Osman Aguilar-Osorio v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSMAN ALFREDO AGUILAR-OSORIO, No. 19-73000
Petitioner,
Agency No.
v. A079-034-571
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2020 *
San Francisco, California
Filed March 15, 2021
Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence VanDyke, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge VanDyke
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 AGUILAR-OSORIO V. GARLAND
SUMMARY **
Immigration
The panel granted in part, dismissed in part, and denied
in part, Osman Alfredo Aguilar-Osorio’s petition for review
of the Board of Immigration Appeals’ denial of his motion
to terminate or remand proceedings, and his application for
withholding of removal and protection under the Convention
Against Torture, and remanded.
The panel rejected as foreclosed by circuit precedent
Aguilar-Osorio’s argument that jurisdiction never vested
with the immigration judge because his Notice to Appear did
not include the date and time of his hearing. The panel
concluded that it lacked jurisdiction to consider Aguilar-
Osorio’s argument, raised for the first time to this court, that
he never received his Notice of Hearing.
Because the court lacks jurisdiction to review the merits
of the Board’s discretionary decision to deny cancellation of
removal based on hardship, the panel concluded that it
lacked jurisdiction to consider the Board’s denial of Aguilar-
Osorio’s motion to remand to seek cancellation of removal
based on the alleged “exceptional and extremely unusual
hardship” his removal would cause his mother, a legal
permanent resident. Noting that Aguilar-Osorio argued that
this court had jurisdiction to review whether the Board
violated his due process rights by failing to consider the
relevant evidence, the panel concluded that there was
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
AGUILAR-OSORIO V. GARLAND 3
nothing in the record to indicate that there was relevant
evidence the Board failed to consider in making its hardship
decision.
Regarding Aguilar-Osorio’s petition for withholding of
removal, the panel agreed with the Board that Aguilar-
Osorio’s proposed social group comprised of “witnesses
who … could testify against gang members based upon what
they witnessed” was not “discrete” and lacked “definable
boundaries.” The panel also concluded that, unlike the
particular social group of Salvadoran witnesses who testified
in open court against gang members that the court deemed
cognizable in Henriquez-Rivas v. Holder, 707 F.3d 1081(9th Cir. 2013), Aguilar-Osorio failed to show that his
proposed group was socially recognizable and distinct.
Because Aguilar-Osorio failed to establish membership in a
cognizable social group, the panel held that he was ineligible
for withholding of removal.
With respect to CAT, the panel held that substantial
evidence supported the Board’s determination that Aguilar-
Osorio failed to establish that past torture occurred with the
consent or acquiescence of a public official as required by
8 C.F.R. § 1208.18(a)(1), where his testimony indicated that
the police never learned about harm he suffered as a result
of his witnessing a robbery and receiving a subsequent
threat.
Aguilar-Osorio’s fear of future torture was based on a
State Department’s Country Report describing pervasive
criminality within Honduran society. The panel observed
that although the IJ declined to receive the Report as an
official part of the record because the form in which it was
offered did not comply with the rules, the IJ’s decision
treated it as part of the record by taking judicial notice of it.
4 AGUILAR-OSORIO V. GARLAND
The panel further observed that Aguilar-Osorio relied upon
the Report in his appeal to the Board, yet the Board’s
decision neither took the Report into account nor explained
why it was not taking it into account. The panel concluded
that it therefore did not have an adequate basis on which to
evaluate Aguilar-Osorio’s claim of future torture that was
based, in part, upon the Report. The panel noted that it could
not independently take judicial notice of a report that was
not a part of the record. The panel wrote that the question of
how to treat this unusual situation was an issue the Board
had not addressed and that the panel therefore could not
decide in the first instance. The panel remanded Aguilar-
Osorio’s CAT claim to the Board for reconsideration in light
of the fact that the IJ took judicial notice of, and relied upon,
the Country Report.
Dissenting, Judge VanDyke wrote that the majority’s
lawless remand of this case to the Board flouted binding
precedent stating that the Board is not required to consider—
nor is this court permitted “to take judicial notice of”—a
Country Report that is “not part of the administrative record
or not previously submitted to the Board.” Judge VanDyke
wrote that the Board did not err in this case. Rather, it acted
in accordance with court precedents. Nevertheless, the court
once again remanded without clear direction or even a clear
description of what the Board apparently did wrong. Judge
VanDyke would have denied the petition in full.
COUNSEL
Christopher J. Stender, Federal Immigration Counselors,
AZ, PC, Phoenix, Arizona, for Petitioner.
AGUILAR-OSORIO V. GARLAND 5
Robbin K. Blaya, Trial Attorney; Joseph H. Hunt, Assistant
Attorney General; John S. Hogan, Assistant Director; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
PER CURIAM:
Osman Alfredo Aguilar-Osorio, a Honduran citizen,
seeks review of the Board of Immigration Appeals’ (BIA)
denial of his motion to terminate or remand proceedings, as
well as his applications for withholding of removal and
protection under the Convention Against Torture (CAT).
We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant
the petition on the basis of an evidentiary issue with respect
to the CAT claim and otherwise deny the petition.
1. Aguilar-Osorio argues, for the first time to this court, that
because he never received his 2001 notice of hearing,
jurisdiction never vested in the immigration court and his
removal proceedings should thus be terminated. But
because Aguilar-Osorio failed to present this argument to
both the immigration judge (IJ) and the BIA, we lack
jurisdiction to consider it. 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004); Samayoa-
Martinez v. Holder, 558 F.3d 897, 902 n.7 (9th Cir. 2009);
Ochave v. I.N.S., 254 F.3d 859, 867 (9th Cir. 2001). 1
1
Notably, Aguilar-Osorio did raise this argument in his motion to
reopen his absentia removal order, which the IJ granted. In his reopened
proceedings, Aguilar-Osorio admitted the 2001 NTA’s factual
allegations and removability charge and has been given a full
opportunity to seek all the relief for which he is not time-barred.
6 AGUILAR-OSORIO V. GARLAND
Precedent squarely forecloses the termination argument
that Aguilar-Osorio actually presented to the BIA—that
jurisdiction never vested in the IJ because the 2001 NTA did
not include his hearing date and time. See Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019); Aguilar
Fermin v. Barr, 958 F.3d 887, 893 (9th Cir. 2020).
2. The BIA also denied Aguilar-Osorio’s motion to remand
to seek cancellation of removal based on the alleged
“exceptional and extremely unusual hardship” his removal
would cause his mother, a legal permanent resident. 8 U.S.C.
§ 1229b(b)(1)(D). This court does not have jurisdiction to
review the merits of the BIA’s discretionary decision to deny
cancellation of removal based on hardship. See Martinez-
Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
Aguilar-Osorio argues that we have jurisdiction to review
whether the BIA violated his due process rights by failing to
consider the relevant evidence and should remand on that
basis. There is nothing in the record to indicate that there
was relevant evidence that the BIA failed to consider in
making its hardship decision.
3. Regarding Aguilar-Osorio’s petition for withholding of
removal, both the BIA and IJ concluded that his proposed
particular social group (PSG) was not cognizable. We
review de novo and agree. See Mendoza-Alvarez v. Holder,
714 F.3d 1161, 1163 (9th Cir. 2013). As the BIA noted,
Aguilar-Osorio’s proposed group, “witnesses who … could
testify against gang members based upon what they
witnessed,” encompasses “anyone in Honduras who is a
potential witness to anything that can be characterized as
crime committed by a gang member.” As such, the proposed
group is not “discrete” and lacks “definable boundaries.”
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239 (BIA 2014)
AGUILAR-OSORIO V. GARLAND 7
(citing Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir.
2005)).
Unlike the PSG of Salvadoran witnesses who testified in
open court against gang members that we deemed
cognizable in Henriquez-Rivas v. Holder, 707 F.3d 1081,
1092 (9th Cir. 2013), Aguilar-Osorio has not shown that his
proposed group is socially recognizable and distinct. Id. at
1093. 2 Aguilar-Osorio failed to establish membership in a
cognizable social group and is therefore ineligible for
withholding of removal under 8 U.S.C. § 1231(b)(3).
4. With respect to CAT, substantial evidence supports the
BIA’s determination that Aguilar-Osorio failed to establish
that past torture occurred with the consent or acquiescence
of a public official as required by 8 C.F.R. § 1208.18(a)(1).
His testimony indicated that the police never learned about
harm he suffered as a result of his witnessing a robbery and
receiving a subsequent threat.
He further argues, however, that he faces the threat of
future torture, pointing to the State Department’s Country
Report that describes pervasive criminality within Honduran
society. Although the IJ declined to receive the Report as an
official part of the record because the form in which it was
offered did not comply with the rules, the IJ’s decision
treated it as part of the record by taking judicial notice of it.
Aguilar-Osorio has relied upon the Report in his appeal to
the BIA and in his brief to this court. Yet the BIA decision
neither took the Report into account nor explained why it
was not taking it into account. We therefore do not have an
adequate basis on which to evaluate Aguilar-Osorio’s claim
2
We lack jurisdiction to address Aguilar-Osorio’s alternative PSG
that he raised here for the first time. See Barron, 358 F.3d at 677.
8 AGUILAR-OSORIO V. GARLAND
of future torture that is based, in part, upon the Report. We
cannot independently take judicial notice of a report that is
not a part of the record. Fisher v. INS, 79 F.3d 955, 963 (9th
Cir. 1996).
The question of how to treat this unusual situation is an
issue that the BIA has not addressed and therefore we cannot
decide in the first instance. See INS v. Ventura, 537 U.S. 12,
16 (2002) (citations omitted) (“[T]he proper course, except
in rare circumstances, is to remand to the agency for
additional investigation or explanation.”). We therefore
remand the CAT claim to the BIA for reconsideration in light
of the fact that the IJ took judicial notice of, and relied upon,
the Country Report.
Petition GRANTED in part, DISMISSED in part,
and DENIED in part.
Each party shall bear its own costs and fees.
VANDYKE, Circuit Judge, dissenting:
The majority’s lawless remand of this case to the BIA
flouts binding precedent stating that the BIA is not required
to consider—nor are we permitted “to take judicial notice
of”—a country report that is “not part of the administrative
record or not previously submitted to the Board.” Fisher v.
INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). 1 But
1
I recognize that “lawless” is a strong word, and I don’t use it
lightly. But it is sadly appropriate here. The majority not only fails to
cite any relevant precedent for its remand to the BIA—thus evincing that
its remand is, precisely, “not regulated by or based on law,” Lawless,
Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/lawless (last visited Feb. 25, 2021)—it even has the cheek to
AGUILAR-OSORIO V. GARLAND 9
notwithstanding contrary on-point, en banc authority, I
guess nobody can make intransigent judges unknow what
they already know they know—in this case the majority’s
passing reference to the “pervasive criminality within
Honduran society.” 2 I cannot join the majority’s opinion and
must respectfully dissent.
It must be challenging for the BIA to know how to
proceed in cases our court will review. Even when the BIA
acts in accordance with our clear en banc precedent, we
sometimes simply ignore that authority, identify some new
vague esoteric error in the BIA’s decisionmaking, and add
yet another non-intuitive exaction to the already byzantine
tangle of standards and procedures we’ve heaped upon the
agency. We make it very difficult, if not impossible, for the
BIA to properly do the job Congress gave it.
The BIA did not err in this case. It acted in accordance
with our precedents. Nevertheless, our court once again
remands without clear direction or even a clear description
of what the BIA apparently did wrong. The Real ID Act tells
cite Fisher, which actually forecloses its remand rationale, in the part of
its opinion ordering the remand. “Keep your enemies close …,” as they
say.
2
Members of our court have not hesitated to criticize former
President Trump for his unjustified negative depictions of some
countries south of the border. See, e.g., Ramos v. Wolf, 975 F.3d 872,
925 n.13 (9th Cir. 2020) (Christen, J., dissenting); cf. Regents of the
Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 518–20 (9th
Cir. 2018), cert. granted, 139 S. Ct. 2779 (2019), rev’d in part, vacated
in part, 140 S. Ct. 1891, 1915–16 (2020). So it is particularly rich that
the majority here is remanding this case based on nothing more than
Aguilar-Osorio’s unsupported claims of “pervasive criminality within
Honduran society,” which the majority acknowledges it shouldn’t
judicially notice under Fisher.
10 AGUILAR-OSORIO V. GARLAND
us all we need to know about our “extremely deferential”
review of the agency’s findings, Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003), but that statute is curiously silent
about unelected judges’ personal geopolitical intuitions.
Our precedent dictates the correct outcome in this case. We
should have denied the petition in full.
I.
The 2016 Honduras Country Report (Country Report) 3
is not in the administrative record in this case because
Aguilar-Osorio’s counsel failed to submit it in compliance
with the practice manual, and then failed to ever request that
the IJ or the BIA add it to the administrative record. Sure,
the IJ noticed the Country Report in its withholding analysis
to establish that Honduras has a high rate of general
criminality. But Fisher makes clear that neither the IJ nor
the BIA were then required to use it in other portions of their
analysis when the report isn’t in the record. 79 F.3d at 963–
64 (determining that a country report was not properly
before the BIA where the IJ relied on a portion of it for the
IJ’s decision, but the petitioner never submitted it to the IJ
nor requested that the IJ or BIA take administrative notice of
it and add it to the administrative record). See also Madrigal
v. Holder, 716 F.3d 499, 509 (9th Cir. 2013) (remanding
where the BIA “did not consider all the country condition
evidence [petitioner] properly placed before it” (emphasis
added)). Presumably it was this—our well-settled law on the
topic—that fooled the BIA into failing to mention a country
3
See generally U.S. Dep’t of State, 2016 Country Reports on
Human Rights Practices: Honduras, https://www.justice.gov/sites/
default/files/pages/attachments/2017/03/06/dos-hrr_2016_honduras.pdf.
I provide this link because the Country Report obviously cannot be cited
to as part of the record.
AGUILAR-OSORIO V. GARLAND 11
report that was never “properly placed before it.” Id. The
majority acknowledges the Country Report “is not a part of
the record.” But apparently, if it’s Honduras, that doesn’t
matter.
The majority also observes that Aguilar-Osorio relied
upon the Country Report in his briefing to the BIA. But it
fails to explain why that is relevant. Aguilar-Osorio never
once asked either the IJ or the BIA to add the Country Report
to the record. We see litigants unsuccessfully attempt to
sneak non-record evidence into their briefing all the time.
But the BIA may not engage in de novo fact finding, 8 C.F.R.
§ 1003.1(d)(3)(i), and our review is limited to “the
administrative record on which the order of removal is
based.” 8 U.S.C. § 1252(b)(4)(A). Aguilar-Osorio could
have asked to add the Country Report to the record. He did
not. So under settled law, the IJ was under no obligation to
consider the Country Report in contexts beyond that in
which the IJ noticed it (withholding, not CAT relief), and the
BIA couldn’t have erred by failing to mention a country
report that wasn’t in the record on appeal. See Fisher, 79
F.3d at 963–64.
There is no legal basis to grant this petition, as evidenced
by the fact that the majority cites no authority for doing so.
Frankly, I’m not even sure what the BIA is supposed to do
on remand—an uncertainty the BIA will undoubtedly share.
The majority ambiguously remands the case to the BIA “for
reconsideration in light of the fact that the IJ took judicial
notice of, and relied upon, the Country Report” in addressing
Aguilar-Osorio’s different claim. Notice that the majority
doesn’t order the BIA to actually consider the Country
Report—because, under Fisher, it can’t. Because, again, the
Country Report is not in the record. Apparently the majority
hopes that on remand, Aguilar-Osorio will now (finally!)
12 AGUILAR-OSORIO V. GARLAND
request that the Country Report be added to the record; and
the BIA will remand the case back to an IJ; and the IJ will
grant Aguilar-Osorio’s very untimely request to add the
Country Report (which it has no obligation to do); and the
Country Report evidence is so definitive it could make some
difference in the BIA’s decision. All because the BIA “has
not addressed” something Fisher makes abundantly clear it
had no obligation to address.
II.
Even assuming arguendo that most of the majority’s
hopeful chain was based on something more than a pile of
dreams, its last assumption is particularly doubtful. Here,
the agency’s denial of Aguilar-Osorio’s CAT claim was
based on case-specific evidence. It’s strange to think that
generalized evidence from a country report could override
all the individual facts specific to Aguilar-Osorio’s situation
that undergirded the agency’s decision. Indeed, it’s beyond
strange—it’s contrary to our circuit’s well-established
precedent. See, e.g., Santos-Ponce v. Wilkinson, No. 18-
72433, 2021 WL 481174, at *4 (9th Cir. Feb. 10, 2021)
(concluding, in a case where the Country Report was in the
record, that petitioner’s individualized evidence of risk of
harm, “combined with the existence of generalized violence
in Honduras, does not compel the conclusion that, upon his
return to Honduras, [petitioner] would more likely than not
experience torture” (citing Delgado-Ortiz v. Holder, 600
F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (“Petitioners’
generalized evidence of violence and crime in Mexico is not
particular to Petitioners and is insufficient to meet [the CAT]
standard.”))).
The specific record evidence establishes that Aguilar-
Osorio was present at a 2005 robbery where the perpetrators
were never identified as gang members. The police arrived
AGUILAR-OSORIO V. GARLAND 13
on the scene to investigate and take witness statements, but
Aguilar-Osorio refused even to talk to them. He claims to
have soon thereafter received an anonymous letter warning
him not to talk to the police about the robbery. He never
did—about the robbery or the anonymous letter. He also
testified (admitting that he was speculating and that he
lacked any personal knowledge of these facts) that two other
witnesses to the robbery, who allegedly also received
identical threat letters, were later killed by the anonymous
correspondents (in one instance, seven years after the
robbery). 4 Additionally, while he claimed the anonymous
letter demanded monthly extortion payments, it didn’t
indicate how or who to pay. Finally, there is no evidence
that the robbers or gang members (or anyone else) have been
searching for Aguilar-Osorio or ever visited his family’s
home (where the anonymous letter was delivered).
Given all this specific record evidence, the IJ reasonably
concluded “that the evidence presented is insufficient to
show that it is more likely than not that respondent will be
tortured if he returns to Honduras.” See Go v. Holder, 640
F.3d 1047, 1054 (9th Cir. 2011) (concluding substantial
evidence supported the BIA’s conclusion that petitioner
wasn’t likely to be tortured upon removal, despite his
credible-fear testimony and the country reports’
“generalized evidence suggesting a relatively high level of
mistreatment and abuse” and government corruption); see
also Lopez-Cardona v. Holder, 662 F.3d 1110, 1114 (9th
Cir. 2011) (rejecting CAT claim where petitioner’s fear was
4
The BIA was silent as to the IJ’s finding that the evidence was
insufficient to show the two fellow witnesses were killed for failure to
pay the extortion money. Such silence leads to only one reasonable
conclusion: that the BIA didn’t think the finding was clearly erroneous.
See 8 C.F.R. § 1003.1(d)(3)(i).
14 AGUILAR-OSORIO V. GARLAND
based on one 2005 El Salvadoran gang beating, where there
was no evidence that the gang knew petitioner or had any
reason other than general criminality to beat him, and where
the beating stopped when police arrived). Even if the
Country Report were properly in the record (it isn’t) and
painted an uncontroverted picture of routine and unchecked
torture (it doesn’t), this generalized evidence would need to
be weighed alongside the other specific record evidence in
this case. The evidence—considered as a whole—could not
compel us to reach a result different from the agency’s,
because there is already substantial evidence in the record
supporting the agency’s conclusion. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992).
III.
Finally, the Country Report does not provide
uncontroverted evidence that Aguilar-Osorio is likely to be
tortured if he is returned to Honduras. If anything, the
picture painted by the report is quite mixed and contains
affirmative evidence that the police and other authorities
have been taking action to rein in violence and torture in that
country.
I acknowledge, as did the IJ (in its withholding analysis),
that the Country Report shows a very serious, persistent
problem of criminality, perpetuated by organized crime,
gangs, and some corrupt official forces, as of 2016. But
there is lots of other evidence in the Country Report showing
the significant strides taken by the Honduran government to
address those problems. For instance, the authorities
arrested and detained one of their own Honduran National
Police officers suspected of torturing detainees. And as far
as official corruption, the Honduran government created a
“Special Commission in Charge of Purging and
Restructuring the Honduran National Police,” which was
AGUILAR-OSORIO V. GARLAND 15
tasked with reviewing the performance and integrity of all
police officials. As of the following December, the
Commission had reviewed 3,004 officials’ personnel files
and dismissed a total of 2,091 officers.
Moreover, “[o]n May 27, the UN special rapporteur on
extrajudicial, summary, or arbitrary executions recognized
that the government had taken steps to reduce the homicide
rate, but urged authorities to do more to protect the right to
life and reduce violence.” (Emphasis added.) “According to
the UNAH Violence Observatory, there was no significant
change in the overall annual homicide rate in the first six
months of [2016] … after several years of steep decline.”
(Emphasis added.) Notably, these years of steep decline
coincided with Aguilar-Osorio’s time in the U.S. The
Country Report in one sentence mentions that “[t]here were
reports that criminal gangs tortured individuals,” but the
Country Report otherwise focuses entirely on torture
perpetrated by official forces, noting that as of October 2016,
“[t]he Public Ministry had 49 active torture cases against
members of police and military.”
Aguilar-Osorio admitted he doesn’t know if the robbers
were gang members, he expressed no fear about being
tortured by the government, and he never reported any of his
troubles to the police, who appear willing and able to protect
him. Even if the Country Report were properly in the record,
it wouldn’t support the majority’s apparent assumption that
Aguilar-Osorio likely faces torture if removed … because …
it’s Honduras.
I find no basis in the law or the record—or even outside
the record, since the majority can’t resist—to grant this
petition. I therefore respectfully dissent.