Iraheta-Martinez v. Garland, No. 18-72692 (9th Cir. 2021)
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The Ninth Circuit denied the petition for review challenging the BIA's order denying petitioner's application for withholding of removal and relief under the Convention Against Torture (CAT). The panel also affirmed the BIA's refusal to allow petitioner to seek asylum in light of the reinstatement of his prior order of removal. The panel concluded that petitioner does not have the right to seek asylum under the INA, and he did not have a constitutional right to have DHS consider whether, as a discretionary matter, to overlook his prior removal order and thereby allow him to seek asylum.
The panel concluded that there is no basis for upsetting the BIA's denial of petitioner's application for withholding of removal. The panel explained that because the BIA's finding of changed circumstances was sound and sufficient to rebut the presumption of future persecution on account of petitioner's perceived sexual orientation, there is no need to address the BIA's finding that he could safely relocate within El Salvador; where the IJ concluded that it was not more likely than not that petitioner would be persecuted if he returned to El Salvador on the basis of his anti-gang beliefs, the record does not compel a different conclusion; and the panel rejected petitioner's claims that he would be persecuted on account of his membership in several other social groups. In regard to CAT relief, the panel concluded that there was no error in the IJ's finding that petitioner was not likely to face torture in El Salvador for the same reasons he was not likely to face persecution for withholding purposes.
Court Description: Immigration. Denying Santos Iraheta-Martinez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) because Iraheta’s prior removal order was reinstated, he had no right under the Immigration and Nationality Act (“INA”) to seek asylum, and no constitutional right to have the Department of Homeland Security consider whether as a discretionary matter to decline to reinstate that removal order; and (2) the Board applied the correct frameworks governing the denial of withholding and protection under the Convention Against Torture, and its factual basis for denying such relief was supported by the record. Iraheta raised a statutory and constitutional claim concerning his eligibility for asylum relief in reinstatement proceedings. As an initial matter, the panel concluded that there was no need to decide whether Iraheta had exhausted these arguments because doing so would have been futile, given regulatory limitations on reinstatement proceedings, and circuit precedent holding that the agency lacks authority to disregard those regulations. Iraheta’s statutory claim rested on the interplay of several INA provisions providing and limiting the right to apply for asylum. Under 8 U.S.C § 1158(a): “Any alien who is physically present in the United States or who arrives in IRAHETA-MARTINEZ V. GARLAND 3 the United States . . . , irrespective of such alien’s status, may apply for asylum.” That broad authorization, however, is subject to exceptions set forth in §§ 1158(a)(2)(B) & (C)— the one-year and previous denial bars. Those bars in turn are subject to their own exception in § 1158(a)(2)(D), upon a showing of material “changed circumstances.” For noncitizens subject to reinstatement of a prior removal order, § 1231(a)(5) provides that they are not eligible and may not apply for “any relief” under this chapter. Iraheta argued that notwithstanding § 1231(a)(5), he was eligible to seek asylum under § 1158(a)(2)(D)’s exception if he could show changed circumstances. The panel observed that Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), left open the question, at issue here, of how § 1158(a)(2)(D) might affect § 1231(a)(5), where a noncitizen asserts changed circumstances. Looking to the statutory language and various textual clues, the panel concluded that the INA makes clear that noncitizens with reinstated removal orders, while eligible to seek withholding and CAT relief, are not eligible to seek asylum. The panel rejected Iraheta’s invocation of the general-specific canon, under which he argued that § 1158(a)(2)(D) more specifically governs his asylum eligibility than does § 1231(a)(5). The panel explained that the determining which statute is “general” and which is “specific” is an unilluminating exercise, rendering the canon inapplicable, and a close reading of both provisions reveals that there is no conflict, also rendering the canon inapplicable. The panel also rejected Iraheta’s argument that because the INA allows noncitizens with reinstated removal orders to seek withholding and CAT relief despite § 1231(a)(5), asylum should be available, as well. The panel explained that the availability of certain relief notwithstanding 4 IRAHETA-MARTINEZ V. GARLAND § 1231(a)(5) only underscores that the INA and its implementing regulations offer a comprehensive set of rules governing which noncitizens are eligible for what forms of relief, and the INA makes clear that noncitizens with reinstated removal orders are not eligible for asylum. The panel also rejected Iraheta’s contentions that his reading of the statutes was required under the constitutional avoidance canon and to avoid running afoul of the United States’s treaty obligations, explaining that neither principle came into play here, because there is no ambiguity in the relationship between §§ 1158(a)(2)(D) and 1231(a)(5). Relying on Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) (noting that nothing in 8 U.S.C. § 1231(a)(5) or its implementing regulations deprives the agency of discretion to afford a new plenary removal hearing), Iraheta argued in the alternative that even if the INA did not afford him a statutory right to seek asylum, because DHS has the discretion to overlook a prior removal order rather than reinstate it, due process required DHS to consider his changed circumstances before deciding whether to reinstate the order or place him in ordinary removal proceedings. The panel rejected that argument, explaining that Villa-Anguiano did not create a due process right to present an argument that may sway DHS in the exercise of its purely discretionary authority to overlook a prior removal order, and that recognizing such a right would undermine the agency’s plenary discretion over when to exercise that form of leniency. Turning to Iraheta’s claims for withholding of removal and CAT protection, the panel concluded that the evidentiary record supported the denial of relief. Both the Board and IJ assumed that the abuse Iraheta faced in his youth by his father qualified as persecution due to his perceived sexual IRAHETA-MARTINEZ V. GARLAND 5 orientation, thus creating a presumption that he would be persecuted in the future as well. The panel concluded that the agency properly applied the burden-shifting framework in determining that the government had rebutted the presumption of future persecution with evidence that circumstances have changed now that Iraheta is a grown man who no longer needs to live with his father. The panel also held that the evidence did not compel the conclusion that Iraheta would more likely than not be persecuted by anyone else on account of his perceived sexual orientation, or by gang members or his brother based on his anti-gang beliefs. The panel concluded that the Board also adequately considered the aggregate risk of torture in denying CAT protection.
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