FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

C ESAR A LCARAZ

- E NRIQUEZ , Petitioner
,

v.

M ERRICK B. G ARLAND , Attorney General, Respondent. No. 15

- 71553

Agency No. A075

- 191

- 250

OPINION

On Remand from the United States Supreme Court

Filed September 16, 2021

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye, * District Judge.

Opinion by Judge Bea

* The Honorable David C. Nye, Chief United States District Judge for the District of Idaho, sitting by designation.2 A LCARAZ

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. G ARLAND

SUMMARY **

Immigration

On remand from the Supreme Court, the panel granted in part and denied in part Cesar Alcaraz

- Enriquez ’ s petition for review of a decision of the Board of Immigration Appeals, and remanded, concluding that: (1) in the absence of an opportunity to cross

- exam ine the author of a probation report or the underlying declarant, the Board erred in relying on the report to conclude that Alcaraz had been convicted of a particularly serious crime; and (2) the Board did not err in denying Alcaraz ’ s application for defer ral of removal under the Convention Against Torture.

The panel first addressed the Board’s determination that Alcaraz’s conviction for inflicting corporal injury on a cohabitant, in violation of California Penal Code § 273.5(a), constituted a particularly serious crime rendering him ineligible for withholding of removal. In concluding that he had been convicted of a particularly serious crime, the agency credited a probation report recounting only Alcaraz’s girlfriend’s narrative of the domestic incident, over Alcaraz’s testimony at his immigration hearing. The panel previously granted Alcaraz’s petition on two bases: (1) that the Board erred in no t requiring the Department of Homeland Security to make a good

- faith effort to make available for cross

- examination the author of, and declarant to, the probation report; and (2) that in the absence of any express adverse credibility determination from the

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.A LCARAZ

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immigration judge, the Board erred in not deeming true Alcaraz’s testimony. In Garland v. Ming Dai , 141 S. Ct. 1669 (2021), the Supreme Court reversed the panel’s second basis for granting the petition, vacated the panel’s entire decision, and remanded f or further proceedings.

Observing that the Supreme Court in Ming Dai did not alter the law as it relates to the panel’s prior holding on cross

examination, the panel re

- affirmed its conclusion that the Board erred in relying on the probation report withou t giving Alcaraz any sort of opportunity to cross

- examine the witnesses whose testimony was embodied in that report, and without the Department of Homeland Security making any effort

— good faith or not

— to procure the witnesses after Alcaraz preserved his ri ght by adequate objection. The panel concluded that this rendered the Board’s procedure fundamentally unfair, especially given that probation reports may not offer a highly reliable basis on which to make important immigration decisions. The panel conclu ded that this error caused Alcaraz prejudice because if the probation report had been found to be unreliable on cross

- examination, it is possible that the IJ could have found, based on Alcaraz’s version of events and the lack of an adverse credibility find ing, that his conviction was not for a particularly serious crime. The panel remanded for a new hearing.

Noting that Ming Dai upended the panel’s second ground for granting the petition and laid out the proper procedure on petition for review when there is no explicit adverse credibility determination, the panel concluded that it would be futile to analyze this issue before a new hearing is held. The panel explained that cross

- examination of the author of the probation report (or the declarant) could aff ect both the IJ’s credibility determination as to Alcaraz and the Board’s4 A LCARAZ

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decision to credit the probation report’s version of events over Alcaraz’s.

T he panel reaffirmed its prior holding denying Alcaraz ’ s petition as to his application for deferral of removal under CAT.

COUNSEL

Robert B. Jobe , Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

John W. Blakeley , Assistant Director; Erica B. Miles and Aimee J. Carmichael , Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

OPINION

BEA, Circuit Judge:

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 appli cations 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 ke y 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 anyA LCARAZ

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express adverse credibility determination from the IJ. Alcaraz

- En riquez 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). 1

On remand, we again grant Alcaraz’s petition for review in part.

I

A

Alcaraz was born in Mexico in 1979 but entered the United States illegally when he was eight years old. In July 1999, Alcaraz, who still lacked legal immigration status, was involved in a domestic incident with his live

- in girlfriend, Esmeralda Alvarado, with whom Alcaraz had a child. This altercation led to a nolo contendere California felony conviction

— but the facts of that altercation are subject to two competing narratives.

A probation report, written by a probation officer (who interviewed Alcaraz an d Alvarado at the scene), recounted Alvarado ’s narrative. Under her version of events, Alcaraz had locked her in the bedroom, threatened to kill her if she tried to escape, punched and kicked her repeatedly, and forced her to have sex with him.

Alcaraz ad mitted to punching his girlfriend once but denied that it was “the way she describes.” According to his

1 Th e Supreme Court heard Garland v. Alcaraz

- Enriquez alongside Ming Dai and issued an opinion for both under the Ming Dai caption.6 A LCARAZ

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version, relayed in his testimony before the IJ, Alcaraz witnessed his girlfriend physically abusing their young daughter, which led Alcaraz to punch h is girlfriend in anger. Alcaraz also denied the other allegations against him, including the allegations that he locked her in her bedroom, threatened her life, and forced her to have sex with him. The probation officer interviewed Alcaraz multiple times, and the probation report discusses Alcaraz’s contemporary statements, but the probation report does not include Alcaraz’s version of events as Alcaraz testified before the IJ.

As a result of the incident, Alcaraz was charged with felony violations of Cali fornia Penal Code (“CPC”) § 273.5(a) (willfully inflicting corporal injury on a spouse or cohabitant), CPC § 236/237 (false imprisonment), and California Health & Safety Code § 1377(A) (possession of methamphetamine). He pleaded nolo contendere to all thr ee charges on September 29, 1999, and was convicted and sentenced to two years in prison for each, to be served concurrently. In 2001, Alcaraz finished his prison sentence and was immediately transferred to immigration custody for deportation, which was a ccomplished that same year.

In 2003, Alcaraz reentered the U.S. illegally. In 2007, Alcaraz was arrested, detained, and prosecuted for illegal reentry. Alcaraz was ultimately convicted of illegally re

entering the United States and was again deported to Mexico. In 2013, while in Mexico, Alcaraz was involved in another physical altercation, this time with his neighbor. Alcaraz was arrested and spent two days in jail. According to Alcaraz, upon his release from jail, he returned to his apartment where he had just fought with his neighbor to collect his things, but the locks had changed. The police soon arrived. Alcaraz claims that five policemen beat him “all over” with “[t]heir clubs” for “about eight hours” beforeA LCARAZ

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taking him to jail. Alcaraz subseque ntly pleaded guilty in Mexico to assaulting his neighbor.

On December 23, 2013, Alcaraz was caught trying to cross the border at the San Ysidro, California port of entry. Immigration officials took him into custody and initiated the instant removal procee dings.

B

On April 21, 2014, the Department of Homeland Security (“DHS”) served Alcaraz with a Notice to Appear and initiated removal proceedings against him. The DHS filed a charge of inadmissibility against Alcaraz, claiming that he is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) based on his controlled substance conviction for possession of methamphetamine. Alcaraz conceded inadmissibility, but applied for asylum, withholding of removal, and protection under CAT. Alcaraz testified before the IJ, who did not make an adverse credibility determination. During those proceedings, Alcaraz objected to the introduction of the probation report produced after his 1999 convictions because the DHS did not make available “the person who made both statements here for cros s

- examination, and it’s like [a] triple hearsay document.” The IJ overruled that objection, commenting that hearsay evidence is permitted in immigration proceedings but not addressing whether the author of the report or the underlying declarant (Alcaraz’s

ex

- girlfriend) should or could have been made available for

cross

- examination.

On December 5, 2014, the IJ issued a decision denying Alcaraz relief. First, the IJ held that Alcaraz’s 1999 conviction for inflicting corporal injury on a cohabitant was “an aggravated felony as defined under [Immigration and8 A LCARAZ

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Nationality Act] Section 101(a)(43)(F),” thus making him ineligible for asylum. Alcaraz does not appeal that finding.

Second, the IJ determined that the same 1999 conviction for inflicting corporal injur y on a cohabitant also constituted a conviction for a “particularly serious crime” under 8 U.S.C. § 1231(b)(3), thereby making Alcaraz ineligible for withholding of removal. In reaching this second finding, the IJ relied on the probation report which reco unts only the girlfriend’s narrative of the 1999 domestic incident, and not that of Alcaraz. The IJ, crediting the probation report over Alcaraz’s testimony, found that “the facts and circumstances surrounding the conviction involve the use of force and

v iolence.” The IJ thus found that Alcaraz “was convicted of a particularly serious crime” and, for that reason, is “ineligible for consideration of withholding of removal.”

Third, the IJ denied Alcaraz’s application for deferral of removal under CAT, which required Alcaraz to establish “more likely than not that he would be tortured if returned to the country of removal.” Although the IJ found Alcaraz “credible as far as testifying to the harm he suffered while in the custody of the [Mexican] police,” the IJ determined that Alcaraz had not proven that “the harm he suffered is tantamount to torture,” nor that it is “more likely than not” to recur if he returns. Alcaraz therefore failed to establish his entitlement to CAT protection.

On appeal, the BIA adopt ed and affirmed the decision of the IJ. 2 Notably, the BIA specifically mentioned that the IJ “properly considered all evidence of record in assessing the

2 Where the BIA adopts and affirms an IJ ’ s decision with further reasoning, this court reviews both the decision of the IJ and the BIA. See Kwong v. Holder , 671 F.3d 872, 876 (9th Cir. 2011).A LCARAZ

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seriousness of [Alcaraz’s] conviction, including weighing and comparing [his] testimony at the hearing and the probation officer’s report issue d during the time of his conviction.” It further opined that “[i]n weighing the evidence of record, the Immigration Judge was not required to adopt the respondent’s version of events over other plausible alternatives.” Thereafter, Alcaraz filed his petit ion for review in this court.

In our now

- vacated memorandum disposition, we granted in part Alcaraz’s petition. We concluded that BIA erred as to its finding that Alcaraz’s assault was a “particularly serious crime” in two respects. First, we held that t he agency acted contrary to law

— 8 U.S.C. § 1229a(b)(4)(B)

— by not requiring that the DHS make a good faith effort to procure Alcaraz’s ex

- girlfriend and the author of the probation report for cross

- examination, since the government had proffered the evidenc e of the two witnesses through its introduction of the probation report. Second, we applied our decades

- old rule that required us to take a petitioner’s factual contentions as true unless the agency made an explicit adverse credibility finding. We said:

We have repeatedly held that where the BIA does not make an explicit adverse credibility finding, the court must assume that the petitioner’s factual contentions are true. Here, the BIA erred when it credited the probation report over Alcaraz’s testimony without making an explicit adverse credibility finding as to Alcaraz.10 A LCARAZ

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Alcaraz

- Enriquez , 727 F. App’x at 261 (cleaned up). However, we denied the petition for review regarding Alcaraz’s CAT claim.

The Supreme Court granted certiorari. Barr v. Alcaraz

Enri quez , 141 S. Ct. 222 (2020). The Court addressed only the second basis on which we granted Alcaraz’s petition and reversed our decision. Ming Dai , 141 S. Ct. at 1681. The Court vacated all of our opinion and remanded the case for further proceedings. I d. In so doing, the Court acknowledged our first basis for granting the petition:

Separately, the Ninth Circuit held that the BIA erred by failing to give Mr. Alcaraz

Enriquez the opportunity to cross

- examine the witnesses whose testimony was embodied in the probation report

. . . . Remaining disputes over the merits

. . . can be addressed on remand.

Id. at 1675 n.1.

II

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
op portunity to cross

- examine the report’s author or the declarant, his former girlfriend. We reaffirm our prior holding.A LCARAZ

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We review the BIA’s conclusion, that Alcaraz’s conviction constitutes a particularly serious crime, for abuse of discretion. Avendano

- H ernandez v. Lynch , 800 F.3d 1072, 1077 (9th Cir. 2015). “While we cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard.” Gomez

- Sanchez v. Sessions

, 892 F.3d 985, 990 (9th Cir. 2018) (cleaned up). Thus, we must “ensur[e] that the agency relied on the ‘appropriate factors’ and ‘proper evidence’ to reach [its] conclusion.” Avendano

- Hernandez , 800 F.3d at 1077 (alteration omitted) (quoting Anaya

- Ortiz v. Holder , 594 F.3d 673, 676 (9th Cir. 2010)).

We previously held in Anaya

- Oritz that an IJ may consider “all reliable information .

. . in making a particularly serious crime determination, including the conviction records and sentencing information, as well as
ot her information outside the confines of a record of conviction.” 594 F.3d at 678 (quoting Matter of N

- A

- M

- , 24 I. & N. Dec. 336, 342 (BIA 2007)). This reliability question is particularly important when the IJ is relying on a probation officer’s impression s or summaries of witnesses. As the Supreme Court has recognized, “consideration must be given to the quality, as well as the quantity, of the information” provided in presentence reports, given the “manifest” “risk that some of the information accepted i n confidence may be erroneous, or may be misinterpreted[] by the investigator.” Gardner v. Florida , 430 U.S. 349, 359 (1977); see also Dickson v. Ashcroft , 346 F.3d 44, 54 (2d Cir. 2003) (“ Because the factual narratives contained in the [presentence report] are prepared by a probation officer on the basis of interviews .

. . they may well be inaccurate .

. . . Such a narrative is not a highly reliable basis for a decisi on of such importance as deportation.”).12 A LCARAZ

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Separately, we have recognized that the evidence introduced into removal proceedings remains subject to other statutory and constitutional limitations. For instance, the admission of evidence must be “fundamentally fair.” Cinapian v. Holder , 567 F.3d 1067, 1074 (9th Cir. 2009). And because Congress has specifically provided that an alien in removal proceedings must be given “a reasonable opportunity

. . . to cross

- examine witnesses presented by the Government,” 8 U.S .C. § 1229a(b)(4)(B), we have held that the government deprives the alien of a fundamentally fair hearing when it fails “to make a good faith effort to afford the alien a reasonable opportunity to confront and to cross

examine the witness against him.” Sai dane v. INS , 129 F.3d 1063, 1066 (9th Cir. 1997); see also Cinapian , 567 F.3d at 1074. To make this good faith effort, the government may not “effectively

. . . shift the burden of producing its witness onto [the alien.]’” Saidane , 129 F.3d at 1065 (quotin g Cunanan , 856 F.2d at 1375. This good faith requirement typically requires the government to make some affirmative effort to procure the live testimony of declarants. See, e.g.
, Saidane , 129 F.3d at 1065 (holding that the hearing was fundamentally unfair because the INS “made no effort to call an admittedly available witness and relied instead on that witness’s damaging hearsay affidavit”).

These principles

— reliable evidence and fundamental fairness

— converge when it comes to Alcaraz’s probation report. Al caraz was never given any sort of opportunity to

cross

- examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied in denying his appeal . Nor was any effort made

— good faith or not

— by the D HS to procure the witnesses, after Alcaraz preserved his right by adequate objection. This rendered the BIA’s procedure fundamentally unfair, especially given that probation reports may not offerA LCARAZ

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a “highly reliable basis” on which to make important immigra tion decisions. Dickson , 346 F.3d at 54. So in light of the BIA’s failure to give Alcaraz an opportunity to confront the witnesses against him, the BIA’s reliance on the probation officer’s report was error.

This error was also prejudicial. “To warrant a new hearing, the alien must also show prejudice, which means that ‘the outcome of the proceeding may have been affected by the alleged violation.’” Cinapian , 567 F.3d at 1074 (quoting Colmenar v. INS , 210 F.3d 967, 971 (9th Cir. 2000)). The BIA’s multif actored analysis for determining whether a crime is “particularly serious” under 8 U.S.C. § 1231(b)(3)(B)(ii) invites the IJ to consider “the circumstances and underlying facts of the conviction.” Gomez

- Sanchez v. Sessions , 892 F.3d 985, 991 (9th Cir. 201 8) (quoting Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)). “[T]he record in most proceedings will have to be analyzed on a case

- by

- case basis.” Id. (quoting Matter of Frentescu, 18 I. & N. Dec. at 247). Here, the IJ’s determination that Alca raz’s domestic assault was a particularly serious crime relied in at least some measure on the aggravating facts of the probation report. If the probation report had been found to be unreliable on cross

- examination, it is possible that the IJ could have f ound, based on Alcaraz’s version of events and the lack of an adverse credibility finding, that his conviction was not for a particularly serious crime, and that Alcaraz was not barred from seeking withholding of removal.

Based on the BIA’s failure to requ ire 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 th e14 A LCARAZ

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requirements of § 1229a(b)(4)(B). 3 See Cinapian , 567 F.3d at 1074 (“Remand is generally necessary when an alien is prevented from reasonably presenting her case or when an IJ’s actions prevent the introduction of significant testimony.”). We express no opinion or finding as to whether Alcaraz may be found to be entitled to withholding of removal and make no determination as to the merits of Alcaraz’s persecution claim.

III

In Ming Dai , the Supreme Court addressed the other basis for which we previously granted Alcaraz’s petition. In

our now

- vacated memorandum disposition, we held, based on our long

- extant rule, that the BIA erred when it credited the probation report over Alcaraz’s testimony without making an explicit adverse credibility findi ng as to Alcaraz. Alcaraz

- Enriquez , 727 F. App’x at 261. The Supreme Court determined that our rule was not supported by the text of the Immigration and Nationality Act (“INA”). Instead, the Court laid out the proper procedure on petition for review whe n there is no explicit adverse credibility determination:

The Ninth Circuit’s deemed

- true

- or

- credible rule cannot be reconciled with the INA’s

3 Alcaraz’s argument on appeal that the probation report was unreliable because it was never authenticat ed is forfeited because he did not raise that issue before the IJ. See Barron v. Ashcroft , 358 F.3d 674, 678 (9th Cir. 2004). Alcaraz’s argument that the agency erred by not finding the probation report unreliable simply because it contains hearsay is without merit. See Rojas

- Garcia v. Ashcroft , 339 F.3d 814, 823 (9th Cir. 2003) (“[H]earsay is admissible in immigration proceedings.”); Anaya

- Ortiz
, 594 F.3d at 677

– 78 . On remand, the BIA may also address potential forfeiture issues. See Ming Dai , 141 S. Ct.
at 1675 n.1.A LCARAZ

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terms. Instead, immigration cases like these should proceed as follows. First, the fact

finder

— here the IJ

— makes findings of fact, including determinations as to the credibility of particular witness testimony. The BIA then reviews those findings, apply ing a presumption of credibility if the IJ did not make an explicit adverse credibility determination. Finally, the court of appeals must accept the agency’s findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

Ming Dai , 141 S. Ct. at 1681.

The Supreme Court’s opinion in Ming Dai thus upends our second ground for granting the petition for review. The BIA did not err in failing to credit Alcaraz’s version of events simply because the IJ made no e xplicit adverse credibility determination.

Although the Supreme Court reversed our prior disposition on this point and remanded, we need not engage in further analysis on this point at this time. As previously noted, we also granted Alcaraz’s petition on entirely separate grounds: the agency’s failure to make a good faith effort to procure the author of, and the declarant to, the probation report for cross

- examination. On remand, cross

examination of the author of the probation report (or the declarant) c ould affect both the IJ’s credibility determination as to Alcaraz and the BIA’s decision to credit the probation report’s version of events over Alcaraz’s. Therefore, it would be futile for us to reexamine this issue on remand before a new hearing is held

.16 A LCARAZ

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IV

We also reaffirm our prior holding, which denied Alcaraz’s petition as to his application for deferral of removal under CAT. As the IJ observed, although Alcaraz “has shown that he had been subjected to past harm by the police,” he failed to show tha t “the harm he suffered is tantamount to torture.” See In re J

- E

- , 23 I. & N. Dec. 291, 298 (BIA 2002) (finding that because “the act must be specifically intended to inflict severe physical or mental pain or suffering,” certain “rough and deplorable trea tment, such as police brutality, does not amount to torture”). Alcaraz failed to prove that the BIA’s finding that he suffered only from police mistreatment, and not “torture,” was unsupported by substantial evidence. The BIA did not err in denying Alcar az’s application for deferral of removal under CAT, and we deny this portion of the petition for review.

V

The petition for review is GRANTED IN PART and DENIED IN PART . The case is REMANDED for further proceedings consistent with this opinion. The parti es shall bear their own costs on appeal.