JORGE AVENDANO-BARRAZA V. MERRICK GARLAND

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2022
• Docket: 21-70858
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE AVENDAÑO-BARRAZA, No. 21-70858

Petitioner, Agency No. A098-431-652

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

Respondent.

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

Submitted December 9, 2022** Phoenix, Arizona

Before: WARDLAW and BUMATAY, Circuit Judges, and GLEASON,*** District Judge.

* 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 Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. Jorge Avendaño-Barraza, a native and citizen of Mexico, petitions for

review of a Board of Immigration Appeals (BIA) decision affirming the denial of

his application for withholding of removal and protection under the Convention

Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and deny the

petition.

Substantial evidence supports the BIA’s decision to deny Avendaño-

Barraza’s application for withholding of removal. See Del Carmen Molina v.

I.N.S., 170 F.3d 1247, 1249 (9th Cir. 1999). Avendaño-Barraza did not experience

any past persecution, so the BIA accurately stated the law by concluding that

Avendaño-Barraza was not entitled to a rebuttable presumption of future

persecution pursuant to 8 C.F.R. § 1208.16(b)(1)(i).

Avendaño-Barraza does not qualify for withholding of removal based on a

clear probability of future persecution because the BIA properly concluded that he

could relocate elsewhere in Mexico and that it is reasonable to expect him to do so.

See Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011) (holding that

“[w]here the applicant has not established past persecution,” he or she bears the

burden of establishing that relocation is unreasonable within Mexico). Avendaño-

Barraza’s evidence of generalized violence in Mexico is insufficient to challenge

the BIA’s relocation findings. Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021)

(“Relocation is generally not unreasonable solely because the country at large is

2 subject to generalized violence.”).

Avendaño-Barraza’s ability to avoid future persecution by relocating within

Mexico is dispositive of his withholding claim, 8 C.F.R. § 1208.16(b)(2), so the

BIA did not need to, and did not address his contentions that he would suffer future

persecution on account of his membership in a particular social group and that the

Mexican government is unable or unwilling to protect him from persecution. See

I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that the BIA is

“not required to make findings on issues the decision of which is unnecessary to

the results they reach”). This panel declines to reach these issues.

Avendaño-Barraza relies on generalized evidence of violence and crime in

Mexico that is not particular to him and does not establish eligibility for CAT

protection. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per

curiam). Avendaño-Barraza also contends that the Mexican government did not

help find his brother-in-law, submitting evidence that the Mexican government is

ineffective in investigating criminal activities, but this does not merit CAT

protection either. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir.

2014).

Avendaño-Barraza asks this Court to remand to the BIA to consider the

recent discovery of his brother-in-law’s body. A petitioner who seeks remand to

pursue relief, however, bears a “heavy burden” of proving that the new evidence

3 would likely change the result in the case. Young Sun Shin v. Mukasey, 547 F.3d

1019, 1025 (9th Cir. 2008) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473

(BIA 1992)). Avendaño-Barraza has not met this burden because both the IJ and

the BIA acknowledged that his brother-in-law was kidnapped and presumably

killed for his membership in a gang.

PETITION DENIED