Opinion
18-73058
10-05-2022
JUAN CARLOS MENDOZA-MADRIGAL, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 3, 2022 [**]
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A089-853-940
Before: W. FLETCHER, BENNETT, and SUNG, Circuit Judges.
MEMORANDUM [*]
Petitioner Juan Mendoza-Madrigal, a native and citizen of Mexico, challenges the finding by the Board of Immigration Appeals ("BIA") that he is ineligible for deferral of removal under the regulations implementing the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.
Petitioner also raises a due process claim, arguing the IJ "erred when he did not consider all of the evidence of country conditions in Mexico he presented," including a declaration by his sister, Rosa. This argument is meritless because the IJ stated he "considered the declarations in this case," which necessarily included Rosa's declaration.
Petitioner, who was removed after filing this petition, fears torture by a Mexican cartel that he believes is responsible for the death of his brother, Francisco, a suspected police informant. After Francisco's death, the cartel kidnapped Petitioner's other brother, Jose, and threatened to kill him if he did not pay Francisco's debt related to drug trafficking activity. Jose gave the cartel members his truck, promised to pay them money later, then fled the state. Six armed men who were allegedly part of the cartel found Jose at his home and asked him to join their organization. Jose and Petitioner believe the men were planning to execute Jose. Jose has been in hiding since then, and the cartel has threatened and beaten Jose's girlfriend's family to learn Jose's location.
Petitioner fears that, like Jose, he will be threatened and possibly killed by the cartel in Mexico. He called an expert witness on Mexican cartels, Dr. Jeremy Slack, who testified that the cartel could target, kidnap, torture, and possibly even murder Petitioner in Mexico. Dr. Slack stated that there are "extremely high levels of corruption among municipal police officers," but could not say whether the police would be directly involved in torturing Petitioner, because he did not directly research Petitioner's case.
The IJ assumed Petitioner's testimony, his brothers' declarations, and portions of the expert testimony were credible. The IJ found the "lack of action" by the men who met Jose at his home "undercuts [Petitioner's] claim" that Jose was tortured. The IJ also found that internal relocation was reasonable under the circumstances. The IJ further found that Petitioner presented no evidence of acquiescence on the part of the government.
The BIA agreed with the IJ, finding no clear errors of fact, and dismissed the appeal. The BIA restated several of the IJ's findings, including that the IJ "determined that the kidnapping of . . . Jose[] did not constitute torture," that the IJ "noted that [Petitioner] did not testify to any state action against him or a family member," and that the IJ "concluded that internal relocation is reasonable under the circumstances presented." The BIA concluded that Petitioner "has not established that it is more likely than not that he will be tortured in Mexico by or at the instigation of or with the consent or acquiescence of a public official."
Where, as here, the BIA found no clear error in the IJ's findings and did not conduct its own independent analysis but relied on the IJ's reasoning, we review both the IJ's and the BIA's decisions. Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). We treat the agency's findings as conclusive "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We review for substantial evidence the agency's finding that the petitioner failed to show eligibility for CAT deferral. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015).
To be eligible for CAT relief, a petitioner must prove it is more likely than not that he would be tortured by, or with the acquiescence of, a government official acting in an official capacity. See Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th Cir. 2015) (en banc). The agency considers all evidence relevant to the possibility of future torture, including evidence of past torture and evidence that the applicant could relocate to a part of the country where he is not likely to be tortured. 8 C.F.R. § 1208.16(c)(3).
1. Petitioner first argues that the IJ erred by finding Jose experienced "intimidation and extortion," "not torture." The IJ found the "lack of action" by the men who met Jose at his home "undercuts [Petitioner's] claim" that Jose was tortured. Even if Petitioner is correct that the visit was a veiled threat, the IJ's view is not clearly erroneous, and we "must affirm when it is possible to draw two inconsistent conclusions from the evidence." Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).
Despite Jose's fear of future harm from the cartel, he has not been physically harmed by the cartel. And even physical harm does not necessarily rise to the level of torture. See Kumar v. Gonzales, 444 F.3d 1043, 1047, 1055 (9th Cir. 2006) (finding no torture even though the petitioner was "repeatedly and severely beaten with wooden sticks and leather belts by [police] officers who told him that he would be killed if he did not disclose" certain information). The IJ's finding was not clearly erroneous.
2. Public officials acquiesce in torture if, before the activity constituting torture, they "(1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it." Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Petitioner argued that his evidence of widespread corruption in Mexico established government acquiescence. But none of his evidence showed any state involvement in the cartel's behaviors toward Petitioner's family. Petitioner conceded that he had never been harmed by anyone in the Mexican government. Dr. Slack could not comment on whether the "police would be directly involved" in any potential torture against Petitioner. And the evidence of nationwide gang violence that is not particular to Petitioner's case cannot establish the state action necessary for CAT relief. See id. at 1034-35. The record does not compel the conclusion that the police would be unable or unwilling to oppose any activity constituting torture.
3. Finally, Petitioner argues that he could not safely relocate to another part of Mexico. The IJ noted that State Department travel advisories list some Mexican states with "a notably lower level for warnings." Petitioner argues that this lower level should not apply to those in the Madrigal family's position. Petitioner argues that Jose has moved to hide from the cartel, in fear of their threats. But when the cartel found Jose, they did not torture him. Thus, Jose's experience supports the BIA's determination that Petitioner "could relocate to a part of [Mexico] where he . . . is not likely to be tortured." Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (quoting Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001)). Nothing in the record demonstrates that Petitioner could not avoid serious harm if he also relocated outside of Michoacan.
PETITION DENIED.
[*] 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).