Karla Gilbertson v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2355
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Karla Monika Gilbertson
Petitioner
v.
Merrick B. Garland, Attorney General of the United States; Alejandro Mayorkas,
U.S. Department of Homeland Security
Respondents
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 13, 2021
Filed: August 2, 2021
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Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Karla Monika Gilbertson, a native and citizen of Mexico, appeals a Board of
Immigration Appeals order denying her removal relief. For the following reasons,
we deny the petition.
I. Background
In 1992, at age thirteen, Gilbertson illegally entered the United States. Since
then, she has mainly lived in Minnesota. In 2016, she became a lawful permanent
resident via the Violence Against Women Act.
In 2011, Gilbertson began an eight-year relationship with “El Chino,” a drug
dealer who introduced her to methamphetamine and heroin. Soon, she became
involved in El Chino’s drug deals.
Around that time, Gilbertson also met “Archie”—another drug dealer—who,
according to Gilbertson, belonged to Los Zetas, a Mexican drug cartel which traffics
drugs between Mexico and the northern United States. Archie gave Gilbertson
money and meth for her personal use. Gilbertson learned about the tunnels that Los
Zetas used to smuggle drugs into the United States. In time, she also got involved
in Archie’s drug deals by acting as an intermediary between Archie and El Chino.
In 2017, a drug deal went bad. As Gilbertson tells it, El Chino gave her a car
to transport a $50,000 load of meth. Unbeknownst to her, the vehicle was stolen.
Later, police stopped the car, arrested the drivers, and seized the meth. Soon after,
two males attacked Gilbertson in her home. And at least ten times after that, drug
users broke into her house to try to steal her drug stash. Archie also made threatening
phone calls to Gilbertson and sent her videos of masked Los Zetas members carrying
out executions.
In 2018, police searched Gilbertson’s house and discovered drugs and
weapons. After Gilbertson was charged with various state crimes, she pled guilty to
selling controlled substances, see Minn. Stat. § 152.023, subd.1(1), a felony in
Minnesota. She was sentenced to 21 months of imprisonment. Gilbertson concedes
that this offense constitutes an aggravated felony making her statutorily ineligible to
seek asylum.
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The Department of Homeland Security (“DHS”) then commenced removal
proceedings. At her removal hearing, Gilbertson testified about her mental health
history—which includes diagnoses of bipolar disorder, depression, anxiety,
borderline multiple personality disorder, impulse control problems, and repeated
attempts to end her own life.
Because Gilbertson conceded her state drug offense constituted an aggravated
felony, the Immigration Judge (“IJ”) concluded that Gilbertson had been convicted
of a per se “particularly serious crime” (“PSC”), was ineligible to seek asylum, and
was barred from withholding of removal. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i);
8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also concluded that Gilbertson did not meet her
burden of proof to establish eligibility for deferral of removal under the Convention
Against Torture (“CAT”). The BIA adopted and affirmed the IJ’s decision, and
Gilbertson, seeking to remain in the United States, now petitions us for review.
II. Analysis
“When the BIA adopts and affirms an IJ’s decision, . . . [we review] both
decisions together.” Bhosale v. Mukasey, 549 F.3d 732, 735 (8th Cir. 2008). “We
review constitutional claims and questions of law de novo.” Lasu v. Barr, 970 F.3d
960, 964 (8th Cir. 2020). “We review factual determinations under the substantial
evidence standard, reversing only if ‘the evidence is so compelling that no
reasonable factfinder could fail to find in favor of the petitioner.’” Zheng v. Holder,
698 F.3d 710, 713 (8th Cir. 2012) (quoting Bernal-Rendon v. Gonzales, 419 F.3d
877, 880 (8th Cir. 2005)).
When the petitioner is a criminal alien under 8 U.S.C. § 1252(a)(2)(C), our
jurisdiction to review final orders of removal “is limited to constitutional claims and
questions of law.” Sharif v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (quoting Hanan
v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008)); see 8 U.S.C. § 1252(a)(2)(D). But,
“[o]ur jurisdiction to review [Gilbertson’s] arguments pertaining to [her] CAT claim
is broader[.]” Sharif, 965 F.3d at 621 (citing Nasrallah v. Barr, 140 S. Ct. 1683,
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1694 (2020) (“A CAT order is distinct from a final order of removal. . . . Therefore,
[the criminal alien review bar does] not preclude judicial review of a noncitizen’s
factual challenges to a CAT order.”)).
Gilbertson raises two main arguments on appeal. First, that the BIA erred in
excluding her mental health issues from the PSC analysis. Second, that there is not
substantial support for the IJ’s determination, affirmed by the BIA, that she is not
likely to be tortured with the consent or acquiescence of the Mexican government if
she returns to Mexico. We address each argument in turn.
A. Mental Health
Gilbertson argues that the BIA erred in excluding her mental health issues
from the PSC analysis. Specifically, she argues that the BIA erred in relying on
Matter of G-G-S- because that case has been subsequently overruled. Matter of G-
G-S-, I. & N. Dec. 339, 345 (BIA 2014) (holding that an alien’s mental health is not
a factor to be considered in a PSC analysis).
After the BIA’s decision in Gilbertson’s case, we held in Shazi v. Wilkinson
that Matter of G-G-S- represented an “arbitrary and capricious construction of
8 U.S.C. § 1231 [statutory withholding of removal], and we reject[ed] such a
categorical evidentiary bar in the particularly serious crime analysis.” Shazi v.
Wilkinson, 988 F.3d 441, 450 (8th Cir. 2021). Gilbertson now claims that the BIA
relied squarely on Matter of G-G-S- and that remand is required in light of Shazi.
We disagree.
Here, the IJ’s decision to not consider mental health in the PSC analysis—
which the BIA adopted and affirmed—relied exclusively on In re Y-L-, 23 I. & N.
Dec. 270, 274 (A.G. 2002), rather than Matter of G-G-S-. In In re Y-L- the Attorney
General stated that “aggravated felonies involving unlawful trafficking in controlled
substances presumptively constitute ‘particularly serious crimes[.]’” In re Y-L-, 23
I. & N. Dec. at 274. The Attorney General also added “[o]nly under the most
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extenuating circumstances that are both extraordinary and compelling would
departure from this interpretation be warranted or permissible.” Id. (emphasis
added). The Attorney General established the In re Y-L- framework specifically for
drug trafficking convictions given the offenses’ dangerous nature and severity. Id.
at 275. That framework applies in removal cases involving aggravated felonies
related to drug trafficking—like Gilbertson’s. So, we therefore conclude that the IJ
properly applied and relied on In re Y-L- to reject Gilbertson’s arguments.1
By applying the In re Y-L- framework to the present case—involving the
trafficking of controlled substances—the IJ properly held that Gilbertson had been
convicted of a PSC and thus could not receive withholding of removal. Under In re
Y-L-, we apply a strong presumption that an aggravated-felony conviction that
relates to drug trafficking will constitute a PSC. Id. To overcome that presumption
for her conviction, Gilbertson needed to show, at a minimum, that the offense
involved only: (1) a very small quantity of controlled substance; (2) a very modest
amount of money paid for the drugs; (3) her peripheral involvement in the criminal
activity, transaction, or conspiracy; (4) no implied or actual violence; (5) no
connection to organized crime or a terrorist organization; and (6) no harmful effect
on juveniles. Id. at 276–77. She did not do so here. Gilbertson possessed more than
1
Shazi concerned the BIA’s general PSC analysis, under which the BIA has a
policy of considering “all reliable information” including “information outside of
the confines of a record of conviction.” 988 F.3d at 449 (emphasis omitted) (citation
omitted). Accordingly, we found that such a categorical bar to mental health
evidence was an arbitrary and capricious construction of 8 U.S.C. § 1231. Id. at 450.
Gilbertson’s conviction is not subject to this general framework. Instead, the
Attorney General, in its discretion under 8 U.S.C. § 1231(b)(3)(B), determined that
“aggravated felonies involving unlawful trafficking in controlled substances
presumptively constitute ‘particularly serious crimes’” and established a separate
framework, not at issue in Shazi, by which a petitioner could overcome the
presumption. See In re Y-L-, 23 I. & N. Dec. at 274, 276–77. Gilbertson challenges
neither the Attorney General’s decision in In re Y-L- nor the Attorney General’s
authority to designate a certain conviction as a PSC. Because the framework in In
re Y-L- does not contemplate the consideration of “all reliable evidence,” the
application of Shazi to the present case is misplaced.
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50 grams of methamphetamine, had illegal weapons, and was involved with Los
Zetas’ drug deals. 2
Because Gilbertson failed to rebut the In re Y-L- presumption, the IJ did not
err in not considering mental health as a factor in the PSC analysis.
B. Convention Against Torture
Gilbertson next challenges the IJ’s finding, affirmed by the BIA, that she is
not entitled to CAT relief. As an applicant for deferral of removal, Gilbertson’s CAT
eligibility would require her to show “it is more likely than not,”
8 C.F.R. § 1208.16(c)(2), that she would be tortured if removed to Mexico “by, or
at the instigation of, or with the consent or acquiescence of, a public official . . . or
other person acting in an official capacity[.]” Id. § 1208.18(a)(1).
The IJ found that while cartel violence continues in Mexico, that alone cannot
show a more-likely-than-not chance that the Mexican government would acquiesce
in Gilbertson’s torture. We agree. “A government does not acquiesce in the torture
of its citizens merely because it is aware of torture but powerless to stop it[.]”
Hassan v. Rosen, 985 F.3d 587, 590 (8th Cir. 2021) (quoting Ramirez-Peyro v.
Holder, 574 F.3d 893, 899 (8th Cir. 2009)). In fact, some country-condition reports
2
The BIA adopted and affirmed the IJ’s decision, which relied exclusively on
the In re Y-L- framework. To the extent that the BIA relied on Matter of G-G-S-,
such reliance was harmless error. “Harmless errors no more justify reversal in a
deportation case than in a criminal case.” See Maashio v. I.N.S., 45 F.3d 1235, 1240
(8th Cir. 1995) (quoting Ortiz-Salas v. I.N.S., 992 F.2d 105, 106 (7th Cir. 1993));
see also Campos Julio v. Barr, 953 F.3d 550, 552 (8th Cir. 2020) (“Harmless error
determinations are a universally recognized aspect of appellate review.”).
Therefore, because In re Y-L- is the correct legal standard, and it alone defeats
Gilbertson’s argument, any error that the BIA made in relying on Matter of G-G-S-
did not affect the outcome of the present case. See Reyes-Morales v. Gonzales, 435
F.3d 937, 943 (8th Cir. 2006) (concluding that a BIA error was purely ministerial
and therefore harmless).
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show that the Mexican government is actively combating drug cartels and taking
steps to counter the torture and ill-treatment of its citizens.
The IJ’s fact-findings “must be upheld unless the alien demonstrates that the
evidence [s]he presented not only supports a contrary conclusion but compels it.”
Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016). Gilbertson’s evidence falls
short of that standard. The IJ determined that Archie’s threats toward Gilbertson
were not sufficient to support her claims:
(1) that Los Zetas is aware of her perceived cooperation with
U.S. law enforcement; (2) that Los Zetas is interested enough in
punishing [Gilbertson] that they will seek her out anywhere in
Mexico and kill her (despite her actual, low-level involvement);
[and] (3) that Los Zetas would be able to rely on its government
informants and alliances to know when [Gilbertson] returns to
Mexico, find [her] anywhere in Mexico, and detain her.
Gilbertson’s CAT application rests on a “hypothetical chain of events”; thus, she
needed to show that it was more likely than not that each link in the chain would
occur. See Matter of J-F-F-, 23 I. & N. Dec. 912, 917 (A.G. 2006); see Lasu, 970
F.3d at 967. But here, there is nothing in the record to rebut the IJ’s findings.
Because the record does not compel the conclusion that the Mexican
government would, more likely than not, acquiesce in Gilbertson’s torture, we affirm
the denial of CAT relief to Gilbertson.3
3
Gilbertson also argues that the IJ and the BIA erred in determining that she
would need to specifically prove that “a person perceived to have snitched on cartels
[is] specifically targeted for torture” because they should have taken judicial notice
of the commonly known fact that Mexican cartels hunt down and torture those who
cross them. We disagree. The Code of Federal Regulations gives the BIA the
discretion to choose when and when not to take administrative notice of a given fact.
See 8 C.F.R. § 1003.1(d)(3)(iv)(A)(1)–(2) (“The Board may take administrative
notice of commonly known facts such as current events or the contents of official
documents.” (emphasis added)). The BIA acted within its discretion when it
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III. Conclusion
For the foregoing reasons, we deny the petition for review.
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decided against administratively noticing Gilbertson’s fact. That decision was not
erroneous.
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