Benedicto v. Garland, No. 18-73237 (9th Cir. 2021)
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Petitioner sought review of the BIA's decision dismissing his due process claims, the denial of his motion to terminate, and the denial of his application for withholding or deferral of removal under the Convention Against Torture (CAT). In this case, the IJ determined that petitioner was not competent to represent himself in removal proceedings; appointed a qualified representative; denied petitioner's motion to terminate; and found petitioner removeable for an aggravated felony.
The Ninth Circuit dismissed petitioner's due process claims and denied his petition for review. The panel concluded that, given the record in this case, the IJ's safeguards sufficed to provide petitioner with due process such that termination of the proceedings was not required. The panel also concluded that amicus counsel's fact-based disagreements with the IJ's discretionary "particularly serious crime" determination are unexhausted and unreviewable. Finally, the panel concluded that the evidence does not compel reversal of the BIA's denial of deferral or removal under CAT.
Court Description: Immigration. Dismissing in part and denying in part Julio Enrique Benedicto’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) Benedicto, a U.S. lawful permanent resident who had been found mentally incompetent, received all possible safeguards in his removal proceedings; 2) he failed to exhaust his claim regarding the “particularly serious crime” determination; and 3) the denial of deferral of removal under the Convention Against Torture (CAT) was supported by substantial evidence. After finding Benedicto incompetent, an immigration judge appointed a qualified representative (QR), denied Benedicto’s motion to terminate, and found him removable for an aggravated felony. The IJ also concluded that his conviction was a particularly serious crime barring withholding of removal under CAT and the Immigration and Nationality Act, and denied deferral of removal under CAT. The BIA dismissed Benedicto’s appeal, and amicus counsel was appointed to support Benedicto before this court. Amicus counsel argued both that the IJ should have instituted additional safeguards to protect Benedicto’s due process rights, and ultimately, given insufficient protections, should have terminated proceedings. The panel concluded it lacked jurisdiction to consider the unexhausted claim BENEDICTO V. GARLAND 3 regarding additional safeguards. The panel also concluded that the IJ’s safeguards sufficed such that termination was not required, explaining that the IJ: (1) appointed a QR, (2) granted every continuance requested, (3) compelled document productions from the Department of Homeland Security, (4) ensured that Benedicto’s QRs were able to file written pleadings and applications for relief, (5) personally questioned Benedicto to further ensure a fulsome, developed record, and (6) reviewed record evidence submitted to support Benedicto’s claims for relief. Rejecting amicus counsel contention that proceedings should have been terminated because Benedicto was not able to obtain further information that might have helped him, the panel explained that the IJ’s safeguards enabled Benedicto to present sufficient relevant information, and that the potential further information that amicus counsel proposed did not meet the narrow set of reasons for which an IJ may terminate under 8 C.F.R. § 1239.2(f). Next, the panel concluded that it could not review amicus counsel’s arguments regarding the particularly serious crime determination because the QR did not challenge that determination, which was the express reason the BIA relied on in finding no basis to disturb it. Were it able to review the unexhausted claim, the panel explained that amicus counsel’s argument was that Benedicto’s counsel was ineffective for failing to make specific arguments regarding the IJ’s weighing of the facts. The panel explained that a particularly serious crime determination is inherently discretionary and that jurisdiction to review such determinations exists only when the petitioner raises a constitutional or legal question, not simply where he asks for re-weighing of factors. 4 BENEDICTO V. GARLAND The panel also rejected the contention that the IJ erred, under Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018), by not referencing Benedicto’s mental illness in making the particularly serious crime determination. The panel explained that Gomez-Sanchez does not require the IJ to always reference a petitioner’s mental health in this context; rather, consideration of mental illness is required only where the petitioner presents evidence directly attributing the crime to his mental illness. As that was not the case here, and the IJ did not explicitly exclude mental health from her analysis, but instead considered all reliable information, the panel was not convinced of any legal error. Finally, the panel concluded that the evidence did not compel reversal of the denial of deferral of removal under CAT. Observing that the IJ and BIA agreed that Benedicto would more likely than not be arrested after he is deported, the panel explained that the record did not compel the conclusion Benedicto is more likely than not to suffer torture. As to police custody, the panel explained that the IJ and the BIA reasonably concluded that, while police in the Dominican Republic do injure detainees, the government does not demonstrate intentional complicity and the record does not compel the conclusion that any individual detainee is more likely than not to be tortured. As to prison conditions, the panel explained that the record demonstrated the Dominican Republic’s substantive attempts at prison reform, such that the record did not compel an inference of torturous intent. The panel also rejected the contention that the IJ failed to analyze Benedicto’s cumulative risk of torture. BENEDICTO V. GARLAND 5
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