Garcia Franco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2024
• Docket: 22-1924
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IGNACIO GARCIA FRANCO; ANDREA No. 22-1924 FRANCO REYES; AMADEO GARCIA Agency Nos. FRANCO; CARLA YANET GARCIA A088-714-267 FRANCO; ESBEIDI GARCIA FRANCO, A206-674-917 A206-674-918 Petitioners, A206-674-919 A206-674-920 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted January 11, 2024** Pasadena, California

Before: BOGGS***, RAWLINSON, and H.A. THOMAS, Circuit Judges.

* 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 Danny J. Boggs, United States Circuit Judge for the Court of Appeals, Sixth Circuit, sitting by designation. Ignacio Garcia Franco (Ignacio), his wife, Andrea Franco Reyes, and their

three children, Amadeo Garcia Franco, Carla Yanet Garcia Franco, and Esbeidi

Garcia Franco (collectively Petitioners) are natives and citizens of Mexico. They

petition for review of a decision of the Board of Immigration Appeals (BIA)

dismissing their appeal of the denial of their applications1 for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT).2 The

applications were predicated on Ignacio’s testimony that he was kidnapped for

ransom and was subsequently told to stay out of certain areas of his home state in

Mexico. His wife and children fear future persecution and torture based on the

proposed social group of “immediate family member[s] of Ignacio.” We have

jurisdiction pursuant to 8 U.S.C. § 1252 and we deny the petition.

When the BIA adopts the decision of the Immigration Judge (IJ) by citing

Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “and provides its own

review of the evidence and law, we review the decisions of both the BIA and the

IJ. We review the [BIA’s] legal conclusions de novo and its factual findings for

substantial evidence.” Udo v. Garland, 32 F.4th 1198, 1202 (9th Cir. 2022)

(citation omitted). “Under the substantial evidence standard, administrative

1 The wife and children’s applications are derivative of Ignacio’s application. 2 Ignacio withdrew his applications for asylum and withholding of removal, seeking only CAT protection before the IJ. To ensure coherence between the BIA and the IJ’s decisions, we address all of Ignacio’s applications for relief.

2 22-1924 findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary. . . .” Tzompantzi-Salazar v. Garland, 32

F.4th 696, 703 (9th Cir. 2022), as amended (citation omitted) (emphasis in the

original).

1. Substantial evidence supports the determination that Petitioners are

not eligible for asylum or withholding of removal. Petitioners did not identify a

nexus between any alleged past persecution or fear of future persecution and a

protected ground. See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016)

(“The lack of nexus to a protected ground is dispositive of . . . asylum and

withholding of removal claims.”) (citation omitted). Although Ignacio’s petition

indicated that he was “seeking asylum or withholding of removal” based on

“Political opinion” and “Membership in a particular social group,” he never

explained the underlying bases for these selections, and later withdrew reliance on

those protected grounds.

In addition, the record contains no evidence to suggest that Ignacio’s wife

and children face persecution upon their return to Mexico. Although Ignacio

credibly testified that he had been kidnapped for ransom, he also related that he

was released once his captors realized they had mistaken him for someone else.

And Ignacio never indicated that his family was harmed or threatened on account

of their relationship to him. Given these circumstances, we are not compelled to

3 22-1924 conclude that Ignacio’s wife and children established a nexus between their

familial relationship and the feared harm. See Rodriguez-Zuniga v. Garland, 69

F.4th 1012, 1019 (9th Cir. 2023) (“To establish a nexus between [a petitioner’s]

family membership and her harm, [the petitioner] must show that her family

membership was a reason motivating the [persecutor] to target her. . . .”) (citation

omitted).3

2. Substantial evidence also supports the denial of CAT relief. The

record does not compel the conclusion that “it is more likely than not that

[Petitioners] would be tortured if removed to [Mexico].” Garcia-Milan v. Holder,

755 F.3d 1026, 1033 (9th Cir. 2014), as amended (citation omitted). Petitioners

submitted country conditions reports discussing kidnappings and killings by

criminal organizations, but this evidence does not compel the conclusion that

Petitioners face a particularized risk of torture. See Tzompantzi-Salazar, 32 F.4th

at 706–07 (concluding that “country conditions evidence acknowledg[ing] crime

and police corruption in Mexico generally . . . fails to show that [a] [p]etitioner

faces a particularized, ongoing risk of future torture”) (citation omitted).

3 Because the lack of nexus is dispositive, we decline to consider whether: (1) Ignacio’s past harm rose to the level of persecution; (2) Petitioners would be persecuted by persons the Mexican government is unwilling or unable to control; or (3) whether Petitioners can safely relocate within Mexico. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”) (citation omitted).

4 22-1924 Nor did Petitioners demonstrate that any 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.” Garcia-Milan, 755 F.3d at 1033 (citation

omitted). General ineffectiveness in preventing criminal activity does not compel

a conclusion of government acquiescence. See id. 1033–34.

PETITION DENIED.4

4 The temporary stay of removal remains in place until the mandate issues. The motion for stay of removal is otherwise denied.

5 22-1924