Jose Rodriguez-Jimenez v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ALFREDO RODRIGUEZ-JIMENEZ, No. 21-70064

Petitioner,

Agency No.

v. A204-822-401

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 16, 2021 *

Phoenix, Arizona

Filed December 21, 2021

Before: Ronald Lee Gilman, ** Daniel A. Bress, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

*

The parties jointly moved to submit this case on the briefs without

oral argument, which was granted.

**

The Honorable Ronald Lee Gilman, United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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SUMMARY ***

Immigration

Denying Jose Alfredo Rodriguez-Jimenez’s petition for

review of a decision of the Board of Immigration Appeals,

the panel held that (1) the Board and the Immigration Judge

(collectively, agency) sufficiently considered Rodriguez-

Jimenez’s claim for deferral of removal under the

Convention Against Torture and provided an adequate

rationale for rejecting that claim; and (2) because substantial

evidence supported the denial of CAT protection,

Rodriguez-Jimenez failed to establish that any alleged due

process violation caused him prejudice.

Rodriguez-Jimenez claimed that the Board did not

sufficiently consider the evidence relevant to his claim of

future torture. Reviewing both the BIA’s and IJ’s decisions,

the panel concluded that the record demonstrated that the

agency considered the relevant evidence and announced its

decisions in terms sufficient to enable a reviewing court to

perceive that the agency had heard and thought and not

merely reacted to Rodriguez-Jimenez’s claims. The panel

wrote that this is all that is required; the agency need not

provide a detailed explanation of every argument or piece of

evidence in its decision.

Rodriguez-Jimenez next argued that the Board violated

his right to due process by not providing him an opportunity

to provide additional corroborating evidence or explain his

testimonial inconsistencies. The panel concluded that this

***

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

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

RODRIGUEZ-JIMENEZ V. GARLAND 3

claim failed for lack of prejudice because substantial

evidence supported the Board’s rejection of his CAT claim,

irrespective of any testimonial inconsistencies. The panel

explained that although Rodriguez-Jimenez argued that

some local police have acquiesced to threats of narco-

trafficking violence, he failed to provide any evidence

beyond his own personal speculation that he would face such

acquiescence—particularly since he did not dispute that the

police responded to the incidents that form the basis of his

claim for relief.

COUNSEL

Michael Franquinha, Aguirre Law Group LLP, Mesa,

Arizona, for Petitioner.

Brian Boynton, Acting Assistant Attorney General; John S.

Hogan, Assistant Director; Rebecca Hoffberg Phillips, Trial

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

4 RODRIGUEZ-JIMENEZ V. GARLAND

OPINION

VANDYKE, Circuit Judge:

In this case, Jose Alfredo Rodriguez-Jimenez claims that

the Board of Immigration Appeals (BIA) (1) did not

sufficiently consider the evidence relevant to his claim of

future torture, and (2) denied him due process by not

providing him an opportunity to explain his testimonial

inconsistencies. But the record shows that the BIA and the

Immigration Judge (collectively, the agency) considered the

relevant evidence and “announce[d] its decision in terms

sufficient to enable a reviewing court to perceive that it has

heard and thought and not merely reacted” to Rodriguez-

Jimenez’s claims. Najmabadi v. Holder, 597 F.3d 983, 990

(9th Cir. 2010) (citation omitted). This is all that is required;

the agency need not provide a detailed explanation of every

argument or piece of evidence in its decision. And

Rodriguez-Jimenez’s due process claim fails for lack of

prejudice because substantial evidence supports the BIA’s

rejection of his CAT claim, irrespective of any testimonial

inconsistencies. We therefore deny Rodriguez-Jimenez’s

petition.

BACKGROUND

I. Removal Proceedings

In February 2015, Rodriguez-Jimenez pled guilty to

unlawful flight/eluding police and driving under the

influence. A month later, the Department of Homeland

Security (DHS) commenced removal proceedings. In the

midst of his removal proceedings, Rodriguez-Jimenez pled

guilty to two other criminal offenses: solicitation to commit

forgery and possession of drug paraphernalia. Because of

his criminal history, Rodriguez-Jimenez’s sole basis for

RODRIGUEZ-JIMENEZ V. GARLAND 5

relief raised before the agency was deferral of removal under

the Convention Against Torture (CAT).

In his application, Rodriguez-Jimenez expressed

concern about returning to Mexico, and specifically his

hometown of Altar, Sonora, because of problems that his

cousin’s family experienced in 2012. He wrote that “my

cousin Mario Rodriguez . . . . informed me that [“hit men”

for the cartel, or “sicarios”] had . . . . in January of 2012 . . .

entered [Mario’s] home and pointed their guns at his wife

. . . and their children demanding from them that they turn

my cousin over to them.” Rodriguez-Jimenez wrote that

Mario was not home at the time, and that his family left for

the United States shortly thereafter—and again noted that the

incident occurred in 2012. Rodriguez-Jimenez also wrote

that another relative was kidnapped, and that the body was

found cut up in pieces.

Rodriguez-Jimenez later testified before the Immigration

Judge (IJ) in November of 2018. He began by swearing that

all the information in his application was true and correct to

the best of his knowledge. During his testimony, Rodriguez-

Jimenez stated that some of his aunts, uncles, and cousins

still lived in Altar, Sonora—the same place where the

sicarios harassed Mario’s family. Rodriguez-Jimenez didn’t

claim that the sicarios had harassed any other family

members still living in Altar.

He then relayed his story about Mario’s encounter with

the sicarios. But he said he had forgotten Mario’s last name

and the names of most of Mario’s three children, even

though he had seen them in the past six months. He guessed

that Mario’s oldest child was about eight years old.

Rodriguez-Jimenez also conceded that he knew of Mario’s

incident with the sicarios only indirectly through family

members, and not through Mario himself—contrary to what

6 RODRIGUEZ-JIMENEZ V. GARLAND

he previously stated in his application. To clarify that

Rodriguez-Jimenez lacked any direct knowledge of the

incident upon which he predicated his claim for relief, the IJ

asked Rodriguez-Jimenez to confirm his lack of direct

knowledge at least six times—which Rodriguez-Jimenez

did, each time he was asked. When asked why Mario, as one

of the persons who the sicarios harassed, was not present to

testify about the incident, Rodriguez-Jimenez claimed that

he didn’t know. But he guessed that Mario was scared, since

Rodriguez-Jimenez had earlier conceded that Mario resided

in the United States illegally. The IJ concluded, “[s]o, all

you know is what somebody told you that they heard from

somebody else.” Rodriguez-Jimenez agreed. “This is

hearsay on top of hearsay,” the IJ observed.

Rodriguez-Jimenez further conceded that he had never

encountered the sicarios personally, that no Mexican

government official had ever threatened him, that he had

never been tortured, and that he had not returned to Mexico

in over twenty years. Even Rodriguez-Jimenez’s counsel

ultimately conceded that Rodriguez-Jimenez “only has

secondhand information from his mother.” The IJ asked if

there was anything else, and Rodriguez-Jimenez’s counsel

responded in the negative.

Rodriguez-Jimenez’s mother then testified. She stated

that she, her husband, and Rodriguez-Jimenez left Mexico in

1995 “[b]ecause there was no work, and [they] decided to

seek a better future for [Rodriguez-Jimenez].” Regarding

the sicario’s attempt to recruit Mario, she testified that it took

place approximately 10 years ago, and that she knew of it

only through Mario’s wife. That meant the incident occurred

around 2008—four years earlier than when Rodriguez-

Jimenez, in his application, said it happened. She also

testified that the police took a report, but that she wasn’t

RODRIGUEZ-JIMENEZ V. GARLAND 7

aware if Mario’s family identified the sicarios. A week after

Mario’s family filed the report, they left Mexico.

Rodriguez-Jimenez’s mother further noted that Mario

and his family now live in the United States, and that since

the incident, none of them has had any contact with the

sicarios. She also stated that Mario’s oldest child was

approximately 11 or 12. When the IJ pointed out that

Rodriguez-Jimenez had testified that Mario’s oldest child

was approximately 8, his mother stated that she wasn’t sure

of his age.

Finally, Rodriguez-Jimenez’s mother relayed how the

sicarios targeted another relative, who went missing shortly

thereafter. She conceded that the police both investigated

the incident and told the family that they would inform them

of any developments in the investigation. She also explained

that a body was eventually found, but that it couldn’t be

identified as the missing relative’s—again, in contrast to

Rodriguez-Jimenez’s statements in his application, where he

wrote that the missing relative’s body was found. She

concluded her testimony by reiterating her fear that

Rodriguez-Jimenez would be the victim of a crime

“[b]ecause [of] the things happening . . . within the family,

and they want young men.”

At the conclusion of the hearing, Rodriguez-Jimenez’s

counsel directed the IJ to country reports submitted in

support of Rodriguez-Jimenez’s application, arguing that the

sicarios’ harassment of young men occurs throughout

Mexico and that local police would commonly acquiesce to

drug-related violence. Upon the IJ’s request, Rodriguez-

Jimenez’s counsel also pointed the IJ to certain page

numbers of the country reports and proceeded to read a direct

quote from that report. The government countered that

Rodriguez-Jimenez’s cited country report “is still too vague.

8 RODRIGUEZ-JIMENEZ V. GARLAND

It’s not specific enough. It’s . . . [Rodriguez-Jimenez]’s

burden to show that the Government would . . . acquiescence

to torture in his case, specifically in his case. And frankly,

the facts just have not shown that.”

II. Agency Determinations

In assessing Rodriguez-Jimenez’s application and

testimony, the IJ first acknowledged the numerous

documents in the record, including the country conditions

reports that Rodriguez-Jimenez submitted. The IJ then

discussed various inconsistencies between Rodriguez-

Jimenez’s application and his and his mother’s later

testimony—including whether Rodriguez-Jimenez heard

about the incident with Mario and the sicarios directly or

through others, and whether it occurred in 2008 or 2012.

The IJ also discussed Rodriguez-Jimenez’s mother’s

testimony and declaration, noting that even the mother’s

testimony provided conflicting evidence as to when the

incident with the sicarios occurred. The IJ further observed

that Rodriguez-Jimenez failed to provide any evidence

corroborating the incident.

Regarding government acquiescence in any possible

future torture, the IJ concluded that Rodriguez-Jimenez’s

country conditions evidence was too speculative. The IJ

found that “there is insufficient evidence in the record to

establish that if [Rodriguez-Jimenez], who is 24 years old

and has lived practically his entire life in the United States,

would go back to Mexico, that he would be known to any

criminals.” “In fact, the majority of the information

presented today indicates that the criminals in Mexico

primarily look for young men to help them with their illegal

activities. That would put the entire population of men in

Mexico between the ages of 15 and 25 in danger . . . .” The

IJ therefore concluded that Rodriguez-Jimenez failed to

RODRIGUEZ-JIMENEZ V. GARLAND 9

meet his burden of establishing it was more likely than not

that he would be tortured with the acquiescence of Mexican

authorities, and denied his request for deferral of removal

under CAT.

Rodriguez-Jimenez appealed to the BIA, and the BIA

dismissed his appeal. It first concluded that “[i]nsofar as the

[IJ] denied [Rodriguez-Jimenez]’s claim based upon a

negative credibility finding and lack of corroboration, the

decision cannot be affirmed.” It reasoned that the IJ did not

provide Rodriguez-Jimenez with notice and opportunity to

respond to perceived discrepancies and deficiencies in his

corroborating evidence.

But the BIA upheld the IJ’s denial of deferral of removal

under CAT on the IJ’s “alternate grounds.” Citing specific

portions of the IJ’s decision, the BIA noted that Rodriguez-

Jimenez had no involvement with the cartel or its associates,

that Rodriguez-Jimenez was not claiming past torture, and

that the evidence he provided in support of future torture was

inconsistent and lacked corroboration. The BIA further

reasoned that Rodriguez-Jimenez’s claim ultimately rested

on speculation, which was insufficient to establish CAT

relief. It therefore concluded that the IJ’s rejection of the

CAT claim was “not clearly erroneous.” Rodriguez-Jimenez

now petitions for review of the agency’s decision. 1

1

The BIA also denied Rodriguez-Jimenez’s motion to remand for

consideration of voluntarily departure. But Rodriguez-Jimenez does not

challenge the BIA’s denial of that motion in his petition and has therefore

waived that claim. See Brown v. Rawson-Neal Psychiatric Hosp.,

840 F.3d 1146, 1148–49 (9th Cir. 2016).

10 RODRIGUEZ-JIMENEZ V. GARLAND

STANDARD OF REVIEW

“Where, as here, the BIA reviewed the IJ’s . . . decision

for clear error and relied upon the IJ’s opinion as a statement

of reasons but did not merely provide a boilerplate opinion,

we look to the IJ’s oral decision as a guide to what lay behind

the BIA’s conclusion.” Lai v. Holder, 773 F.3d 966, 970

(9th Cir. 2014) (citation and internal quotation marks

omitted). 2 “In so doing, we review . . . the reasons explicitly

identified by the BIA, and then examine the reasoning

articulated in the IJ’s oral decision in support of those

reasons.” Id. “Thus, we refer to the Board and IJ

collectively as ‘the agency.’” Medina-Lara v. Holder,

771 F.3d 1106, 1111 (9th Cir. 2014).

We review the agency’s factual determinations for

substantial evidence, which “requires . . . uphold[ing] the

[agency]’s determination unless the evidence compels a

contrary conclusion.” Sura v. Garland, 8 F.4th 1161, 1167

(9th Cir. 2021) (citation and internal quotation marks

omitted). “Due process claims are reviewed de novo.”

Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020).

2

Similarly, we have also held that “[w]here, as here, the BIA has

reviewed the IJ’s decision and incorporated portions of it as its own, we

treat the incorporated parts of the IJ’s decision as the BIA’s.” Molina-

Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002); see also Garcia-

Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (“Where, as

here, the BIA agrees with the IJ’s reasoning, we review both decisions.”).

RODRIGUEZ-JIMENEZ V. GARLAND 11

DISCUSSION

I. The Agency Sufficiently Considered the Relevant

Record Evidence.

Relying heavily on Aguilar-Ramos v. Holder, 594 F.3d

701, 705 (9th Cir. 2010), Rodriguez-Jimenez first argues that

the agency erred by not “address[ing] in detail all evidence

of [the] record relevant to [his] claim”—particularly, his

mother’s testimony and evidence of country conditions. But

unlike in Aguilar-Ramos, the agency here considered this

evidence. See Andrade v. Lynch, 798 F.3d 1242, 1245 (9th

Cir. 2015) (per curiam) (“The BIA’s consideration of the

Country Report and other materials distinguishes the

Aguilar-Ramos line of authority, applicable to cases where

it did not give consideration to submitted materials.”);

Aguilar-Ramos, 594 F.3d at 705 (finding error where

“neither the IJ nor the BIA considered the Country Report in

denying Aguilar relief under CAT”).

The agency’s consideration of the relevant record

evidence becomes clear when reviewing both the BIA’s and

the IJ’s decisions. See Lai, 773 F.3d at 970. In affirming the

IJ on clear-error review, the BIA explained that the

“evidence [Rodriguez-Jimenez] provided”—which in

context necessarily included his mother’s testimony—was

inconsistent and lacking in corroboration, and that

Rodriguez-Jimenez’s “claim ultimately rests on mere

speculation.” The BIA’s referenced analysis of the

“evidence . . . provided” reveals that it did, in fact, consider

Rodriguez-Jimenez’s mother’s testimony. Cf. Larita-

Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir. 2000)

(“[E]ven though the [BIA] did not explicitly mention the

supplemental evidence, it plainly stated that it reviewed the

record of proceedings. . . . [W]hen [it] stated that it reviewed

the record of proceedings, it explicitly meant that it reviewed

12 RODRIGUEZ-JIMENEZ V. GARLAND

the documents submitted in support of [the petitioner’s]

appeal . . . .” (internal quotation marks and alterations

omitted)). Indeed, earlier in its decision the BIA expressly

noted that “[c]orroborating testimony was presented by

[Rodriguez-Jimenez’s] mother.”

The BIA also expressly cited the parts of the IJ’s decision

where the IJ explicitly discussed evidence of country

conditions and the mother’s testimony, further evincing the

agency’s consideration of relevant record evidence. See Lai,

773 F.3d at 970. In those portions cited by the BIA, the IJ

rejected Rodriguez-Jimenez’s torture-with-government-

acquiescence argument—where Rodriguez-Jimenez relied

on country reports—as overly speculative, given the lack of

evidence to establish that Rodriguez-Jimenez, who has lived

most of his life in the United States, would be known and

targeted by criminals in Mexico upon his return. The IJ also

concluded that his mother’s testimony undermined

Rodriguez-Jimenez’s claim that the sicarios killed another

relative since the body was never identified. Considering the

BIA’s and IJ’s decision together, as we must, the agency did

not fail to consider the relevant record evidence, including

country reports. Aguilar-Ramos is thus not applicable.

Accepting that the agency considered the relevant record

evidence, the question becomes whether the agency

provided a sufficiently thorough and reasoned analysis in

support of its decision. But we have previously declined to

engage in the sort of exacting review that Rodriguez-

Jimenez now invites. Instead, we have held that “the BIA

does not have to write an exegesis on every contention.

What is required is merely that it consider the issues raised

and announce its decision in terms sufficient to enable a

reviewing court to perceive that it has heard and thought and

not merely reacted.” Najmabadi, 597 F.3d at 990 (citation

RODRIGUEZ-JIMENEZ V. GARLAND 13

and internal alterations omitted). A requirement that the

agency’s decision reflect that it “heard and thought” about

an issue, and “not merely reacted,” is not a high bar. See id.

And this deferential standard of review makes sense: in

assessing the substance of the agency’s decision, we cannot

reweigh the evidence, but instead are limited to determining

whether the evidence compels a contrary conclusion. See

Singh v. INS, 134 F.3d 962, 969 n.14 (9th Cir. 1998). Given

the agency’s express recognition and discussion of materials

in the record, “[t]he Board’s decisions and adoptions of IJ

rulings adequately convey the reasoning behind the denial of

the CAT claim.” Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir.

2002).

Ultimately, Rodriguez-Jimenez’s argument essentially

amounts to a disagreement with the agency’s analysis. But

we cannot overturn the agency’s decision based on mere

disagreement. Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir.

1996) (“[W]e do not reverse the BIA simply because we

disagree with its evaluation of the facts, but only if we

conclude that the BIA’s evaluation is not supported by

substantial evidence.” (citation and internal quotation marks

omitted)). Substantial evidence supports the agency’s denial

of CAT relief, and Rodriguez-Jimenez’s argument that the

agency provided insufficient reasoning fails.

II. Rodriguez-Jimenez Received Due Process.

Rodriguez-Jimenez next argues that the BIA violated his

right to due process by (1) not remanding to the IJ so that

Rodriguez-Jimenez could explain the inconsistencies

between his application and testimony, and (2) erroneously

relying on those inconsistences and lack of corroboration in

denying him CAT relief, even though the BIA determined

that the IJ erred by failing to provide Rodriguez-Jimenez

with notice and opportunity to remedy those inconsistencies

14 RODRIGUEZ-JIMENEZ V. GARLAND

and lack of corroboration. “To prevail on a due process

challenge to deportation proceedings, [an alien] must show

error and substantial prejudice. A showing of prejudice is

essentially a demonstration that the alleged violation

affected the outcome of the proceedings; we will not simply

presume prejudice.” Larita-Martinez, 220 F.3d at 1095

(emphasis added and citation omitted).

Rodriguez-Jimenez’s due process argument fails

because he does not show how any alleged error prejudiced

him. Nor does any prejudice exist, because the record does

not compel the conclusion that Rodriguez-Jimenez

demonstrated a greater than 50% chance of torture with the

acquiescence of the Mexican government, irrespective of

any testimonial inconsistencies or lack of corroboration. See

Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017)

(“The alien must prove not only that torture will more likely

than not occur, but also that there is sufficient state action

involved in the torture.”). Rodriguez-Jimenez’s mother

conceded that the police responded and investigated the

alleged incidents with the sicarios. Rodriguez-Jimenez

appears impliedly to argue government acquiescence by

noting that Mexican police officers are “eager to serve” and

are “developing professionally,” but lack adequate

resources. But simply because law enforcement lacks

resources and are still developing professionally does not

mean that they are condoning or acquiescing in crimes that

they are making efforts to combat. Moreover, the country-

conditions evidence provided by Rodriguez-Jimenez shows

that the Mexican government is continuing to take steps

against crime: a 2017 Human Rights report discusses the

Mexican President signing legislation combating forced

disappearances, and the creation of specialized attorney

general’s offices at the state level for disappeared persons.

And a U.S. State Department Report notes that “[o]verall,

RODRIGUEZ-JIMENEZ V. GARLAND 15

the number of kidnapping in . . . Sonora is very small

compared to other cities in Mexico.” It further notes that “in

2015, Sonora began a major change to its criminal justice

system” whereby it was switching to a more adversarial-

based system (instead of mere written correspondence)

which “should streamline the Mexican judicial/criminal

justice system.”

Although Rodriguez-Jimenez did argue that some local

police have acquiesced to threats of narco-trafficking

violence, he failed to provide any evidence beyond his own

personal speculation that he would face such acquiescence—

particularly since he does not dispute that the police

responded to the incidents that form the basis of his claim

for relief. See Zheng v. Holder, 644 F.3d 829, 835–36 (9th

Cir. 2011) (determining that speculative claims of torture do

not compel a reversal of the agency). Rodriguez-Jimenez’s

failure to establish government acquiescence negates any

potential for CAT relief, irrespective of his testimonial

inconsistencies or lack of corroboration. See Sura, 8 F.4th

at 1170 (determining that a petitioner’s “fail[ure] to establish

that any torture he may face would be caused by or with the

consent or acquiescence of the . . . government . . . . is

enough to deny deferral of removal”). Instead, Rodriguez-

Jimenez’s alleged fear of harm amounts to a fear of

generalized violence from the sicarios targeting young men

in Mexico, which cannot justify CAT relief. See Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per

curiam) (“Petitioners’ generalized evidence of violence and

crime in Mexico is not particular to Petitioners and is

insufficient to meet [the more likely-than-not] standard” for

CAT relief). Because Rodriguez-Jimenez does not establish

any prejudice from the alleged BIA errors, his due process

claim fails.

16 RODRIGUEZ-JIMENEZ V. GARLAND

CONCLUSION

The agency sufficiently considered Rodriguez-

Jimenez’s claim and provided an adequate rationale for its

rejection of that claim. Rodriguez-Jimenez also received

due process. We therefore deny the petition.