Opinion
18-70047
09-09-2022
OSCAR ARMANDO PEREZ FAJARDO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted November 15, 2021 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-516-919
Before: BERZON and RAWLINSON, Circuit Judges, and ANTOON, [**] District Judge.
MEMORANDUM [*]
Oscar Armando Perez Fajardo ("Perez"), a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the immigration judge's ("IJ") order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("the Convention"). We grant the petition in part and deny it in part.
1. The BIA did not abuse its discretion when it concluded that Perez's conviction for felony child endangerment under California Penal Code section 273a(a), with a sentence enhancement for "personally inflict[ing] great bodily injury on any person other than an accomplice" under California Penal Code section 12022.7(a), constitutes a particularly serious crime.
We review the BIA's reasoning independently of that of the IJ, as the BIA did not cite Matter of Burbano, 20 I. &N. Dec. 872 (BIA 1994), or otherwise indicate that it was adopting the IJ's reasoning as opposed to affirming his result. See Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
We therefore need not consider whether the IJ's understanding of California law regarding the sentencing enhancement to which Perez pled guilty-"personally inflicting great bodily injury"-was correct. See Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
The BIA appropriately applied Matter of Frentescu, 18 I. &N. Dec. 244 (BIA 1982), by considering "both the nature of the crime and the individual factual circumstances of the conviction." After conducting a proper case-specific inquiry, the BIA concluded that, in light of the Frentescu factors, Perez presented a danger to the community. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (citing Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc)); Matter of Frentescu, 18 I. &N. Dec. at 245.
In particular, the BIA noted that the child endangerment offense of which Perez was convicted "defines a crime against persons, which the Board has long recognized is more likely to be categorized as particularly serious." The BIA also observed that the offense "caused harm to the victim, [Perez's] 21-month-old child," another factor that justifies concluding that a crime qualifies as "particularly serious." Finally, the BIA properly noted that Perez's five-year sentence supports a particularly serious crime designation.
Perez maintains that the facts and circumstances of his offense preclude a finding that the crime was particularly serious. The factual circumstances, he testified, involved leaving his 21-month-old toddler and five-year-old child alone for two to three minutes while he was in the bathroom. But this description of what happened is simply not consistent with his conviction. The California statute under which Perez was convicted requires a mens rea of gross negligence. See People v. Lee, 234 Cal.App.3d 1214, 1220-21 (1991). Leaving two small children-neither an infant-unattended in an otherwise safe room for two to three minutes is common behavior among parents and could not possibly meet the gross negligence standard absent a showing of unique circumstances, such as a history of the five-year-old child injuring other children. There is no California case approving a conviction of child endangerment for behavior akin to Perez's version of the events. To the contrary, the case law involves substantially more dangerous conditions or behaviors. The BIA had no reason to address Perez's specific representations as to the underlying circumstances of the crime, as they could not have formed the basis of the conviction.
See, e.g., People v. Valdez, 27 Cal.4th 778, 790-91 (2002) (parent negligently failed to secure an alternative childcare arrangement when the parent knew that her fiance, who watched the child while she was at work, had previously become violent); People v. Kinkead, 80 Cal.App.4th 1113, 1116-21 (2000) (parent negligently fell asleep next to his toddler on a comedown from extended drug use, leading to the toddler's asphyxiation under parent's sleeping body); People v. Toney, 76 Cal.App.4th 618, 623 (1999) (stepparent negligently failed to restrict a child's access to dangerous chemicals); People v. Rippberger, 231 Cal.App.3d 1667, 1680-83 (1991) (parent negligently failed to seek medical care for a sick baby on the basis of the parent's religious beliefs); People v. Klaas, No. F075332, 2019 WL 2384560, at *4 (Cal.Ct.App. June 6, 2019) (conviction affirmed for multiple reasons, but "most importantly" because the parent negligently left her toddler unattended in his room for 18 hours even though his dresser was not secured to the wall); People v. Hayashi, No. A142434, 2016 WL 1355574, at *14 (Cal.Ct.App. Apr. 5, 2016) (parent kept dangerous dogs in the garage and negligently left the door leading into the garage unlocked); People v. Angelo, No. F055675, 2009 WL 1845209, at *2-4 (Cal.Ct.App. June 26, 2009) (parent negligently failed to adequately feed her child).
We therefore deny the petition with respect to Perez's applications for asylum and withholding of removal.
2. This Court's 2016 order remanding Perez's case for further proceedings directed the IJ and BIA to consider Perez's "'aggregate risk of torture from all sources,' including both [Perez's] family affiliation and his gang related tattoos."
The IJ and BIA did not follow that instruction, so Perez's claim for protection under the Convention must again be remanded. See Chookhae v. I.N.S., 756 F.2d 1350, 1352 (9th Cir. 1985).
Perez claims to face a risk of torture related to two distinct aspects of his familial ties: (1) his father's service in the national army during the El Salvadoran civil war, which places Perez at risk of torture because "elements or cells" of an insurgent group his father fought against remain powerful in El Salvador and continue to murder the loved ones of former military members; and (2) the existence of a group of people in El Salvador who may attempt to murder Perez as an act of revenge because his father killed their loved one in self-defense in the 1980s.
On remand, the IJ and BIA did not discuss or even mention the risk of torture stemming from the military service of Perez's father. As this Court's 2016 remand order directed the IJ and BIA to consider the aggregate risk of torture to Perez stemming from three sources-the insurgent group, the family members of the deceased man, and the gang members who may seek to harm Perez because of his gang tattoos-and the IJ and BIA entirely failed to grapple with the risk of torture stemming from the insurgent group, the agency did not address the risk of torture stemming from the three sources, added together.
Contrary to the dissent's characterization, the BIA did not conclude that Petitioner failed to establish government acquiescence in any potential torture; instead, its conclusion was limited to the risk of torture posed by the deceased man's family and Petitioner's gang tattoos. Because the BIA did not address the risk of torture posed by the insurgent group at all, it had no occasion to consider whether such torture might take place with the consent or acquiescence of the government. The BIA's limited conclusion regarding government acquiescence was thus insufficient to comply with this Court's 2016 remand order.
Additionally, although the BIA mentioned that Perez's father had an altercation with an "unidentified man" in the 1980s, its discussion of this issue demonstrates a failure fully to engage with the merits of Perez's argument. The BIA suggested that the risk of torture stems from the unidentified man himself, when it is evident from the record that the unidentified man perished, and his surviving family members are the ones who pose a risk of danger to Perez. The BIA also asserted that "there is no evidence in the record that . . . the unidentified man or any other person is looking for the respondent or that anyone will more likely than not torture the respondent with the government's consent." The thrust of this point is that the events at issue happened many years ago, and tempers have now cooled such that there is no outstanding danger. But the BIA did not address the fact that the family members of the deceased man paid someone to go to the United States and search for Perez's father only "a couple of years" before Perez's 2012 merits hearing. Nor did it grapple with the fact that Perez's mother was told by these individuals that if they could not find Perez's father, they would kill her, Perez, and Perez's siblings. These omissions indicate that the BIA did not fully consider Perez's risk of torture stemming from the family members of the deceased man.
Because the IJ and BIA did not follow the core command of this Court's 2016 remand order, we grant Perez's petition and remand for further proceedings. See Chookhae, 756 F.2d at 1352.
The petition for review is DENIED IN PART and GRANTED IN PART. We REMAND Perez's claim for protection under the Convention for further proceedings consistent with this memorandum disposition.
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
I concur in that portion of the majority disposition concluding that the Board of Immigration Appeals (BIA) did not abuse its discretion when it concluded that Petitioner's conviction for felony child endangerment, as enhanced, constitutes a particularly serious crime. However, I respectfully dissent from that portion of the majority disposition concluding that the Immigration Judge (IJ) and BIA failed to comply with our 2016 remand order from the prior appeal.
Our 2016 remand order directed the agency to "consider Petitioner's aggregate risk of torture from all sources, including both Petitioner's family affiliation and his gang-related tattoos." (citation and internal quotation marks omitted).
On remand, the IJ discussed testimony from Petitioner's father regarding "why his family left El Salvador." The IJ also discussed Petitioner's fear of returning to El Salvador due to the presence of tattoos "over all parts of his body."
For both of these asserted bases of potential torture, the IJ concluded that Petitioner failed to establish that the government would acquiesce to any torture, regardless of the source of the torture.
The BIA recognized that Petitioner feared "harm[] in El Salvador due to his gang tattoos and his family affiliations." (emphasis added). The BIA agreed with the IJ's determination that the government would not acquiesce in any potential torture.
The majority disposition faults the agency for failing to specifically discuss "the risk of torture stemming from the military service of [Petitioner's] father." However, the remand order did not specify that the agency had to address the military service connection. Rather, the order required consideration of Petitioner's risk of torture from "both Petitioner's family affiliation and his gang-related tattoos," which the BIA expressly did. Following that consideration, the BIA concluded that Petitioner failed to establish government acquiescence in any potential torture. Because this determination is supported by substantial evidence, I would deny the petition in its entirety. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (reviewing denial of torture claim for substantial evidence); see also Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (requiring proof of government acquiescence to establish a claim for CAT deferral and reviewing for substantial evidence).
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.