Iraheta-Martinez v. Garland

• Decision Date: 07 September 2021
• Docket Number: No. 18-72692,18-72692
• Citation: 12 F.4th 942
• Parties: Santos Rafael IRAHETA-MARTINEZ, aka "Jose Benigno," aka "Santos Climaco," Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.4th 942

Santos Rafael IRAHETA-MARTINEZ, aka "Jose Benigno," aka "Santos Climaco," Petitioner,

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

No. 18-72692

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2021 San Francisco, California

Filed September 7, 2021

Etan Newman (argued), Pangea Legal Services, San Francisco, California, for Petitioner.

Mona Maria Yousif (argued), Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit Judges, and Gary Feinerman,^* District Judge.

OPINION

FEINERMAN, District Judge:

Santos Rafael Iraheta-Martinez petitions for review of a Board of Immigration Appeals ("BIA") order denying his application for withholding of removal and relief under the Convention Against Torture ("CAT"). We find no error in the BIA's denial of that relief. Iraheta also challenges the BIA's refusal to allow him to seek asylum in light of the reinstatement of his prior order of removal, arguing that he had a right to seek asylum under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq ., and in the alternative that he had a procedural due process right to reasoned consideration by the Department of Homeland Security ("DHS") of whether to forego reinstating his prior removal order and thereby allow him to seek asylum. We disagree and hold that a noncitizen in Iraheta's circumstances enjoys neither right. We therefore deny his petition for review.

I

A

Iraheta grew up in El Salvador as one of eleven children. His father, Victor, was physically and emotionally abusive toward all his children, and was especially harsh with Iraheta because he believed that Iraheta was gay. In addition to subjecting Iraheta to beatings, Victor routinely berated him with homophobic slurs.

When Iraheta was about 18 years old, he suffered a particularly severe public beating from his father and felt he could no longer return home. In 2005, Iraheta fled El Salvador, entered the United States unlawfully, and was apprehended. He did not appear at his April 2006 removal hearing, and the immigration judge ("IJ") entered a removal order against him in absentia . Iraheta ultimately was apprehended and removed in 2009, but reentered the United States days later. Over the next two years, Iraheta reentered the United States twice more and was removed both times.

After his latest removal in September 2010, Iraheta returned to his parents’ home in El Salvador. Victor became outraged when he saw that Iraheta was wearing an earring, "yelling something like, ‘I never thought I'd have a fucking faggot in my house.’ " Victor ripped the earring out of Iraheta's ear and told him he never wanted to see Iraheta in his home again. Iraheta fled once again to the United States, where he now resides with his wife and their two sons.

In 2016, Iraheta's brother Valentin, who still lives in El Salvador, informed Iraheta that he had become involved with the MS-13 gang. Iraheta expressed disapproval and urged his brother to stop associating with the gang. Valentin became angry and told Iraheta that if he were to return to El Salvador and continue to criticize Valentin's membership in MS-13, Valentin would "do whatever he wanted" to Iraheta. Iraheta asked if Valentin would murder his own brother, and Valentin responded that if Iraheta returned to El Salvador, Valentin would " ‘either kill you myself or send my homies to kill you.’ "

B

In May 2017, Iraheta was taken back into custody, and DHS reinstated his prior removal order. See 8 U.S.C. § 1231(a)(5) (authorizing reinstatement of a prior removal order "[i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed"); 8 C.F.R. § 1241.8(a) ("An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances.").

Iraheta expressed a reasonable fear of returning to El Salvador, so an asylum officer referred his case to an IJ for "withholding-only" removal proceedings to determine his eligibility for withholding of removal and relief under CAT. See 8 C.F.R. § 208.31(e) ; Alvarado-Herrera v. Garland , 993 F.3d 1187, 1190 (9th Cir. 2021) ("If the asylum officer determines that the non-citizen [with a reinstated removal order] has established a reasonable fear, the non-citizen is placed in ‘withholding only’ proceedings before an immigration judge, during which the judge will hold a hearing on whether to grant the non-citizen withholding of removal or protection under CAT.") (citing 8 C.F.R. § 208.2(c)(2)–(3) ).

Before the IJ, Iraheta filed a "motion to preserve his right to apply for asylum," purporting to "preserve the argument that he remains eligible for asylum even though he is in withholding-only proceedings" and asking that the "record ... reflect that [he] does not concede that he is not eligible for asylum." Iraheta conceded that he was asylum-ineligible under Perez-Guzman v. Lynch , 835 F.3d 1066 (9th Cir. 2016), but argued that he might become eligible if his prior removal order were reopened or if the Supreme Court reversed Perez-Guzman .

The IJ denied Iraheta's motion, stating that he "is not eligible for asylum because he is in ‘withholding only’ proceedings," and noting that he "has presented the legal issue ... should there be a change in the law." The IJ then addressed whether Iraheta was entitled to withholding of removal or CAT relief. As to Iraheta's claim for withholding based on persecution by Victor for being perceived as gay, the IJ observed that "[i]f an alien demonstrates that he suffered past persecution in the proposed country of removal, the burden shifts to [DHS] to demonstrate that a fundamental change in circumstances has occurred in that country, or that [he] could safely relocate to another area in the proposed country of removal." See 8 C.F.R. § 1208.16(b)(1). Applying that standard, the IJ found that even if Iraheta had suffered past persecution, "circumstances have changed" because, while Victor had abused Iraheta when he was a youth, Iraheta was now "a grown man" who was "not required to live in his father's house." The IJ added that Victor "is an aging man" and that Iraheta's brothers, including one still living with Victor, no longer faced abuse.

As to Iraheta's claim that he was likely to face persecution from his brother Valentin on account of his anti-gang political opinion, the IJ found that "a singular threat from his brother is insufficient to sustain his burden of demonstrating that he is likely to be persecuted or harmed in any way by his brother upon return to El Salvador." Concluding that Iraheta had not shown that he was likely to be persecuted by either his father or his brother, the IJ denied withholding of removal.

Turning to CAT relief, the IJ held that Iraheta "ha[d] failed to demonstrate that he is likely to be harmed by his father, his brother, or members of MS-13 upon removal to El Salvador," and that he therefore "is not likely to be harmed for purposes of the [CAT]." The IJ further found that Iraheta "ha[d] failed to establish the acquiescence piece of his [CAT] claim." See 8 C.F.R. § 208.18(a)(1).

Iraheta appealed. The BIA dismissed the appeal, reasoning as to Iraheta's withholding claim that the IJ did not clearly err in finding a fundamental change of circumstances sufficient to rebut the presumption of future persecution, and discerning no clear error in the IJ's finding that he could relocate within El Salvador. See 8 C.F.R. § 1003.1(d)(3)(i). In particular, the BIA held that the IJ "did not clearly err in finding that the applicant's father has aged, the applicant is now an independent adult man with a family of his own, and the applicant need not live with or associate with his father upon return to El Salvador." The BIA thus concluded that, "even assuming, as the Immigration Judge did, that [Iraheta] suffered past persecution by his father on account of a protected ground, [DHS] has rebutted the presumption that [his] life or freedom will be threatened in the future on the basis of the original claim."

As for Iraheta's CAT claim, the BIA agreed with the IJ that "the single, unfulfilled threat by his brother approximately 2 years ago is [in]sufficient to establish that he will more likely than not be tortured upon return to El Salvador by his brother or the MS-13." The BIA also agreed with the IJ that the evidence of past abuse by Iraheta's father was not enough to show a likelihood of torture on account of his perceived sexual orientation. The BIA therefore rejected Iraheta's CAT claim without addressing the acquiescence issue.

The BIA said nothing about asylum. In a footnote in his BIA brief, Iraheta argued that he was eligible for asylum and that he wished to "preserve[ ] the argument that [he] should be considered for asylum." As he did before the IJ, Iraheta acknowledged "the controlling precedent [ Perez-Guzman ] holding that individuals with reinstated removal orders are ineligible for asylum," but asserted that it "was wrongly decided."

II

The BIA had jurisdiction to review Iraheta's removal order under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a)(5). We review de novo the BIA's conclusions on pure questions of law. See Conde Quevedo v. Barr , 947 F.3d 1238, 1241 (9th Cir. 2020). We review the BIA's factual findings for substantial evidence. See Medina-Rodriguez v. Barr , 979 F.3d 738, 744 (9th Cir. 2020).

III

After DHS reinstated Iraheta's removal order in May 2017, Iraheta expressed a fear of persecution, and an asylum officer assigned his case to an IJ for a...