Maldonado v. Holder, No. 09-71491 (9th Cir. 2015)Annotate this Case
Petitioner filed an application for deferral of removal under the Convention Against Torture (CAT), alleging that he was tortured by corrupt Mexican police officers after he was deported in 2000. The immigration judge denied the application. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal, ruling that Petitioner was not eligible for deferral of removal under CAT because he failed to establish that internal relocation within Mexico was impossible. The Ninth Circuit reversed, holding (1) although Petitioner was removed to Mexico while this petition for review was pending, this petition was not moot because there was solid evidence that Petitioner was currently present in the United States; (2) Hasan v. Ashcroft, Lemus-Galvan v. Mukasey, Singh v. Gonzales, and Perez-Ramirez v. Holder are overruled to the extent they conflict with the plain language of the regulations governing internal relocation and deferral of removal under CAT; and (3) in light of the BIA’s reliance on the Court’s previous interpretation of section 8 C.F.R. 1208.16(c)(3), the cause must be remanded to the BIA for further proceedings consistent with this opinion.
Court Description: Immigration. The en banc court overruled Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral of removal under the Convention Against Torture. The en banc court first determined that the petition was not moot, notwithstanding petitioner’s removal after filing his petition for review, because there was solid evidence that petitioner is currently present in the United States. The en banc court held that Hasan and Lemus-Galvan are inconsistent with 8 C.F.R. §§ 1208.16(c)(2) and (3) because they improperly place the burden on the petitioner to prove that internal relocation is impossible. The en banc court also concluded that Singh departs from § 1208.16(c)(3) because the regulation does not specify that the inability to relocate safely is an element of claim for deferral of removal for which a petitioner bears the burden of proof, and that Perez- Ramirez improperly applied to the CAT context the burden- shifting scheme for internal relocation applicable to asylum claims. MALDONADO V. HOLDER 3 The en banc court held that neither the petitioner nor the government bear the burden of proof as to internal relocation, rather such evidence, if relevant, must be considered in assessing whether it is more likely than not that the petitioner would be tortured if removed. The court remanded to the Board for reconsideration of petitioner’s eligibility for deferral of removal. Dissenting, Judge Gould, joined by Judges Clifton, Ikuta, and N.R. Smith, would dismiss the case as moot because petitioner has not been in touch with his attorney and it is not clear that petitioner is currently in the United States. Dissenting, Judge M. Smith, joined by Judge Clifton, also believes that the case is moot, but wrote separately to state that even if he agreed with the majority that Maldonado’s petition for review continues to present a justiciable controversy, which he does not, he would affirm the denial of deferral of removal because the Board cited other appropriate factors in denying relief. He agrees with the majority that Perez-Ramirez must be overruled, and that the Board may have interpreted language in Lemus-Galvan as requiring a petitioner to establish that internal relocation is impossible, but he does not agree that Hasan and Singh, and the substance of Lemus-Glavan, conflict with the regulations. 4 MALDONADO V. HOLDER
This opinion or order relates to an opinion or order originally issued on July 29, 2014.