Julio Amaral-Lopez v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION JUN 24 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIO AMARAL-LOPEZ, No. 21-70212

Petitioner, Agency No. A063-804-097

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

Respondent.

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

Argued and Submitted June 7, 2022 Seattle, Washington

Before: GILMAN,** IKUTA, and MILLER, Circuit Judges.

Petitioner Julio Amaral-Lopez seeks review of a decision of the Board of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)

denying his application for relief under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.

Amaral-Lopez’s removal to Mexico pursuant to the Department of

Homeland Security’s removal order did not moot Amaral-Lopez’s petition. At oral

argument, the government confirmed that the policy identified in the government’s

April 5, 2016 letter brief in Del Cid Marroquin v. Lynch remains in effect. See 823

F.3d 933, 937–40 (9th Cir. 2016) (per curiam). Under that policy, the government

will facilitate Amaral-Lopez’s return to the United States if we order an “outright

grant of CAT protection.” Id. at 936. Given the continued existence of this policy,

“we can provide effective relief and [Amaral-Lopez’s] removal to [Mexico] does

not render the petition moot.” Id.

The BIA’s and the IJ’s determination that Amaral-Lopez did not show that

he suffered past torture with the consent or acquiescence of a public official is

supported by substantial evidence. See Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th

Cir. 2008). We reject Amaral-Lopez’s argument that the police officers’ conduct

in response to his 2012 shooting constituted acquiescence to torture, because the

IJ’s findings that the police made a reasonable choice to remain with Amaral-

Lopez until medical assistance arrived, and that Amaral-Lopez failed to follow-up

2 and with police and pursue a criminal investigation, are supported by substantial

evidence.

The BIA’s and the IJ’s determination that Amaral-Lopez did not show that it

was more likely than not that he would be tortured upon his return to Mexico, or

that any future torture would occur by or with the acquiescence of the Mexican

government, was also supported by substantial evidence. See id. Amaral-Lopez

lived in Mexico for one year after the shooting and was never tortured or otherwise

physically harmed during that year, even though the gang members who had

previously tortured him knew that he was hiding out at his father’s home. Amaral-

Lopez’s expert acknowledged that, according to one study, only one-third of

deportees to Mexico experience some form of physical mistreatment upon their

return to Mexico. The expert also testified that Amaral-Lopez’s risk of torture

stemmed only from the general techniques that drug cartels use to identify and

recruit new members, as opposed to being singled out for torture due to his past

gang activities. And Amaral-Lopez’s expert conceded that it was unlikely

Amaral-Lopez would encounter police who knew Amaral-Lopez and his prior

membership in Florencia 13. Therefore, Amaral-Lopez failed to show a

particularized risk of future torture. See Tzompantzi-Salazar v. Garland, 32 F.4th

696, 706–07 (9th Cir. 2022).

3 Finally, there was substantial evidence that Amaral-Lopez could safely

relocate within Mexico, see 8 C.F.R. § 1208.16(c)(3)(ii), including that (1) on

several occasions during the year after his shooting, Amaral-Lopez was able to

travel without incident to his grandmother’s home, which is forty minutes

from Guadalajara; and (2) Amaral-Lopez had a history of employment and was

fluent in Spanish.

PETITION DENIED.