CA9 Pushes Back Against SCOTUS: Alcaraz-Enriquez II

Alcaraz-Enriquez II, Sept. 16, 2021

"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 removal under the Convention Against Torture (“CAT”). We previously granted Alcaraz’s petition on two bases: (1) that the BIA erred in not requiring the DHS to make a good-faith effort to make available key government witnesses for Alcaraz’s cross-examination; and (2) that the BIA erred in not deeming true Alcaraz’s testimony before the Immigration Judge (“IJ”) in light of the absence of any express adverse credibility determination from the IJ. Alcaraz-Enriquez v. Sessions, 727 F. App’x 260, 261 (9th Cir. 2018). However, the Supreme Court reversed our judgment upon the second basis for granting the petition, vacated all of our decision, and remanded for further proceedings. Garland v. Ming Dai, 141 S. Ct. 1669 (2021). On remand, we again grant Alcaraz’s petition for review in part. ... Preliminarily, we observe that the Supreme Court in Ming Dai did not alter the law as it relates to our holding as to the cross-examination of declarants to the probation report. However, because all of our prior opinion was vacated, we must address again Alcaraz’s argument that he was denied a fair hearing because the government proffered the report even though Alcaraz was never given an opportunity to cross-examine the report’s author or the declarant, his former girlfriend. We reaffirm our prior holding. ... Based on the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom, we grant in part Alcaraz’s petition and remand for a hearing that comports with the requirements of § 1229a(b)(4)(B)."

[Hats off again to Bob Jobe!]