Mauricio Ayala v. Eric H. Holder Jr. , 430 F. App'x 602 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MAURICIO ARNOLDO RAMIREZ No. 08-73764
AYALA,
Agency No. A039-259-147
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2010
Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
The petitioner in argument before us waived the issue we now address. In
response to our order for supplemental briefing as to whether we are bound by this
waiver, the government concedes that we have discretion to address the issue, but
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
urges us not to do so. See Aleman v. Glickman, 217 F.3d 1191, 1196 (9th Cir.
2000); In re America West Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000).
In his original hearing before the IJ, the petitioner developed evidence that
he had a diminished mental capacity and that this made him more likely to be
tortured. The IJ granted CAT relief in part because his diminished mental capacity
made it “more likely than not that he would be tortured in the prison systems or in
the country of El Salvador if returned there.” The Department of Homeland
Security appealed, and the BIA concluded that the IJ had erred by considering the
aggregate of three factors: “1) the respondent faced trouble surviving without
better language or social skills and without family support; 2) the respondent faced
harm from street gangs; and 3) the respondent may be arrested because of his gang-
related tattoos or harmed by government-sponsored vigilantes.” The BIA
remanded to the IJ, stating that petitioner could qualify for CAT protection only on
the basis of the IJ’s third consideration (or the second consideration if the
petitioner could make the necessary showings to a governmental connection).
On remand, the IJ held another hearing, at which petitioner presented
additional background documents and expert testimony focused on his gang-
related tattoos. After considering this additional evidence, the IJ denied
petitioner’s application for deferral of removal under CAT, noting that the BIA
2
“stated that the only factor relevant to the CAT analysis is [petitioner’s] possible
arrest and torture as a result of his gang-related tattoos.” The IJ specifically
“decline[d] to entertain arguments that his diminished mental capacity . . . should
be considered.” The BIA dismissed petitioner’s appeal without addressing whether
his diminished mental capacity made him more likely to be tortured. The
government concedes that the petitioner has exhausted this issue.
The question of whether the diminished mental capacity of a petitioner is
relevant to a CAT claim is new and important. The BIA’s first decision, speaking
only of petitioner’s language difficulties and minimal social skills, did not clearly
focus on the question whether the petitioner’s diminished mental capacity made
him more likely to be tortured. The likelihood of such abuse is to be measured not
only by information about the torturers but by the vulnerability of their victim. It
is a sad truth of human experience that a victim’s haplessness enhances the
confidence of a bully.
Expert testimony from a psychologist indicated that the petitioner “has been
delayed in motor development and also delayed in speaking ability as well. The
[petitioner] cannot learn basic skills such as caring for his own hygiene . . . .[He]
will be unable to be self reliant for basic health needs.” Expert testimony also
indicated that the petitioner would be arrested because his appearance would
3
identify him as a gang member, and that, due to his developmental delays,
petitioner would be unable to respond appropriately to police questioning. If these
reports are accurate, Ayala’s condition may well be relevant in weighing the
likelihood of his being tortured by the police, or by government-linked death
squads or gang members whose actions are acquiesced to by the government.
Accordingly, we REMAND to the BIA for reconsideration in accordance
with this decision.
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FILED
Ayala v. Holder, No. 08-73764 MAY 02 2011
MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, dissenting: U.S. COURT OF APPEALS
I dissent from the majority’s decision to remand for reconsideration of the
petitioner’s mental capacity. The petitioner did not raise mental capacity in his
opening brief and, when asked at oral argument whether he was raising this issue,
his attorney explicitly stated that he did not seek review of the petitioner’s mental
capacity. There is no evidence that the Petitioner’s decision to waive the mental
capacity issue was anything other than a tactical decision. This court has
previously declined to exercise its discretion to consider waived issues in similar
circumstances. See, e.g., In re Burnett, 435 F.3d 971, 975-77 (9th Cir. 2006)
(declining to consider waived issue where the litigants had not raised the issues
below and there were no extraordinary circumstances that would justify the court’s
discretionary power to consider the issues); A-1 Ambulance Serv. Inc., v. County of
Monterey, 90 F.3d 333, 339 (9th Cir. 1996) (declining to apply the court’s
discretion to consider an issue raised for the first time on appeal where it was not
adequately and timely raised below).
Although the panel majority concludes that evidence of diminished mental
capacity is “new and important” and remands for further consideration of the
petitioner’s mental capacity, the BIA must decide what weight, if any, to give to
the evidence cited by the majority. Under our substantial evidence standard, it is
not for us to independently weigh the evidence. See Donchev v. Mukasey, 553
F.3d 1206, 1213 (9th Cir. 2009) (“We are not free to look anew at the testimony
and then measure the soundness of the agency’s decision by what we would have
found.”); Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994) (“This strict standard
bars the reviewing court from independently weighing the evidence and holding
that the petitioner is eligible for asylum, except in cases where compelling
evidence is shown.”).
Because we should not have exercised our discretion to consider an issue
that the petitioner waived, and because I disagree with the panel majority’s focus
on certain expert testimony in its disposition remanding to the BIA, I dissent.