Francisco Ornelas-Chavez v. Alberto R. Gonzales, Attorney General

Francisco Ornelas-Chavez timely petitions this court for review of a Board of Immigration Appeals (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his application for withholding of removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1231 (b)(3), and the United Nations Convention Against Torture (“CAT”). 1 He also appeals the BIA’s denial of his due process challenge to the proceedings before the IJ. Ornelas-Chavez claims (1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for withholding of removal under section 1231(b)(3); (2) the BIA erred in denying protection under CAT by affirming the IJ’s decision requiring that the alleged torture occur within the control or custody of a state actor who “sanctioned” it; and (3) the IJ’s stereotyping of the way gay men dress and behave prevented him from receiving a fair hearing in violation of his due process rights.

We have jurisdiction under 8 U.S.C. § 1252 (a). We conclude the BIA applied the wrong legal standards to Ornelas-Chavez’s claims for withholding of removal under IIRIRA and CAT;…

dissenting.

In this case our modest task is to decide whether the Board of Immigration Appeals’ (“BIA”) decision to deny Petitioner Ornelas-Chavez’s claims was free of legal error and supported by substantial evidence. Because neither sympathy for the petitioner nor distrust of the BIA or the Immigration Judge (“IJ”) should compromise a careful assessment of the administrative decisions and record evidence, I respectfully dissent.

I

First, the court holds that the BIA applied the wrong legal standard to OrnelasChavez’s claim to withholding of removal under 8 U.S.C. § 1231 (b)(3) because it imposed a strict “reporting requirement” to establish government persecution. Maj. Op. at 1056-58. With respect, it did no such thing.

A

Any fair reading of the BIA’s decision demonstrates that it applied the proper legal standard. In relevant part, the BIA stated:

(Emphasis added.) The majority, adopting Ornelas-Chavez’s argument wholesale, seems to fixate on the last sentence of the first quoted paragraph: “The respondent did not report any of these incidents to government authorities.” Indeed, with only a passing nod to the sentence’s context, the majority distorts entirely the BIA’s…

458 F.3d 1052 Francisco ORNELAS-CHAVEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 04-72798. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2005. Filed August 21, 2006. Elizabeth B. Wydra, Washington, DC, for the petitioner. Carol Federighi, U.S. Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ana-zdt-lpn. Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges. BROWNING, Senior Circuit Judge: 1 Francisco Ornelas-Chavez timely petitions this court for review of a Board of Immigration Appeals ("BIA") final order affirming the Immigration Judge's ("IJ") denial of his application for withholding of removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1231 (b)(3), and the United Nations Convention Against Torture ("CAT"). 1 He also appeals the BIA's denial of his due process challenge to the proceedings before the IJ. Ornelas-Chavez claims (1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for…