FLORES v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-12No. No. 19-73033

Summary · law.co

Holding. The petition for review is denied in part and dismissed in part. The court denied Flores's challenge to the BIA's reversal of CAT protection, finding substantial evidence supported the conclusion that he would not be tortured with government participation or acquiescence, and dismissed his challenges to the asylum and withholding denials for lack of jurisdiction due to failure to properly appeal those claims.

Julio Cesar Flores, a lawful permanent resident from El Salvador, faced removal following a 2018 criminal conviction. An Immigration Judge rejected his claims for asylum and withholding of removal but granted him relief under the Convention Against Torture, concluding he would likely face torture if returned because of his tattoos. The Board of Immigration Appeals reversed the CAT determination, finding the judge's factual conclusions speculative and unsupported by the record. Flores then sought court review of the BIA's decision.

The court found that substantial evidence supported the BIA's conclusion that Flores's tattoos would not result in torture. While some tattoos could appear gang-related, Flores stated he was never a gang member and could cover most tattoos with clothing or have them removed. The court also upheld the BIA's finding that generalized evidence of corruption in El Salvador did not establish that authorities would participate in or acquiesce to torture of Flores specifically.

Additionally, the court lacked jurisdiction over Flores's challenges to the denial of asylum and withholding of removal because he failed to properly appeal those denials to the BIA—only DHS had filed a notice of appeal, which challenged the grant of CAT relief rather than its denial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether substantial evidence supports the finding that an alien would be tortured with government acquiescence under CAT
Whether gang-related tattoos establish likelihood of torture
Whether failure to appeal specific claims to the BIA bars judicial review
Whether generalized evidence of government corruption establishes CAT eligibility

Procedural posture

This is a petition for review of a Board of Immigration Appeals decision reversing an Immigration Judge's grant of Convention Against Torture protection and upholding denials of asylum and withholding of removal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Julio Cesar Flores, Jr., a native and citizen of El Salvador and lawful permanent resident of the United States, was placed in removal proceedings after a 2018 conviction. Flores conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied asylum and withholding but granted CAT protection, finding it more likely than not that Flores would be tortured if removed because of his tattoos. The Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“BIA”), which reversed, finding the IJs factual findings “speculative and therefore clearly erroneous.” Flores has petitioned for review of the BIA decision. We deny the petition in part and dismiss it in part.

1. Floress opening brief does not directly challenge the BIAs dispositive holding that he had not established that it is more likely than not that he would be tortured with government participation or acquiescence if returned to El Salvador. Nor does Flores challenge the BIAs determination that the IJs factual finding to the contrary was clearly erroneous. Rather, in language that appears to have been lifted from another brief, Flores argues that the BIA erred in a relocation decision. The BIA made no such decision. Thus, we could find that Flores effectively has forfeited any challenge to the BIAs denial of CAT relief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). But, we exercise our discretion to address this issue “because the government briefed it, and thus suffers no prejudice from [Floress] failure to properly raise the issue.” See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).

On the merits, the record does not compel the conclusion that it was more likely than not that Flores would be tortured with government participation or acquiescence if returned to El Salvador. See Medina-Rodriguez v. Barr, 979 F.3d 738, 744, 749-50 (9th Cir. 2020); Ridore v. Holder, 696 F.3d 907, 915 (9th Cir. 2012); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Flores claims his tattoos will make him a target of gangs, vigilantes, and police, that this will result in torture, and that the government will acquiesce. But, substantial evidence supports the conclusion that the tattoos would not result in Flores being tortured in El Salvador. Although the BIA acknowledged that some of the tattoos could be perceived as “gang-related,” the BIA also noted that Flores stated that he had never been a gang member, that he expressed an interest in removing some of his tattoos, and that he could wear clothing to cover most of them. The BIA also properly concluded that Floress generalized evidence of corruption did not establish that authorities in El Salvador would acquiesce in the torture of him by others or that they would have a specific intent to torture him.

2. This Court lacks jurisdiction over Floress petition to the extent it attacks the denial of his claims for asylum and withholding of removal. “A court may review a final order of removal only if ․ the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Parties appealing an IJ decision are required to file a Notice of Appeal with the BIA that “must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged.” 8 C.F.R. § 1003.3(b); see also Matter of R-A-M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012); Matter of G-A-, 23 I. & N. Dec. 366, 367 n.1 (BIA 2002).

Flores did not appeal the rejection of his withholding or asylum claims to the BIA; the only notice of appeal, which challenged the IJs grant of CAT relief, was filed by DHS. Although Flores attempted to attack the denial of asylum and withholding in an answering brief submitted to the BIA, the agency appropriately held that the claims were “not properly before us and will not be addressed because the respondent has not filed an appeal of the Immigration Judges decision.”

3. Floress argument that the IJ lacked jurisdiction because of a deficient notice to appear is foreclosed by Circuit precedent, as a notice of hearing containing the required information was subsequently served. See Aguilar Fermin v. Barr, 958 F.3d 887, 894-95 (9th Cir. 2020).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.