Tzompantzi-Salazar v. Garland
| Decision Date | 09 February 2022 |
| Docket Number | No. 20-71514,20-71514 |
| Citation | 25 F.4th 752 |
| Parties | Jose TZOMPANTZI-SALAZAR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Murray David Hilts, Law Offices of Murray D. Hilts, San Diego, California, for Petitioner.
Jessica D. Strokus, Trial Attorney; Anthony C. Payne, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Karen E. Schreier,** District Judge.
Jose Tzompantzi-Salazar (Petitioner), a native and citizen of Mexico, petitions for review of the agency's rejection of his claim for protection under the Convention Against Torture (CAT) and rejection of his separate motion to reopen and remand his removal proceedings based on claimed jurisdictional defects in his charging documents.
Petitioner has illegally entered the United States at least seven times, spending much of his time in Tijuana preparing to cross back into the United States. His CAT claim and stated fear of future torture if returned to Mexico is based on two kidnappings that allegedly occurred in border towns during the summer of 2011, while Petitioner was preparing to re-enter the United States.
The Board of Immigration Appeals (BIA) affirmed the Immigration Judge's (IJ) denial of CAT relief and determination that Petitioner—having received no threats since the 2011 kidnappings—did not face a higher risk of torture than that faced by all Mexican citizens. The BIA also agreed with the IJ that Petitioner could avoid torture in Mexico by avoiding the border and relocating to his home state in central Mexico, where his parents and siblings safely reside.
The BIA also denied Petitioner's motion to reopen and remand because his jurisdictional arguments relied solely on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), which our court has already squarely rejected as relevant to the agency's jurisdiction. See Karingithi v. Whitaker , 913 F.3d 1158, 1159–62 (9th Cir. 2019) ().
The agency did not abuse its discretion in denying Petitioner's motion to reopen and remand. Nor did it err in denying Petitioner's CAT claim, as he can relocate to his home state in central Mexico and away from the border, where his previous harms occurred. Accordingly, pursuant to our jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.
Petitioner grew up in central Mexico in the state of Tlaxcala, and first illegally entered the United States around August 2004 when "some friends offered [him] the opportunity." He returned to his home state in 2010 for a family funeral, where he remained with no issues for a few months.
But Petitioner ran into trouble getting back into the United States unnoticed. In his 2010 and 2011 attempts to illegally re-enter, Petitioner was apprehended several times by the Department of Homeland Security (DHS) and issued multiple orders to voluntarily return to Mexico. Each time Petitioner returned to Mexico he stayed near the border town of Tijuana, where he planned and prepared for his next attempt to cross the border to be in the United States near his wife, Ana Melendez, and their children. According to Petitioner, he faced hardships south of the border during his most recent attempts to enter the United States and those events make him fear returning to Mexico. He claims he was kidnapped in Tijuana in July 2011, while looking for a smuggler to bring him across the border, and later kidnapped in the mountains while attempting to cross the border in August 2011.
According to Petitioner, he stayed a few weeks in July 2011 at Hotel Cortez near Tijuana while looking for a smuggler to bring him across the border. During his stay, he received routine wire payments from Ms. Melendez to cover his expenses. On July 16, 2011, he was stopped by two men "dressed like policeman" who asked him for identification. After looking over Petitioner's consulate card, they forced him into a van and drove him to a house where he was beaten, strip-searched, and held for ransom. He initially refused to give the kidnappers Ms. Melendez's number but eventually relented after he was beaten with brass knuckles that caused hearing damage.
The kidnappers demanded that Ms. Melendez wire $20,000 to "Sandra Ruiz," or they would harm Petitioner. Ms. Melendez did not have $20,000, but wired what she could—almost $3,000—according to the kidnappers' instructions. A few days later, on July 19, 2011, the kidnappers released Petitioner with instructions to "disappear." Petitioner did not seek medical treatment for his injuries or report the kidnapping.
Three days after he was released by the kidnappers, Petitioner again crossed the border into the United States, was apprehended by DHS and, because of his previous encounters with border patrol, taken into custody and issued an expedited removal order. Petitioner does not recall being asked if he feared returning to Mexico, but he expressed no fear during his July 2011 processing and his intake photograph reflected no visible injuries from the alleged recent kidnapping.
After being deported pursuant to the expedited removal order on July 24, 2011, Petitioner claims he remained in Tijuana for a few weeks at Hotel San Diego (with no threats or issues) while he waited for the right smuggler to again escort him over the border. When crossing the hills between Tijuana and San Diego, Petitioner and his smuggler were kidnapped and held for a day and a half by criminals who beat Petitioner and demanded his family's phone number so they could collect a ransom. Petitioner testified that the second group of kidnappers were not police officers or pretending to be police officers; instead, they were "dressed in normal clothing" and wore bandanas. Petitioner was released when the group's food ran out. He returned to Tijuana, where he remained for a few weeks (again with no issues) before making his last entrance into the United States on or about September 5, 2011.
Shortly after his September 2011 entrance, Petitioner was taken into DHS custody and received two different charging documents. The first, a Notice to Appear, was mistakenly issued but later withdrawn when those proceedings were terminated because Petitioner (with the reinstatement of his prior expedited removal order) was not eligible for cancellation of removal. The second, a Notice of Referral to Immigration Judge (NOR), was filed on April 6, 2012, and reflected the location of Petitioner's IJ hearing but indicated the time and date were "[t]o be set." Three days later Petitioner received his missing hearing details in a "Notice of Withholding-Only Hearing." No party disputes that Petitioner received all hearing notices and attended all IJ hearings.
Petitioner appeared for a reasonable fear interview on February 14, 2012. An asylum officer made a reasonable fear determination on March 29, 2012, and referred Petitioner to an IJ for credible fear hearings that took place on May 30, 2012, and June 14, 2012.
In his initial hearing before the IJ, Petitioner testified about both kidnappings (the second of which was omitted from his prior written declaration). Ms. Melendez also testified and described paying the ransom to the first set of kidnappers, but she did not recall the second kidnapping until prompted by Petitioner.
The IJ found Ms. Melendez credible. And despite concerns with "several discrepancies" in Petitioner's testimony that he failed to explain (conflicting timelines and the omission of any stated fear or evident injuries in his July 2011 deportation that followed his first kidnapping), the IJ stopped short of making an adverse credibility determination but warned that "it's a close case on your credibility."1 But even without an adverse credibility determination, the IJ noted it was not clear that the kidnappings rose to the level of torture, that they were committed by or with government acquiescence, or that Petitioner was harmed because of any ground protected by the Immigration and Nationality Act (INA).
Petitioner initially sought withholding of removal under both the INA and the CAT. The IJ denied both claims, concluding Petitioner failed to show past persecution based on a protected ground (preventing INA relief) or that he would more likely than not face future torture if returned to Mexico (preventing CAT relief).
The BIA affirmed the IJ's denial of Petitioner's application, agreeing he failed to satisfy his burden for withholding of removal or CAT relief. A panel of this court reviewed the agency's decision on June 29, 2016, affirming dismissal of Petitioner's withholding of removal claim but remanding for reconsideration of Petitioner's CAT claim, which the BIA then remanded to a second IJ.2
On remand, and considering the only remaining claim for CAT relief, the second IJ gave Petitioner and the government an opportunity to provide any additional documents or updated country conditions evidence before a merits hearing on June 8, 2018. At the hearing, Petitioner chose to provide no additional testimonial evidence, relying instead on the testimony given in 2012 and the updated country reports submitted by both parties.
The second IJ denied Petitioner's application for CAT relief, emphasizing Petitioner's burden of proof and his failure to show that he would more likely...
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