Opinion
18-71732
10-24-2022
GERARDO GUTIERREZ IBARRA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 20, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096-210-713
Before: HIGGINSON, CHRISTEN, and BUMATAY, Circuit Judges.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Gerardo Gutierrez Ibarra, a citizen and national of Mexico, petitions for review of the Board of Immigration Appeals (BIA) decision affirming the Immigration Judge's (IJ) denial of his claims for withholding of removal and relief under the Convention Against Torture (CAT). Because Gutierrez Ibarra failed to exhaust his withholding claim before the BIA, the court lacks jurisdiction to consider it on appeal. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). Only Gutierrez Ibarra's petition for CAT relief remains. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Substantial evidence supports the BIA's denial of CAT relief. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 703 (9th Cir. 2022). The record does not compel reversal of the BIA's determination that Gutierrez Ibarra could safely relocate within Mexico. See 8 C.F.R. § 1208.16(c)(3)(ii); see Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en banc). As the BIA noted, Gutierrez Ibarra's family lives safely in Guanajuato, where he grew up. Gutierrez Ibarra only testified to violence and confrontations with police in Tijuana, aside from being robbed in Guanajuato one time in an incident unrelated to Mexican officials. See Tzompantzi-Salazar, 32 F.4th at 705 (affirming that petitioner could safely relocate to his home state when the evidence showed his family lives there safely). While the country report indicates instances of police corruption, nothing in the report suggests that Gutierrez Ibarra could not relocate to Guanajuato.
The record also does not compel reversal of the BIA's determination that Gutierrez Ibarra has not established that it is "more likely than not" that he would be tortured on his return to Mexico. See Maldonado, 786 F.3d at 1164. Gutierrez Ibarra testified that police officers in Tijuana robbed him of $1,000 and proceeded to beat him and extort him for monthly payments. The BIA also considered testimony that shortly after these incidents with the police, Gutierrez Ibarra was kidnapped, blindfolded, and held for ransom for three days. The BIA concluded that these incidents did not rise to the level of torture, which is consistent with our precedents. See Gui v. INS, 280 F.3d 1217, 1222-23, 1230 (9th Cir. 2002) (while threats, wiretapping, and being subjected to a staged hit-and-run by secret police are "serious, [they] did not amount to torture"); Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (being beaten in custody by police with wooden sticks and leather belts and being threatened with death, although "undeniabl[y] abuse," did not rise to the level of torture under CAT); Ahmed v. Keisler, 504 F.3d 1183, 1200-01 (9th Cir. 2007) (being taken into custody and beaten on four occasions did not clearly rise to the level of torture under CAT); Khudaverdyan v. Holder, 778 F.3d 1101, 1109 n.7 (9th Cir. 2015) (being detained, beaten, and threatened by military police did not rise to the level of torture under CAT).
Gutierrez Ibarra lastly contends that the BIA failed to consider country conditions. The record shows that the BIA did review the country report. And Gutierrez Ibarra does not show how the country conditions show that he was more than likely than not to face torture. Tzompantzi-Salazar, 32 F.4th at 706-07 (While "the country conditions evidence acknowledged crime and police corruption in Mexico generally, as well as higher rates in Tijuana," the report "fails to show that Petitioner faces a particularized, ongoing risk of future torture."); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) ("[G]eneralized evidence of violence and crime in Mexico is not particular to Petitioner[] and is insufficient to meet th[e] [CAT] standard.").
DENIED.
The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.