec. 773, 776 (BIA 2016).
Amicus counsel argues both that the IJ should have
instituted additional safeguards, and ultimately, given the
insufficient protections, should have terminated
proceedings. This court lacks jurisdiction to consider the
unexhausted claim that additional safeguards would have
enhanced Benedicto’s proceedings. 4 Given the record in this
case, the IJ’s safeguards sufficed to provide Benedicto with
due process such that termination was not required.
A. The IJ Provided Sufficient Safeguards.
The IJ instituted numerous safeguards to accommodate
Benedicto’s mental illness and Benedicto’s proceedings
were not “so fundamentally unfair that [he was] prevented
from reasonably presenting [his] case.” Grigoryan v. Barr,
959 F.3d 1233, 1240 (9th Cir. 2020). The IJ implemented
several procedural safeguards: she (1) appointed a QR, (2)
granted every continuance requested, (3) compelled
document productions from DHS, (4) ensured that
Benedicto’s QRs were able to file written pleadings and
applications for relief, (5) personally questioned Benedicto
to further ensure a fulsome, developed record, and
4
Although amicus counsel argues that the IJ should have explored
further safeguards, these claims were not raised to the BIA. Rather,
Benedicto’s QR before the BIA explicitly argued that “the IJ exhausted
all possible safeguards.” We lack jurisdiction to consider claims that
were never raised to the agency. See Arsdi v. Holder, 659 F.3d 925,
928−29 (9th Cir. 2011).
16 BENEDICTO V. GARLAND
(6) reviewed record evidence submitted to support
Benedicto’s claims for relief.
Benedicto’s amicus counsel counters that because during
the immigration proceedings Benedicto did not retrieve
further information from a newly-discovered A-file, and
because his QR did not locate alleged family members who
may have supported his claims of alleged persecution in the
Dominican Republic or filed an I-130 petition on his behalf,
the IJ should have terminated Benedicto’s proceedings. But
the procedural safeguards discussed above enabled
Benedicto and his QRs to present “sufficient relevant
information” supporting his claims for relief and challenge
his removability. Matter of M-J-K-, 26 I. & N. Dec. at 776.
The avenues of potential further information that amicus
counsel proposes do not meet the narrow set of reasons for
which an IJ may terminate proceedings. See 8 C.F.R.
§ 1239.2(f).
i. Alienage Claims
Benedicto provided the court information obtained
through a FOIA request that listed a different A-number
attached to his name than the one under which this current
immigration case was proceeding. Amicus counsel argues
that because Benedicto would not authorize his QR to
“obtain further documents,” continuing without the potential
information obtainable under that second A-file number
violated due process because “the IJ lacked sufficient
reliable information as to [his] citizenship” status. But based
on the record, amicus counsel cannot articulate any possible
way that Benedicto could have derived citizenship and thus
cannot allege a due process violation on these grounds.
Benedicto consistently claims that, as a consequence of
his father’s citizenship, he obtained citizenship in an
BENEDICTO V. GARLAND 17
immigration hearing that occurred after he was arrested in
California in 1994. Benedicto provided a July 15, 1994
immigration court order to the IJ, which noted the
proceeding concluded due to “Administrative Closing–
Other:” “pending state prosecution.” 5 Amicus counsel
argues that this information could demonstrate that
Benedicto did receive citizenship, as “DHS apparently did
not reinstate removal proceedings after [Benedicto] was
released from state custody in the 1990s.”
But Benedicto’s testimony and other record evidence
flatly contradict this argument. Benedicto’s father
naturalized on March 8, 1977, when Benedicto was already
eighteen years old, and Benedicto did not acquire lawful
permanent resident status until he was twenty-one years old.
Under the law at the time, he could not have derived
citizenship at the time of his father’s naturalization. See 8
U.S.C. § 1432(a) (repealed 2000)). Amicus counsel
provides no response to this legal reality, and simply
steadfastly argues that the records are “incomplete.” This
reply does not provide any viable way that more
documentary information could have justified Benedicto’s
citizenship claims.
The IJ’s decision to continue with Benedicto’s hearing
despite a lack of further information from this new A-
number did not deny Benedicto due process as both
Benedicto’s QR conceded and the IJ confirmed that
Benedicto “would not have been eligible to derive … any
citizenship” through his father in 1994. “Because none of
the grounds [Benedicto] raises would have been a proper
5
The “state prosecution” presumably referenced the conclusion of
the state criminal proceedings following Benedicto’s felony theft charge
in Los Angeles.
18 BENEDICTO V. GARLAND
basis for relief …, he suffered no prejudice by being denied
access to [documents that] could adjudicate facts that might
support these claims.” Morales-Izquierdo v. Gonzales, 486
F.3d 484, 496 (9th Cir. 2007) (en banc).
ii. Fear of Persecution
Amicus counsel posits that, were Benedicto’s QR able to
have more substantive conversations with Benedicto, his
family, or his friends, then the QR might have been able to
present a viable claim of past or future persecution in the
Dominican Republic. But the IJ implemented sufficient
safeguards to ensure Benedicto had an opportunity to proffer
testimony and the lack of participation from supportive
family or friends does not demonstrate he was denied due
process. 6
The IJ “appl[ied] the safeguard of legal representation,”
and even though Benedicto told his QR very little, “even
without assistance from the respondent,
counsel … provide[d] relevant objective documentation,
such as background or country conditions evidence, to assist
in adjudicating an application for relief.” Matter of M-J-K-,
26 I. & N. Dec. at 777. 7 While the continuances did not
produce family members willing to testify on Benedicto’s
behalf, that is not a requirement for due process. The IJ did
not “refus[e] to permit family members to develop the
record,” Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th
It is worth noting Benedicto’s claims of persecution have changed.
6
When interviewed at the beginning of his 2016 removal proceedings, he
“expressed no fear if he is returned to his country of citizenship.”
7
Amicus counsel’s contention that the IJ’s continuances “did
nothing to help develop the record,” is demonstrably incorrect as it
allowed counsel to file briefs alleging eligibility for relief.
BENEDICTO V. GARLAND 19
Cir. 2005) (emphasis added), there simply were none that
Benedicto or his QR could identify to either counsel or the
IJ. 8 In such situations, when family of the petitioner “cannot
reasonably be found or fails or refuses to appear, the
custodian of the respondent shall be requested to appear on
behalf of the respondent.” Wong v. INS, 550 F.2d 521, 523
(9th Cir. 1977) (citation omitted). Here, “[t]hroughout the
hearing before the immigration judge petitioner was
… accompanied by … his counsel,” id., who provided
fulsome written support for his claims for relief.
Given the difficulties in the relationship between
Benedicto and his QR, the IJ determined that she would
directly question Benedicto to “seek[] to have an informal
dialogue with [Benedicto] through which the court can build
rapport with [Benedicto] as well as gather additional
information about” his claims of persecution. This direct
questioning, rather than fail to “adduce meaningful
testimony,” went on for pages of transcript, and culminated
in the IJ’s conclusion that Benedicto’s testimony was
consistent with his letters and other written statements and
was “an accurate depiction of his subjective understanding
of his fears of future harm in the Dominican Republic.” The
IJ did not make an adverse credibility finding, but rather
compared Benedicto’s testimony with the facts in the record
and was unable to find factual support for his subjective
beliefs. Given that the IJ “aid[ed] in the development of the
8
Whether Benedicto actually has any children remains a mystery.
In 1991 he told his probation officer he had no children from his previous
marriage in 1988 and no children from his then-current year and a half
relationship. In 1992 he claimed he did have children from his 1988
marriage but did not know where they lived—he “believe[d] [his ex-
wife] is living in Miami, Florida.” At the beginning of these proceedings
in 2016, he stated he had no children.
20 BENEDICTO V. GARLAND
record,” and ensured Benedicto had “a reasonable
opportunity to … present evidence” and “consult with the
attorney,” the IJ provided sufficient safeguards to allow
Benedicto to present his case and did not violate due process.
See Matter of M-A-M-, 25 I. & N. Dec. at 479, 482.
Amicus counsel’s speculation that more testimony from
Benedicto or from family members could have provided
more insight into his claims of persecution is not enough to
establish “plausible scenarios in which the outcome of the
proceedings would have been different if a more elaborate
process were provided.” Tamayo-Tamayo v. Holder, 725
F.3d 950, 954 (9th Cir. 2013) (citation omitted). There was
no due process violation arising from the lack of additional
testimony during Benedicto’s merits hearing.
iii. A Meaningful Opportunity to Adjust Status
Amicus counsel contends lastly that the IJ should have
terminated proceedings because Benedicto may have been
eligible to adjust status under INA § 212(h) or through an I-
130 petition filed by his U.S.-citizen son (if he has a U.S.
citizen son). But all the caselaw cited by amicus counsel
contemplates a “pending” adjustment application. See
Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011)
(addressing a pending visa petition); Kalilu v. Mukasey, 548
F.3d 1215, 1218 (9th Cir. 2008) (addressing a pending I-130
petition). At the time of Benedicto’s hearing, there was no
evidence of a pending 212(h) or I-130 petition and amicus
counsel could only hypothesize that, even if family exists
and could be found, that they would be willing to help
Benedicto (despite his violent temperament, criminal
background, and apparent lack of a current relationship with
them).
BENEDICTO V. GARLAND 21
But given that “[t]he [IJ] should not grant a
continuance,” much less terminate proceedings, “merely
because the respondent expresses the intention to file for
collateral relief at some future date,” the IJ did not err in
declining to terminate proceedings. Matter of L-A-B-R-, 27
I. & N. Dec. 405, 415–16 (A.G. 2018) (emphasis added); see
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.
2008) (per curiam). Amicus counsel again does not present
a “plausible scenario” in which Benedicto would be granted
relief if the IJ chose to terminate proceedings. Morales-
Izquierdo, 486 F.3d at 495.
iv. Termination Was Not Required
Because Benedicto received due process through the IJ’s
safeguards in his removal proceedings, there was no need for
the IJ to terminate proceedings. A QR provided
“background or country conditions evidence, to assist in
adjudicating an application for relief,” and the IJ facilitated
an opportunity for Benedicto to present his own testimony.
Matter of M-J-K-, 26 I. & N. Dec. at 777. Ultimately,
termination is appropriate only where “the alien has
established prima facie eligibility for naturalization and the
matter involves exceptionally appealing or humanitarian
factors; in every other case, the removal hearing shall be
completed as promptly as possible.” 8 C.F.R. § 1239.2(f).
In a case like Benedicto’s, “Immigration Judges should be
particularly reluctant to terminate proceedings where, as
here, the alien has a history of serious criminal conduct and
may pose a danger to himself or others upon his release into
the community.” Matter of M-J-K-, 26 I. & N. Dec. at 777
n.4. Termination was thus not warranted or appropriate in
Benedicto’s case.
Furthermore, amicus counsel’s arguments implicitly boil
down to a singular theme. Amicus counsel’s position would
22 BENEDICTO V. GARLAND
require that when a mentally ill petitioner makes a statement,
regardless of its plausibility, the IJ must require that any
reasonable argument or possible facts tangentially related to
that claim be entirely investigated with cooperation of the
petitioner, or else proceedings must be terminated. But even
when presented with a mentally ill petitioner, IJs confronted
with fantastic testimony should not have to prove a
negative—which would often be impossible to do—to avoid
terminating proceedings. Instead of forcing QRs to go down
every conceivable rabbit hole related to a mentally ill
petitioner’s musings, no matter how implausible or
unsupported by any other evidence, IJs should do just what
the IJ did here: obtain available evidence from government
records, appoint a QR, and evaluate the arguments and
statements made against objective evidence. To demand
otherwise would force IJs to operate inherently on
speculation—as demonstrated by amicus counsel’s
arguments that rely heavily on speculation about
Benedicto’s family and childhood. 9 Here, the IJ provided all
safeguards necessary to ensure Benedicto due process.
II. Amicus Counsel’s Fact-Based Disagreements with
the IJ’s Discretionary “Particularly Serious Crime”
Determination are Unexhausted and Unreviewable.
A. Unexhausted
At the outset, this court may not review amicus counsel’s
arguments regarding the IJ’s “particularly serious crime”
decision because, before the BIA, appointed counsel did “not
9
A rule requiring the IJ to terminate proceedings whenever the
petitioner is uncooperative would also create perverse incentives.
Petitioners should not be encouraged to obstruct the efforts of their QR
in the hopes of terminating the entire proceeding.
BENEDICTO V. GARLAND 23
challenge this aspect of the Immigration Judge’s decision,”
which is the express reason the BIA relied on in finding “no
basis to disturb it.” While amicus counsel contends this was
ineffective assistance from prior counsel, “[c]ounsel should
not expect to resurrect hopelessly neglected points before
this court by claiming that they involved due process and
thus could not have been considered by the BIA.” Liu v.
Waters, 55 F.3d 421, 426 (9th Cir. 1995); see Tall v.
Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008) (due process
claims “that can be remedied by the BIA are not exempted
from the exhaustion requirement”).
The proper way to raise and exhaust an ineffective
assistance of counsel claim in this situation is through a
motion to reopen before the agency. Amicus counsel
acknowledges this but claims “a motion to reopen is not a
realistically available remedy.” But amicus counsel is not
prevented from filing a motion to reopen with the agency on
Benedicto’s behalf, and this court simply does not have
jurisdiction to review claims not raised to the BIA. Ortiz v.
INS, 179 F.3d 1148, 1152 (9th Cir. 1999) (“Because the
Ortizes did not raise the issue … before the BIA, we lack
jurisdiction to consider that claim. The Ortizes are free,
however, to raise this issue before the BIA in the form of a
motion to reopen.”) (citation omitted); cf. Bare v. Barr, 975
F.3d 952, 961 (9th Cir. 2020) (reviewing an unraised claim
only where the “BIA was sufficiently on notice” to pass on
the argument and the BIA chose not to do so).
B. Unreviewable
Were the panel able to review the unexhausted claim, the
crux of amicus counsel’s argument is that Benedicto’s
counsel was ineffective for failing to make specific
arguments regarding the IJ’s weighing of the facts in her
“particularly serious crime” determination. But this court
24 BENEDICTO V. GARLAND
has “decided that a ‘particularly serious crime’
determination is inherently discretionary.” Pechenkov v.
Holder, 705 F.3d 444, 448 (9th Cir. 2012). Jurisdiction to
review such determinations only exists in a very narrow
circumstance: when the petitioner raises “a constitutional or
legal question,” not simply where “he asks for a re-weighing
of the factors.” Id.Amicus counsel contends that the IJ legally erred in
making her “particularly serious crime” determination
without referencing Benedicto’s mental illness, because “the
IJ must consider ‘all reliable, relevant
information … including the defendant’s mental condition
at the time of the crime.’” (quoting Gomez-Sanchez v.
Sessions, 892 F.3d 985, 996 (9th Cir. 2018)). But this
argument extends Gomez-Sanchez beyond its context—the
IJ here did not legally err by focusing on the record evidence
in making her “particularly serious crime” determination.
Amicus counsel ask us to extend Gomez-Sanchez beyond
the bounds our court has established. Gomez-Sanchez did
not impose a new standard that the IJ must always reference
a petitioner’s mental health in a “particularly serious crime”
determination. Rather, as our court has previously
explained, albeit in an unpublished decision, the
consideration of mental illness anticipated by Gomez-
Sanchez is required only where the “[p]etitioner
… present[s] … evidence directly attributing the [crime] to
his” mental illness. Galeana v. Rosen, 833 F. App’x 136,
137 (9th Cir. 2021). Here, neither Benedicto nor his QR
attributed his domestic violence felony to his mental illness.
Because the IJ provided competent counsel and the
opportunity for Benedicto to testify freely, she “need not
… guid[e] [the petitioner] in making [his] case” by
prompting the petitioner or his QR to attribute his crime to
BENEDICTO V. GARLAND 25
his mental illness. Hussain v. Rosen, 985 F.3d 634, 644 (9th
Cir. 2021). Even if Benedicto’s mental illness contributed
to his years-prior crime, neither he nor his QR raised the
issue for the IJ, and this court does not have jurisdiction to
raise and review the argument on appeal. 10
While the IJ and BIA cannot “categorically bar[]”
consideration of “relevant, reliable evidence of mental
health” at the time of the crime, Gomez-Sanchez, 892 F.3d
at 995, the IJ here did not explicitly exclude Benedicto’s
mental health from her analysis of his felony domestic
violence crime, but instead “consider[ed] ‘all reliable
information.’” The IJ highlighted the documents in
Benedicto’s “record of conviction” and reviewed related
record evidence. Nothing in those documents indicated that
Benedicto was suffering from mental illness at the time of
his crime. Ultimately, amicus counsel has not convinced us
that its arguments present a claim of legal error, and this
court does not have jurisdiction over any claimed abuse-of-
discretion. Pechenkov, 705 F.3d at 448–49 (explaining that
“[8 U.S.C.] § 1252(a)(2)(D) cannot restore jurisdiction to
review a ‘particularly serious crime’ determination where”
the challenge is that the agency “incorrectly assessed the
facts”).
10
Even if the IJ had erred and Benedicto’s crime was not particularly
serious, he still could not demonstrate any prejudice from the IJ’s error,
because any withholding of removal claim would be destined to fail for
the same reason his CAT deferral claim fails. As with the discussion
below observing that the record does not quantify Benedicto’s risk of
torture, he does not demonstrate he has a risk of targeted persecution—
he can point only to examples of persecution in various reports in the
record and claim similar persecution could happen to him, with no
individualized assessment of his risk.
26 BENEDICTO V. GARLAND
III. The Evidence Does Not Compel Reversal of the
BIA’s Denial of Deferral of Removal under CAT.
This court reviews for substantial evidence the BIA’s
denial of deferral of removal upon its determination that a
petitioner failed to demonstrate that he is more likely than
not to face torture upon removal. Lemus-Galvan v. Mukasey,
518 F.3d 1081, 1084 (9th Cir. 2008), overruled on other
grounds by Maldonado v. Lynch, 786 F.3d 1155 (9th Cir.
2015). This analysis “requires a two part analysis—first, is
it more likely than not that the alien will be tortured upon
return to his homeland; and second, is there sufficient state
action involved in that torture.” Garcia-Milian v. Holder,
755 F.3d 1026, 1033 (9th Cir. 2014) (internal quotation
marks omitted). Amicus counsel argues that the IJ “erred in
entirely discounting Mr. Benedicto’s testimony” when
evaluating his claim for deferral of removal under CAT 11
and claims the record compels the conclusion that the
Dominican Republic’s government neglects oversight of its
police and prisons to such an extent that it constitutes
intentional torture. A review of the record demonstrates that
documented improvements in the Dominican Republic’s
police and prison operations do not compel the inference that
the government would intentionally torture Benedicto were
he to be arrested after removal.
The IJ did not “entirely discount” Benedicto’s testimony detailing
11
his fear of future torture if he were removed. The IJ expressly did “not
dispute the sincerity and credibly of [Benedicto’s] testimony; the [IJ]
note[d] the difficulty of determining what portions of [Benedicto’s]
testimony are literally true” and thus compared Benedicto’s subjective
and frankly often-implausible testimony to the country evidence in the
record.
BENEDICTO V. GARLAND 27
A. Police Custody
Amicus counsel contends that Benedicto will more likely
than not be arrested due to his mental illness and criminal
proclivities and then be tortured by Dominican police.
While both the IJ and BIA agree that Benedicto would more
likely than not be arrested after he is deported, the record
does not compel the conclusion Benedicto is more likely
than not to suffer torture at the hands of Dominican police.
This court previously determined that “generalized evidence
of violence and crime” in a country that “is not particular to
[the] Petitioner[ ] . . . is insufficient to meet th[e] standard”
for deferral of removal under CAT. Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Instead,
petitioners “must show that severe pain or suffering was
specifically intended,” Villegas v. Mukasey, 523 F.3d 984,
989 (9th Cir. 2008), which can be inferred from the
“government’s complicity in creating those conditions.”
Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012).
Here, the record excerpts that the BIA cited demonstrate
that the Dominican Republic’s government is addressing,
with varied success, torturous police practices. The
Amnesty International report in the record documents that
“[s]ignificant progress has been made in bringing to justice
police officers responsible for human rights violations,
especially since the abolition of separate police and military
courts.” The Department of State country report observed
that the Dominican “[a]uthorities fired or prosecuted police
officers found to have acted outside of established police
procedures,” and “[i]n July [2016] the government approved
a police reform law to curb corruption, improve training, and
increase transparency.” The IJ and the BIA reasonably
concluded based on this information that, while police in the
Dominican Republic can and do injure detainees, the
28 BENEDICTO V. GARLAND
government does not demonstrate intentional complicity
with those injuries, nor does the record compel the
conclusion that any individual detainee is more likely than
not to be tortured. Cf. Ridore, 696 F.3d at 917.
B. Prison Conditions
Amicus counsel contends that once Benedicto is arrested
and imprisoned, he will more likely than not be tortured with
the consent of the government due to the poor conditions in
Dominican Republic prisons. But again, this court is “not
compelled to reverse the underlying factual findings because
we found nothing in the record that indicated specific intent
where there was also evidence of the [Dominican]
government’s desire to improve conditions.” Guerra v.
Barr, 974 F.3d 909, 914–15 (9th Cir. 2020). 12
The prison conditions in the Dominican Republic range
from “from compliance with international standards in
‘model’ prisons or correctional rehabilitation centers
(CRCs), to harsh[er] … ‘traditional’ prisons.” This
decreases the likelihood by some unquantified amount that
12
Amicus counsel points to the BIA’s affirmation of the IJ’s prison
analysis, arguing that the IJ cited to improvements in police detainee
practices and that the BIA using that citation in its discussion of prison
conditions is a mistake constituting legal error. Amicus counsel’s
selective citation misses that the section of the report the IJ referenced
discusses “law[s] prohibiting torture … of detainees and prisoners.”
And while the sentences prior to the statement that “[t]he Attorney
General’s Office … did not receive any formal complaints of torture
during the year” discuss detainees, the next sentence observes the
“Attorney General’s Office officially instructed local prosecutors to
monitor prisoner treatment and allegations of torture,” implying that the
formal complaints could come from detainees or prisoners. The BIA did
not legally err in referencing this section of the country report, which,
viewed in context, applied to both detainees and prisoners.
BENEDICTO V. GARLAND 29
Benedicto would be placed in a “traditional prison,” and the
IJ observed that “it would call for too much speculation” that
Benedicto would absolutely be placed in a “traditional
prison.” Were Benedicto placed in a CRC after arrest, as a
“prisoner[] with mental disabilities [he could] receive[]
treatment, including therapy, for [his] condition[].” But
even in the “traditional prisons,” “the Directorate of
Prisons[] instituted a program” to improve the health of
prisoners and “[t]he government permitted visits and
monitoring by independently funded and operated … NGO
observers and media.” The record demonstrates the
Dominican Republic’s substantive attempts to reform
“traditional prisons” to “model prisons,” such that it does not
compel an inference of torturous intent. Cf. Ridore, 696 F.3d
at 917.
C. Aggregate Risk of Torture
Finally, amicus counsel contends that the IJ, despite
analyzing each claim of future torture in-depth, failed to
analyze Benedicto’s cumulative risk of torture. But the IJ
explicitly noted it “must consider all evidence relevant to the
likelihood of future torture,” and concluded that for all those
“foregoing reasons, the court finds that Respondent has not
established he will more likely than not be tortured.”
Because there is no evidence that the IJ failed to “give
reasoned consideration to potentially dispositive …
evidence” or neglected to “address [an] argument,” there is
no merit to amicus counsel’s claim that either the IJ or BIA
failed to consider Benedicto’s aggregate risk based on the
entire record. Cf. Cole, 659 F.3d at 775.
Ultimately, while both the IJ and the BIA acknowledge
some torture occurs in the Dominican Republic, nothing in
the record quantifies the risk of that torture or
“demonstrate[s] … any regularity” of such activity. Without
30 BENEDICTO V. GARLAND
such information, there is no way to justify granting deferral
of removal under CAT based on either of amicus counsel’s
theories of possible torture. Simply pointing to evidence of
instances of torture, without more, cannot establish that
Benedicto himself would “more likely than not” be tortured
on removal. Anecdotes—no matter how disturbing—can’t
substitute for quantitative evidence, which is what CAT
requires. The BIA’s denial of deferral of removal under
CAT was supported by substantial evidence. Cf. Cole, 659
F.3d at 773 (record evidence quantifying the risk of torture).
CONCLUSION
The IJ ensured that Benedicto received all possible
safeguards in his removal proceedings, and Benedicto failed
to exhaust his claim regarding the IJ’s “particularly serious
crime” determination. And amicus counsel has not shown
the evidence compels the conclusion that the agency erred
when it rejected the argument that Benedicto would more
likely than not be tortured upon removal. We accordingly
dismiss his due process claims and deny the petition.
DISMISSED in part, DENIED in part.