Jose Tello-Rivera v. Loretta E. Lynch

644 F. App'x 697
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 6, 2016
Docket15-3407
StatusUnpublished
Cited by4 cases

This text of 644 F. App'x 697 (Jose Tello-Rivera v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jose Tello-Rivera v. Loretta E. Lynch, 644 F. App'x 697 (6th Cir. 2016).

Opinion

OPINION

STRANCH, Circuit Judge.

Jose Jorge Tello-Rivera, a native and citizen of Mexico, petitions for review from the United States Board of Immigration Appeals, which affirmed an immigration judge’s denial of Tello-Rivera’s application for withholding of removal under the Convention Against Torture. Tello-Rivera argues that the immigration judge and Board failed to consider all of the documentary evidence he provided and incorrectly required corroboration of his testimony, and that the immigration judge gave him inadequate time to prepare his case, violating his due process rights. We DENY Tello-Rivera’s petition for review.

I. BACKGROUND

Tello-Rivera, born in Mexico, came to the United States with his parents in 2000, at the age of 15. In February 2010, pursuant to removal proceedings and a voluntary departure order, he returned to his hometown of Ciudad Hidalgo, Michoacán, Mexico, where he lived with his aunt. He remained in Mexico for one month before illegally reentering the United States, after which he was served with a notice to appear that charged him with inadmissibility.

At a February 6, 2013 hearing before an immigration judge, Tello-Rivera conceded his inadmissibility but applied for withholding of removal under the Convention Against Torture. The judge ultimately set a hearing on the Convention claim for March 25, over the objection of Tello-Rivera’s counsel that six weeks was insufficient time to collect evidence.

At the March 25 hearing, Tello-Rivera testified in support of his application for protection under the Convention that, as a person recently returned from the United States to Mexico, he would be perceived as *699 wealthy and at risk for extortion. According to Tello-Rivera, during his month in Mexico in 2010, he feared leaving his aunt’s house after a cousin with ties to gang members warned that they would target him. He testified that an uncle and cousin, as local business owners, were required to pay protection money to the gangs, that neighbors who were unable to pay were killed, and that “[everybody knows” the government is complicit in the gangs’ activities. His uncle and cousin submitted letters corroborating their extortion. On cross-examination, Tello-Riv-era recalled that a female cousin had been kidnapped and, when her mother could not pay the ransom money, “she was cut up.” Tello-Rivera asserted that gangs operated throughout the country and that he had no place to live or work in Mexico except Ciudad Hidalgo. As documentary evidence supporting his claims, Tello-Rivera introduced a State Department travel warning, an Amnesty International report describing an increase in human rights abuses in Mexico, and a news article reporting the torture and death of a man in Ciudad Hidalgo.

The immigration judge, after noting consideration of all of the testimony and relevant documentary evidence in the record, concluded that Tello-Rivera was not entitled to protection under the Convention. The judge found Tello-Rivera generally credible but also that “[m]uch of [Tello-Rivera’s] testimony consisted of conclusions, assumptions, and rumors” uncorroborated by other evidence, making it “not particularly probative.” (A.R. at 59, 61.) The Board concurred and dismissed Tello-Rivera’s claim of insufficient time because he “had sufficient opportunity to prepare” and had not shown prejudice or an effect on the outcome of the proceedings. (Id. at 4.)

II. ANALYSIS

To establish entitlement to relief under the Convention, an applicant must prove “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Singh v. Ashcroft, 398 F.3d 396, 404 (6th Cir.2005) (quoting 8 C.F.R. § 208.16(c)(2)). “Torture” is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Id. at 404-05 (quoting 8 C.F.R. § 208.18(a)(1)).

Tello-Rivera posits two challenges that relate to the immigration judge’s and Board’s factual finding that it was not more likely than not that he would be tortured if removed to Mexico. We review administrative findings of fact for “reasonable, substantial, and probative evidence on the record considered as a whole,” reversing only if “any reasonable adjudicator would be compelled to conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004). Although we generally review the Board’s separate opinion as a final agency determination, to the extent that the Board adopts the immigration judge’s reasoning, supplemented with its own comments, we look at both opinions. Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir.2015) (citing Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009)).

*700 Tello-Rivera first faults the immigration judge and Board for not specifically mentioning documentary evidence that he submitted on country conditions, particularly human rights violations within Mexico. An adjudicator, “[i]n assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal,” must consider “all evidence relevant to the possibility of future torture,” including, but not limited to:

(1) evidence of past torture inflicted upon the applicant; (2) evidence that the applicant can relocate to a part of the country of removal where he is not likely to be tortured; (3) evidence of gross, flagrant, or mass violations of human rights within the country of removal; and (4) other relevant information regarding conditions in the country of removal.

8 C.F.R. § 1208.16(c)(3). Tello-Rivera cites no authority, however, requiring separate comments on every piece of evidence relating to these considerations; the cited cases instead turn on whether the record shows that an adjudicator adequately made the considerations at all. See, e.g., Mapouya v. Gonzales, 487 F.3d 396

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