Bedolla-Bautista v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2024
• Docket: 23-2607
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JESUS OSIRIS BEDOLLA-BAUTISTA, No. 23-2607 Agency No. Petitioner, A200-006-205 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 11, 2024** Seattle, Washington

Before: HAWKINS, McKEOWN, and BRESS, Circuit Judges.

Jesus Osiris Bedolla-Bautista, a native and citizen of Mexico, petitions for

review of a decision by the Board of Immigration Appeals (BIA) dismissing his

appeal from an Immigration Judge (IJ) order denying his applications for

* 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). withholding of removal and protection under the Convention Against Torture

(CAT). We review the BIA’s decision for substantial evidence. Sharma v. Garland,

9 F.4th 1052, 1060, 1066 (9th Cir. 2021). “Under this standard, we must uphold the

agency determination unless the evidence compels a contrary conclusion.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citation omitted). “Where,

as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) and

also provides its own review of the evidence and law, we review both the IJ’s and

the BIA’s decision.” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020) (internal

quotation marks and alterations omitted). We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

1. To establish eligibility for withholding of removal, Bedolla-Bautista

must show “that it is more likely than not” that he will be persecuted if returned to

Mexico “because of” his membership in a particular social group or other protected

ground. Barajas-Romero v. Lynch, 846 F.3d 351, 357, 360 (9th Cir. 2017); see also

8 U.S.C. § 1231(b)(3)(A). To meet his burden, Bedolla-Bautista must “demonstrate

a nexus between the harm he allegedly faces upon return to [Mexico] and a protected

ground.” Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010). Bedolla-Bautista

can establish this nexus by showing that a protected ground was “a reason” for his

past or feared harm. Barajas-Romero, 846 F.3d at 360.

Substantial evidence supports the denial of withholding of removal. First,

2 23-2607 substantial evidence supports the agency’s determination that Bedolla-Bautista’s

past harm in Mexico did not rise to the level of persecution. “‘Persecution,’ we have

repeatedly held, ‘is an extreme concept that means something considerably more

than discrimination or harassment.’” Sharma, 9 F.4th at 1060 (quoting Donchev v.

Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)). Here, Bedolla-Bautista was not

physically harmed in Mexico. And the threats that he and his family experienced,

while unfortunate, were not acted upon. See Hussain v. Rosen, 985 F.3d 634, 647

(9th Cir. 2021) (“Unfulfilled threats are very rarely sufficient to rise to the level of

persecution . . . .”).

Second, substantial evidence supports the agency’s determination that

Bedolla-Bautista has not met the nexus requirement. The agency’s conclusion that

Bedolla-Bautista and his family were the victims of general crime, motivated by

financial gain, is a permissible reading of the record evidence. See Zetino, 622 F.3d

at 1016 (holding that a “desire to be free from harassment by criminals motivated by

theft or random violence by gang members bears no nexus to a protected ground”).

Bedolla-Bautista himself testified that he was extorted by police because of his

perceived wealth, and that his stepfather was threatened by the cartels because “[h]e

owned a large avocado farm” that made them “a wealthy family.” Under these

circumstances, “nothing compels the conclusion that the [cartels and police] in this

case w[ere] motivated by anything other than underlying economic reasons . . . .”

3 23-2607 Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1022 (9th Cir. 2023). As for Bedolla-

Bautista’s claim that he would be persecuted on account of his status as a landowner

or heir to his stepfather’s avocado farm, substantial evidence supports the agency’s

determination that Bedolla-Bautista is not a member of these groups.

Third, substantial evidence supports the agency’s determination that Bedolla-

Bautista could safely relocate in Mexico to avoid any harm. See generally 8 C.F.R.

§ 1208.16(b)(2). Although Bedolla-Bautista argues that gang activity and

corruption are prevalent in Tijuana and Michoacan, he does not demonstrate error in

the agency’s conclusion that he could safely relocate elsewhere in Mexico. Cf.

Hussain, 985 F.3d at 648 (“Relocation is generally not unreasonable solely because

the country at large is subject to generalized violence.”).

2. Substantial evidence likewise supports the denial of CAT relief. “‘The

Convention Against Torture provides mandatory relief for any immigrant who can

demonstrate that it is more likely than not that he or she would be tortured if removed

to the proposed country of removal.’” Andrade v. Garland, 94 F.4th 904, 914 (9th

Cir. 2024) (quoting Gutierrez-Alm v. Garland, 62 F.4th 1186, 1200–01 (9th Cir.

2023)); see also 8 C.F.R. § 1208.16(c)(2). “To constitute torture, an act must inflict

‘severe pain or suffering,’ and it must be undertaken ‘at the instigation of, or with

the consent or acquiescence of, a public official.’” Hernandez v. Garland, 52 F.4th

757, 769 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.18(a)(1)).

4 23-2607 Bedolla-Bautista did not experience past torture in Mexico. And substantial

evidence supports the BIA’s determination that Bedolla-Bautista’s fear of future

torture is based only on generalized conditions, and that he has not shown a

particularized risk of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.

2008) (per curiam) (“[T]he petitioner must demonstrate that he would be subject to

a ‘particularized threat of torture . . . .’” (quoting Lanza v. Ashcroft, 389 F.3d 917,

936 (9th Cir. 2004))). Bedolla-Bautista’s arguments that the Mexican police are

ineffective in controlling the cartels do not address the BIA’s finding that Bedolla-

Bautista failed to show a particularized risk of torture. The record does not compel

a contrary conclusion.

PETITION DENIED.1

1 Bedolla-Bautista’s motion to stay removal, Dkt. 3, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 23-2607