En Banc 9th Circuit published case of Maldonado vs. Holder (my client against the US Attorney General)
Mar 27, 2015OUTCOME: Won this en banc case after the Court reversed a line of cases dating back to 2004.
I won this En Banc case before the 9th Circuit (before 11 Circuit judges). At issue: Can the U.S. Government deport/remove an alien who was tortured in Mexico to a safer place in Mexico? If so, who h ... as the burden of proof? This case reversed a line of 9th Circuit cases (from 2004) which conflicted with the regulations governing internal relocation and deferral of removal under the Convention Against Torture ("CAT"). The en banc court overruled Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral of removal under the Convention Against Torture. The en banc court first determined that the petition was not moot, notwithstanding petitioner’s removal after filing his petition for review, because there was solid evidence that petitioner is currently present in the United States. The en banc court held that Hasan and Lemus-Galvan are inconsistent with 8 C.F.R. §§ 1208.16(c)(2) and (3) because they improperly place the burden on the petitioner to prove that internal relocation is impossible. The en banc court also concluded that Singh departs from § 1208.16(c)(3) because the regulation does not specify that the inability to relocate safely is an element of claim for deferral of removal for which a petitioner bears the burden of proof, and that Perez- Ramirez improperly applied to the CAT context the burdenshifting scheme for internal relocation applicable to asylum claims. The en banc court held that neither the petitioner nor the government bear the burden of proof as to internal relocation, rather such evidence, if relevant, must be considered in assessing whether it is more likely than not that the petitioner would be tortured if removed. The court remanded to the Board for reconsideration of petitioner’s eligibility for deferral of removal.