Bonifacio Torres-Hurtado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2022
• Docket: 18-73141
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 28 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BONIFACIO TORRES-HURTADO, No. 18-73141

Petitioner, Agency No. A091-760-693

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 18, 2022** San Francisco, California

Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,*** District Judge.

Petitioner Bonifacio Torres-Hurtado (Petitioner) is a native and citizen of

Mexico. He seeks review of an order from the Board of Immigration Appeals

* 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 Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation. (BIA) dismissing his appeal from the denial of his request for deferral of removal

under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252 and we DENY the petition.

1. We review the factual findings underlying the BIA’s determination that a

petitioner is ineligible for deferral of removal under CAT for substantial evidence.

See Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). We grant a petition for

review only if the evidence compels the conclusion that the BIA’s decision was

erroneous. See Jie Shi Liu v. Sessions, 891 F.3d 834, 837 (9th Cir. 2018).

Substantial evidence supports the BIA’s determination that Petitioner failed

to demonstrate that it was more likely than not that he would be tortured if

removed to Mexico. Petitioner testified that he was shot five times twenty years

ago and that the attack was motivated by a local gang’s attempt to recruit his

brother Roberto to join their ranks. In the twenty years since the shooting,

however, Roberto died and Petitioner has returned to Mexico without incident.

Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001) (noting that when

evaluating a CAT claim, “all evidence relevant to the possibility of future torture

shall be considered, including, but not limited to: [e]vidence of past torture

inflicted upon the applicant; [and] [e]vidence that the applicant could relocate to a

part of the country of removal where he or she is not likely to be tortured”)

2 (emphasis omitted). Petitioner’s testimony therefore failed to establish that he is

more likely than not to experience future torture.1

Substantial evidence also supports the conclusion that Petitioner does not

face a clear probability of torture by or with government acquiescence. Petitioner

testified that the police knew the identity of the man who shot him, but did not

arrest him. This testimony is insufficient to establish government acquiescence

without a showing that the police are “unable or unwilling to oppose . . . crime.”

Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Although

Petitioner testified regarding his belief that the police did not arrest the man that

shot him because “the government works with the cartel,” he did not present any

evidence establishing corruption, or that his belief was anything more than

speculation. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021)

(“[S]peculative fear of torture is not sufficient to satisfy the applicant's burden.”)

This record does not compel a conclusion that the BIA erred in denying CAT

relief. See Liu, 891 F.3d at 837.

1 Petitioner argues that the Immigration Judge (IJ) applied a flawed analytical structure by failing to consider all aspects of his claim, and failing to separately discuss the likelihood of future torture, government acquiescence and internal relocation. However, our review is limited to the BIA’s decision. See Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015) (“Because the BIA conducted an independent review of the facts and law, we review only the BIA’s decision.”) 3 2. We review the BIA’s decision not to take administrative notice of the

evidence Petitioner submitted with his appeal brief for an abuse of discretion. See

Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1028 (9th Cir. 1992). Because this

country conditions evidence was not presented to the Immigration Judge, the BIA

did not abuse its discretion by declining to take administrative notice of these new

facts and engage in factfinding to decide Petitioner’s appeal. See Brezilien v.

Holder, 569 F.3d 403, 413 n.3 (9th Cir. 2009).

PETITION DENIED.