Tzompantzi-Salazar v. Garland, No. 20-71514 (9th Cir. 2022)
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Tzompantzi-Salazar unsuccessfully sought to reopen his removal proceedings arguing that his Notice to Appear (NTA) did not include the time and date of his hearing. The Ninth Circuit denied a petition for review.
Tzompantzi-Salazar’s current proceeding was initiated with a different charging document, a Notice of Referral to Immigration Judge, so the Supreme Court’s “Pereira” holding is inapplicable. When hearing details are later provided, as they were here, there is no jurisdictional defect.
Substantial evidence supported the Board’s denial of Convention Against Torture (CAT) relief. Tzompantzi-Salazar could avoid any risk of future torture by relocating to his home state in central Mexico, Tlaxcala—thousands of miles from the border where his two kidnappings allegedly occurred. For CAT applications, the agency must consider the possibility of relocation without regard for the reasonableness of relocation that is considered in other types of applications. The remaining CAT factors did not change the result. Although past torture can be relevant in assessing an applicant’s risk of future torture, CAT relief is “forward-looking.” Tzompantzi-Salazar’s previous kidnappings, even assuming they occurred as described, do not establish that he continues to face a risk of torture more than 10 years later. Nor did the record compel the conclusion that the kidnappings rose to the level of torture. Country conditions evidence and context also undercut Tzompantzi-Salazar’s belief that he faces the extremely high threshold of future torture.
Court Description: Immigration. Denying Jose Tzompantzi-Salazar’s petition for review of a decision of the Board of Immigration Appeals, the panel held that (1) the Board did not abuse its discretion in denying Tzompantzi-Salazar’s motion to reopen in which he raised a challenge to his charging document under Pereira v. Sessions, 138 S. Ct. 2105 (2018); and (2) substantial evidence supported the Board’s denial of relief under the Convention Against Torture. Tzompantzi-Salazar sought to reopen proceedings arguing that the agency lacked jurisdiction because his Notice to Appear (NTA) did not include the time and date of his hearing. The panel concluded that Tzompantzi-Salazar’s argument failed for two reasons. First, Tzompantzi- Salazar’s current proceeding was initiated with a different charging document—a Notice of Referral to Immigration Judge (NOR)—which the panel concluded alone made Pereira inapplicable to his proceeding. Second, the panel concluded that even if it were to assume NTAs and NORs are analogous in the way Tzompantzi-Salazar claimed, his argument was foreclosed by precedent holding that when hearing details are later provided, as they were here, there is no jurisdictional defect. The panel held that substantial evidence supported the Board’s denial of CAT relief. First, the panel agreed with the Board that Tzompantzi-Salazar could avoid any risk of TZOMPANTZI-SALAZAR V. GARLAND 3 future torture by relocating to his home state in central Mexico, Tlaxcala—thousands of miles from the border where his two kidnappings allegedly occurred. Tzompantzi- Salazar argued that relocation to his home state would not be reasonable because he is “still relatively young with limited job prospects in Mexico with not having been back for some time,” and because if removed he would once again stay in Tijuana near the border to be close to his children in the United States. The panel rejected Tzompantzi-Salazar’s argument, explaining that in assessing eligibility for CAT relief, the agency must consider the possibility of relocation—without regard for the reasonableness of relocation that is considered in other types of applications, such as asylum and withholding of removal. The panel concluded that the evidence (including Tzompantzi- Salazar’s own testimony) showed that relocation to his home state in central Mexico, where he had no issues of past harm and the majority of his family still resides, was eminently possible. Next, the panel concluded that even putting aside the possibility of relocation, the remaining CAT factors did not push Tzompantzi-Salazar past the 50% threshold required for CAT relief. The panel wrote that although past torture can be relevant in assessing an applicant’s risk of future torture, that alone does not establish or even give rise to a presumption that the applicant will suffer future torture. The panel explained that, as the agency emphasized, CAT relief is “forward looking,” and Tzompantzi-Salazar’s previous kidnappings—even assuming they occurred just as described and the first was committed by real police officers—do not establish that he continues to face a risk of future torture more than ten years later. Nor did the record compel the conclusion that the kidnappings rose to the level of torture, which the panel explained is reserved for extreme 4 TZOMPANTZI-SALAZAR V. GARLAND cruel and inhuman treatment that results in severe pain or suffering. The panel concluded that the record would not compel the conclusion that Tzompantzi-Salazar established a more than 50% chance of future torture because he failed to provide any evidence that someone in his circumstance is more likely than not to be kidnapped and mistreated; for example, there was no evidence that over half of the people waiting in border towns to enter the U.S. illegally end up getting tortured or worse, which is what Tzompantzi- Salazar’s generalized evidence would need to show to warrant CAT relief. Finally, the panel wrote that the remaining CAT factors, including the country conditions evidence and other relevant context, all undercut Tzompantzi-Salazar’s belief that he faces the extremely high threshold of future torture required by statute. The panel explained that the country conditions evidence confirmed what the agency emphasized was the important context surrounding Tzompantzi-Salazar’s kidnappings, which occurred near the border, in an area with notoriously higher rates of crime, where Tzompantzi-Salazar voluntarily chose to stay as he searched for a smuggler to bring him illegally across the border in violation of a prior removal order. The panel wrote that country conditions evidence acknowledged crime and police corruption in Mexico generally, as well as higher rates in Tijuana, but failed to show that Tzompantzi-Salazar faces a particularized, ongoing risk of future torture higher than that faced by all Mexican citizens. TZOMPANTZI-SALAZAR V. GARLAND 5
The court issued a subsequent related opinion or order on April 21, 2022.
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