NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS LIBRADO PARRA-PEREZ, No. 20-70233
Petitioner, Agency No. A091-556-875
v.
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of a Final Order of the Department of Homeland Security
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.
Carlos Librado Parra-Perez, a native and citizen of Mexico, petitions for
review of an immigration judge’s (IJ’s) determination under 8 C.F.R. § 1208.31(g)
that Parra-Perez did not have a reasonable fear of persecution or torture in Mexico.
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Parra-Perez was thus found not entitled to relief from his reinstated removal order.
We review an IJ’s reasonable-fear determination for substantial evidence,
Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018), and we review questions
of law de novo, Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004).
Substantial evidence supports the IJ’s determination that Parra-Perez failed
to establish a reasonable possibility of persecution on account of a protected
ground. Contrary to Parra-Perez’s argument, those with perceived wealth do not
constitute a cognizable social group. See Bartolome, 904 F.3d at 814; Ramirez-
Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). And although “family
remains the quintessential particular social group,” Rios v. Lynch, 807 F.3d 1123,
1128 (9th Cir. 2015), nothing in the record shows that the abuse experienced by
Parra-Perez was motivated by his familial affiliations.
The IJ erred, however, by utilizing the wrong legal standards regarding
Parra-Perez’s Convention Against Torture (CAT) claim: first, by relying on a
“rogue-officer exception” to CAT relief that this court has expressly rejected; and
second, by incorrectly articulating the “reasonable possibility” standard.
Those seeking protection under CAT must prove that future torture they
would experience would be “inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. §§ 208.18(a)(1), 1208.18(a)(1) (effective until January 11, 2021). The IJ
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disagreed with the asylum officer’s finding that this state-action requirement had
been met, reasoning instead that
this does appear to be rogue police officers, at best. And there is a recent
case indicating that rogue police officers acting outside the scope of
their employment is not necessarily a basis to conclude that that is
government action for purposes of protection under the Convention
against Torture . . . it’s O something or other. . . . I would not find that
it is government action.
Later, the IJ wrote that the “[e]vents were random crime by rogue police.”
The IJ misstated the law. Matter of O-F-A-S-, 27 I. & N. Dec. 709, 723
(BIA 2019), to which the IJ refers, permitted a rogue-officer exception. But not
only has that case been subsequently overruled by the BIA itself on this particular
issue, see Matter of O-F-A-S-, 28 I. & N. Dec. 35, 38 (2020) (clarifying that the
“rogue-official” language should be replaced with “under color of state law”
language), but the BIA in its first decision also acknowledged that the purported
exception contradicts Ninth Circuit caselaw, see Matter of O-F-A-S-, 27 I. & N.
Dec. at 713 n.4 (“We recognize that the . . . Ninth Circuit has held that there is no
‘rogue official’ exception to protection under the Convention Against Torture and
8 C.F.R. § 1208.18(a).”). Relevant here, we “will not defer to BIA decisions that
conflict with circuit precedent.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th
Cir. 2003).
Indeed, in Barajas-Romero v. Lynch, 846 F.3d 351, 362–63 (9th Cir. 2017),
this court held that “[t]he statute and regulations do not establish a ‘rogue official’
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exception to CAT relief” and that “state involvement may be established . . . where
police officials were corrupt, and worked on behalf of criminals or gangsters.”
(citation and internal quotation marks omitted). As in this case, the officers who
committed the abuse “were apparently off-duty.” Id. at 362. But the court
nevertheless held that “the regulation does not require that the public official be
carrying out his official duties, so long as he is the actor or knowingly acquiesces
in the acts.” Id.
The IJ also erred in outlining the “reasonable possibility” standard. At the
reasonable-fear screening stage, the individual must establish “a reasonable
possibility that he or she would be tortured in the country of removal.” 8 C.F.R.
§§ 208.31(c), 1208.31(c). “[R]easonable possibility . . . has been defined to
require a ten percent chance that the non-citizen will be . . . tortured if returned to
his or her home country.” Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195 (9th
Cir. 2021) (quoting Bartolome, 904 F.3d at 809).
At the hearing, the IJ stated that “[t]he standard is that there’s a reasonable
possibility that he could prove that it’s more likely than not that he would be
tortured. . . .” This is a faulty hybrid of the standard that Parra-Perez must
preliminarily satisfy and the one that he must ultimately meet. See 8 C.F.R.
§§ 208.16(c)(2), 1208.16(c)(2) (To ultimately obtain CAT relief, the applicant
must establish that “it is more likely than not that he or she would be tortured if
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removed to the proposed country of removal.”). The IJ should not have analyzed
whether Parra-Perez could meet the ultimate standard, but rather whether he had
established, at the hearing, a reasonable possibility (defined to be at least 10%) of
torture.
This distinction matters because the individual is not afforded a full hearing
at the reasonable-fear screening stage. See id. §§ 208.31(b),(c),(g),
1208.31(b),(c),(g). The screening-stage hearing before the IJ “is not as
comprehensive or in-depth” as the subsequent stage, Bartolome, 904 F.3d at 809
(citation omitted), where the individual actually applies for CAT relief and
receives “full consideration” of his or her claim, 8 C.F.R. §§ 208.31(e), 1208.31(e),
including of any submitted evidence such as “[e]vidence of past torture inflicted
upon the applicant” and “evidence of gross, flagrant or mass violations of human
rights within the country of removal,” id. §§ 208.16(c), 1208.16(c). For these
reasons, the individual at the screening stage must establish solely a reasonable
possibility of torture, not a reasonable possibility of what he or she might be able
to prove down the line.
The confusion about the applicable standard is squarely revealed in the IJ’s
written order, where the IJ wrote that the torture experienced by Parra-Perez was
“unlikely to reoccur.” This court has in fact rejected extremely similar language.
See Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005) (rejecting the IJ’s
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language that female genital mutilation “is not likely to be a threat” because “[t]he
proper standard . . . is not whether the persecution feared is ‘likely to be a threat’”
. . . . Rather, “even an alien who can demonstrate only a ten percent chance of
future persecution may prevail in a claim for asylum.”).
At the very least, the IJ’s understanding of the correct standard appears to be
ambiguous. In such circumstances, this court has chosen to remand for further
proceedings. Id. at 1042; Lanza, 389 F.3d at 931–32.
The merits of Parra-Perez’s claims—whether state action was involved and
whether he has established a reasonable possibility of future torture—are for the IJ
to determine on remand by applying the correct legal standards. The petition for
review is therefore DENIED in part and GRANTED in part. We REMAND for
further proceedings and STAY Parra-Perez’s removal.
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