Gonzalez-Caraveo v. Sessions

• Decision Date: 14 February 2018
• Docket Number: No. 14-72472,14-72472
• Citation: 882 F.3d 885
• Parties: Jose Alberto GONZALEZ-CARAVEO; Monica Rodriguez-Flores, Petitioners, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

882 F.3d 885

Jose Alberto GONZALEZ-CARAVEO; Monica Rodriguez-Flores, Petitioners,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-72472

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2017 San Francisco, California

Filed February 14, 2018

Jesse Evans-Schroeder (argued) and Matthew H. Green, Law Offices of Matthew H. Green, Tucson, Arizona, for Petitioners.

Jonathan Robbins (argued), Jennifer Paisner Williams, and Jesse M. Bless, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Nancy Freudenthal,^* Chief District Judge.

MURGUIA, Circuit Judge:

Petitioners, Jose Alberto Gonzalez-Caraveo and Monica Rodriguez-Flores, are husband and wife.¹ Both are natives and citizens of Mexico. Petitioners challenge the denial of their claim to relief under the Convention Against Torture ("CAT"). Petitioners also contest the Immigration Judge’s ("IJ") and Board of Immigration Appeals' ("BIA" or the "Board") refusal to review their request for administrative closure, a procedural tool used in immigration proceedings that temporarily removes a pending case from the Immigration Court or BIA’s calendar. We hold that Petitioners' claim for relief under CAT is denied. We also hold that the IJ and the BIA erred by not reviewing Petitioners' administrative closure request, but we conclude remand is not required in this case. Accordingly, this claim is also denied.

I. Background

In 2009, after a traffic stop, Petitioners, as well as their two young daughters, were placed in removal proceedings for overstaying their visas. See Immigration and Nationality Act ("I.N.A.") § 237(a)(1)(C)(i). At the family’s merits hearing before the IJ in 2013, the Department of Homeland Security ("the Department") moved to administratively close Petitioners' daughters' cases, and the IJ granted the motion. Petitioners conceded removability but sought relief. They originally requested asylum but withdrew their application because they did not meet the one-year filing deadline. Petitioners proceeded with applications for withholding of removal and protection under CAT.

Because Petitioners believed they fell within the parameters of prosecutorial discretion, they submitted requests to the Department for administrative closure of their cases in June 2011, February 2012, August 2012 and February 2013.² Petitioners' counsel asked the IJ to consider Petitioners' request for administrative closure, but the IJ stated the Department denied the requests and that he had "no authority with respect to the Department’s decisions."

At the merits hearing, Petitioner Gonzalez-Caraveo testified about his fear of returning to Mexico after living in the United States for approximately fifteen years. He stated he was afraid to return because of the general violence in Mexico and because he and his family, especially his young daughters, might be targeted because they would be perceived as having money after living in the United States for many years.

Petitioner Gonzalez-Caraveo also testified about several family members who had recently been killed in Mexico. His brother, cousin, uncle, and a cousin’s husband had all been killed. Although the police had started investigating at least one of the murders, the head investigator in one investigation was also murdered. Petitioner Gonzalez-Caraveo did not know the reasons for any of the murders but speculated that his uncle may have been killed because his uncle’s son was a policeman. Petitioner Gonzalez-Caraveo stated he believed he and his family would face violence as well. He also testified he did not believe the Mexican police would be able to assist or protect him because of the failed murder investigations into the murders of his own family members and because police officers often cannot be trusted. Petitioners submitted various reports regarding violence in Mexico, government corruption and other country conditions.

The IJ denied Petitioners' claims. Although the IJ found Petitioner Gonzalez-Caraveo credible, the IJ found his fear unreasonable because Petitioner Gonzalez-Caraveo continued to visit family in the area he claimed he was afraid to return. As to the withholding claim, the IJ found Petitioner Gonzalez-Caraveo could not show that his life or freedom would be threatened in Mexico, on account of the two enumerated bases for persecution he raised—nationality or membership in a particular social group. Addressing the CAT claim, the IJ stated Petitioner Gonzalez-Caraveo’s assertion that he might be subject to "some random violent act in Mexico is not a proper ground for ... [CAT relief]." Petitioners appealed.

The BIA dismissed Petitioners' claims on appeal. The BIA affirmed the IJ’s determination that Petitioners failed to establish an enumerated ground for a basis for persecution, and therefore, they could not show nexus for their persecution claim under withholding of removal. The BIA addressed the CAT claim only by stating, "[w]e agree with the Immigration Judge that the evidence of record is insufficient to establish the likelihood of torture by, or with the consent or acquiescence of, the Mexican Government."

The BIA also rejected Petitioners' argument that the IJ violated their due process rights by not reviewing and denying their administrative closure request. The BIA concluded that the IJ correctly noted he had no jurisdiction over the administrative closure issue.

The BIA also rejected Petitioners' due process claim that the IJ showed bias due to certain remarks demonstrating frustration with Petitioners' counsel or abandoned his neutrality by questioning witnesses. Petitioners do not raise this claim on appeal and have waived it. See Cedano-Viera v. Ashcroft , 324 F.3d 1062, 1066 n.5 (9th Cir. 2003) (holding failure to raise arguments in opening brief constitutes waiver). Petitioners also do not raise their withholding of removal claim on appeal and have waived that claim. See id .

II. Legal Standards

"Where, as here, the BIA adopts the IJ’s decision while adding some of its own reasoning, we review both decisions." Lianhua Jiang v. Holder , 754 F.3d 733, 737–38 (9th Cir. 2014) (internal quotation marks and citation omitted). We review factual findings for substantial evidence. Id . at 738. We review de novo the BIA’s determination of purely legal questions and claims of due process violations in immigration proceedings. Id .

III. Analysis

A. Petitioners' Administrative Closure and Related Due Process Claim

1. Relevant Background of Administrative Closure

Administrative closure is a procedure by which an IJ or the BIA temporarily removes a case from the active calendar or docket as a matter of administrative convenience and docket management. Diaz-Covarrubias v. Mukasey , 551 F.3d 1114, 1116 (9th Cir. 2009) (citing In re Gutierrez-Lopez , 21 I. & N. Dec. 479, 480 (BIA 1996), overruled on other grounds by Matter of Avetisyan , 25 I. & N. Dec. 688 (BIA 2012) ). Although this procedure is regularly used, it is not described in the immigration statutes or regulations.

Administrative closure does not result in a final order. Avetisyan , 25 I. & N. Dec. at 695. At any time after a case has been administratively closed, the Department may move to recalendar the matter. Id . Generally, administrative closure is proper when the parties are "await[ing] an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time." Id . at 692. One such example would be when an individual "demonstrates that he or she is the beneficiary of an approved visa petition filed by a lawful permanent resident spouse who is actively pursuing, but has not yet completed, an application for naturalization." Id . at 696.

Under prior BIA case law, an IJ or the BIA could not administratively close a case if either party opposed closure. Gutierrez-Lopez , 21 I. & N. Dec. at 480. In practice, this had the effect of allowing the Department to unilaterally control and decide administrative closure. In 2012, the BIA overruled Gutierrez-Lopez . See Avetisyan , 25 I. & N. Dec. at 697. Avetisyan held Gutierrez-Lopez "directly conflicts with the delegated authority of the Immigration Judges and the Board and their responsibility to exercise independent judgment and discretion in adjudicating cases and to take any action necessary and appropriate for the disposition of the case." Id . at 693.

IJs and the BIA have the authority to regulate the course of immigration proceedings. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b). The Department has the sole discretion to commence removal proceedings and, prior to initiation of proceedings, may cancel a notice to appear for specified reasons. Avetisyan , 25 I. & N. Dec. at 690–91 (citing 8 C.F.R. §§ 235.6(a), 239.1(a), 239.2(a), 1239.2(a) ). The Department may also move to dismiss proceedings. Id . at 691 (citing 8 C.F.R. §§ 239.2(c), 1239.2(c) ). Once a notice to appear is filed with the Immigration Court, however, jurisdiction over the individual’s immigration case vests with the IJ, and it is the IJ’s duty to adjudicate the case. Id. (citing 8 U.S.C. § 1229a(a)(3), (c)(1)(A) ; I.N.A. § 240(a), (c)(1)(a); 8 C.F.R. §§ 1003.14(a), 1240.1(a)(1)(i), 1240.11 ). In individual cases, IJs and the BIA "shall exercise their independent judgment and discretion...." 8 C.F.R. §§ 1003.1(d)(1)(ii) ; 1003.10(b). They may take "any action consistent with their authorities under the [Immigration and Nationality Act] and the regulations" as "appropriate and necessary for the disposition" of the case. Id. ; see also Avetisyan , 25 I. & N. Dec. at 691. From the regulatory language, it is evident that IJs and the BIA are empowered to take various actions for docket management. Allowing the Department or a petitioner to...