Jose Galan-Najarro v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2020
• Docket: 19-73030
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MIGUEL GALAN-NAJARRO, No. 19-73030 AKA Jose Galan, AKA Jose Najarro, Agency No. A046-932-138 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted October 22, 2020 San Francisco, California

Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.

Petitioner, Jose Miguel Galan-Najarro, petitions the court for review of the

Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal and

affirming the Immigration Judge’s (“IJ”) denial of his application for deferral of

removal under the Convention Against Torture (“CAT”) pursuant to 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 1252. “[W]here the BIA cites its decision in [Matter of Burbano, 20 I. & N. Dec.

872 (BIA 1994)] and does not express disagreement with any part of the IJ’s

decision, the BIA adopts the IJ’s decision in its entirety” and this court reviews the

IJ’s decision as affirmed by the BIA. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th

Cir. 2005) (en banc). Reviewing the IJ’s factual findings for substantial evidence,

we affirm the BIA and deny the petition for review. See Parada v. Sessions, 902

F.3d 901, 908–09 (9th Cir. 2018) (explaining that the court may reverse only

where the record evidence compels a contrary conclusion to that adopted by the

BIA).

The IJ found that, considering all potential sources of torture in the

aggregate, Galan-Najarro failed to show that it was more likely than not that he

would be tortured if removed to El Salvador. See Quijada-Aguilar v. Lynch, 799

F.3d 1303, 1308 (9th Cir. 2015) (explaining that likelihood of torture must be

considered in terms of the aggregate risk of torture from all sources). The IJ stated

that he “reviewed and considered all of the evidence in the record, even if not

expressly mentioned” in the decision, and there is no indication that the IJ failed to

do so.

The record evidence does not compel a conclusion that Galan-Najarro would

be subject to torture at the National Psychiatric Hospital (“NPH”). As the IJ noted,

2 Galan-Najarro’s claim that he would be subject to torture at the NPH requires three

events in a hypothetical chain to occur: (1) Galan-Najarro would come to the

attention of Salvadoran authorities, (2) Galan-Najarro would be admitted to the

NPH, and (3) Galan-Najarro would be tortured at the NPH via the use of

electroconvulsive therapy (“ECT”) or otherwise. See Matter of J-F-F-, 23 I. & N.

Dec. 912, 918 n.4 (A.G. 2006) (“[A] chain of events cannot be more likely than its

least likely link.”). Even assuming Galan-Najarro would come to the attention of

Salvadoran authorities, the record does not compel a conclusion that the second

and third events in the hypothetical chain would occur. Moreover, the record

evidence does not compel the conclusion that Salvadorean government officials at

the NPH have the specific intent to inflict severe harm on patients via the use of

ECT. See Villegas v. Mukasey, 523 F. 3d 984, 989 (9th Cir. 2008) (explaining that

circumstances evincing “desire to improve” confirmed that mistreatment resulted

from “historical gross negligence and misunderstanding” of mental health issues,

not a “deliberate intent to inflict harm”).

The record evidence does not compel a conclusion that Galan-Najarro

would, more likely than not, be tortured by Salvadoran police. It was not

unreasonable for the IJ to rely on statistics regarding police torture and Galan-

Najarro’s criticism of those statistics and the other evidence he offered did not

3 compel the IJ to find to the contrary. The other complaints Galan-Najarro cites do

not all necessarily involve torture, the focus of CAT protections. While

underreporting of police violence makes it difficult to provide statistical evidence

regarding the scale and likelihood of torture by police, Galan-Najarro, as the CAT

claimant, has the burden to establish that future torture is more likely than not. See

Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).

The record evidence does not compel the conclusion that it is more likely

than not that Galan-Najarro would be tortured by gangs. The IJ properly concluded

Galan-Najarro’s statements regarding childhood fear of gang violence constitute

generalized evidence of violence that is not particular to Galan-Najarro, and

therefore, insufficient to establish a CAT claim. See Delgado-Ortiz v. Holder, 600

F.3d 1148, 1152 (9th Cir. 2010) (per curiam). Similarly, it was not unreasonable

for the IJ to conclude that Galan-Najarro is no longer at risk from the Norteños

gang where over ten years have elapsed since Galan-Najarro’s last altercation with

the Norteños and the record does not contain any evidence of more recent

interactions. Anecdotal evidence and generalized statements regarding gang

violence towards individuals with mental health issues, without more, does not

compel a finding of a clear probability of future torture. See Blandino-Medina v.

Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (requiring “hard evidence of a

4 probability that [Petitioner] would be tortured” rather than merely a “series of

worst-case scenarios”).

PETITION FOR REVIEW DENIED.1

1 We also deny Galan-Najarro’s motion for stay of removal as moot. 5