NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN PASCUAL ESTEBAN, No. 21-730
Agency No.
Petitioner, A087-743-738
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2024**
Pasadena, California
Before: TALLMAN and BENNETT, Circuit Judges, and LASNIK, District
Judge.***
Juan Pascual Esteban petitions for review of the immigration judge’s (“IJ”)
negative reasonable fear determinations. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
§ 1252(a)(1) and review the IJ’s factual determinations for substantial evidence. See
Alvarado-Herrera v. Garland, 993 F.3d 1187, 1191, 1195 (9th Cir. 2021). Esteban
also argues that his underlying removal order from 2009, which was reinstated, was
invalid based on a defective Notice to Appear (“NTA”). We have “jurisdiction under
8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on the underlying removal
order only in cases of ‘gross miscarriage of justice.’” Lopez v. Garland, 17 F.4th
1232, 1233 (9th Cir. 2021). We dismiss the petition in part, deny it in part, and grant
it in part.
1. We have no jurisdiction over Esteban’s collateral attack on his 2009
removal order, as he fails to show a gross miscarriage of justice. He argues that the
NTA, which lacked the date, time, and location of his hearing, deprived the
immigration court of adjudicatory authority and thus there was a gross miscarriage
of justice. This argument is foreclosed by United States v. Bastide-Hernandez, 39
F.4th 1187, 1193 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023)
(holding that an NTA, which lacks date and time information, does not affect an
immigration court’s adjudicatory authority).
2. Esteban challenges the IJ’s negative reasonable fear determinations for
both persecution and torture. During the reasonable fear screening process, the non-
citizen must show a “reasonable fear of persecution or torture,” 8 C.F.R. § 208.31(c),
“which has been defined to require a ten percent chance that the non-citizen will be
2 21-730
persecuted or tortured if returned to his or her home country,” Alvarado-Herrera,
993 F.3d at 1195.
a. Persecution. Esteban argues that substantial evidence does not support
the IJ’s determination that he failed to establish a reasonable fear of persecution.
More specifically, the IJ found that the evidence failed to show that any harm
Esteban might suffer at the hands of the cartels would occur on account of his “race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 208.31(c).
The IJ’s finding is supported by substantial evidence, as Esteban testified both
before the asylum officer and the IJ that the cartels targeted him and his son because
they wanted to increase their ranks. Given this testimony, the record does not
compel a conclusion contrary to the one reached by the IJ. See INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992).
Esteban also appears to argue that the IJ legally erred by applying an incorrect
nexus standard. There was no legal error. The IJ correctly explained that Esteban
had to show “a reasonable possibility of persecution . . . on account of one of the
enumerated grounds.” The IJ also explained why the evidence failed to satisfy that
standard: “They harmed [Esteban] because they wanted [Esteban’s son] to join their
ranks. . . . [T]hese criminal elements want young men to fight for them. That’s the
motivation.”
3 21-730
b. Torture. Esteban challenges the IJ’s determination that he failed to
establish a reasonable fear of torture because he did not show that any torture would
be inflicted by the government or with its consent or acquiescence. See 8 C.F.R.
208.18(a)(1), (7). “‘Acquiescence’ requires only that public officials were aware of
the torture but ‘remained willfully blind to it, or simply stood by because of their
inability or unwillingness to oppose it.’” Bromfield v. Mukasey, 543 F.3d 1071, 1079
(9th Cir. 2008) (quoting Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir.
2006)). The government does not dispute that the harm Esteban fears would
constitute torture if he established that the police would acquiesce in the cartel’s
efforts.
Esteban’s testimony before the asylum officer established that he tried to
report the cartel’s threats to the police, the police ignored his attempt, and the police
had ignored similar complaints by others. The asylum officer found Esteban
credible. Under our precedent, Esteban’s credible testimony compels a finding that
there is at least a ten percent chance that the police would be unwilling to address
cartel violence against him. See Alvarado-Herrera, 993 F.3d at 1197 (reversing IJ’s
no-acquiescence finding because petitioner provided a specific account of an attack
by gang members who were dressed in police uniforms and displayed police badges,
along with anecdotal evidence of police corruption). Like the petitioner in Alvarado-
Herrera, Esteban provided a specific account and anecdotal evidence of police
4 21-730
unwillingness to address cartel violence. We therefore grant the petition as to the
negative reasonable fear of torture determination and remand “to the agency with
instructions to provide [Esteban] a hearing before an immigration judge only as to
the merits of his claim for protection under CAT.” Id.
PETITION DISMISSED IN PART, DENIED IN PART, AND
GRANTED IN PART; REMANDED WITH INSTRUCTIONS.1
1
The parties shall bear their own costs on appeal.
5 21-730