Carlos Madrid v. Eric Holder, Jr. , 541 F. App'x 789 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS JAIME MADRID, AKA No. 12-70541
Manuel Contreras, AKA Carlos Jaime
Madrid-Cabrera, Agency No. A095-656-580
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 12, 2013
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District
Judge.**
Carlos Jaime Madrid petitions for review of a final order of the Board of
Immigration Appeals (Board) holding him removable, and declaring him ineligible
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). The petition is denied.
An alien is ineligible for withholding of removal if the alien, “having been
convicted by a final judgment of a particularly serious crime[,] is a danger to the
community of the United States.” Anaya-Ortiz v. Holder, 594 F.3d 673, 675 (9th
Cir. 2010) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)). Likewise, an alien who has been
convicted of a “particularly serious crime” is ineligible for both asylum and
withholding of removal under the CAT. Arbid v. Holder, 700 F.3d 379, 385 (9th
Cir. 2012); Delgado v. Holder, 648 F.3d 1095, 1105 n.14 (9th Cir. 2011) (en banc).
As we explained in Delgado, the Attorney General “has the authority to
designate offenses as particularly serious crimes through case-by-case adjudication
of individual asylum applications.” Delgado, 648 F.3d at 1106. In determining
whether an alien has committed a particularly serious crime, the Board is to
consider “the nature of the conviction, the circumstances and underlying facts of
the conviction, the type of sentence imposed, and, most importantly, whether the
type and circumstances of the crime indicate that the alien will be a danger to the
community.” Id. at 1107. Moreover, although crimes against persons are “more
likely” to be characterized as particularly serious crimes than other types of
offenses, “there may be instances where crimes (or a crime) against property will
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be considered as such crimes.” Alphonsus v. Holder, 705 F.3d 1031, 1039 (9th
Cir. 2013) (quoting Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982)).
The Board’s determination that an alien has committed a particularly serious crime
is a discretionary decision, which we accordingly review for abuse of discretion.
See id. at 1043. Under this standard of review, “we may disturb the [Board’s]
ruling if the [Board] acted arbitrarily, irrationally, or contrary to law.” Id.
The Board did not abuse its discretion in determining that the crime of
which Madrid was convicted was a “particularly serious crime.” Madrid pleaded
guilty to “maliciously and intentionally” harming a poodle, in violation of Cal.
Penal Code § 597(a), and was sentenced to two years in prison. In particular,
Madrid pleaded guilty to “maliciously and intentionally maim[ing], mutilat[ing],
tortur[ing], or wound[ing] a living animal, or maliciously and intentionally
kill[ing] an animal.” Cal. Penal Code § 597(a). As the Board observed, Madrid
also pleaded guilty to using a knife in the commission of this crime. The Board
concluded that the “totality of evidence shows that [this] crime is particularly
serious,” insofar as it involved “extreme violence perpetrated against a living
creature.” We agree that using a knife to “maliciously and intentionally” commit
cruelty to animals, in one of the ways specified by Cal. Penal Code § 597(a),
constitutes an act of “extreme violence perpetrated against a living creature.”
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Thus, we conclude that the Board’s determination that Madrid committed a
particularly serious crime was neither arbitrary, irrational, nor contrary to law.
Alphonsus, 705 F.3d at 1043.
The Board acknowledged that Madrid testified that he had merely, and
inadvertently, placed the poodle in a bath containing hot water, after which the
poodle’s owner paid a veterinarian to put the poodle to sleep. This testimony is
belied by the fact that Madrid pleaded guilty to using a knife to “maliciously and
intentionally” harm the poodle. Thus, the Board concluded that “despite this
testimony,” and in light of the “totality of evidence,” Madrid had committed a
particularly serious crime. Even though we generally accept as true a petitioner’s
testimony absent an adverse credibility finding, Cole v. Holder, 659 F.3d 762, 770
(9th Cir. 2011), here, Madrid’s testimony as to his prior crime is refuted by record
evidence of his guilty plea and conviction. Insofar as the totality of the evidence
shows that Madrid pleaded guilty to using a knife to “maliciously and
intentionally” harm the poodle, and was sentenced to two years in prison for doing
so, we hold that the Board did not act arbitrarily, irrationally, or contrary to law in
determining that the evidence of Madrid’s conviction told the full story rather than
his assertion that he had merely scalded the dog in the bath.
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As we recently observed, the “currently operative legal standard” regarding
the determination of particularly serious crimes is as follows: “[A] crime is
particularly serious if the nature of the conviction, the underlying facts and
circumstances and the sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.” Alphonsus, 705 F.3d at 1041 (emphasis
in original). It is not arbitrary, irrational, or contrary to law to conclude that one
who maliciously and intentionally commits an act of cruelty against a living animal
is “a danger to the community.” Accordingly, we affirm the Board’s determination
that Madrid committed a particularly serious crime.
We affirm the Board’s denial of deferral of removal under CAT. Although
Madrid established that he remains in danger of being attacked due to his
homosexuality if he returns to Mexico, the record does not “compel[]” the
conclusion that the government would acquiesce in his torture at the hands of
private parties. 8 C.F.R. § 1208.18(a)(1). Indeed, Madrid testified that the
government investigated and prosecuted some of the individuals who attacked him
in his youth. Moreover, although a police officer severely mistreated Madrid on a
single occasion, Madrid failed to establish that the officer’s conduct rose to the
level of torture, or was likely to recur. See Boer-Sedano v. Gonzales, 418 F.3d
1082, 1092 (9th Cir. 2005).
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PETITION FOR REVIEW DENIED.
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FILED
Madrid v. Holder, No. 12-70541 OCT 08 2013
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I join the majority with regard to Madrid’s claim for deferral of removal
under the Convention Against Torture (“CAT”). But I would hold that the BIA
abused its discretion in holding that Madrid’s conviction for cruelty to animals
under California Penal Code § 597(a) qualifies as a “particularly serious crime,”
rendering him ineligible for asylum or withholding of removal. See 8 U.S.C.
§§ 1158(b)(2)(A), 1231(b)(3)(B)(ii).
“[T]he BIA abuses its discretion when it fails to provide a reasoned
explanation for its actions[,]” Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005), or when “it fails to ‘indicate how it weighed the factors involved and how it
arrived at its conclusion[.]’” Alphonsus v. Holder, 705 F.3d 1031, 1044 (9th Cir.
2013) (citations omitted).
Madrid testified that he scalded the dog in the bath, causing its skin to peel
off — but that he did not kill the dog. Rather, the dog’s owner took the dog to the
veterinarian and they “g[a]ve him a shot, and put him to sleep[.]” The immigration
judge made an explicit, positive credibility determination, which the BIA did not
overturn. Madrid is therefore entitled to the presumption of credibility, Yazitchian
v. INS, 207 F.3d 1164, 1168 (9th Cir.2000); and we are bound to accept his
testimony as true, Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).
Notwithstanding Madrid’s “credible” testimony, the BIA found that Madrid
was convicted of “‘maliciously and intentionally’ torturing, skinning, wounding,
mutilating, and killing a dog.” This conclusion is neither consistent with Madrid’s
testimony, nor compelled by the record of conviction. California Penal Code §
597(a) provides that “every person who maliciously and intentionally maims,
mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills
an animal, is guilty of a crime. . . .” As it is written in the disjunctive, a conviction
under this provision does not necessarily involve killing a dog.
Moreover, although the indictment was charged in the conjunctive, “[w]here
a statute specifies two or more ways in which an offense may be committed, all
may be alleged in the conjunctive in one count and proof of any one of those acts
conjunctively charged may establish guilt.” United States v. Bonanno, 852 F.2d
434, 441 (9th Cir. 1988). “All that [I] can gather from the charge and the bare
record of a plea of guilty, therefore, is that [Madrid] was guilty of” at least one of
the listed acts. Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 (9th Cir. 2007)
(interpreting a conviction where the complaint was charged conjunctively, but the
statute was worded in the disjunctive).
The Board failed to explain how it reconciled its particularly serious crime
holding with Madrid’s “credible” testimony and the statutory text. A finding that
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Madrid, in fact, killed the dog may have been critical to the BIA’s holding —
particularly because “[c]rimes against persons are more likely to be categorized as
‘particularly serious crimes,’” In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A.
1982), and I know of no other case in which a crime involving harm to an animal
has been held to be particularly serious.
As I “cannot discern . . . the operative rationale of the particularly serious
crime determination[,]” I would remand to the BIA for further explanation as to
how it arrived at its conclusion. Alphonsus, 705 F.3d at 1044 (citation omitted).
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