Garfias-Mendoza v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-659
• Status: Unpublished

Opinion

Case: 21-659, 02/22/2023, DktEntry: 37.1, Page 1 of 3

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Christian Giovanni Garfias-Mendoza, No. 21-659

Petitioner, Agency No. A046-673-239

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted February 17, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.

Christian Giovanni Garfias-Mendoza, a native and citizen of Mexico,

petitions for review of a decision of the Board of Immigration Appeals

dismissing his appeal from an order of an immigration judge denying his

application for protection under the Convention Against Torture (CAT). We

have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

* 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). Case: 21-659, 02/22/2023, DktEntry: 37.1, Page 2 of 3

Where, as here, the Board adopts and affirms the immigration judge’s

order under Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994), and

expresses no disagreement with the immigration judge’s decision, we review

the immigration judge’s order as if it were the Board’s. Chuen Piu Kwong v.

Holder, 671 F.3d 872, 876 (9th Cir. 2011). We review the decisions for

substantial evidence and will not disturb the agency’s factual findings unless the

record compels a contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026,

1031 (9th Cir. 2014).

1. Substantial evidence supports the agency’s finding that Garfias-

Mendoza failed to establish eligibility under CAT. Garfias-Mendoza relies

exclusively on general country conditions evidence of cartel violence and

corruption in Mexico to establish government acquiescence. Although the

submitted reports describe widespread violence throughout Mexico and general

ineffectiveness by the Mexican government to address it, they do not prove that

the Mexican government would acquiesce in the torture of its citizens at the

hands of cartels. B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022); see

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general

ineffectiveness on the government’s part to investigate and prevent crime will

not suffice to show acquiescence.”). The reports also demonstrate that the

Mexican government has “taken steps to combat [cartel] violence,” and even

though “these steps have not achieved the desired goals,” they do not compel a

finding of government acquiescence. Garcia-Milian, 755 F.3d at 1035.

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Therefore, we uphold the agency’s denial of relief.

2. Contrary to Garfias-Mendoza’s argument, the agency was not required

to assess the likelihood of torture by cartels. Garfias-Mendoza failed to establish

state action, and that alone forecloses CAT relief. Garcia-Milian, 755 F.3d at

1035; Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010). As a result, we

need not consider whether the agency failed to assess the aggregate likelihood

of torture from all sources, including any risks Garfias-Mendoza may face as a

returning deportee. In any event, the Board expressly said that Garfias-Mendoza

“has yet to identify the objective evidence in the record that would establish the

required likelihood of future torture in Mexico.” He does not acknowledge or

meaningfully challenge that conclusion.

3. Garfias-Mendoza criticizes the agency’s alternative ground for denying

relief: that Garfias-Mendoza could relocate to a different part of Mexico where

he is unlikely to be tortured. Because the lack of government acquiescence

forecloses Garfias-Mendoza’s claim, we need not consider that issue.

The motion to stay removal (Dkt. No. 2) is denied. The temporary stay of

removal is lifted.

PETITION DENIED.

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