Maricela Mora Alvarez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARICELA MORA ALVAREZ; et al., No. 17-71093
19-70540
Petitioners,
v. Agency Nos. A206-373-867
A206-373-868
WILLIAM P. BARR, Attorney General, A206-373-869
A206-373-870
Respondent.
MEMORANDUM*
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 14, 2020**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.
Petitioners Maricela Mora Alvarez and her three children are natives and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
citizens of Mexico. The Immigration Judge (“IJ”) granted Petitioners protection
under the Convention Against Torture (“CAT”). The Board of Immigration
Appeals (“BIA”) vacated the IJ’s decision and ordered Petitioners removed from
the United States. Petitioners filed a motion for reconsideration and termination of
their removal proceedings, which the BIA denied. We deny the petitions for
review challenging the BIA’s decisions.
1. The BIA did not abuse its discretion by denying Petitioners’ motion for
reconsideration and termination of their removal proceedings. Our decision in
Karingithi v. Whitaker, 913 F.3d 1158, 1160-61 (9th Cir. 2019), forecloses
Petitioners’ argument that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ
lacked jurisdiction because their Notices to Appear did not contain time
information for their removal proceedings.1 Although Petitioners contend that
Karingithi was wrongly decided, we are bound by that decision given the absence
of any “intervening higher authority” which is “clearly irreconcilable” with it.
Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).
2. The BIA’s analysis of government acquiescence in any future torture
relied on an “overly narrow construction of the ‘acquiescence’ standard.” See
Parada v. Sessions, 902 F.3d 901, 916 (9th Cir. 2018). We have made clear that
1
Petitioners’ briefing states that their Notices to Appear also lacked place
information, but the record belies this assertion.
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the BIA must consider “the ‘efficacy of the government’s efforts to stop the drug
cartels’ violence,’ not just the willingness of the national government to do so.”
Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting Madrigal v.
Holder, 716 F.3d 499, 509 (9th Cir. 2013)). The BIA therefore erred by asserting
that “the government is actively working to combat criminal activity and
corruption” without addressing whether those efforts had actually been effective.
We have also explained that “the acquiescence standard is met where the record
demonstrates that public officials at any level—even if not at the federal level—
would acquiesce in torture the petitioner is likely to suffer.” Parada, 902 F.3d at
916. The BIA’s failure to give due consideration to evidence of corruption at the
state and local levels in Mexico was thus erroneous. See id. (noting that
“[e]vidence showing widespread corruption . . . can be highly probative” with
respect to the acquiescence inquiry).
These errors were harmless, however, because substantial evidence supports
the BIA’s determination that Petitioners failed to show that they would more likely
than not be tortured (with or without government acquiescence) if they were
removed to Mexico. Cf. Garcia-Milian v. Holder, 755 F.3d 1026, 1035 & n.5 (9th
Cir. 2014). The record does not compel the conclusion that Petitioners would be
unable to relocate outside Michoacán, Mexico. Mora Alvarez testified in
immigration court that she had no family outside Michoacán who could help her
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relocate, and no contacts outside Michoacán who could help her find work. But
she never testified that she would be unable to relocate outside Michoacán. And
the record does not compel the conclusion that conditions in Mexico generally are
so dangerous that Petitioners would be likely to be tortured regardless of where
they lived in that country. See United States v. Reyes-Bonilla, 671 F.3d 1036,
1051-52 (9th Cir. 2012) (indicating that evidence of “widespread abuse” in a
country can, on its own, “support CAT relief”). Nor does the record evidence
about the past abuse Petitioners suffered in Michoacán from the Knights Templar
cartel (which other residents of Michoacán also suffered) compel the conclusion
that Petitioners face a particularized threat of torture that satisfies the standard for
CAT protection, especially if Petitioners could relocate outside Michoacán. Cf.
Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir 2019) (“That [petitioner] suffered
persecution in the past does not necessarily mean he will be tortured in the
future.”).
PETITIONS FOR REVIEW DENIED.
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