Torres Valdovinos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 5, 2024
• Docket: 23-699
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIRIAN DEL CARMEN TORRES No. 23-699 VALDOVINOS, Agency No. A206-915-529 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 3, 2024** Pasadena, California

Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.

Petitioner Mirian Del Carmen Torres Valdovinos, a citizen of Mexico,

petitions for review of a decision by the Board of Immigration Appeals (BIA)

* 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). dismissing her appeal from a decision of an Immigration Judge (IJ) denying her

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction under § 242 of the

Immigration and Nationality Act, 8 U.S.C. § 1252. We deny the petition.

1. Petitioner contends that the Immigration Court did not have jurisdiction

over her removal proceedings because the agency issued her an incomplete Notice

to Appear that did not provide a place, time, or date for her appearance. But the

agency later provided her notice of the date and location, which is sufficient to vest

jurisdiction. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1188, 1193

(9th Cir. 2022) (en banc) (“[T]he failure of an NTA to include time and date

information does not deprive the immigration court of subject matter

jurisdiction.”).

2. Substantial evidence supports the denial of asylum and withholding of

removal. To establish asylum, Petitioner must show that she “is unable or

unwilling to return to [her] home country because of a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Udo v. Garland, 32 F.4th 1198, 1206 (9th Cir.

2022) (citation omitted); see also 8 C.F.R. § 208.31(c). A petitioner may establish

a well-founded fear of future persecution by proving past persecution, or by

demonstrating that he has a subjectively genuine and objectively reasonable fear of

2 23-699 future persecution. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028–29 (9th Cir.

2019).

Petitioner asserts that she has established past persecution because a local

gang threatened her family after kidnapping and likely killing her uncle. But the

threats from the gang to her family do not compel a conclusion of past persecution

or establish an objectively reasonable fear of future persecution. Death threats

constitute persecution “in only a small category of cases, and only when the threats

are so menacing as to cause significant actual suffering or harm.” Duran-

Rodriguez, 918 F.3d at 1028 (citation omitted). Here, Petitioner does not point to

evidence of actual harm since she did not directly receive a threat and was never

physically harmed. Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.

2021) (“Mere threats, without more, do not necessarily compel a finding of past

persecution.”). Petitioner has also not identified evidence suggesting she could not

safely relocate within Mexico. See 8 C.F.R. § 1208.13(b)(2)(ii); Hussain v. Rosen,

985 F.3d 634, 648 (9th Cir. 2021) (holding that a petitioner did not have a well-

founded fear of persecution because he could relocate to another part of his

country).

Petitioner asserted that she belongs to the particular social group of “the

Torres family.” The IJ declined to address whether the proposed family-based

social group was cognizable and instead determined that she had not established a

3 23-699 nexus between the harm alleged and a protected ground, and the BIA affirmed.

The persecution must be “on account of” membership in a particular social group.

Duran-Rodriguez, 918 F.3d at 1028. Here, substantial evidence supports the lack

of a nexus between the harm Petitioner alleged and her membership in a particular

social group. Petitioner testified that the threats from the gang members were

motivated by money and their incarceration following her uncle’s kidnapping, not

because she was a member of the family. See Rodriguez-Zuniga v. Garland, 69

F.4th 1012, 1020 (9th Cir. 2023).

Because substantial evidence supports the agency’s denial of asylum,

substantial evidence also supports its denial of withholding of removal. See

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016) (“A petitioner who

fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the

more stringent standard for withholding of removal.”).

3. Substantial evidence supports the denial of CAT protection. To be

eligible for CAT protection, Petitioner must show that she is more likely than not

to be tortured upon removal, and that a public official would “inflict, instigate,

consent to or acquiesce in that torture.” Madrigal v. Holder, 716 F.3d 499, 508

(9th Cir. 2013). “However, ‘a general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show acquiescence.’” Xochihua-

Jaimes v. Barr, 962 F.3d 1175, 1184 (9th Cir. 2020) (citation omitted). After

4 23-699 Petitioner’s family reported her uncle’s kidnapping to the police, Mexican officials

investigated and prosecuted perpetrators, undercutting her argument that the

Mexican government would acquiesce to torture. Thus, the evidence does not

compel the conclusion that the Mexican government will acquiesce to future

torture. Further, Petitioner has never been physically harmed in Mexico, and there

is no evidence to compel the conclusion that she faces a risk of torture upon

removal.

The petition for review is DENIED.

5 23-699