FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CESAR ALCARAZ-ENRIQUEZ,

Petitioner,

v.

MERRICK B. GARLAND, 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 ALCARAZ-ENRIQUEZ V. GARLAND

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-examine 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 deferral 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 not 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.
ALCARAZ-ENRIQUEZ V. GARLAND 3

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 for 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 crossexamination, the panel re-affirmed its conclusion that the 

Board erred in relying on the probation report without 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 right 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 concluded 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 

finding, 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 affect both the 

IJ’s credibility determination as to Alcaraz and the Board’s 
4 ALCARAZ-ENRIQUEZ V. GARLAND

decision to credit the probation report’s version of events 

over Alcaraz’s. 

The 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 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 
ALCARAZ-ENRIQUEZ V. GARLAND 5

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).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 and 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 admitted to punching his girlfriend once but 

denied that it was “the way she describes.” According to his 

1 The Supreme Court heard Garland v. Alcaraz-Enriquez alongside 

Ming Dai and issued an opinion for both under the Ming Dai caption.
6 ALCARAZ-ENRIQUEZ V. GARLAND

version, relayed in his testimony before the IJ, Alcaraz 

witnessed his girlfriend physically abusing their young 

daughter, which led Alcaraz to punch his 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 California 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 three 

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 accomplished 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 reentering 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” before 
ALCARAZ-ENRIQUEZ V. GARLAND 7

taking him to jail. Alcaraz subsequently 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 proceedings.

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 cross-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 and 
8 ALCARAZ-ENRIQUEZ V. GARLAND

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 injury 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 recounts 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 

violence.” 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 adopted 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).
ALCARAZ-ENRIQUEZ V. GARLAND 9

seriousness of [Alcaraz’s] conviction, including weighing 

and comparing [his] testimony at the hearing and the 

probation officer’s report issued 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 petition 

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 the 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 evidence 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 ALCARAZ-ENRIQUEZ V. GARLAND

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. AlcarazEnriquez, 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. Id. 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. AlcarazEnriquez 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 

opportunity to cross-examine the report’s author or the 

declarant, his former girlfriend. We reaffirm our prior 

holding.
ALCARAZ-ENRIQUEZ V. GARLAND 11

We review the BIA’s conclusion, that Alcaraz’s 

conviction constitutes a particularly serious crime, for abuse 

of discretion. Avendano-Hernandez 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 

other 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 impressions 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 in 

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 decision 

of such importance as deportation.”).
12 ALCARAZ-ENRIQUEZ V. GARLAND

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 crossexamine the witness against him.” Saidane 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 (quoting 

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. Alcaraz 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 DHS 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 offer 
ALCARAZ-ENRIQUEZ V. GARLAND 13

a “highly reliable basis” on which to make important 

immigration 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 multifactored 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. 

2018) (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 Alcaraz’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 found, 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 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 
14 ALCARAZ-ENRIQUEZ V. GARLAND

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 finding 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 

when 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 authenticated 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.
ALCARAZ-ENRIQUEZ V. GARLAND 15

terms. Instead, immigration cases like these 

should proceed as follows. First, the factfinder—here the IJ—makes findings of fact, 

including determinations as to the credibility 

of particular witness testimony. The BIA 

then reviews those findings, applying 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 explicit 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, crossexamination of the author of the probation report (or the 

declarant) could 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 ALCARAZ-ENRIQUEZ V. GARLAND

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 that “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 treatment, 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 Alcaraz’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 parties shall 

bear their own costs on appeal.