Flores-Torres v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2023
• Docket: 22-477
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JONATHAN MOISES FLORES-TORRES, No. 22-477 Agency No. Petitioner, A202-144-921 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted May 8, 2023 San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and ANTOON, District Judge.**

Jonathan Moises Flores-Torres, a native and citizen of El Salvador,

petitions for review of a Board of Immigration Appeals (BIA) decision dismissing

his appeal of an Immigration Judge (IJ) order denying deferral of removal under

the Convention Against Torture (CAT). We review the denial of CAT relief for

substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon, United States District Judge for the Middle District of Florida, sitting by designation. “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). We have jurisdiction under 8 U.S.C. § 1252 and deny

the petition.

The BIA denied relief because Flores-Torres was not credible and because

he failed to meet his burden under CAT. We need not and do not reach the

adverse credibility determination because we find that even assuming Flores-

Torres was credible, substantial evidence supports the denial of CAT relief.

“To qualify for CAT relief, a petitioner must show that [he] more likely

than not will be tortured if [he] is removed to [his] native country.” Vitug v.

Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Torture is “any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a

person . . . for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence

of a public official.” Sharma, 9 F.4th at 1067 (quoting 8 C.F.R. § 208.18(a)(1)).

Flores-Torres argues that the BIA failed adequately to address his expert’s

testimony. We discern no error. Dr. Robert Kirkland testified that MS-13 would

seek to harm Flores-Torres because he (1) resisted gang recruitment and (2)

witnessed the murder of his brother. But the BIA agreed with the IJ that Flores-

Torres did not provide evidence that gang members remain interested in harming

him, citing the fact that his “alleged harm occurred many years ago.” The BIA

further noted that “country condition evidence, including statistics of similarly

2 22-477 situated individuals, did not demonstrate a clear probability of an individualized

risk of harm.” The BIA sufficiently addressed the evidence in support of Flores-

Torres’s claim that he would face torture in El Salvador due to his past encounters

with MS-13.

The BIA’s analysis was not, as Flores-Torres asserts, limited to the

assumption that he would be considered a member of a rival gang. Rather, the

BIA mentioned this as one factor among several for discounting the likelihood of

future torture. Nor did the BIA fail to evaluate Flores-Torres’s “overall risk of

being tortured.” Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1155 (9th Cir.

2022) (quoting Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011)). The BIA and

IJ both considered the “aggregate risk of torture from all sources,” and concluded

that Flores-Torres did not meet his burden for establishing eligibility for deferral

of removal under CAT.

Additionally, even if Flores-Torres established a likelihood of torture, the

record does not compel the conclusion that such torture would be “inflicted by or

at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” Parada v. Sessions, 902 F.3d 901,

914 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.18(a)(1)). Though Dr. Kirkland did

suggest “some government officials” might acquiesce in Flores-Torres’s harm if

they perceived him as a gang member, the BIA’s conclusion that Flores-Torres

would not be seen as a gang member by the government of El Salvador is

supported by substantial evidence. And the BIA reasonably determined that the

3 22-477 Salvadoran government is engaged in efforts to combat violence and that “general

ineffectiveness” in the government’s response “will not suffice to show

acquiescence” to torture. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir.

2016).

Accordingly, substantial evidence supports the denial of CAT relief.1

PETITION DENIED.

1 Flores-Torres’s motion for stay of removal is denied as moot.

4 22-477