Hernandez v. Garland, 20-72138

• Docket Number: 20-72138
• Decision Date: 31 October 2022
• Citation: 52 F.4th 757
• Parties: Giovanny HERNANDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

52 F.4th 757

Giovanny HERNANDEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-72138

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 2022 Pasadena, California

FILED OCTOBER 31, 2022

Hannah K. Comstock (argued), Iliana A. Gomez, Caitlin Anderson, and Carson Scott, Immigrant Defenders Law Center, Los Angeles, California; for Petitioner.

Sunah Lee (argued), Senior Trial Attorney; Timothy G. Hayes, Senior Litigation Counsel; Bryan Boynton, Principal Deputy Assistant Attorney General; Civil Division/Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Andrew J. Kleinfeld, Eric D. Miller, and Daniel P. Collins, Circuit Judges.

OPINION

MILLER, Circuit Judge:

Giovanny Hernandez entered the United States without authorization, and after being convicted in California state court of assault with a deadly weapon, he was removed to Mexico. He later reentered the United States and was again removed. After Hernandez entered the United States for a third time, he was yet again placed in removal proceedings, and he applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

An immigration judge denied relief on all claims. The Board of Immigration Appeals then dismissed Hernandez's appeal, prompting this petition for review. We conclude that the agency did not commit legal error in determining that Hernandez's state-court conviction was for a particularly serious crime, making him ineligible for asylum or withholding of removal. And substantial evidence supports the agency's determination that he is not entitled to CAT relief. We deny the petition for review.

I

The immigration judge found Hernandez to be credible and "afford[ed] his testimony full evidentiary weight." We therefore set out the facts as Hernandez described them.

Hernandez, a native and citizen of Mexico, was brought to the United States by his family without authorization in 1991, when he was eight months old. Hernandez spent most of the next 21 years living with his family in California. During his childhood, he developed schizophrenia ; he experiences paranoid delusions as well as hallucinations. He is able to manage his symptoms with medication.

In 2012, Hernandez was convicted in California state court of assault with a deadly weapon and was sentenced to 240 days in jail and three years of probation. After serving his sentence, Hernandez was removed from the United States. Hernandez reentered the United States the next year, and in 2015 he was again removed.

The next year, Hernandez again reentered the United States. After an arrest in California for resisting a peace officer and for possession of a controlled substance, he was placed into removal proceedings for a third time. Hernandez applied for asylum, withholding of removal, and CAT relief, asserting that he would be persecuted and tortured if returned to Mexico because of his mental illness and because he is bisexual. Due to Hernandez's schizophrenia, the immigration judge conducted a competency review and appointed a qualified representative to assist Hernandez in the proceedings.

Hernandez testified at his hearing about the two years he resided in Mexico following his previous removals. His testimony concerned his mental illness and violence he faced in Mexico.

Hernandez did not obtain treatment for his schizophrenia while in Mexico. His mother attempted to secure medication for him, but she was unable to do so. Hernandez did not know why his mother's efforts were unsuccessful, and Hernandez himself did not seek treatment from Mexico's public health system, which provides indigent individuals with free services, including treatment for mental illness. Hernandez experienced periods of homelessness, but he was not institutionalized.

Hernandez also testified to several violent incidents in Mexico. In Tijuana, a group of unknown individuals pulled him into a van, drove away, and then attempted to rape him. While Hernandez was resisting the attack, a bystander alerted police officers, who stopped the van, thereby interrupting the attempted rape. Hernandez did not inform the officers of the sexual nature of the attack that had occurred inside the van, and he was arrested with the attackers because, as he described it, he "was being really aggressive and fighting." The police put all of the arrestees in the same jail cell, where Hernandez continued to fight with his attackers. The attackers were released after posting bail. Hernandez could not remember whether he spoke with the police about the attack or asked them to press charges. When asked about the incident, Hernandez testified that the police "did their job."

On at least four occasions, other unknown individuals sexually assaulted Hernandez in Tijuana and Acapulco. Hernandez stated that the police were not involved and that he did not report those assaults.

Hernandez testified to several incidents involving violence with the police. First, while waiting for a friend to withdraw money from a bank, Hernandez was accosted by the bank security officer. When the police arrived, Hernandez "threw the officers" but was subdued after one of the officers punched him in the stomach. Second, an undercover police officer groped him and, on one occasion, cut his hair. Third, an officer hit Hernandez in the legs with a large stick. Finally, after Hernandez refused to comply with an officer's order, a group of officers drove him "to a desert," kicked him repeatedly, and forced him to walk home.

After hearing this testimony and reviewing the extensive documentary record submitted by Hernandez, the immigration judge denied the applications for asylum, withholding of removal, and CAT relief. First, the immigration judge found that Hernandez's conviction for assault with a deadly weapon constituted a conviction for a particularly serious crime barring him from asylum or withholding of removal. The immigration judge determined that the crime was particularly serious in part because, according to the arresting officer's probable-cause declaration memorialized in Hernandez's Form I-213 (Record of Deportable/Inadmissible Alien), the conviction was based on Hernandez's attempt "to stab the victim with a knife multiple times." Hernandez objected to the introduction of the Form I-213, but the immigration judge determined that it was admissible because a Form I-213 is "presumptively reliable" and because Hernandez introduced no evidence to contradict it. Second, the immigration judge denied CAT relief, finding that Hernandez did not establish that he would be more likely than not to be tortured if removed to Mexico.

The Board of Immigration Appeals dismissed Hernandez's appeal. It reasoned that a Form I-213 "is presumptively reliable," and it observed that Hernandez "had notice and opportunity to present evidence challenging statements in the I-213" but had not done so. Relying on the information in the Form I-213, as well Hernandez's testimony, the Board concluded that Hernandez had "engaged in violent and dangerous conduct while intoxicated, resulting in serious injury to another person," and that the crime was particularly serious. The Board also determined that Hernandez was not entitled to CAT relief because "the physical abuse that [he] suffered during several incidents does not constitute past torture," and he had not established that he was more likely than not to be tortured in the future.

II

An alien is ineligible for asylum or withholding of removal if "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). An aggravated felony is automatically a "particularly serious crime," id. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B), but the agency may determine through adjudication that an offense that is not an aggravated felony is nevertheless a particularly serious crime, Delgado v. Holder , 648 F.3d 1095, 1106 (9th Cir. 2011) (en banc). In making that determination, the agency considers "such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community." Matter of Frentescu , 18 I. & N. Dec. 244, 247 (B.I.A. 1982).

Deciding whether an offense constitutes a particularly serious crime involves the exercise of discretion, see Arbid v. Holder , 700 F.3d 379, 383 (9th Cir. 2012) (per curiam), and Congress has limited our jurisdiction to review the agency's discretionary decisions, see 8 U.S.C. § 1252(a)(2)(B)(ii). Accordingly, we may review a particularly-serious-crime determination only for abuse of discretion. Arbid , 700 F.3d at 383. Under that standard, we are "limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘proper evidence,’ " and we may not "reweigh the evidence and reach our own determination about the crime's seriousness." Avendano-Hernandez v. Lynch , 800 F.3d 1072, 1077 (9th Cir. 2015) (quoting Anaya-Ortiz v. Holder , 594 F.3d 673, 676 (9th Cir. 2010) (brackets omitted)).

Hernandez contends that the agency made two legal errors in determining that his conviction for assault with a deadly weapon was for a particularly serious crime. First, he argues that the immigration judge relied on improper evidence in admitting his Form I-213. Second, he argues that the agency failed to consider the appropriate factors because it ignored what he calls the "low-level sentence" he received. Neither argument succeeds.

A

The Federal Rules of Evidence do not apply in removal proceedings. Singh v. Holder , 638 F.3d 1196, 1209 (9th Cir. 2011). Accordingly, in deciding whether a crime is particularly serious, an immigration judge may consider "all reliable information," including "information outside the confines of a record of...