Aquilar-Osorio v. Garland, No. 19-73000 (9th Cir. 2021)
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Petitioner sought review of the BIA's denial of his motion to terminate or remand proceedings, and his application for withholding of removal and protection under the Convention Against Torture (CAT). The Ninth Circuit granted the petition for review on the basis of an evidentiary issue with respect to the CAT claim and otherwise denied the petition.
The panel concluded that it lacked jurisdiction to consider petitioner's claim, argued for the first time before the panel, 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. The panel explained that precedent squarely forecloses the termination argument that petitioner actually presented to the BIA. The panel also concluded that it lacked jurisdiction to consider the denial of petitioner's motion to seek cancellation of removal based on the alleged "exceptional and extremely unusual hardship" his removal would cause to his mother, a legal permanent resident. The panel explained that there is nothing in the record to indicate that there was relevant evidence that the BIA failed to consider in making its hardship decision. The panel concluded that petitioner 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). In regard to the CAT claim, the panel concluded that substantial evidence supports the BIA's determination that petitioner 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). The panel remanded 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.
Court Description: 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 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.
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