Jose Mejia-Rosas v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2020
• Docket: 19-70594
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE YUDIEL MEJIA-ROSAS, AKA Jose No. 19-70594 Mejia, AKA Jose Yudiel Mejia, Agency No. A094-372-332 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 10, 2020** Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and M. WATSON,*** District Judge.

After being convicted of robbery and serving a prison sentence, Mejia-Rosas

was ordered removed by an immigration judge (“IJ”) for being “an[] alien who is

* 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 Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. convicted of an aggravated felony at any time after admission” to the country. 8

U.S.C. § 1227(a)(2)(A)(iii). Mejia-Rosas applied for deferral of removal under the

Convention Against Torture (“CAT”). 8 C.F.R. § 1208.17. Although the IJ

granted his application, the Board of Immigration Appeals reversed on appeal.

Mejia-Rosas now petitions this court for review of the Board’s decision. We

review a determination of CAT eligibility for substantial evidence, and we will

reverse “only if the evidence is so compelling that no reasonable fact finder could

have failed to find the requisite likelihood of torture.” Singh v. Ashcroft, 351 F.3d

435, 442 (9th Cir. 2003); see also Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir.

2018) (“To qualify for deferral [of removal under the CAT], an alien must

establish that he ‘is more likely than not to be tortured.’” (quoting

8 C.F.R. § 1208.17)).

Substantial evidence supports the Board’s determination that Mejia-Rosas

has failed to carry his burden of proving a likelihood of torture if he is returned to

Mexico or El Salvador. Mejia-Rosas’s application was based entirely on the fact

that he has tattoos identifying his affiliation with the Norteños, a California-based

gang of which he was formerly a member. He argues that there are three groups

who are likely to see his tattoos, understand what they signify, and be motivated to

torture him as a result: (1) members of his own gang, or a rival gang such as the

Sureños; (2) other gangs in Mexico or El Salvador; and/or (3) police or military

2 officials in Mexico and El Salvador. Based on the evidentiary record, we are not

compelled to reach a conclusion contrary to the Board’s.

1. No evidence supports Mejia-Rosas’s claims that the Norteños or one

of its rivals, such as the Sureños, have a meaningful presence in Mexico or El

Salvador or that the Norteños have “strong ties to the cartels in Mexico.” Indeed,

when Mejia-Rosas was asked how Norteños gang members (or former members

like himself) could be harmed in Mexico, he said only that “Sureños would see

[his] tattoos and they automatically know [he’s] a rival gang member so they

would attack.” But the record evidence shows that the Sureños are a California-

based street gang—a fact that Mejia-Rosas himself recognized.1 Mejia-Rosas

declared that it is a “known and proven fact” that Sureños “foot soldiers” operate

in Tijuana and other cities and states in Mexico, but he presented no evidence of

this, and his own country-conditions expert did not identify the Sureños as having

any presence in Mexico. Likewise, Mejia-Rosas’s country-conditions expert on El

Salvador mentioned only the presence of MS-13 and the 18th Street Gang—not the

1 There was testimony about the “Mexican Mafia,” which is apparently affiliated with the Sureños and is a rival to Mejia-Rosas’s former gang. But despite its name, the Mexican Mafia is based in the United States and was not identified by Mejia-Rosas’s expert as a gang with a presence in Mexico.

3 Sureños or other rivals to the Norteños.2 Substantial evidence therefore supports

the Board’s conclusion that the Norteños and rival gangs “do not operate

throughout Mexico and El Salvador,” such that Mejia-Rosas could not safely avoid

them. See Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir. 2005) (explaining that

the ability to safely relocate is relevant to likelihood of future torture); 8 C.F.R. §

1208.16(c)(3)(ii).

2. Substantial evidence also supports the Board’s conclusion that Mejia-

Rosas has not shown a likelihood that Mexican or Salvadorian gangs would

recognize his tattoos as gang-affiliated and torture him as a result. In support of

this claim, Mejia-Rosa presented only generalized evidence about the country

conditions in Mexico and El Salvador. We have previously upheld the denial of

CAT protection where applicants relied on similarly generalized claims of fear or a

series of worst-case possibilities strung together. See Dhital v. Mukasey, 532 F.3d

1044, 1051–52 (9th Cir. 2008) (upholding CAT denial where evidence failed to

show a particularized threat to the applicant); Blandino-Medina v. Holder, 712

F.3d 1338, 1348 (9th Cir. 2013) (substantial evidence supported Board’s reversal

of IJ’s CAT determination where applicant “rather than presenting hard

2 This expert identifies a subsect of the 18th Street Gang in El Salvador adopting the name “18 Sureños,” but there is no evidence that this is the same group as, or even related to, the California-based gang that feuds with the Norteños. And besides Mejia-Rosas’s own testimony, there is no evidence that these Salvadorian gangs are rivals with the Norteños.

4 evidence . . . merely presented a series of worst-case scenarios”).

3. Mejia-Rosas’s claim that the Mexican or Salvadorian police are likely

to torture him because of his tattoos is similarly speculative. Mejia-Rosas again

relies entirely on generic, country-condition evidence about violence in Mexico

and El Salvador. Such generalized evidence, absent more particularized proof that

Mejia-Rosas himself is threatened, does not compel us to reach a different

conclusion than the Board’s. See Dhital, 532 F.3d at 1051–52; see also Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curium) (“Petitioners’

generalized evidence of violence and crime in Mexico is not particular to

Petitioners and is insufficient to meet this standard”). This is particularly true

given that Mejia-Rosas’s evidence shows that, at most, active gang members are

subject to police targeting, not that having gang tattoos itself exposes someone like

Mejia-Rosas to similar targeting from the police or military. Indeed, one of the

articles he cites is a biography of a reformed gang member living an ostensibly

successful life in El Salvador.3 Accordingly, substantial evidence supports the

Board’s decision to deny Mejia-Rosas CAT protection. See Del Cid Marroquin v.

Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (per curiam) (affirming denial of CAT

protection for lack of evidence El Salvador tortures those with gang tattoos).

3 The man profiled has gang tattoos covering his arms but is studying to become a lawyer while working for a Salvadorian company that helps reintegrate former gang members into society.

5 For the foregoing reasons, Mejia-Rosas’s petition is DENIED.