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Andrade-Garcia v. Lynch

United States Court of Appeals, Ninth Circuit

April 29, 2016

Nelson Andrade-Garcia, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Submitted March 9, 2016 [*] Pasadena, California

          Amended July 7, 2016

         On Petition for Review of an Immigration Judge's Decision Agency No. A205-937-826

          Marina Alexandrovich, Marina Alexandrovich, Esq., PLLC., Tempe, Arizona, for Petitioner.

          Joyce R. Branda, Acting Assistant Attorney General, Civil Division; Blair T. O'Connor, Assistant Director; Scott M. Marconda, Trial Attorney; Office of Immigration Litigation, Washington, D.C., for Respondent.

          Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Frederic Block, [**] Senior District Judge.

         SUMMARY[***]

         Immigration

         The panel denied a petition for review of an immigration judge's decision affirming an asylum officer's negative reasonable fear determination in reinstated removal proceedings.

         The panel held that this court reviews an IJ's negative reasonable fear determination for substantial evidence, and applying that standard concluded that petitioner failed to establish a reasonable possibility of torture, because he did not show that Guatemalan police were aware of gang extortion activities and breached their legal responsibility to stop it.

         ORDER

         The opinion filed April 29, 2016, is hereby amended as follows: the last sentence on page 11 and continuing to page 12 of the slip opinion should be removed and replaced with the following:

Although Congress has indicated its intent to delegate discretionary authority to the Attorney General to make visa and parole decisions, 4 see, e.g., 8 U.S.C. § 1229 (initiation of removal proceedings); id. § 1229a (removal proceedings); id. §§ 1158, 1229b (relief from removal), Congress limited the Executive's discretion to impose a reinstated order of removal by precluding the Executive Branch from deporting aliens "to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture" and requiring the Executive Branch to promulgate regulations to implement this obligation under CAT, see FARRA, Pub. L. No. 105–277, Div. G., Title XXII, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C.F.R. §§ 208.18, 1208.18. An alien with a reinstated removal order may be eligible for other forms of relief as well, including withholding of removal. See Fernandez-Vargas, 548 U.S. at 35 n.4.

4 See, e.g., 8 U.S.C. § 1182(d)(3)(A) ("[A]n alien . . . may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General." (emphasis added)); id. § 1182(d)(5)(A) ("The Attorney General may, except as provided in subparagraph (B) [excluding refugees "unless the Attorney General determines that compelling reasons . . . require that the alien be paroled"] or in section 1184(f) of this title [excluding crewmembers in certain labor disputes], in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States." (emphasis added)).

         With the foregoing amendment to the opinion, Respondent's petition for panel rehearing is DENIED. No further petitions for rehearing or rehearing ...


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