Cesar Alcaraz-Enriquez v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR ALCARAZ-ENRIQUEZ, No. 15-71553 Petitioner, Agency No. A 75-191-250 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2018 San Francisco, California Before: BEA and N.R. SMITH, Circuit Judges, and NYE**, District Judge. Petitioner Cesar Alcaraz-Enriquez (“Alcaraz”), a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals (“BIA”), which denied his applications for withholding of removal and deferral of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David Nye, District Judge for the U.S. District Court for the District of Idaho, sitting by designation. 1 removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition as to his claim for withholding of removal only and remand to the BIA for reconsideration of that claim.1 1. We have jurisdiction to consider Alcaraz’s petition. Although we lack jurisdiction “to evaluate discretionary decisions by the Attorney General,” 8 U.S.C. § 1252(a)(2)(B)(ii), we retain jurisdiction to review “questions of law raised upon a petition for review,” § 1252(a)(2)(D). See Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010). The specific question here—whether the BIA relied on improper evidence in reaching its determination—is a “question of law” that this court has jurisdiction to review. Id. We review legal questions de novo. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). 2. The BIA erred when it concluded that Alcaraz was convicted of a “particularly serious crime” and thus barred from seeking withholding of removal. The BIA’s “particularly serious crime” determination was based, at least in part, on a probation report, which directly contradicts Alcaraz’s testimony. This was error for two reasons. First, we have repeatedly held that “[w]here the BIA does not make an explicit adverse credibility finding, [the court] must assume that [the petitioner’s] factual contentions are true.” Anaya-Ortiz, 594 F.3d at 679 (quoting Navas v. INS, 1 In light of this disposition, Petitioner’s motion to stay removal is granted. 2 217 F.3d 646, 652 n.3 (9th Cir. 2000)); see also Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004) (“Testimony must be accepted as true in the absence of an explicit adverse credibility finding.”). Here, the BIA erred when it credited the probation report over Alcaraz’s testimony without making an explicit adverse credibility finding as to Alcaraz. Second, Congress has specifically provided that an alien in removal proceedings must be given “a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross- examine witnesses presented by the Government . . . .” 8 U.S.C. § 1229a(b)(4)(B); see, e.g., Saidane v. INS, 129 F.3d 1063, 1066 (9th ...

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