FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR ALCARAZ-ENRIQUEZ, No. 15-71553 Petitioner, Agency No. v. A075-191-250 MERRICK B. GARLAND, Attorney General, ORDER AND Respondent. OPINION On Remand from the United States Supreme Court Filed December 14, 2021 Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye, * District Judge. Order Opinion by Judge Bea * The Honorable David C. Nye, Chief United States District Judge for the District of Idaho, sitting by designation. 2 ALCARAZ-ENRIQUEZ V. GARLAND SUMMARY ** Immigration In an order for publication, the panel (1) withdrew the opinion filed on September 16, 2021, on remand from the Supreme Court; (2) replaced it with a superseding opinion; and (3) unanimously voted to deny the petition for panel rehearing, and ordered that no further petitions for rehearing or rehearing en banc would be entertained. In the superseding opinion, the panel granted in part and denied in part Cesar Alcaraz-Enriquez’s petition for review of a decision of the Board of Immigration Appeals, and remanded, concluding that: (1) in the absence of an opportunity to cross-examine its declarants the Board erred in relying on a probation report to conclude that Alcaraz had been convicted of a particularly serious crime; and (2) the Board did not err in denying Alcaraz’s application for deferral of removal under the Convention Against Torture. The panel first addressed the Board’s determination that Alcaraz’s conviction for inflicting corporal injury on a cohabitant, in violation of California Penal Code § 273.5(a), constituted a particularly serious crime rendering him ineligible for withholding of removal. In concluding that he had been convicted of a particularly serious crime, the agency credited a probation report recounting only Alcaraz’s girlfriend’s narrative of the domestic incident, over Alcaraz’s testimony at his immigration judge hearing. The panel previously granted Alcaraz’s petition on two bases: (1) that the Board erred in not requiring the Department of ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALCARAZ-ENRIQUEZ V. GARLAND 3 Homeland Security to make a good-faith effort to make available for cross-examination the author and the declarant of the probation report; and (2) that in the absence of any express adverse credibility determination from the immigration judge the Board erred in not deeming true Alcaraz’s testimony. In Garland v. Ming Dai, 141 S. Ct. 1669 (2021), the Supreme Court reversed the panel’s second basis for granting the petition, vacated the panel’s entire prior decision, and remanded for further proceedings. Observing that the Supreme Court did not disturb the first basis for its prior decision, the panel wrote that because the Supreme Court vacated all of the panel’s prior opinion, it had to address again Alcaraz’s argument that he was denied a fair hearing because he was never given an opportunity to cross-examine the probation report’s author or the declarant, his girlfriend. The panel reaffirmed its prior holding and concluded that, under the …
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