Andrade-Garcia v. Lynch
| Decision Date | 29 April 2016 |
| Docket Number | No. 13–74115.,13–74115. |
| Parties | Nelson ANDRADE–GARCIA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marina Alexandrovich, Marina Alexandrovich, Esq., PLLC., Tempe, AZ, for Petitioner.
Joyce R. Branda, Acting Assistant Attorney General, Civil Division; Blair T. O'Connor, Assistant Director; Scott M. Marconda, Trial Attorney; Office of Immigration Litigation, Washington, D.C., for Respondent.
On Petition for Review of an Immigration Judge's Decision. Agency No. A205–937–826.
Before: RICHARD R. CLIFTON and SANDRA S. IKUTA, Circuit Judges, and FREDERIC BLOCK,** Senior District Judge.
IKUTA
, Circuit Judge:
Nelson Andrade–Garcia petitions for review of the immigration judge's determination, in a reasonable fear proceeding, that he lacked a reasonable fear of torture and therefore is not entitled to relief under the Convention Against Torture (CAT) from his reinstated removal order. We have jurisdiction under 8 U.S.C. § 1252(a)(1)
Ortiz–Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir.2012). Contrary to the government's argument, our review of the immigration judge's determination is not limited to the question whether it was “facially legitimate and bona fide.” Kleindienst v. Mandel, 408 U.S. 753, 769, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Rather, we review the decision for substantial evidence and now deny the petition.
The Immigration and Nationality Act (INA) provides for the expedited removal of an alien who was previously subject to a removal order but returned illegally to the United States. Under 8 U.S.C. § 1231(a)(5)
, if the government “finds that an alien has reentered the United States illegally” after being removed or departing under a removal order, “the prior order of removal is reinstated from its original date.” Id.1 In determining whether the alien may be removed under the reinstated order, an immigration officer must make three findings: (1) that the alien is subject to a prior order of removal, (2) that the alien is in fact the alien who was previously removed or voluntarily departed, and (3) that the alien unlawfully reentered the United States. 8 C.F.R. § 241.8(a).
If the immigration officer determines that the alien is properly subject to the reinstated removal order, the plain language of the statute precludes relief. See 8 U.S.C. § 1231(a)(5)
(). Despite this language, aliens are not barred from all relief. Given Congress's subsequent ratification of CAT, see Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub.L. No. 105–277, Div. G., Title XXII, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C.F.R. §§ 208.18, 1208.18,2 the Executive may not remove an alien subject to a reinstated removal order if it is more likely than not that the alien will be tortured in the country of removal. See
Ortiz–Alfaro, 694 F.3d at 956 n. 1 (). Further, the Supreme Court has noted that an illegally returning alien subject to a removal order may seek withholding of removal under 8 U.S.C. § 1231(b)(3)(A), “[n]otwithstanding the absolute terms in which the bar on relief is stated” in § 1231(a)(5). Fernandez–Vargas v. Gonzales, 548 U.S. 30, 35 n. 4, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).
Because an alien subject to a reinstated removal order may be able to obtain CAT protection or other withholding of removal if eligible, the government has promulgated regulations providing administrative review of these claims. Under 8 C.F.R. § 241.8(e)
, if an alien “expresses a fear of returning to the country designated” in the reinstated order of removal, the alien must be “immediately referred to an asylum officer for an interview to determine whether the alien has a reasonable fear of persecution or torture.” If the asylum officer concludes that the alien has demonstrated “a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal,” 8 C.F.R. §§ 208.31(c), 1208.31(c), the asylum officer must refer the case to an immigration judge (IJ), see
id. §§ 208.31(e), 1208.31(e). These provisions are intended to give aliens subject to a reinstated removal order under § 1231(a)(5)
the opportunity to seek withholding of removal and protection under CAT. See 8 C.F.R. § 241.8(e) (); id. § 208.16 (); see also Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478, 8485 (Feb. 19, 1999) ().
The alien may appeal an asylum officer's determination that there is not a reasonable possibility of persecution or torture to an IJ. 8 C.F.R. §§ 208.31(f)
–(g), 1208.31(f) –(g). If the IJ concurs with the asylum officer's conclusion, the alien may not appeal the decision to the Board of Immigration Appeals. Id. §§ 208.31(g)(1), 1208.31(g)(1). If the IJ disagrees with the asylum officer, the IJ must give the alien a full hearing on the merits of the alien's withholding or CAT claim. Id. §§ 208.31(g)(2), 1208.31(g)(2).
Nelson Andrade–Garcia is a native and citizen of Guatemala who entered the United States illegally in 1998, 2005, and 2013. He was apprehended and ordered removed on June 19, 2013, and was removed a day later.
Two weeks later, on July 4, 2013, Andrade–Garcia reentered the United States again and was apprehended near the border. He conceded that he entered the country illegally and admitted that he had previously been removed pursuant to a removal order. The government issued him a notice of intent to reinstate the prior removal order. Andrade–Garcia expressed a fear of returning to Guatemala, so the government referred his case to an asylum officer for a reasonable fear hearing.
At the hearing, Andrade–Garcia testified that he had decided to return to the United States to avoid paying the members of a Guatemalan gang the 50,000 quetzals (about $6,500) that they demanded in phone calls to him. He stated he was afraid to return because the gang members had threatened to shoot him and cut off his arm. He believed this threat because they had killed his aunt three years before for not paying the money they demanded. Andrade–Garcia testified that the police had investigated his aunt's murder, but his cousin decided “not to do anything because she was already dead and they thought that they would not find anything out.” In response to the asylum officer's questions, Andrade–Garcia testified that he had not been physically harmed, nor had he suffered any psychological or emotional harm. He also testified that he would not be harmed because of his religion, political opinion, membership in any group or organization, or family relationships. Further, he testified that his parents, wife, and children remained in Guatemala and had not been physically harmed or threatened. Although Andrade–Garcia stated that he did not know of any connection between the gang members and the Guatemalan government, he speculated that the gang members are able to influence the police because the Guatemalan government is corrupt and he had seen cases where a robber is caught and then released the same day after bribing the police.
The asylum officer determined that Andrade–Garcia failed to demonstrate either a reasonable fear of future persecution on account of a protected ground or a reasonable fear of torture. On appeal, the IJ concurred with the asylum officer's determination. The IJ ruled that Andrade–Garcia failed to demonstrate a reasonable possibility of past or future persecution on account of a protected ground and did not demonstrate a reasonable possibility of future torture under CAT because he did not establish torture by the government or torture inflicted with the government's acquiescence.
Andrade–Garcia timely petitioned for review on the ground that the IJ erred in concluding that he had failed to demonstrate that the Guatemalan government had acquiesced in any torturous actions against him.
Although “[r]einstatement orders are not literally orders of removal,” we have jurisdiction to review them under 8 U.S.C. § 1252(a)(1)
. Castro–Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir.2001), abrogated on other grounds by
Fernandez–Vargas, 548 U.S. 30, 126 S.Ct. 2422. We may therefore review “constitutional claims or questions of law” that are “raised in the context of reinstated removal orders.” Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1137 (9th Cir.2008) ; see also
Villa–Anguiano v. Holder, 727 F.3d 873, 875 (9th Cir.2013). An IJ's negative determination regarding the alien's reasonable fear makes the reinstatement order final, see 8 C.F.R. § 208.31(g)(1), and thus subject to review under 8 U.S.C. § 1252. See
Villa–Anguiano, 727 F.3d at 875 ; see also
Ortiz–Alfaro, 694 F.3d at 958. Under § 1252, we may decide the petition for review “only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). We review “factual findings underlying the [IJ]'s denial of CAT relief,” as well as determinations for withholding...
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...are not per se orders of removal, we have jurisdiction to review them as final orders of removal under 8 U.S.C. § 1252(a)(1). Andrade–Garcia , 820 F.3d at 1080. In the context of reasonable fear proceedings, as here, a reinstated removal order becomes final (and thus appealable) once those ......
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