Alcaraz-Enriquez v. Garland, No. 15-71553 (9th Cir. 2021)
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The panel's order withdrew the opinion filed on September 16, 2021, on remand from the Supreme Court; replaced it with a superseding opinion; and unanimously voted to deny the petition for panel rehearing, and ordered that no further petitions for rehearing or rehearing en banc would be entertained.
The panel granted in part and denied in part the petition for review of a decision of the BIA, and remanded, concluding that, in the absence of an opportunity to cross-examine its declarants, the Board erred in relying on a probation report to conclude that petitioner had been convicted of a particularly serious crime. The panel also concluded that the Board did not err in denying petitioner's application for deferral of removal under the Convention Against Torture. The panel remanded for further proceedings.
Court Description: Immigration. In an order for publication, the panel (1) withdrew the opinion filed on September 16, 2021, on remand from the Supreme Court; (2) replaced it with a superseding opinion; and (3) unanimously voted to deny the petition for panel rehearing, and ordered that no further petitions for rehearing or rehearing en banc would be entertained. In the superseding opinion, the panel granted in part and denied in part Cesar Alcaraz-Enriquez’s petition for review of a decision of the Board of Immigration Appeals, and remanded, concluding that: (1) in the absence of an opportunity to cross-examine its declarants the Board erred in relying on a probation report to conclude that Alcaraz had been convicted of a particularly serious crime; and (2) the Board did not err in denying Alcaraz’s application for deferral of removal under the Convention Against Torture. The panel first addressed the Board’s determination that Alcaraz’s conviction for inflicting corporal injury on a cohabitant, in violation of California Penal Code § 273.5(a), constituted a particularly serious crime rendering him ineligible for withholding of removal. In concluding that he had been convicted of a particularly serious crime, the agency credited a probation report recounting only Alcaraz’s girlfriend’s narrative of the domestic incident, over Alcaraz’s testimony at his immigration judge hearing. The panel previously granted Alcaraz’s petition on two bases: (1) that the Board erred in not requiring the Department of ALCARAZ-ENRIQUEZ V. GARLAND 3 Homeland Security to make a good-faith effort to make available for cross-examination the author and the declarant of the probation report; and (2) that in the absence of any express adverse credibility determination from the immigration judge the Board erred in not deeming true Alcaraz’s testimony. In Garland v. Ming Dai, 141 S. Ct. 1669 (2021), the Supreme Court reversed the panel’s second basis for granting the petition, vacated the panel’s entire prior decision, and remanded for further proceedings. Observing that the Supreme Court did not disturb the first basis for its prior decision, the panel wrote that because the Supreme Court vacated all of the panel’s prior opinion, it had to address again Alcaraz’s argument that he was denied a fair hearing because he was never given an opportunity to cross-examine the probation report’s author or the declarant, his girlfriend. The panel reaffirmed its prior holding and concluded that, under the circumstances of this case, the Board’s reliance on the probation officer’s report was error. The panel observed that this court has held that an IJ may consider all reliable information in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction. The panel wrote that this reliability question is particularly important when the IJ is relying on a document that, like a probation officer’s report, compiles impressions and testimony of other witnesses who may not testify themselves. The panel wrote that this court has also recognized that the evidence introduced into removal proceedings remains subject to other statutory and constitutional limitations, including that the admission of evidence must be 4 ALCARAZ-ENRIQUEZ V. GARLAND fundamentally fair. The panel wrote that the government deprives an individual of a fundamentally fair hearing when it fails to make a good faith effort to afford him a reasonable opportunity to confront and to cross-examine the witness against him. This good faith requirement typically requires the government to make some affirmative effort to procure the live testimony its declarants, and does not permit the government to shift that burden onto the applicant to produce the witness. The panel wrote that these principles—reliable evidence and fundamental fairness—converge when it comes to Alcaraz’s probation report. Despite its obligation to do so, the Department of Homeland Security made no effort—good faith or otherwise—to procure for Alcaraz’s cross- examination the witnesses whose testimony was embodied in the probation report, and upon whose testimony the Board ultimately relied in denying his application. The panel wrote that this failure impugned the probation report’s reliability and rendered the Board’s procedure fundamentally unfair. The panel concluded that this error caused Alcaraz prejudice because if the probation report had been found to be unreliable on cross-examination, it is possible that the IJ could have found Alcaraz credible and, based on Alcaraz’s version of events, found that Alcaraz’s conviction was not for a particularly serious crime, and that he was not barred from seeking withholding of removal. The panel remanded for a new hearing. Observing that Ming Dai upended the panel’s second basis for granting the petition and laid out the proper procedure on petition for review when there is no explicit adverse credibility determination, the panel concluded that it would be futile to analyze this issue before a new hearing is held. The panel explained that cross-examination of the ALCARAZ-ENRIQUEZ V. GARLAND 5 author of the probation report or the declarant could affect both the IJ’s credibility determination as to Alcaraz and the Board’s decision to credit the probation report’s version of events over Alcaraz’s. The panel reaffirmed its prior holding denying Alcaraz’s petition as to his application for deferral of removal under CAT.
This opinion or order relates to an opinion or order originally issued on March 9, 2018.
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