Arturo Perez-Gutierrez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2018
• Docket: 16-70519
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ARTURO PEREZ-GUTIERREZ, No. 16-70519

Petitioner, Agency No. A036-732-544

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 12, 2018** Pasadena, California

Before: BERZON, FISHER,*** and WATFORD, Circuit Judges.

The Immigration Judge (“IJ”) denied Arturo Perez-Gutierrez’s claim for

protection under the Convention Against Torture, and the Board of Immigration

* 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 D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Page 2 of 2 Appeals (“BIA”) upheld the IJ’s decision and dismissed the appeal. Perez-

Gutierrez petitions for review of the BIA’s decision.

Substantial evidence supports the agency’s conclusion that Perez-Gutierrez

has not shown that he is more likely than not to be tortured in Mexico. The record

demonstrates the appalling conditions in Mexican mental health facilities. But this

court’s decision in Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), forecloses

the argument that these conditions alone constitute torture. Rather, Perez-Gutierrez

had the burden to show that “Mexican officials (or private actors to whom officials

have acquiesced) created these conditions for the specific purpose of inflicting

suffering upon the patients.” Id. at 989. The evidence does not compel the

conclusion that such a showing has been made here. And while the record

documents specific instances of assault, restraint, and involuntary surgery that meet

this standard, the record does not compel the conclusion that Perez-Gutierrez in

particular is more likely than not to be a victim of these abuses.

Perez-Gutierrez contends that because of his severe disabilities, removing

him to Mexico violates the Eighth Amendment’s prohibition on cruel and unusual

punishments. But this guarantee does not apply to civil proceedings, including

removal. See Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999).

PETITION FOR REVIEW DENIED.