Hernandez v. Garland
| Decision Date | 31 October 2022 |
| Docket Number | 20-72138 |
| Citation | 52 F.4th 757 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | GIOVANNY HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
Argued and Submitted May 18, 2022 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-153-571
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.
Denying Giovanny Hernandez's petition for review of a decision of the Board of Immigration Appeals, the panel concluded that the agency did not commit legal error in determining that Hernandez's California conviction for assault with a deadly weapon was for a particularly serious crime, making him ineligible for asylum or withholding of removal, and that substantial evidence supported the agency's determination that he was not entitled to protection under the Convention Against Torture.
Hernandez contended that in determining that his conviction for assault with a deadly weapon was for a particularly serious crime the immigration judge relied on improper evidence by admitting his Form I-213 (Record of Deportable/Inadmissible Alien). The Form I-213 stated that the Department of Homeland Security officer had reviewed the arresting officer's probable cause declaration from Hernandez's conviction, and that the declaration reported that Hernandez had "attempted to stab the victim with a knife multiple times." The panel explained that, as an authenticated government-prepared document, the Form I-213 is presumed to be reliable in the absence of evidence to the contrary presented by the alien. The panel rejected Hernandez's argument that the presumption of reliability applies only for the purpose of satisfying the government's initial burden of proving removability, explaining that Forms I-213 are entitled to a presumption of reliability because of their general characteristics as government-prepared documents, and that those characteristics exist regardless of the purpose for which the form is used.
Hernandez also argued that admission of the Form I-213 was not fundamentally fair because he was not given an opportunity to cross-examine the arresting officer or the DHS officer who prepared the form. The panel wrote that Hernandez did not offer any suggestion-either before the agency or before this court-that the information in the Form I-213 was incorrect. Thus, because Hernandez failed to offer any reason to doubt the accuracy of the information in the form, DHS had no obligation to bring the state and federal government-officer declarants to the hearing to establish uncontested facts. The panel further concluded that even if the agency had erred in relying on the Form I-213, Hernandez could not show prejudice because the outcome of the proceeding could not have been affected by requiring the declarants to testify to those uncontested facts.
The panel concluded that the record did not support Hernandez's contention that the agency failed to consider the type of sentence imposed, explaining that in discussing the relevant factors, it was sufficient that the immigration judge and Board expressly stated that Hernandez was sentenced to 240 days in jail.
Turning to Hernandez's CAT claim, the panel held that the incidents of harm Hernandez endured at the hands of Mexican police, including: (1) being punched once in the stomach; (2) being hit in the legs with a large stick; (3) being groped and having his hair cut by an undercover officer; and (4) being taken to a desert, kicked, and forced to walk home, did not rise the level of torture. The panel also held that substantial evidence supported the agency's determination that Hernandez failed to show government acquiescence to any of his sexual assaults by private actors.
The panel concluded that Hernandez failed to show that the Board overlooked probative evidence concerning the experience of sexual minorities and the mentally ill in Mexico. The panel explained that in reviewing the Board's order, the court applies a presumption that the Board did review the record, and if evidence is neither highly probative nor potentially dispositive, the Board need not expressly discuss it. The panel wrote that the record revealed that the Board did consider evidence of sexual violence against members of the LGBT community in Mexico, but simply reached a different overall conclusion. The panel also explained that the Board was under no obligation to discuss a declaration by Professor Nielan Barnes on conditions in Mexico, because the report provided general country-conditions evidence duplicative of other evidence in the record that the Board considered, and it did not provide information specific to Hernandez, nor offer an opinion as to Hernandez's particular likelihood of torture if removed. Thus, it was neither highly probative nor potentially dispositive.
The panel concluded that the Board also adequately considered record evidence concerning the experience of mentally ill individuals in Mexico. The panel wrote that the record did not support Hernandez's arguments that the Board relied on factual inaccuracies in finding that he could obtain medication in Mexico, that he is unlikely to be institutionalized in Mexico, and that healthcare workers and the police would not intentionally subject him to torture. The panel also did not agree with Hernandez that the agency failed to consider evidence that Mexican healthcare workers and police specifically target mentally ill individuals for torture. Rather, the immigration judge acknowledged that the record showed that some institutionalized patients have suffered sexual abuse but determined that because Hernandez is unlikely to be institutionalized, the record did not establish that he would more likely than not be subjected to such treatment. The immigration judge also considered the evidence of higher arrest and incarceration rates among mentally ill individuals but determined that there was insufficient evidence that this resulted in torture or was the result of a specific intent to torture mentally ill individuals. Thus, the agency did not misstate or ignore Hernandez's evidence; it simply reached a different conclusion.
Finally, the panel concluded that the record did not support Hernandez's assertion that the agency erred by evaluating each source of torture separately and failing to consider their combined probability. Rather, the immigration judge specifically aggregated the risks of torture, described Hernandez's various theories of potential torture and acknowledged the possibility that any or all of the foregoing may occur, but concluded that that possibility fell well short of the standard of proof required for protection under CAT. Although the Board did not specifically address the combined probability of torture from different sources, the panel explained that the Board's discussion of the CAT claim contained nothing to suggest that the Board had not adopted that aspect of the immigration judge's reasoning.
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.
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...
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