Jose Galvan-Avila v. United States

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE LUIS GALVAN-AVILA, AKA Jose No. 13-56205, 16-56201 Luis Galvan, D.C. Nos. 2:13-cv-00644-R Petitioner-Appellant, 2:11-cr-01109-R-1 v. MEMORANDUM* UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding JOSE LUIS GALVAN-AVILA, AKA No. 13-73817 Fernando Avila, Agency No. A092-121-306 Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted October 3, 2017 Pasadena, California Before: MOTZ,** M. SMITH, and NGUYEN, Circuit Judges. In these consolidated appeals, Jose Luis Galvan-Avila, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of the immigration judge’s (“IJ”) denial of withholding of removal and relief under the Convention Against Torture (“CAT”); appeals from the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction; and appeals from the district court’s denial of his motion for leave to amend his § 2241 petition to a § 2255 habeas petition. We have jurisdiction over the petition for review of the BIA’s decision under 8 U.S.C. § 1252, and over the appeals from the district court’s orders under 28 U.S.C. §§ 1291 and 2241. 1. We begin by addressing Galvan-Avila’s contentions in Case No. 13- 73817, his petition for review of the BIA’s decision. In evaluating Galvan-Avila’s withholding claim, the BIA inquired whether Galvan-Avila’s family membership was “one central reason” for the harm he suffered. After the BIA issued its decision, however, this court held that applicants for withholding of removal need only prove that a protected ground is “a reason” ** The Honorable Diana Gribbon Motz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. 2 for the past or feared future persecution — “a less demanding standard than ‘one central reason.’” Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Accordingly, we grant the petition as to Galvan-Avila’s withholding claim and remand for the BIA to apply the correct legal standard. Substantial evidence supports the denial of Galvan-Avila’s application for CAT relief. Galvan-Avila had the burden of proving that if he were removed to Mexico, he would “more likely than not” suffer torture “inflicted by . . . or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1); see Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013). Galvan-Avila testified that in 1994, two men attempted to kidnap him in Tijuana. Although Galvan-Avila claimed that these kidnappers may have been federal officers, he failed to present evidence to support this theory. Thus, ...

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