Perrusquia Palomares v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2023
• Docket: 23-326
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR HUMBERTO PERRUSQUIA No. 22-910 PALOMARES, Agency No. A070-765-665 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

OSCAR HUMBERTO PERRUSQUIA No. 23-326 PALOMARES, Agency No. A070-765-665 Petitioner,

v.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted December 8, 2023** San Francisco, California

Before: BRESS and JOHNSTONE, Circuit Judges, and MOSKOWITZ, District Judge.*** Concurrence by MOSKOWITZ, District Judge. Oscar Humberto Perrusquia Palomares, a native and citizen of Mexico,

petitions for review of two decisions from the Board of Immigration Appeals

(“BIA”). First, Perrusquia challenges the BIA’s dismissal of his appeal of the

Immigration Judge’s (“IJ”) decision denying him protection under the Convention

Against Torture (“CAT”). Second, Perrusquia challenges the BIA’s decision

denying his motion to reopen based on changed country conditions. We have

jurisdiction under 8 U.S.C. § 1252. We review the BIA’s legal conclusions de novo

and its factual findings for substantial evidence. B.R. v. Garland, 26 F.4th 827, 835

(9th Cir. 2022). “We review the denial of a motion to reopen for abuse of

discretion.” Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021). We deny

the petitions.

1. Substantial evidence supports the BIA’s determination that Perrusquia is

not eligible for CAT protection because he failed to establish that “it is more likely

than not he . . . would be tortured” by or with the consent or acquiescence of a

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation.

2 23-326 Mexican public official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The Mexico

2020 Human Rights Report and the news articles that Perrusquia offers are

insufficient to show the government would either torture him or acquiesce in his

torture by cartel members. See B.R., 26 F.4th at 845; Andrade-Garcia v. Lynch,

828 F.3d 829, 836–37 (9th Cir. 2016). While the Mexico 2020 Human Rights

Report shows the government’s general ineffectiveness at preventing crime and

violence, that is not sufficient to demonstrate acquiescence. Andrade-Garcia, 828

F.3d at 836. Further, the report provides general statements about the Mexican

government’s involvement in some instances of torture, but Perrusquia does not

explain how these instances of torture are related to the danger he allegedly faces

as a deported former gang member with gang tattoos. See B.R., 26 F.4th at 844.

2. The BIA did not abuse its discretion in denying Perrusquia’s motion

because Perrusquia failed to prove material changes in country conditions in

Mexico between his October 2021 hearing and his September 2022 motion to

reopen. Perrusquia’s evidence demonstrates pervasive violence in Mexico but does

not demonstrate to what extent a change occurred or that the change is more than

merely incremental. See Rodriguez, 990 F.3d at 1210. Nor did Perrusquia

demonstrate how any increase in cartel violence made it more likely that he would

be tortured by a cartel or the government. See, e.g., Greenwood v. Garland, 36

F.4th 1232, 1235–36 (9th Cir. 2022) (explaining “that an otherwise untimely

3 23-326 motion to reopen must be based on evidence of changed country conditions that ‘is

material’”). This determination is dispositive; therefore, we do not address the

remainder of Perrusquia’s arguments. See Rodriguez, 990 F.3d at 1207. The

pending motions for stay of removal are denied as moot.1

PETITIONS DENIED.

1 The temporary stay shall remain in effect until issuance of the mandate. See General Order 6.4(c).

4 23-326 FILED Perrusquia Palomares v. Garland, Nos. 22-910 & 23-326 DEC 20 2023 MOSKOWITZ, District Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur completely in the Memorandum Disposition. However, I believe

that Perrusquia has established a likelihood that upon his removal, a drug cartel

will recruit him based on his gang tattoos. If he refuses to join their illegal venture,

he will likely be beaten or killed. The likelihood of this occurring diminishes if he

is removed to a non-border port of entry. Therefore, I recommend to the

Department of Homeland Security that, if Perrusquia is removed, he be removed to

an interior port of entry. I understand that this is within the discretion of the

Department of Homeland Security and that recommendations are rare. See, e.g.,

Bbale v. Lynch, 840 F.3d 63, 68 (1st Cir. 2016) (recommending that DHS not

remove the petitioner because “he would face a significant threat to his safety if he

were to be returned to Uganda . . . ”); Cole v. Holder, 659 F.3d 762, 775 (9th Cir.

2011) (Noonan, J., concurring) (recommending that the BIA delay the petitioner’s

deportation so he can remove his gang tattoos); see also Huang v. Gonzales, 238

Fed. Appx. 691, 693 (2d Cir. 2007) (recommending “that the BIA consider that

any further remand be made to a different IJ”). I offer this recommendation

because it is a way to avoid a potentially life-threatening situation.