Roberto Maldonado v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO CURINSITA MALDONADO, No. 09-71491 Petitioner, Agency No. v. A017-263-848

LORETTA E. LYNCH, Attorney General, ORDER AND Respondent. OPINION

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted En Banc September 19, 2014—San Francisco, California

Filed March 27, 2015 Amended May 18, 2015

Before: Alex Kozinski, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Richard R. Clifton, Milan D. Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Morgan Christen, Paul J. Watford, and Michelle T. Friedland, Circuit Judges.

Order; Opinion by Judge Paez; Dissent by Judge Gould; Dissent by Judge M. Smith SUMMARY*

Immigration

The en banc court overruled Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral…

with whom CLIFTON, Circuit Judge, joins, dissenting:

I agree with Judge Gould that we lack jurisdiction to review Maldonado’s claim because his attorney is no longer in contact with him, and there is no evidence that Maldonado is presently in the United States. The only evidence in the record that Maldonado was in the United States subsequent to the date of his removal in 2009 is Maldonado’s 2010 application for a driver’s license in Palo Alto, California, and it was the government, not Maldonado’s counsel, that supplied that evidence. Even if we assume that Maldonado personally submitted such an application in 2010, that act tells us nothing definitive about whether Maldonado has remained in the United States since then. We do know for certain that petitioner’s counsel has not heard from his client in some time, and that when petitioner’s counsel recently contacted Maldonado’s immediate family seeking sworn declarations from them concerning petitioner’s location, the family refused to communicate further with him. Thus, there is simply no evidence in the record that Maldonado is currently in the United States, and counsel confirms that he has not been in contact with the peti…

Opinion by Judge PAEZ; Dissent by Judge GOULD; Dissent by Judge M. SMITH.

ORDER AND OPINION

ORDER

The Government’s Motion to Clarify Decision is granted as follows. On page 5 of the slip opinion, filed on March 27, 2015, the text of footnote 1 is amended as follows: “Because the IJ deemed Maldonado credible, we take his testimony as true for purposes of this opinion. See, e.g., Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir.2014).”

OPINION

Roberto Curinsita Maldonado (“Maldonado”) petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of an immigration judge’s (“IJ”) denial of his application for deferral of removal under the Convention Against Torture (“CAT”). Although the IJ found that Maldonado testified credibly that he was tortured by corrupt Mexican police officers after he was deported in 2000, the BIA concluded that Maldonado was not “eligible for deferral o'f removal under [CAT] because he failed to establish that internal relocation within Mexico was impossible.”

In this proceeding, Maldonado argues that, although he bears the ultimate burden to prove he would be tortured if returned to Mexico, the BIA’s ruling on internal…

with whom CLIFTON, IKUTA, and N.R. SMITH, Circuit Judges, join, dissenting:

Maldonado for years has not been in touch with the lawyer who advocated before us. In such circumstances I believe that our proceeding to render a decision on the merits is essentially to give an advisory opinion. With the party not before us, we are engaging in what might be called “ghost ship” ruling, with the case careening along unmanned by the party seeking relief. We thus have the “ghost” of the prior controversy but not a real and actual controversy. The Supreme Court since the early days of our country has made clear that it is not the province of federal courts to give advisory opinions, even in matters of importance to society. See Flast v. Cohen, 392 U.S. 83 , 96 n. 14, 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968) (“The rule against advisory opinions was established as early as 1793.”); see generally William R. Casto, The Early Supreme Court Justices’ Most Significant Opinion, 29 Ohio N.U. L. Rev. 173 (2002) (detailing the history of the Jay Court’s 1793 letter to George Washington declining a request for an advisory opinion).

As the majority correctly recites, mootness is a jurisdictional issue we…