Jose Medina Avina v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2021
• Docket: 19-72098
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 26 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE FELIPE MEDINA AVINA, No. 19-72098

Petitioner, Agency No. A215-817-791

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

Respondent.

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

Argued and Submitted April 12, 2021 Seattle, Washington

Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER, ** District Judge.

Jose Medina Avina (“Avina”), a citizen and native of Mexico, seeks review

of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Avina contends he

will be subject to future persecution and torture at the hands of the Jalisco cartel

because of his inquiries about the death of his brother-in-law. The agency’s

decision must be upheld if it is supported by reasonable, substantial, and probative

evidence on the record as considered as a whole and may be reversed only if a

reasonable factfinder would be compelled to conclude to the contrary. See

Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011). We deny

the petition.

To qualify for relief under CAT, Avina must establish that “it is more likely

than not that he [] would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). Furthermore, the torture must be inflicted

by, at the direction 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). In assessing

whether it is more likely than not that an alien would be subject to torture if

removed to a country, the agency can consider whether relocation within that

country is possible. 8 C.F.R. § 1208.16(c)(3)(ii).

After leaving his home state, where Avina may have drawn the attention of

the Jalisco cartel by making inquiries about the death of his brother-in-law, Avina

2 stayed with his daughters in Puebla and then in Morelia; later with his girlfriend in

Rosarita—for a month at each location without further threats or harm. See

Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005). Although there was

testimony that people came by Avina’s house and business looking for him, there

is no evidence that the cartel pursued him outside the state of Colima. His family

continues to reside in Mexico, as does another brother-in-law who had also been

threatened but relocated to Michoacan. See Sinha v. Holder, 564 F.3d 1015, 1022

(9th Cir. 2009).

Although Avina may not be able to return to Colima, the record does not

compel the conclusion that it is more likely than not Avina would be tortured if

returned to other parts of Mexico. We therefore need not reach the second prong

of the CAT analysis, “whether there is sufficient state action involved” in the

feared torture. Garcia-Milan v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

To qualify for asylum, Avina must demonstrate that he has suffered past

persecution or has a well-founded fear of future persecution on account of a

protected ground. Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.

2006). Avina does not claim past persecution but claims to have a well-founded

fear of future persecution on account of membership in a particular social group

(his familial connection with his wife and brother-in-law).

3 As with his CAT claim, the IJ and BIA held that Avina did not have a

well-founded fear of future persecution because of his ability to safely relocate

within the country. See 8 C.F.R. § 1208.13(b). For the reasons discussed in

Section I above, the record does not compel the conclusion that the agency’s

determination about Avina’s ability to internally relocate is erroneous.1

PETITION DENIED.

1 Because the ability to relocate forecloses Avina’s asylum claim, we need not address the issue of whether the alleged persecution is on account of Avina’s membership in a particular social group. 4