Cesar Pena-Leyva v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2022
• Docket: 17-72262
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR PENA-LEYVA, No. 17-72262

Petitioner, Agency No. A078-056-638

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

Respondent.

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

Submitted April 11, 2022** San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and MORRIS,*** District Judge.

Petitioner Cesar Pena-Leyva (“Pena-Leyva”) petitions for review of a

decision by the Board of Immigration Appeals (“Board”) affirming an 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 Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. Judge’s denial of his application for protection under the Convention Against

Torture (“CAT”). Exercising our jurisdiction under 8 U.S.C. § 1252(a)(1), we

review the Board’s decision for substantial evidence, Quijada-Aguilar v. Lynch, 799

F.3d 1303, 1305 (9th Cir. 2015), and deny the petition.

1. The immigration judge applied the proper legal standard when he

determined that Pena-Leyva failed to establish that the Mexican government would

acquiesce to his torture. An applicant is eligible for CAT protection if he

establishes that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R § 1208.16(c)(2), (4). The

CAT defines torture as “any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person . . . when such pain or

suffering is inflicted . . . with the consent or acquiescence of[] a public official or

other person acting in an official capacity.” See 8 C.F.R. § 1208.18(a)(1). Public

officials acquiesce to torture when they are aware that torture of the sort feared by

the applicant regularly occurs, but remain “willfully blind to it.” Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006).

We reject the Government’s contention that 8 U.S.C. § 1252(a)(2)(C)

deprives us of jurisdiction. See Unuakhaulu v. Gonzales, 416 F.3d 931, 936 (9th

Cir. 2005); Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). The Court

may review the agency’s final order of removal once an alien has exhausted all

2 17-72262 administrative remedies available to him. 8 U.S.C. § 1252(d)(1). We conclude that

Pena-Leyva exhausted his argument that the Government would acquiesce to his

torture. Although he stated his argument more broadly to the Board than to this

Court, he addressed “willful blindness” and argued that “the [immigration judge]

erred by holding that Respondent failed to . . . show that the Mexican government

would consent or acquiescence [sic] to his torture.” Pena-Leyva’s brief sufficiently

notified the Board that he intended to challenge the immigration judge’s

determination regarding government acquiescence. See Cruz–Navarro v. INS, 232

F.3d 1024, 1030 n.8 (9th Cir. 2000) (“[T]he issue in question may have been

argued in a slightly different manner [to the Board] and still be preserved for

appeal.”).

Pena-Leyva’s argument, while preserved, lacks merit. The immigration judge

denied Pena-Leyva’s application because he concluded that Pena-Leyva failed to

establish that Pena-Leyva was at an individualized risk of cartel violence, not

because he disbelieved that the Mexican government acquiesced to cartel violence

in other cases. Pena-Leyva has failed to identify any way in which the immigration

judge or the BIA misapplied the requisite legal standard.

2. Substantial evidence supports the Board’s determination that Pena-

Leyva failed to meet his burden of showing that he would more likely than not be

tortured if he was removed to Mexico. In assessing the likelihood of a petitioner

3 17-72262 suffering future torture in the proposed country of removal, The Court considers all

relevant evidence, including: (1) evidence of past torture inflicted upon the

applicant; (2) evidence that the applicant could relocate to a part of the country of

removal where he is unlikely to be tortured; (3) evidence of gross, flagrant, or mass

violations of human rights within the country of removal, where applicable; and (4)

other relevant evidence regarding conditions in the country of removal. 8 C.F.R. §

1208.16(c)(3).

Pena-Leyva has not alleged past torture or present threats of torture. His fear

of torture based on his conviction, or the robbery experienced by his cousins

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

Pena-Leyva has also failed to rebut the Board’s determination that he could travel

freely around Mexico to avoid cartel-controlled areas. His subjective fear of torture

cannot support a claim for CAT protection. See Zheng v. Holder, 644 F.3d 829,

835–36 (9th Cir. 2011).

PETITION DENIED.

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