NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IGNACIO DELENA-GARCIA, No. 20-70547
Petitioner, Agency No. A029-530-005
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 8, 2024** Las Vegas, Nevada
Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.
Petitioner Ignacio Delena-Garcia, a native and citizen of Mexico, was ordered
removed from the United States in 2011. Prior to his removal, Delena-Garcia was
convicted of several felonies, including possession of cocaine with intent to sell
(resulting in a sentence of two years’ incarceration) and burglary, theft, and
* 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). obtaining and using personal identification of another (resulting in a sentence of four
years’ incarceration). Delena-Garcia illegally reentered the United States in
February 2012.
In 2019, the Department of Homeland Security reinstated Delena-Garcia’s
prior removal order and, after he established a reasonable fear of persecution,
referred him to an Immigration Judge (IJ). The petitioner then applied for
withholding of removal and for protection under the Convention Against Torture
(CAT). The IJ concluded Delena-Garcia’s prior convictions barred him from
withholding of removal.1 The IJ also rejected CAT relief. The BIA affirmed the
IJ’s ruling, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).
Delena-Garcia presents two arguments as to why the IJ improperly denied
CAT relief: (1) the IJ erroneously concluded he was not credible regarding his
previous interaction with a cartel and the police, and (2) the IJ erred in assuming his
HIV-related fear was because he could not access medication rather than the stigma
an HIV-positive diagnosis carries in Mexico. “When the BIA cites Matter of
Burbano and does not expressly disagree with the IJ’s decision, it adopts the IJ’s
decision in its entirety.” Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).
Therefore, we “look through the BIA’s decision and treat the IJ’s decision as the
final agency decision for purposes of [the] appeal.” Tamang v. Holder, 598 F.3d
1 Delena-Garcia does not contest this conclusion.
2 1083, 1088 (9th Cir. 2010). We review the IJ’s legal determinations de novo and
the IJ’s factual determinations for substantial evidence, meaning we may only
reverse the IJ’s factual determination if the evidence compels a contrary conclusion.
Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).
CAT provides mandatory relief for an alien who can establish that “it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (internal
quotations omitted) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as “an
extreme form of cruel and inhuman treatment,” requiring the “intentional
inflict[ion]” of “severe pain or suffering . . . by, or at the instigation of, or with the
consent or acquiescence of, a public official . . . or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1), (2). In evaluating the likelihood of future
torture, we look to evidence of past torture as well as any evidence of “gross,
flagrant, or mass violations of human rights” within the petitioner’s home nation.
Nuru v. Gonzales, 404 F.3d 1207, 1218–19 (9th Cir. 2005). “[S]omeone who has
been tortured in the past is likely to be tortured in the future if returned to the same
situation,” however “[i]n and of itself, . . . a showing of past torture does not give
rise to a regulatory presumption of future torture.” Dawson v. Garland, 998 F.3d
876, 882 (9th Cir. 2021) (internal quotation, alterations, and citation omitted).
3 Delena-Garcia based his fear of being tortured on two things: his experience
with a cartel and his HIV-positive status. In his I-589 application for asylum and
withholding of removal, Delena-Garcia claimed the cartel had demanded roughly
$500 a week to keep his business open, and after he fled Mexico because of the cartel
activity, the cartel murdered two of his family members. Thus, he fears being
tortured if he is forced to return to Mexico.2 Delena-Garcia also noted he feared
returning to Mexico as a person living with HIV, because of the way in which
Mexican society treats HIV-positive individuals.
First addressing Delena-Garcia’s experience with the cartel, the IJ denied
CAT relief after concluding Delena-Garcia was not a credible witness because of
numerous inconsistencies in the testimony he provided in court as compared to his
reasonable fear interview and his I-589 application. The IJ rejected Delena-Garcia’s
HIV status argument, because the IJ determined Delena-Garcia would have adequate
access to medication to manage his condition.3 Because substantial evidence
2 In his notice of appeal to the BIA, Delena-Garcia stated that the basis of his application for CAT relief was “his fear of returning to Mexico because of past persecution and torture . . . and the clear probability of future persecution and torture if he were to return to Mexico.” However, in this court, Delena-Garcia does not allege his past interactions with the cartel rose to the level of torture. 3 On appeal, Delena-Garcia points out that the IJ misconstrued his fear related to his HIV-positive status. Rather than addressing the threat of harm people living with HIV face in Mexico based on how they are treated by society, the IJ construed Delena-Garcia’s fear to be based on the availability of proper medical treatment to address his HIV diagnosis. Although the IJ erred in failing to address Delena-
4 supports the IJ’s credibility determinations, we deny the Petition as to the cartel-
related CAT allegations. We also deny the Petition as to the HIV-related CAT
allegations, because of Delena-Garcia’s failure to exhaust those claims before the
BIA.
1. The IJ did not err in determining Delena-Garcia was not credible. In 2011,
there was a confrontation between Delena-Garcia and members of the Jalisco cartel
outside Delena-Garcia’s business. According to Delena-Garcia’s reasonable fear
interview with DHS, the cartel demanded he pay $500 per week. Delena-Garcia
then said that the cartel once followed him after he closed his business one evening,
and he pulled over his vehicle near some police officers so that he would be protected
from the cartel. Delena-Garcia claimed the police then “turned [him] in” to the
cartel.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IGNACIO DELENA-GARCIA, No. 20-70547
Petitioner, Agency No. A029-530-005
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 8, 2024** Las Vegas, Nevada
Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.
Petitioner Ignacio Delena-Garcia, a native and citizen of Mexico, was ordered
removed from the United States in 2011. Prior to his removal, Delena-Garcia was
convicted of several felonies, including possession of cocaine with intent to sell
(resulting in a sentence of two years’ incarceration) and burglary, theft, and
* 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). obtaining and using personal identification of another (resulting in a sentence of four
years’ incarceration). Delena-Garcia illegally reentered the United States in
February 2012.
In 2019, the Department of Homeland Security reinstated Delena-Garcia’s
prior removal order and, after he established a reasonable fear of persecution,
referred him to an Immigration Judge (IJ). The petitioner then applied for
withholding of removal and for protection under the Convention Against Torture
(CAT). The IJ concluded Delena-Garcia’s prior convictions barred him from
withholding of removal.1 The IJ also rejected CAT relief. The BIA affirmed the
IJ’s ruling, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).
Delena-Garcia presents two arguments as to why the IJ improperly denied
CAT relief: (1) the IJ erroneously concluded he was not credible regarding his
previous interaction with a cartel and the police, and (2) the IJ erred in assuming his
HIV-related fear was because he could not access medication rather than the stigma
an HIV-positive diagnosis carries in Mexico. “When the BIA cites Matter of
Burbano and does not expressly disagree with the IJ’s decision, it adopts the IJ’s
decision in its entirety.” Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).
Therefore, we “look through the BIA’s decision and treat the IJ’s decision as the
final agency decision for purposes of [the] appeal.” Tamang v. Holder, 598 F.3d
1 Delena-Garcia does not contest this conclusion.
2 1083, 1088 (9th Cir. 2010). We review the IJ’s legal determinations de novo and
the IJ’s factual determinations for substantial evidence, meaning we may only
reverse the IJ’s factual determination if the evidence compels a contrary conclusion.
Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).
CAT provides mandatory relief for an alien who can establish that “it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (internal
quotations omitted) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as “an
extreme form of cruel and inhuman treatment,” requiring the “intentional
inflict[ion]” of “severe pain or suffering . . . by, or at the instigation of, or with the
consent or acquiescence of, a public official . . . or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1), (2). In evaluating the likelihood of future
torture, we look to evidence of past torture as well as any evidence of “gross,
flagrant, or mass violations of human rights” within the petitioner’s home nation.
Nuru v. Gonzales, 404 F.3d 1207, 1218–19 (9th Cir. 2005). “[S]omeone who has
been tortured in the past is likely to be tortured in the future if returned to the same
situation,” however “[i]n and of itself, . . . a showing of past torture does not give
rise to a regulatory presumption of future torture.” Dawson v. Garland, 998 F.3d
876, 882 (9th Cir. 2021) (internal quotation, alterations, and citation omitted).
3 Delena-Garcia based his fear of being tortured on two things: his experience
with a cartel and his HIV-positive status. In his I-589 application for asylum and
withholding of removal, Delena-Garcia claimed the cartel had demanded roughly
$500 a week to keep his business open, and after he fled Mexico because of the cartel
activity, the cartel murdered two of his family members. Thus, he fears being
tortured if he is forced to return to Mexico.2 Delena-Garcia also noted he feared
returning to Mexico as a person living with HIV, because of the way in which
Mexican society treats HIV-positive individuals.
First addressing Delena-Garcia’s experience with the cartel, the IJ denied
CAT relief after concluding Delena-Garcia was not a credible witness because of
numerous inconsistencies in the testimony he provided in court as compared to his
reasonable fear interview and his I-589 application. The IJ rejected Delena-Garcia’s
HIV status argument, because the IJ determined Delena-Garcia would have adequate
access to medication to manage his condition.3 Because substantial evidence
2 In his notice of appeal to the BIA, Delena-Garcia stated that the basis of his application for CAT relief was “his fear of returning to Mexico because of past persecution and torture . . . and the clear probability of future persecution and torture if he were to return to Mexico.” However, in this court, Delena-Garcia does not allege his past interactions with the cartel rose to the level of torture. 3 On appeal, Delena-Garcia points out that the IJ misconstrued his fear related to his HIV-positive status. Rather than addressing the threat of harm people living with HIV face in Mexico based on how they are treated by society, the IJ construed Delena-Garcia’s fear to be based on the availability of proper medical treatment to address his HIV diagnosis. Although the IJ erred in failing to address Delena-
4 supports the IJ’s credibility determinations, we deny the Petition as to the cartel-
related CAT allegations. We also deny the Petition as to the HIV-related CAT
allegations, because of Delena-Garcia’s failure to exhaust those claims before the
BIA.
1. The IJ did not err in determining Delena-Garcia was not credible. In 2011,
there was a confrontation between Delena-Garcia and members of the Jalisco cartel
outside Delena-Garcia’s business. According to Delena-Garcia’s reasonable fear
interview with DHS, the cartel demanded he pay $500 per week. Delena-Garcia
then said that the cartel once followed him after he closed his business one evening,
and he pulled over his vehicle near some police officers so that he would be protected
from the cartel. Delena-Garcia claimed the police then “turned [him] in” to the
cartel. After he pulled over, one of the officers called the cartel members following
him, the cartel members pulled over near the officers, and they then took 20,000
pesos from him. The cartel allegedly informed Delena-Garcia that the price of the
quota would increase to $500 and 20,000 pesos and that “they already knew where
[he] lived and what time [he] closed the business” with the implication being that
they would find and harm Delena-Garcia if he did not pay the quota. Following
Garcia’s expressed fear of how he would be treated if people in Mexico knew his HIV status, as discussed below, Delena-Garcia failed to raise this issue in his appeal to the BIA.
5 three months of the quota extortion and after the police incident, Delena-Garcia
closed his business and left Mexico.
As the IJ found, Delena-Garcia provided a starkly different description of
events during his hearing testimony. Delena-Garcia testified that the cartel began to
follow him after he closed his store. But then, the cartel members gestured for him
to pull over, and he did so when he encountered police officers on the side of the
road. Delena-Garcia testified that he spoke with the officers, waited on the side of
the road with them, and then left and that the cartel members did not follow him.
During his reasonable fear interview, Delena-Garcia said the cartel continued
to look for him after he fled Mexico, and then killed his wife’s aunt and nephew
“because they did not tell them where [he] was.” At the immigration court
proceedings, in contrast to his reasonable fear interview, when asked why his
nephew was murdered, Delena-Garcia speculated and responded: “I don’t know.
Maybe because he didn’t tell [the cartel] where I was.”
During his reasonable fear interview Delena-Garcia stated that when his
nephew would not disclose where Delena-Garcia was living, the cartel “grabbed”
and “left marks on [his] nephew” and “chopped him into pieces but they left like a
sign . . . saying that [it was] for not giving [Delena-Garcia’s] address.” But at the
hearing, Delena-Garcia testified his nephew was “asphyxiated” or “choked.” He
also testified that a sign was left by his nephew’s body saying, “for not paying.”
6 Delena-Garcia was asked about these (and other) inconsistencies found by the
IJ but could not satisfactorily explain them. The IJ found that the explanations were
not “plausible.” Substantial evidence supports the IJ’s findings as to inconsistency
and plausibility. These inconsistencies—how the cartel treated Delena-Garcia in
Mexico and why and how his family members died—are “valid and specific reasons
for issuing an adverse credibility determination” and relate to the foundation for
Delena-Garcia’s claim of past and future torture. Ruiz-Colmenares v. Garland, 25
F.4th 742, 750 (9th Cir. 2022). Thus, we uphold the IJ’s credibility finding. See
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (“only the most
extraordinary circumstances will justify overturning an adverse credibility
determination.” (citation and quotation omitted)).
Without Delena-Garcia’s credible testimony, there was insufficient evidence
to support CAT relief based on his fear of torture from the cartel.4
2. While the IJ misconstrued Delena-Garcia’s CAT claim based on his fear
related to his HIV-positive status, we deny the Petition because Delena-Garcia failed
to exhaust that claim.
Delena-Garcia argues the IJ improperly failed to address his fear that he would
be harmed if returned to Mexico because of his HIV status and instead addressed his
4 Delena-Garcia does not argue that the remaining evidence is sufficient to support CAT relief based on his cartel claims.
7 potential fear related to the “availability of treatment and medications in Mexico for
his HIV.” But as the government notes, Delena-Garcia’s notice of appeal to the BIA
makes no mention of his HIV status or his related fear of persecution and torture.5
While 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not jurisdictional, it
is still subject to the rules regarding waiver and forfeiture as a claims-processing
rule. Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023). Delena-Garcia failed
to argue before the BIA that the IJ erred in failing to address his fears related to his
HIV status. Because 8 U.S.C. § 1252(d)(1) is a claims processing rule which is
“‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly
raises’ it,” we must deny Delena-Garcia’s petition as to his HIV status. Fort Bend
County v. Davis, 139 S. Ct. 1843, 1849 (2019) (alterations omitted) (quoting
Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam)); see Umana-Escobar
v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (denying petition where petitioner
presented a new argument on appeal that was not presented to the BIA because the
petitioner “failed to exhaust . . . as required under 8 U.S.C. § 1252(d)(1)”).
Because the IJ did not err in finding that Delena-Garcia lacked credibility and
5 Delena-Garcia did state in his application for relief that he was “afraid that [he] will be harmed by people in Mexico because [he has] HIV but [did not] know if the police [would be] willing to protect [him].” But he did not provide any testimony, nor did his attorney ask him questions, regarding his HIV status as it relates to the likelihood of his being tortured in the future because of the status.
8 because Delena-Garcia failed to appropriately exhaust his CAT claim as it relates to
his HIV status, we deny Delena-Garcia’s petition.
PETITION DENIED.