CA9 on Service, Suppression, CAT: B.R. v. Garland

B.R. v. Garland

"All substantive hearings, pleadings, and orders occurred after service on B.R. was perfected. B.R. has not shown he was prejudiced by the delay in service in obtaining relief from removal. B.R. is not entitled to termination based on his claims of DHS’s regulatory violation. We deny his petition for review for all arguments related to service of the NTA. ... [W]e have serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the presentence investigation report when it was placed under seal by the federal district court. Given these misgivings and the fact that the agency relied on both the birth certificate and the presentence investigation report in determining that DHS’s evidence was sufficient to establish alienage, we refrain from concluding in the first instance that the presentence investigation report alone is sufficient to establish B.R.’s alienage. INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam). We grant the petition for review and remand for the agency to reopen proceedings consistent with this opinion, including, if necessary, examining the merits of B.R.’s motion to suppress the I-213s. ... Nothing in the record would compel a reasonable adjudicator to conclude that the Mexican government would acquiesce in B.R.’s torture. Because B.R. failed to satisfy this essential element, he is ineligible for CAT protection, and we need not address his remaining assignments of error. His petition for review as to his application for CAT protection is denied. ... For the reasons outlined above, the petition for review is GRANTED in part; DENIED in part; and REMANDED for further proceedings consistent with this opinion."

[Kudos to Kristen Jackson (argued), Public Counsel, Los Angeles, California; Hayley Upshaw, San Francisco Public Defender’s Office, San Francisco, California; Mark T. Roche, Baker & McKenzie LLP, San Francisco, California, for Amici Curiae Legal Services for Children, Children’s Law Center of California, Law Foundation of Silicon Valley, and Pacific Juvenile Defender Center. Nareeneh Sohbatian and Nimalka Wickramasekera, Winston & Strawn LLP, Los Angeles, California; and Ashley A. Chung, Winston & Strawn LLP, Chicago, Illinois; for Amicus Curiae Catholic Legal Immigration Network, Inc. (Clinic).]