Rodriguez-Hernandez v. Garland

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: RAWLINSON, Circuit Judge
• Citation: Rodriguez-Hernandez v. Garland, 89 F.4th 742 (9th Cir. 2023)
• Docket Number: 21-456
• Decision Date: 27 December 2023
• Parties: Victor RODRIGUEZ-HERNANDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent, Northwest Immigrant Rights Project; Washington Defender Association, Amici Curiae.

89 F.4th 742

Victor RODRIGUEZ-HERNANDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent,Northwest Immigrant Rights Project; Washington Defender Association, Amici Curiae.

No. 21-456

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 20, 2023 Portland, Oregon

Filed December 27, 2023

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX4-360

N. David Shamloo Esq. (argued), The Law Office of N. David Shamloo LLC, Portland, Oregon, for Petitioner.

Andrew B. Insegna (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Brian Boynton, Principal Deputy Assistant Attorney General, Office of Immigration Litigation, Civil Division, United States Department of Justice, for Respondent.

Before: Johnnie B. Rawlinson, Carlos T. Bea, and Jennifer Sung, Circuit Judges.

OPINION

RAWLINSON, Circuit Judge:

Victor Rodriguez-Hernandez (Rodriguez-Hernandez), a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial by an Immigration Judge (IJ) of cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Rodriguez-Hernandez contends that the BIA erred when it held that his harassment conviction in violation of Revised Code of Washington (RCW) § 9A.46.020 was categorically for a crime of violence, thereby rendering him ineligible for cancellation of removal, asylum, and voluntary departure. In addition, Rodriguez-Hernandez asserts that substantial evidence does not support the denial of CAT relief.¹

I. BACKGROUND

In 2015, Rodriguez-Hernandez was served with a notice to appear alleging removability on the basis that he was not admitted or paroled into the United States. Rodriguez-Hernandez conceded removability and applied for cancellation of removal, asylum, withholding of removal, and CAT relief. Rodriguez-Hernandez maintained that he faced persecution in Mexico due to threats made against his family.

In his application for cancellation of removal, Rodriguez-Hernandez acknowledged that, in 2009, he was convicted of "misdemeanor [h]arrassment-[domestic violence]," and "sentenced to 365 days in jail." When Rodriguez-Hernandez entered his guilty plea, RCW § 9A.46.020(1), the statute of conviction, provided that:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or

(ii) To cause physical damage to the property of a person other than the actor; or

(iii) To subject the person threatened or any other person to physical confinement or restraint; or

(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. Words or conduct includes, in addition to any other form of communication or conduct, the sending of an electronic communication.

RCW § 9A.46.020(1) (2009).

During his removal hearing, Rodriguez-Hernandez testified that he left Mexico in 1989. Rodriguez-Hernandez related that his cousin in Mexico received a threatening telephone call in 2011. His cousin was not harmed and subsequently moved. Rodriguez-Hernandez's family also received a call threatening that Rodriguez-Hernandez would be kidnapped when he visited Mexico if his family did not pay "25,000 pesos." Rodriguez-Hernandez was not able to identify who made the threats, and his family did not make any payments. Rodriguez-Hernandez confirmed that his family was never harmed, and that he feared "[j]ust the violence" if he was removed to Mexico.

The IJ denied Rodriguez-Hernandez's applications for cancellation of removal, asylum, withholding of removal, and CAT relief. The IJ found Rodriguez-Hernandez ineligible for cancellation of removal, asylum, and voluntary departure because his conviction under RCW § 9A.46.020(1) was for an aggravated felony.

Although the IJ opined that RCW § 9A.46.020(1) was not categorically a crime of violence because subsections (a)(iii) and (iv) could "potentially be violated without involving physical force," the IJ concluded that the statute was divisible because it delineated "alternative elements" of the offense. Applying the modified categorical approach,² the IJ held that Rodriguez-Hernandez was convicted of a crime of violence for "knowingly threatening to cause bodily injury immediately or in the future to the person threatened or to any other person."

The IJ denied withholding of removal because Rodriguez-Hernandez did not establish that he was a member of a cognizable particular social group. The IJ concluded that Rodriguez-Hernandez's proposed social group comprised of "victims of extortion" was not sufficiently distinct to support withholding of removal.

The IJ denied protection under the CAT because Rodriguez-Hernandez failed to establish that it was more likely than not that he would be tortured if removed to Mexico.

The BIA dismissed Rodriguez-Hernandez's appeal. The BIA agreed with the IJ's determination that Rodriguez-Hernandez's conviction for harassment in violation of RCW § 9A.46.020(1) was for an aggravated felony, thereby rendering Rodriguez-Hernandez ineligible for cancellation of removal, asylum, and voluntary departure. The BIA concluded that an offense in violation of RCW § 9A.46.020(1) was categorically a crime of violence, requiring the offender to knowingly "threat[en] to use physical force against the person or property of another."

The BIA also determined that Rodriguez-Hernandez was not entitled to withholding of removal because he failed to sufficiently demonstrate that he would be persecuted on account of a protected ground.

Finally, the BIA affirmed the IJ's denial of CAT relief because Rodriguez-Hernandez did not establish that it was more likely than not that he "would be tortured in Mexico by, or with the consent or acquiescence . . . of a public official."

Rodriguez-Hernandez filed a timely petition for review.

II. STANDARDS OF REVIEW

We review de novo whether Rodriguez-Hernandez's harassment conviction is for an aggravated felony. See Amaya v. Garland, 15 F.4th 976, 980 (9th Cir. 2021).

"[W]e review the BIA's denial of CAT relief for substantial evidence." Gutierrez-Alm v. Garland, 62 F.4th 1186, 1201 (9th Cir. 2023) (citation omitted).

III. DISCUSSION

A. Rodriguez-Hernandez's Harassment Conviction

Rodriguez-Hernandez contends that the BIA erred in holding that his harassment conviction in violation of RCW § 9A.46.020(1) was for a crime of violence under 18 U.S.C. § 16(a).³ Rodriguez-Hernandez maintains that his conviction was not categorically for a crime of violence because RCW § 9A.46.020(1) criminalizes conduct that does not involve the use of physical force.

Rodriguez-Hernandez "bears the burden of demonstrating he is eligible for discretionary relief from removal." Valdez v. Garland, 28 F.4th 72, 78 (9th Cir. 2022) (citation omitted) (addressing cancellation of removal); see also Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008), as amended (addressing asylum relief). "To do so, he must show that he: (i) satisfies the applicable eligibility requirements; and (ii) with respect to any form of relief that is granted in the exercise of discretion, that he merits a favorable exercise of discretion." Valdez, 28 F.4th at 78 (citation, alteration, and internal quotation marks omitted). "To meet the first requirement, he must show that he is not an aggravated felon." Id. (citation omitted). "A noncitizen convicted of an aggravated felony is not only deportable, but also ineligible for discretionary relief." Id. (citation and internal quotation marks omitted).

"In the crime of violence context, we compare the state statute to 18 U.S.C. § 16(a), rather than a generic assault statute, and we will only find a categorical match if every violation of the statute necessarily involves violent force." Amaya, 15 F.4th at 980 (citation and internal quotation marks omitted) (emphases in the original). "Unlike comparing a prior offense to one of the enumerated offenses, which is an exercise in mapping a state crime onto a federal crime, we need not compare the elements of the crime of conviction with the elements of the generic federal crime when analyzing whether an offense qualifies as a crime of violence pursuant to [18 U.S.C.] § 16(a)." United States v. Alvarez, 60 F.4th 554, 559 (9th Cir. 2023) (citation and internal quotation marks omitted). "As long as the underlying offense requires one of the specified uses of force—actual, attempted, or threatened—it qualifies as a crime of violence." Id. at 558 (citation omitted).

The BIA correctly applied the categorical approach in determining whether Rodriguez-Hernandez had been convicted of an aggravated felony because RCW § 9A.46.020(1) is not a divisible statute. Under Washington law, "[a]n alternative means crime is one that provides that the proscribed criminal conduct may be proved in a variety of ways." State v. Espinoza, 14 Wash.App.2d 810, 474 P.3d 570, 575 (2020) (citation, alteration, and internal quotation marks omitted). "When a defendant is charged with an alternative means crime, the jury need not be unanimous as to the means by which the crime was committed, so long as there is sufficient evidence to support each of the alternative means . . . ." Id. (citation omitted). Washington courts have recognized that RCW § 9A.46.020(1) "is an alternative means crime, with the four alternatives set forth in subsection (1)(a)(i)-(iv)." Id. at 577 (citation omitted). Additionally, Washington Pattern Criminal Jury Instruction (WPIC) 36.07 provides that, for convictions under RCW § 9A.46.020(1), "the jury need not be unanimous as to which of alternatives [(1)(a),] [(1)(b),] [(1)(c),...