Roberto Maldonado v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO CURINSITA MALDONADO, No. 09-71491

Petitioner,

Agency No.

v. A017-263-848

LORETTA E. LYNCH, Attorney

General, ORDER AND

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

September 19, 2014—San Francisco, California

Filed March 27, 2015

Amended May 18, 2015

Before: Alex Kozinski, Kim McLane Wardlaw, Ronald M.

Gould, Richard A. Paez, Richard R. Clifton, Milan D.

Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Morgan

Christen, Paul J. Watford, and Michelle T. Friedland,

Circuit Judges.

Order;

Opinion by Judge Paez;

Dissent by Judge Gould;

Dissent by Judge M. Smith

2 MALDONADO V. HOLDER

SUMMARY*

Immigration

The en banc court overruled Hasan v. Ashcroft, 380 F.3d

1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d

1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th

Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th

Cir. 2011), to the extent they conflict with the plain text of the

regulations governing internal relocation and deferral of

removal under the Convention Against Torture.

The en banc court first determined that the petition was

not moot, notwithstanding petitioner’s removal after filing his

petition for review, because there was solid evidence that

petitioner is currently present in the United States.

The en banc court held that Hasan and Lemus-Galvan are

inconsistent with 8 C.F.R. §§ 1208.16(c)(2) and (3) because

they improperly place the burden on the petitioner to prove

that internal relocation is impossible. The en banc court also

concluded that Singh departs from § 1208.16(c)(3) because

the regulation does not specify that the inability to relocate

safely is an element of claim for deferral of removal for

which a petitioner bears the burden of proof, and that Perez-

Ramirez improperly applied to the CAT context the burden-

shifting scheme for internal relocation applicable to asylum

claims.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MALDONADO V. HOLDER 3

The en banc court held that neither the petitioner nor the

government bear the burden of proof as to internal relocation,

rather such evidence, if relevant, must be considered in

assessing whether it is more likely than not that the petitioner

would be tortured if removed. The court remanded to the

Board for reconsideration of petitioner’s eligibility for

deferral of removal.

Dissenting, Judge Gould, joined by Judges Clifton, Ikuta,

and N.R. Smith, would dismiss the case as moot because

petitioner has not been in touch with his attorney and it is not

clear that petitioner is currently in the United States.

Dissenting, Judge M. Smith, joined by Judge Clifton, also

believes that the case is moot, but wrote separately to state

that even if he agreed with the majority that Maldonado’s

petition for review continues to present a justiciable

controversy, which he does not, he would affirm the denial of

deferral of removal because the Board cited other appropriate

factors in denying relief. He agrees with the majority that

Perez-Ramirez must be overruled, and that the Board may

have interpreted language in Lemus-Galvan as requiring a

petitioner to establish that internal relocation is impossible,

but he does not agree that Hasan and Singh, and the substance

of Lemus-Glavan, conflict with the regulations.

COUNSEL

Haitham Edward Ballout (argued), and Mairead C. Donahey,

Law Offices of Haitham E. Ballout, Burlingame, California,

for Petitioner.

4 MALDONADO V. HOLDER

Andrew C. MacLachlan (argued), Senior Litigation Counsel,

and Ilissa M. Gould, Attorney, United States Department of

Justice, Office of Immigration Litigation, Washington D.C.,

for Respondent.

ORDER

The Government’s Motion to Clarify Decision is granted

as follows. On page 5 of the slip opinion, filed on March 27,

2015, the text of footnote 1 is amended as follows: “Because

the IJ deemed Maldonado credible, we take his testimony as

true for purposes of this opinion. See, e.g., Singh v. Holder,

764 F.3d 1153, 1159 (9th Cir. 2014).”

OPINION

PAEZ, Circuit Judge:

Roberto Curinsita Maldonado (“Maldonado”) petitions

for review of the Board of Immigration Appeals’ (“BIA”)

decision dismissing his appeal of an immigration judge’s

(“IJ”) denial of his application for deferral of removal under

the Convention Against Torture (“CAT”). Although the IJ

found that Maldonado testified credibly that he was tortured

by corrupt Mexican police officers after he was deported in

2000, the BIA concluded that Maldonado was not “eligible

for deferral of removal under [CAT] because he failed to

establish that internal relocation within Mexico was

impossible.”

MALDONADO V. HOLDER 5

In this proceeding, Maldonado argues that, although he

bears the ultimate burden to prove he would be tortured if

returned to Mexico, the BIA’s ruling on internal relocation is

inconsistent with the plain text of the governing regulation, 8

C.F.R. § 1208.16(c)(3). He also challenges our framework in

Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.

2008), which the BIA cited in support of its ruling. We

acknowledge that our case law on internal relocation under

CAT departs from the text of § 1208.16(c)(3). We therefore

take this opportunity sitting en banc to clarify our case law

and to restore the integrity of § 1208.16(c)(3) in the analysis

of a claim for deferral of removal under CAT. In light of the

BIA’s reliance on our interpretation of § 1208.16(c)(3), we

grant the petition for review and remand to the BIA for

further proceedings consistent with this opinion.

While this petition for review was pending, Maldonado

was removed to Mexico. This development prompted us to

question whether this petition is moot. After considering the

government’s response to our post-argument inquiry, we

conclude, as explained below, that this petition is not moot

and proceed to the merits.

I. Background

Factual Basis for Torture Claim1

Maldonado entered the United States in 1966 as a young

child. He obtained lawful permanent resident status through

his father. As the result of a first degree burglary conviction

1

Because the IJ deemed Maldonado credible, we take his testimony as

true for purposes of this opinion. See, e.g., Singh v. Holder, 764 F.3d

1153, 1159 (9th Cir. 2014).

6 MALDONADO V. HOLDER

in 1991, he was stripped of that status in 1997 and ordered

deported to Mexico.2

After Maldonado returned to Mexico, he attempted to

settle in his family’s hometown, Ciudad Hidalgo, in the state

of Michoacan. As he passed through inspection at the airport

in nearby Morelia, he was detained by what Maldonado

described as “Mexican officers” or “Mexican judicial police”3

who were inspecting individuals arriving after removal from

the United States. The officers handcuffed him and took him

to a police station. They questioned him about tattoos on his

body, which they insisted were proof that he had been in a

Mexican prison before relocating to Michoacan. As the

police officers questioned Maldonado, they beat him, drove

screwdrivers into his legs, and burned him with cigarettes,

leaving multiple scars. At other points during his detention,

the police officers administered shocks to his testicles and

placed a bag filled with water over his head such that he

believed he was choking. For approximately one month, the

police detained Maldonado in a cell at the station without

access to a phone. While in custody, they continued to

torture him. Eventually, Maldonado was able to contact his

father, who paid $15,000 for his release. The police officers

did not release Maldonado to his father. Instead, they moved

2

Although Maldonado’s declaration in support of his CAT claim states

that he was ordered deported “[i]n or around 1998,” he testified that he did

not leave the United States until 2000. The government, however,

clarified that he was ordered removed on June 17, 1997, and was actually

removed on November 7, 1998.

3

Maldonado used these English-language terms along with two

additional Spanish-language terms, “judiciales” and “policiales,” to

describe the corrupt Mexican police officers who seized him.

MALDONADO V. HOLDER 7

Maldonado by helicopter to a prison and demanded more

money for his release.

After three months of captivity and torture, the police

informed Maldonado that they would release him only on the

condition that he guide other recent deportees into their

hands. When Maldonado refused, they stabbed him in the leg

and beat him for two days. Fearing for his life, he agreed to

participate. Maldonado’s role in the criminal enterprise was

to approach recent deportees at the airport, promise to assist

them, and guide them to hotels that had been chosen by the

police. Maldonado would instruct the deportees to wait for

him in the hotel. Instead of returning, Maldonado would

notify the police, who would then go to the hotel and take the

deportees into custody where, according to Maldonado, they

likely suffered a fate similar to his own. Maldonado received

modest payments for his assistance. After he had saved

enough money, Maldonado fled the enterprise and re-entered

the United States illegally.

Between 2000 and 2007, Maldonado returned to the

United States and was deported three separate times. Each

time he returned to Mexico, he was subjected to further

torture and abuse in retaliation for leaving the criminal

enterprise. When he returned to Ciudad Hidalgo after his

removal in 2007, the enterprise had grown in sophistication

and was apprehending deportees from airports across Mexico

and taking them to prisons and other locations in Michoacan.

The corrupt officers had also expanded the enterprise to

include kidnapping elected officials’ children. Wanting

nothing more to do with the criminal enterprise, Maldonado

tried to sever his ties. When he attempted to leave the

enterprise, however, he suffered further abuse. He suspected

8 MALDONADO V. HOLDER

that he was being monitored and followed by the enterprise’s

operatives.

Maldonado approached his only relative in the area, a

cousin, for help. His cousin provided Maldonado with a

small amount of money, which he used to travel by bus to

Sonora, near the United States-Mexico border. In 2007,

Maldonado attempted to enter the United States by foot

through the Arizona desert, where he was apprehended.

Maldonado asserts that if he is returned to Mexico, the

enterprise will kill him because he “know[s] too much of

what they were doing.” In particular, Maldonado fears that

he would be targeted because he overheard discussions of the

enterprise’s plans to begin pursuing government officials and

their families. Maldonado suspects that photographs of him

have been distributed to federal police “all over the place.”

Administrative Proceedings

On July 23, 2008, the Department of Homeland Security

reinstated Maldonado’s June 17, 1997, removal order

pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.

Because Maldonado feared that he would be tortured if

returned to Mexico, the matter was referred to an asylum

officer for a reasonable fear determination. See 8 C.F.R.

§ 241.8(e). An asylum officer interviewed Maldonado, found

him credible, and determined that he had a reasonable fear of

being tortured by the corrupt “Mexican judicial police” if he

were returned to Mexico. Maldonado’s matter was next

referred to an immigration judge for a hearing on his claim of

torture and request for relief under CAT. See 8 C.F.R.

§ 208.31(e). In pursuit of such relief, Maldonado filed a

formal application with the IJ, which he supported with a

MALDONADO V. HOLDER 9

declaration outlining the above facts and other documentary

evidence regarding country conditions and official corruption

in Mexico.

In considering Maldonado’s request for deferral of

removal under CAT, the only relief he sought, the IJ credited

Maldonado’s testimony. The IJ, however, denied his

application because Maldonado “has available to him the

opportunity to relocate in the country without fear of harm.”

The IJ acknowledged Maldonado’s testimony that the

enterprise had expanded its scope by entrapping deportees

from across Mexico, but reasoned that, because the enterprise

had to transport those deportees to its principal base in

Michoacan, its authority did not extend nationwide. The IJ

determined that relocation was possible because, although

police corruption in Mexico was “rampant,” the government

was “taking steps to investigate and prosecute those involved

in corruption.” The IJ thus suggested that Maldonado could

trade evidence of the corruption he witnessed for the Mexican

government’s protection from the enterprise. Maldonado

timely appealed to the BIA.

In affirming the IJ’s decision, the BIA “agree[d] with the

. . . finding that the respondent is not eligible for deferral of

removal under [CAT] because he failed to establish that

internal relocation within Mexico was impossible.” The BIA

further explained that Maldonado “did not show that the

influence of the corrupt police officers in Morelia extended

country wide.” According to the BIA, Maldonado’s evidence

that the enterprise was run by federal officers, and not city or

state officers, was “speculative and unpersuasive.” It

reasoned that “even if corrupt federal officers were involved,

the respondent has not shown that they could locate him in

every area of Mexico.” The BIA relied, in part, on

10 MALDONADO V. HOLDER

documentary evidence that the Mexican government was

prosecuting police corruption as further evidence that

Maldonado could safely relocate. Thus, Maldonado “failed

to satisfy the requirements for eligibility for deferral of

removal under [CAT].”

Petition for Review and Removal

Maldonado filed a timely petition for review. He filed a

motion for a stay of removal pending review, which a

motions panel of this court denied. At oral argument, after

confirming that Maldonado had been removed to Mexico, we

raised the question of whether this petition was moot. We

ordered the government to submit documentary proof that

Maldonado was actually removed from the United States, and

allowed the parties to present evidence of Maldonado’s

current presence in the United States. The government’s

response included documentation that on October 28, 2009,

an immigration officer removed Maldonado to Mexico. The

government’s response also included documentation from the

California Department of Motor Vehicles that Maldonado

updated his driver’s license in April 2010. Maldonado filed

a response, but his counsel was unable to offer any evidence

of Maldonado’s present whereabouts. Neither the

government nor Maldonado argues that the petition is moot.

II. Standard of Review

The BIA agreed with the IJ’s decision but did not adopt

it. Where, as here, the BIA “conduct[ed] its own review of

the evidence and law rather than adopting the IJ’s decision,

our review is limited to the BIA’s decision.” Shrestha v.

Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (quoting

Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006))

(internal quotation marks omitted).

MALDONADO V. HOLDER 11

III. Jurisdiction

We have jurisdiction to review petitions for relief under

CAT. 8 U.S.C. § 1252(a)(4).4 Our jurisdiction encompasses

legal and constitutional issues arising from claims for deferral

of removal under CAT. 8 U.S.C. § 1252(a)(2)(D).

When there are developments in a proceeding that suggest

that it may be moot, we have an obligation to inquire whether

a case or controversy under Article III of the Constitution

continues to exist. North Carolina v. Rice, 404 U.S. 244, 246

(1971) (per curiam). Of concern here is Maldonado’s

removal to Mexico after he filed his petition for review.

After considering the government’s response to our concern,

we conclude that our review of Maldonado’s petition has not

been rendered moot by his removal.

“Mootness is a jurisdictional issue.” Blandino-Medina v.

Holder, 712 F.3d 1338, 1341 (9th Cir. 2013). It can be

described as “the doctrine of standing set in a time frame.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Official

English v. Arizona, 520 U.S. 43, 68 n.22 (1997)). For a

dispute to remain live without being dismissed as moot,

“[t]he parties must continue to have a personal stake in the

outcome of the lawsuit.” Lewis v. Cont’l Bank Corp., 494

U.S. 472, 478 (1990) (internal quotation marks omitted).

Maldonado’s petition for review continues to present a

case or controversy because there is solid evidence that he is

4

In Nuru, we also explained that we have jurisdiction to review a claim

for CAT relief under the Foreign Affairs Reform and Restructuring Act of

1998 (“FARRA”), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112

Stat. 2681-822 (codified at 8 U.S.C. § 1231). 404 F.3d at 1215.

12 MALDONADO V. HOLDER

currently present in the United States. According to the

government’s response, since Maldonado’s removal in

October 2009, he has updated his California driver’s license.

Obtaining deferral of removal under CAT would allow

Maldonado to remain in the United States, giving him a clear

“personal stake in the outcome of the lawsuit.” See Lewis,

494 U.S. at 478 (internal quotation marks omitted).5

It is highly unlikely that Maldonado left the United States

since he renewed his driver’s license in 2010. See Gould

dissent 21. Maldonado applied for CAT relief because he

fears that, if he returns to Mexico, the enterprise will kill him.

Indeed, every time he was removed to Mexico since 2000, the

enterprise found and tortured him. Maldonado has little

reason to return to Mexico.

We disagree with Judge Gould’s dissent that we should

invoke the fugitive disentitlement doctrine to dismiss

Maldonado’s petition. See Gould dissent 22–23. “The

fugitive disentitlement doctrine allows us to dismiss a

criminal defendant’s appeal if he flees while the appeal is

pending.” Antonio-Martinez v. INS, 317 F.3d 1089, 1091 (9th

Cir. 2003). We have exercised our discretion to apply this

equitable doctrine to immigration petitioners, noting the

5

We disagree with Judge Gould’s dissent that this case warrants

dismissal under the prudential mootness doctrine for several reasons. See

Gould dissent 21–22. First, if Maldonado ultimately prevails before the

agency, he will obtain meaningful relief—deferral of removal to Mexico.

Second, we have not adopted prudential mootness per se. Hunt v.

Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th Cir. 2009)

(noting that some of our sister circuits have adopted the prudential

mootness doctrine and, even assuming we could apply it, declining to do

so). Third, we have applied prudential mootness only in the bankruptcy

context, when there are no assets left to distribute. See Deutsche Bank

Nat’l Trust Co. v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014).

MALDONADO V. HOLDER 13

similarity between “[a]n alien subject to a stayed deportation

order” and “a criminal defendant on bail pending appeal.” Id.

at 1093. The alien, like the defendant, “remains subject to the

court’s authority and must surrender any time the court deems

it appropriate.” Id. Thus, in the immigration context, “we

have dismissed petitions for review by aliens who have fled

custody and cannot be located when their appeals come

before this court.” Wenqin Sun v. Mukasey, 555 F.3d 802,

804 (9th Cir. 2009) (emphasis added); see also Zapon v. U.S.

Dep’t of Justice, 53 F.3d 283, 285 (9th Cir. 1995) (discussing

fugitive status where an alien “fail[ed] to surrender . . .

despite a lawful order of deportation”). Here, Maldonado is

not a fugitive because he did not flee. He complied with his

deportation order and was removed to Mexico.

We are thus satisfied that this case is not moot6 and that

it does not otherwise warrant our discretionary dismissal. We

proceed to the merits.

6

Although we give great respect to dicta of the United States Supreme

Court, see United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17

(9th Cir. 2000) (en banc), we are not persuaded by Judge Gould’s dissent

that the Court’s statement in Ellis v. Dyson warrants a determination of

mootness here. 421 U.S. 426, 434 (1975); Gould Dissent 20–21. In the

context of a civil rights case about the constitutionality of a local loitering

statute, the Court “observe[d] in passing” that a case or controversy may

not exist on remand for several reasons, including lack of knowledge of

the petitioners’ whereabouts. Id. The Court also noted that “if petitioners

no longer frequent Dallas, it is most unlikely that a sufficiently genuine

threat of prosecution for possible future violations of the Dallas ordinance

could be established.” Id. In other words, if the petitioners were no

longer in Dallas, prevailing would in no way affect them. By contrast,

what is at issue here is Maldonado’s eligibility for deferral of removal

under CAT, and that determination is not affected by his location within

the United States.

14 MALDONADO V. HOLDER

IV. CAT Claim

In 1988, the United States signed the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. 1465 U.N.T.S. 85 (1988). Article 3 of CAT

states that a signatory nation must not “expel, return . . . or

extradite” a person to a country “where there are substantial

grounds for believing that he would be in danger of being

subjected to torture.” Id. at 114. In 1998, the United States

passed the FARRA, which implemented Article 3 in the

United States. See Khourassany v. I.N.S., 208 F.3d 1096,

1099 (9th Cir. 2000). The FARRA and its implementing

regulations allow for relief under CAT. The implementing

regulations define torture as “any act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted . . . by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 1208.18(a)(1).

One of the available remedies under CAT is deferral of

removal.7 Under the applicable regulations:

An alien who: has been ordered removed; has

been found under § 1208.16(c)(3) to be

entitled to protection under [CAT]; and is

subject to the provisions for mandatory denial

7

The other remedy is withholding of removal. Determining whether an

alien is entitled to either form of protection under CAT requires the same

analysis, so we discuss both types of cases as precedents. However,

unlike deferral of removal, withholding of removal may not be granted if

the alien has been convicted of a “particularly serious crime.” 8 C.F.R.

§ 1208.16(d)(2). Both parties agree that Maldonado is only eligible for

deferral of removal because his 1991 first degree burglary conviction

qualifies as such a crime.

MALDONADO V. HOLDER 15

of withholding of removal . . . shall be granted

deferral of removal to the country where he or

she is more likely than not to be tortured.

Id. § 1208.17(a). Section 1208.16(c)(3) further explains:

In assessing whether it is more likely than not

that an applicant would be tortured in the

proposed country of removal, all evidence

relevant to the possibility of future torture

shall be considered, including, but not limited

to: (i) Evidence of past torture inflicted upon

the applicant; (ii) Evidence that the applicant

could relocate to a part of the country of

removal where he or she is not likely to be

tortured; (iii) Evidence of gross, flagrant or

mass violations of human rights within the

country of removal, where applicable; and

(iv) Other relevant information regarding

conditions in the country of removal.

Id. § 1208.16(c)(3). Section 1208.16(c)(2) further explains:

“The burden of proof is on the applicant for withholding of

removal . . . to establish that it is more likely than not that he

or she would be tortured if removed to the proposed country

of removal.” Id. § 1208.16(c)(2).

Although the BIA has not interpreted the internal

relocation provision of § 1208.16(c)(3), we have addressed it

on several occasions. In Hasan v. Ashcroft, we explained that

“in the CAT context, . . . the petitioners have the burden of

presenting evidence to show that internal relocation is not a

possibility.” 380 F.3d 1114, 1123 (9th Cir. 2004). Citing this

statement, we later denied a petition for review of an IJ

16 MALDONADO V. HOLDER

decision denying deferral of removal under CAT because the

petitioner “failed to establish that internal relocation within

Mexico was impossible.” Lemus-Galvan, 518 F.3d at 1084.

Similarly, in Singh v. Gonzales, we denied a petition for

review of a BIA decision denying withholding of removal

under CAT in part because the petitioner did not meet his

“burden of proving he ‘would be unable to live elsewhere in

the country safely.’” 439 F.3d 1100, 1113 (9th Cir. 2006)

(quoting Hasan, 380 F.3d at 1123).

Our interpretation of § 1208.16(c)(3) in Hasan,8 Lemus-

Galvan, and Singh departs from the plain text of the

regulation. Although § 1208.16(c)(2) places the burden on

the petitioner “to establish that it is more likely than not that

he or she would be tortured if removed to the proposed

country of removal,” see also Kamalthas v. I.N.S., 251 F.3d

1279, 1282 (9th Cir. 2001), neither that provision nor

§ 1208.16(c)(3) requires the petitioner to prove anything as to

internal relocation. Rather, § 1208.16(c)(3) provides that, if

such evidence is relevant, it must be considered in assessing

whether it is more likely than not that the petitioner would be

tortured if removed. The text of § 1208.16(c)(3) differs from

the standard set forth in Hasan and Lemus-Galvan because

neither that section nor § 1208.16(c)(2) requires an applicant

for deferral of removal to prove that internal relocation is

“impossible.” See Lemus-Galvan, 518 F.3d at 1084. Further,

Singh departs from § 1208.16(c)(3) because the regulation

does not specify that the inability to relocate safely is an

element of a claim for deferral of removal for which a

8

Hasan cites to the Department of Homeland Security regulations

governing CAT claims. 8 C.F.R. § 208.16. These are the same as the

Executive Office for Immigration Review regulations. 8 C.F.R.

§ 1208.16.

MALDONADO V. HOLDER 17

petitioner bears a “burden of pro[of].” See Singh, 439 F.3d at

1113.

We recently addressed internal relocation under CAT in

Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011). In

that case, we added a new gloss on the issue of internal

relocation in § 1208.16(c)(3). Drawing from the asylum

context, we held that “the BIA improperly placed the burden

on petitioner to show that he could not relocate within

Mexico and failed to apply the presumption of a nationwide

threat.” Id. at 958. In so holding, we relied on the burden-

shifting scheme for internal relocation in the context of an

asylum claim. Id. (citing Melkonian v. Ashcroft, 320 F.3d

1061, 1070 (9th Cir. 2003)). The regulations governing

asylum, however, differ markedly from those governing

deferral of removal under CAT; they explicitly shift the

burden to the government after the petitioner has established

a well-founded fear of persecution:

In cases in which the persecutor is a

government or is government-sponsored, or

the applicant has established persecution in

the past, it shall be presumed that internal

relocation would not be reasonable, unless the

Service establishes by a preponderance of the

evidence that, under all the circumstances, it

would be reasonable for the applicant to

relocate.

8 C.F.R. § 1208.13(b)(3)(ii); see Henriquez-Rivas v. Holder,

707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). The

regulations governing CAT deferral, unlike the asylum

regulation, do not call for any burden shifting. As in Hasan,

Lemus-Galvan, and Singh, our interpretation of

18 MALDONADO V. HOLDER

§ 1208.16(c)(3) in Perez-Ramirez departs substantially from

the text of the regulation.

Hasan, Lemus-Galvan, Singh, and Perez-Ramirez run

afoul of the regulations at issue here. Section 1208.16(c)(2)

provides that an applicant for deferral of removal must

demonstrate that it is more likely than not that he or she will

be tortured if removed. In deciding whether the applicant has

satisfied his or her burden, the IJ must consider all relevant

evidence, including but not limited to the possibility of

relocation within the country of removal. Section

1208.16(c)(2) does not place a burden on an applicant to

demonstrate that relocation within the proposed country of

removal is impossible because the IJ must consider all

relevant evidence; no one factor is determinative. See

§ 1208.16(c)(3)(i)–(iv); Kamalthas, 251 F.3d at 1282. Nor do

the regulations shift the burden to the government because

they state that the applicant carries the overall burden of

proof. To the extent that Hasan, Lemus-Galvan, Singh, and

Perez-Ramirez conflict with the plain text of the regulations,

they are hereby overruled.

In its supplemental briefs the government argues that

there may be certain terms in the regulations that the BIA

may ultimately need to clarify, but the government stresses

that clarification should be the task of the BIA in the first

instance. We do not quarrel with that principle. Indeed, we

have said that “interpretation of BIA regulations is ‘a matter

that is placed primarily in agency hands.’” Brezilien v.

Holder, 569 F.3d 403, 413 (9th Cir. 2009) (quoting I.N.S. v.

Ventura, 537 U.S. 12, 16 (2002) (per curiam)) (brackets

omitted). If the BIA were to provide a new interpretation of

the regulations, we would give that interpretation an

appropriate level of deference. See Auer v. Robbins, 519 U.S.

MALDONADO V. HOLDER 19

452, 461 (1997). Indeed, the BIA is not precluded from

reading § 1208.16(c)(3) as requiring a CAT petitioner to

show that he is unable to safely relocate within the country of

removal. See Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158, 171 (2007) (“an agency’s interpretation of its

own regulations is controlling unless plainly erroneous or

inconsistent with the regulations being interpreted”) (internal

quotation marks omitted).

Here, the BIA relied on Lemus-Galvan in affirming the

denial of CAT relief, reasoning that Maldonado failed to

show that internal relocation within Mexico was impossible.

Although the BIA performed its own analysis, it ultimately

affirmed the IJ’s decision precisely because Maldonado failed

to prove that relocation within Mexico was impossible.

Indeed, according to the BIA, Maldonado’s “fail[ure] to show

that internal relocation within Mexico is impossible”

constituted the very “circumstances” under which the IJ

“properly found that the respondent failed to satisfy the

requirements for eligibility for deferral of removal under

[CAT].” The BIA’s conclusion demonstrates that failure to

meet the burden stated in Lemus-Galvan was the

determinative blow to Maldonado’s petition. Because Lemus-

Galvan’s interpretation of the CAT regulations is no longer

controlling, we grant the petition for review and remand to

the BIA for reconsideration of Maldonado’s claim for deferral

of removal.

PETITION GRANTED and REMANDED.

20 MALDONADO V. HOLDER

GOULD, Circuit Judge, with whom CLIFTON, IKUTA, and

N.R. SMITH, Circuit Judges, join, dissenting:

Maldonado for years has not been in touch with the

lawyer who advocated before us. In such circumstances I

believe that our proceeding to render a decision on the merits

is essentially to give an advisory opinion. With the party not

before us, we are engaging in what might be called “ghost

ship” ruling, with the case careening along unmanned by the

party seeking relief. We thus have the “ghost” of the prior

controversy but not a real and actual controversy. The

Supreme Court since the early days of our country has made

clear that it is not the province of federal courts to give

advisory opinions, even in matters of importance to society.

See Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (“The rule

against advisory opinions was established as early as 1793.”);

see generally William R. Casto, The Early Supreme Court

Justices’ Most Significant Opinion, 29 Ohio N.U. L. Rev. 173

(2002) (detailing the history of the Jay Court’s 1793 letter to

George Washington declining a request for an advisory

opinion).

As the majority correctly recites, mootness is a

jurisdictional issue we must address. See Blandino-Medina

v. Holder, 712 F.3d 1338, 1341 (9th Cir. 2013). But I regret

that after this recognition, the balance of what the majority

says on jurisdiction is not in my view correct. In Ellis v.

Dyson, the Supreme Court confronted a case in which counsel

for petitioners had not had contact with their clients for a year

and the petitioners were not informed regarding the progress

of the litigation. 421 U.S. 426, 434 (1975). The Court

expressed “reservations . . . as to whether a case or

controversy” existed. Id. The Court said that unless the

petitioners were found by the time the matter was considered

MALDONADO V. HOLDER 21

on remand, “it [was] highly doubtful that a case or

controversy could be held to exist; it is elemental that there

must be parties before there is a case or controversy.” Id.

Although the statement in Ellis v. Dyson on which I rely

might be argued to be a dictum, we have square precedent

stating that we give great respect even to dicta of the United

States Supreme Court. See United States v. Montero-

Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en

banc). Further, what the Court said in Ellis is right on the

money so far as I am concerned.

The majority argues that there is a clear indication that

Maldonado is in the country because he renewed a driver’s

license after the date of his removal. But even if he was here

in 2010, that does not necessarily mean that he remained here

to the present day. Because I do not believe our court may

properly rule on cases where a party is not present—either in

person or through a lawyer who is in reasonable

communication with the party—I would dismiss this case as

moot for lack of a present justiciable controversy under

Article III.

But even if the case is not moot in a constitutional sense,

we should dismiss under the doctrine of prudential mootness,

which allows a court to dismiss an appeal, even if not

technically moot, “if circumstances have changed since the

beginning of litigation that forestall any occasion for

meaningful relief.” Deutsche Bank Nat’l Trust Co. v.

F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014) (quoting Hunt

v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th

Cir. 2009)); see also Ali v. Cangemi, 419 F.3d 722, 723–24

(8th Cir. 2005) (dismissing an appeal as prudentially moot

where an immigrant’s whereabouts were unknown after he

22 MALDONADO V. HOLDER

failed to notify immigration authorities of his change of

address).

We have applied similar prudential reasoning in

immigration cases involving the fugitive disentitlement

doctrine. For example, in Antonio-Martinez v. INS we said:

Those who disregard their legal and

common-sense obligation to stay in touch

while their lawyers appeal an outstanding

deportation order should be sanctioned. The

prospect of disentitlement provides a strong

incentive to maintain contact with the INS and

counsel, rather than taking one’s continued

presence in the country for granted. . . . By

failing to report his change of address to

either his lawyer or the INS for an extended

period of time, [petitioner] has effectively put

himself beyond the jurisdiction of the court.

Because no one has any clue where

[petitioner] is, his petition has the same

“heads I win, tails you’ll never find me”

quality that justifies disentitlement in other

contexts.

317 F.3d 1089, 1093 (9th Cir. 2003). Although it might be

argued that Maldonado’s compliance with his removal order,

even if he later returned to the United States, distinguishes his

case from the petitioner’s in Antonio-Martinez, I think the

two cases are fundamentally similar in the most important

respects. We cannot give Maldonado an effective remedy,

just as none could be given to the petitioner in Antonio-

Martinez. Had today’s majority reached a conclusion that

would deny him any relief, Maldonado would remain as

MALDONADO V. HOLDER 23

unaffected by it as he is by the majority’s granting the

petition as they do. I think that our prudential mootness

doctrine can be adapted here to function like the fugitive

disentitlement doctrine.

There are many actual or potential litigants in our system

who have not yet been removed and who can petition for

review on the merits issues presented in this case. Moreover,

there will be others who will return after removal, and who

can present the same issues while staying in contact with their

counsel. We don’t need to engage in “ghost ship”

jurisprudence to give a ruling in a case where there is no one

on board the ship of the dispute presented. Instead, we

should limit invoking the awesome power of the federal

courts to decide important immigration law matters to cases

where parties also remain within the effective reach of our

court’s jurisdiction so that we can give meaningful relief. We

should await such a case before deciding the issue that the

majority does today. I respectfully dissent.

M. SMITH, Circuit Judge, with whom CLIFTON, Circuit

Judge, joins, dissenting:

I agree with Judge Gould that we lack jurisdiction to

review Maldonado’s claim because his attorney is no longer

in contact with him, and there is no evidence that Maldonado

is presently in the United States. The only evidence in the

record that Maldonado was in the United States subsequent

to the date of his removal in 2009 is Maldonado’s 2010

application for a driver’s license in Palo Alto, California, and

it was the government, not Maldonado’s counsel, that

supplied that evidence. Even if we assume that Maldonado

24 MALDONADO V. HOLDER

personally submitted such an application in 2010, that act

tells us nothing definitive about whether Maldonado has

remained in the United States since then. We do know for

certain that petitioner’s counsel has not heard from his client

in some time, and that when petitioner’s counsel recently

contacted Maldonado’s immediate family seeking sworn

declarations from them concerning petitioner’s location, the

family refused to communicate further with him. Thus, there

is simply no evidence in the record that Maldonado is

currently in the United States, and counsel confirms that he

has not been in contact with the petitioner. Under the

circumstances, the case is moot.

I write separately from Judge Gould because even if I

agreed with the majority that Maldonado’s petition for review

continues to present a justiciable controversy, which I do not,

I would affirm the decision of the BIA denying Maldonado

relief under the Convention Against Torture, 1465 U.N.T.S.

85 (1988) (CAT). Article 3 of CAT provides that no country

shall “expel, return . . . or extradite a person to another State

where there are substantial grounds for believing that he

would be in danger of being subjected to torture.” 1465

U.N.T.S. 85 (1988). The INS’s regulations implementing

CAT state that in determining “[e]ligibility for withholding of

removal under the Convention Against Torture[,] . . . [t]he

burden of proof is on the applicant . . . to establish that it is

more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). In making that determination, the

immigration judge shall consider

all evidence relevant to the possibility of

future torture . . . including, but not limited to:

(i) Evidence of past torture inflicted upon the

MALDONADO V. HOLDER 25

applicant; (ii) Evidence that the applicant

could relocate to a part of the country of

removal where he or she is not likely to be

tortured; (iii) Evidence of gross, flagrant or

mass violations of human rights within the

country of removal, where applicable; and

(iv) Other relevant information regarding

conditions in the country of removal.

8 C.F.R. § 1208.16(c)(3).

The petitioner is not required to prove that internal

relocation is impossible; rather, that is just one factor the

immigration judge must consider in assessing the likelihood

of future torture. I agree with the majority that our decision in

Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), must

be overruled because it improperly imported into the CAT

context the burden-shifting scheme for asylum claims, which

places the burden on the government to show that a

previously tortured petitioner can safely relocate within the

country of removal. Id. at 958. I also agree that the BIA may

have interpreted language in our decision in Lemus-Galvan v.

Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), as setting a

standard that a petitioner must “establish that internal

relocation . . . [is] impossible,” although that was not the

intent of our opinion. However, I do not agree that our

decisions in Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir.

2004), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and

the substance of our opinion in Lemus-Galvan, conflict with

the governing regulations. In overruling these precedents, the

majority throws the baby out with the bath water, and reaches

a conclusion that distorts the BIA’s carefully reasoned

decision in Maldonado’s case.

26 MALDONADO V. HOLDER

Our decisions in Hasan, Singh, and Lemus-Galvan did not

alter the burden of proof set forth in 8 C.F.R. § 1208.16(c)(3).

In Hasan, we noted that “the Hasans have not presented

substantial grounds for believing that they would be unable

to live elsewhere in the country safely,” and placed equal

emphasis on the fact that “there was no substantial evidence

offered that the future persecution the Hasans would

experience would rise to the level of torture.” 380 F.3d at

1123. Similarly, in Singh, we concluded that “[t]he record

evidence does not compel a finding that it is more likely than

not that Mr. Singh will be tortured upon returning to India.”

439 F.3d at 1113. Moreover, we noted that:

If Mr. Singh’s fear is based on the mistaken

belief of police in a certain area, he would

presumably be safe in another area of India

where the police do not take him for a

separatist. The record contains no evidence

that simply being an apolitical Sikh would

cause police to torture Mr. Singh if they do

not believe he is a separatist.

Id. In Lemus-Galvan, the petitioner sought CAT relief,

alleging that if he were returned to Mexico, he would be

tortured by a drug cartel family because they “had been

involved in a violent turf war with members of Lemus-

Galvan’s extended family in the northern border regions of

Mexico.” 518 F.3d at 1083. On appeal, we concluded:

Lemus-Galvan failed to establish that internal

relocation within Mexico was impossible. See

8 C.F.R. § 208.16(c)(3)(ii); see also Hasan v.

Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004).

Substantial evidence therefore supports the

MALDONADO V. HOLDER 27

IJ’s decision to deny deferral of removal

under the CAT. See Zheng v. Ashcroft,

332 F.3d 1186, 1194 (9th Cir. 2003).

Id. at 1084. “Evidence that the applicant could relocate to a

part of the country of removal where he or she is not likely to

be tortured” is one of four non-exhaustive factors that the

immigration judge shall consider in assessing “all evidence

relevant to the possibility of future torture.” 8 C.F.R.

§ 1208.16(c)(3) (emphasis added). Lemus-Galvan does not

stand for the proposition that the ability to relocate is

dispositive of a CAT petitioner’s claim.

The BIA did not reject Maldonado’s claim solely because

he failed to prove that internal relocation within Mexico was

impossible. The majority overstates the issue when it says

that, “[A]ccording to the BIA, Maldonado’s ‘fail[ure] to show

that internal relocation within Mexico is impossible’

constituted the very ‘circumstances’ under which the IJ

‘properly found that the respondent failed to satisfy the

requirements for eligibility for deferral of removal under

[CAT].’” Instead, the BIA cited Maldonado’s failure to refute

evidence that he could relocate to a different part of Mexico

as just one factor supporting the denial of his CAT petition:

In assessing whether it is more likely than not

that the respondent would be tortured in

Mexico, all evidence relevant to the

possibility of future torture shall be

considered, including evidence of past torture

inflicted upon the respondent and evidence

that the respondent could relocate where

torture is unlikely. See 8 C.F.R.

§ 208.16(c)(3)(ii).

28 MALDONADO V. HOLDER

The BIA credited Maldonado’s testimony that the police

in Michoacán had previously tortured him, but concluded that

Maldonado “did not show that the influence of the corrupt

police officers located in Morelia extended country wide.”

The BIA went on to analyze the other factors, explaining that

“the 2007 Country Report indicates that the Mexican

government is aggressively prosecuting those who are

involved in police corruption . . . . Therefore, the Mexican

government will provide protection to the respondent from

any corrupt police officers.” The BIA determined that record

evidence of other human rights violations in Mexico was not

relevant to Maldonado’s CAT claim because these violations

were perpetrated against members of organized drug gangs,

and Maldonado does not claim to be a member of such an

organization. In denying Maldonado’s petition, the BIA

ultimately concluded: “Given that the respondent has not

shown that the corrupt police officers could locate him

anywhere in Mexico, and the Mexican government is

aggressively prosecuting police corruption, the respondent

has failed to show that internal relocation within Mexico is

impossible.”

A CAT petitioner is not required to conclusively prove

that internal relocation is impossible—but the BIA did not

hold Maldonado to such a standard here. I would dismiss this

case as moot, but were I to reach the merits, I would affirm

the decision of the BIA.

I respectfully dissent.