Abel Lopez-Cortaza v. Jefferson B. Sessions, III ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3711
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Abel Lopez-Cortaza
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 14, 2017
Filed: June 27, 2018
[Unpublished]
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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PER CURIAM.
Abel Lopez-Cortaza petitions for review of the Board of Immigration Appeals’s
(“Board”) denial of his application for asylum and withholding of removal under the
Convention Against Torture (CAT). The Board affirmed the immigration judge’s (IJ)
denial of asylum, finding that Lopez-Cortaza failed to establish a nexus between past
persecution or a well-founded fear of future persecution and a protected ground.
However, the Board vacated the IJ’s grant of CAT protection, finding that Lopez-
Cortaza is unlikely to face torture upon his return to Mexico. We deny his petition for
review.
I. Background
Lopez-Cortaza first unlawfully entered the United States in 2005. In 2006, he
met and married an American woman. In 2007, after being detained by immigration
officials, Lopez-Cortaza voluntarily departed the United States for Mexico, his home
country. Shortly thereafter, his wife joined him. She met Lopez-Cortaza at the United
States-Mexican border. Lopez-Cortaza, using his wife’s car, then drove the couple to
Las Choapas, Veracruz, Mexico, where they planned to live with his mother. During
the trip to Veracruz, the Mexican Army stopped them four times to check for drugs
and guns, but each time permitted the couple to proceed after discovering no
contraband. At all times during their Mexican trip, their vehicle displayed American-
issued license plates. The record shows that during this period arbitrary arrests and
detentions were widespread in Mexico, and Lopez-Cortaza and his wife received
advice from a local man not to stay too long in the country because they were driving
a car with American plates.
After spending two weeks in Veracruz, the couple decided to move to
Coatzacoalcos to stay at his uncle’s vacant house. Lopez-Cortaza stated that he and
his wife experienced some trouble with the Mexican police. For instance, on one
occasion they were forced to pay 900 pesos because Lopez-Cortaza drove his wife’s
car (still with American plates). After about three months in Coatzacoalcos, Ms.
Lopez1 returned to the United States with her car. The record does not show that Ms.
Lopez ever drove alone while in Mexico.
1
The administrative record, the IJ, and Lopez-Cortaza identified Lopez-
Cortaza’s wife as “Mrs. Lopez” or “Ms. Lopez.”
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Lopez-Cortaza again illegally entered the United States in June 2007. Colorado
police arrested him for driving without a license and later arrested him again for drunk
driving. Lopez-Cortaza served jail time, after which he voluntarily departed for
Mexico in 2009 with an IJ’s permission. At the end of 2009, Ms. Lopez returned to
Mexico to be with her husband. The two—again with Lopez-Cortaza driving a car
with an American license plate—were harassed by the Mexican authorities. The
officers stopped them multiple times while they were driving and demanded money.
After a time, Ms. Lopez, discontent in Mexico, drove back to the United States.
Lopez-Cortaza reported that he suffered no harassment from the Mexican authorities
after his wife—and the car with its American license plate—were out of the picture.
Ms. Lopez returned to Mexico in 2010. Initially, the couple resided in Playa del
Carmen, where they reported no incidents of harassment. However, economic
necessity caused the couple to move back to Las Choapas, Veracruz, after about five
months. In Las Choapas, they again faced police harassment. As summarized by the
IJ, in 2011:
Two men—neither in uniform—got in the truck and asked [Lopez-
Cortaza] for his documents. Although they were not in uniform, one
showed [Lopez-Cortaza] his badge and the other carried a gun. After
[Lopez-Cortaza] gave the men his election ID card, the men arrested
[Lopez-Cortaza]. They told him he was arrested because he had stolen
the truck. He was forced to exit the truck and then the officers got in.
Soon after, six or seven other police officers arrived to take [Lopez-
Cortaza]. As he was being taken away, he stated that his wife did not
know the city and threw the truck keys to her. He was then placed in
handcuffs and beaten in front of his wife. . . .
After he arrived at the police station, [Lopez-Cortaza] was placed
in a room and beaten by four police officers with different objects. For
example, he was beaten with the butt of a rifle and some handcuffs.
Additionally, he was assaulted with “an electric thing that [they] had for
animals.” . . . [Lopez-Cortaza] testified that he was injured, bloody, and
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suffered scarring from the police attacks. . . . He testified that he thinks
the beating spanned 10-15 minutes, and they eventually stopped because
he was on the ground and no longer moving very much. Additionally,
they noticed blood coming from his head. The police told [Lopez-
Cortaza] they hit him because they wanted him to confess that he stole
the truck but he said no.
Admin. Rec. at 103–04.
Lopez-Cortaza’s wife eventually secured his release by paying 4,600 pesos. He
did not seek hospital treatment for his injuries. His wife then returned to the United
States. Lopez-Cortaza followed her two and a half months later, again unlawfully
entering the United States. This time, he filed an asylum claim within one year of his
entry into the United States, claiming he was persecuted by Mexican authorities
because his wife is American.
After hearing testimony and evaluating documentary evidence, the IJ denied
Lopez-Cortaza’s asylum application. The IJ concluded that Lopez-Cortaza failed to
demonstrate that he had suffered past persecution because of his marriage to an
American woman. Rather, the source of Lopez-Cortaza’s targeting by Mexican
officials was likely due to the American license plates on the car they drove each time
Ms. Lopez came to Mexico. The IJ also found that Lopez-Cortaza presented no
evidence showing a well-founded fear of future persecution that had a “basis in
reality.” Id. at 109. Nevertheless, she concluded that under the CAT, the Las Choapas
incident qualified as torture; she further concluded that Lopez-Cortaza “has met his
burden to establish it is ‘more likely than not’ that he will be tortured with the
acquiescence of a government official if he is returned to Mexico.” Id. at 111. The IJ
then granted Lopez-Cortaza’s application for withholding of removal under the CAT.
The government appealed the IJ’s order to the Board. The Board affirmed the
IJ’s denial of asylum, but it reversed the IJ’s grant of withholding of removal under
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the CAT. The Board “acknowledge[d] the background evidence of widespread
corruption and other human rights problems” in Mexico, but it concluded that Lopez-
Cortaza’s CAT application must be denied because Lopez-Cortaza could: (1) avoid
Las Choapas altogether, and (2) obtain Mexican license plates for his car. Id. at 5. The
Board then vacated the IJ’s order withholding Lopez-Cortaza’s removal. Lopez-
Cortaza appeals.
We have jurisdiction to review the final order of the Board. See 8 U.S.C.
§ 1252(a).
II. Discussion
A. Standard of Review
“[W]e review an agency’s legal determinations de novo, according substantial
deference to the agency’s interpretation of the statutes and regulations it administers.”
Tang v. INS, 223 F.3d 713, 718–19 (8th Cir. 2000) (citation omitted). “[J]udicial
deference to the Executive Branch is especially appropriate in the immigration context
where officials ‘exercise especially sensitive political functions that implicate
questions of foreign relations,’” and “[t]he judiciary is not well positioned to shoulder
primary responsibility for assessing the likelihood and importance of such diplomatic
repercussions.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v.
Abudu, 485 U.S. 94, 110 (1988)).
The Board’s factual findings “are subject to a substantial evidence standard of
review,” meaning that the findings “must be upheld if ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Tang, 223
F.3d at 718 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). In other words,
“the administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
review “[o]nly the BIA order . . . , including the IJ’s findings and reasoning to the
extent they were expressly adopted by the BIA.” Fofanah v. Gonzales, 447 F.3d 1037,
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1040 (8th Cir. 2006) (citation omitted). “We read the BIA opinion . . . to adopt the IJ’s
reasoning in relevant part, and we . . . consider both the BIA’s opinion and the
decision of the IJ in our review.” Rafiyev v. Mukasey, 536 F.3d 853, 856 (8th Cir.
2008) (citation omitted).
B. Asylum
Lopez-Cortaza says that the Board wrongly denied his asylum application
because substantial evidence in the record supports the conclusion that his wife was
at least “one central reason” for his persecution at the hands of Mexican authorities.
In addition to challenging the Board’s findings, Lopez-Cortaza also makes two
additional attacks on the Board’s decision. First, he argues that the Board abused its
discretion by finding that Lopez-Cortaza also was stopped by the Mexican police in
his wife’s absence. Second, he argues that the Board erred by failing to determine
whether his proposed social group is cognizable under the law.
1. One Central Reason for Persecution
An “applicant may qualify as a refugee either because he or she has suffered
past persecution or because he or she has a well-founded fear of future persecution.”
8 C.F.R. § 1208.13(b). A refugee is
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or unwilling
to return to, and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proof “to establish that
he or she is a refugee.” 8 C.F.R. § 1208.13(a). “To establish that the applicant is a
refugee . . . , the applicant must establish that race, religion, nationality, membership
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in a particular social group, or political opinion was or will be at least one central
reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).
Additionally, “[a]n applicant who has been found to have established such past
persecution shall also be presumed to have a well-founded fear of persecution.”
8 C.F.R. § 1208.13(b)(1).
“Persecution is ‘the infliction or threat of death, torture, or injury to one’s
person or freedom, on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Malonga v. Mukasey, 546 F.3d 546, 552
(8th Cir. 2008) (quoting Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)).
“[M]ental or emotional injury may in part constitute persecution.” Shoaira v. Ashcroft,
377 F.3d 837, 844 (8th Cir. 2004) (citation omitted). But “‘persecution is an extreme
concept.’ Low-level intimidation and harassment does not rise to the level of
persecution.” Id. (quoting Eusebio v. Ashcroft, 361 F.3d 1088, 1090 (8th Cir. 2004)).
The asylum applicant must show particularized persecution of himself and not of the
general population. Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005) (citation
omitted). “Harm arising from general conditions such as anarchy, civil war, or mob
violence will not ordinarily support a claim of persecution.” Id. (citations omitted).
Additionally, persecutions can stem from mixed motives, and the finding of a
particular motive “do[es] not . . . preclude a finding of additional motives that may
concern a protected ground.” Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th
Cir. 2009) (citing De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004)).
Here, the Board affirmed the IJ’s decision, agreeing with the IJ that Lopez-
Cortaza “did not show that he had been mistreated by the Mexican police on account
of his family.” Admin. Rec. at 3. Rather, Lopez-Cortaza was stopped “for reasons
other than his familial relationship,” including “traffic infractions” and “law
enforcement-related reasons, including that [the couple’s] car was not registered or
licensed in Mexico.” Id. at 3–4. Lopez-Cortaza himself acknowledged at least four
times during his testimony before the IJ that the most likely (and only) reason for the
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stops was the automobile’s American license plates.2 Further, he acknowledged that
he knew of at least one other person, not married to an American woman, who also
was stopped and extorted by the police.
Lopez-Cortaza argues that this is a mixed motive case. His wife—a tall, white,
blond-haired, non-Hispanic woman who spoke very little Spanish—was with him
every single time he was targeted by the authorities. Thus, she could have been
another central reason he was targeted. However, the record contains no evidence that
Lopez-Cortaza was ever targeted because of his wife. Each time, the Mexican
authorities cited the American car plates as the reason for the stops. Lopez-Cortaza
himself also testified that this was the reason. The coincidence of his wife’s presence
at the scene during the police stops, without more, is insufficient to infer causation in
this case. Thus, substantial evidence in the record supports the Board’s conclusion that
Lopez-Cortaza’s negative encounters with the Mexican authorities came from his use
of American license plates and the authorities’ desire to extort money. Neither of these
reasons constitutes a protected basis under 8 U.S.C. § 1158(b)(1)(B)(i).
2. Collateral Issues
Lopez-Cortaza claims that the Board incorrectly found that he was stopped and
extorted by the Mexican police even when his wife was absent. Lopez-Cortaza’s brief
does not cite to any part of the Board’s order that contains the challenged factual
2
See Admin. Rec. at 155 (“Because he said that the car was an American car,
and that I couldn’t drive an American car in Mexico.”); see also id. at 159 (“I
explained to him everything that I was told by the traffic police, and he told me that
it wasn’t illegal to drive an American car, but that my wife had to be with me the
whole time.”); id. at 169 (“Because the transit–the traffic police said that I had a trailer
and that my license wasn’t valid for this.”); id. at 171 (“Well, I think it was because
of the plates—because of the American plates, because you could see the whole time
they were—that they were American plates, because they never told me why they
stopped me.”).
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finding. Our review of the order uncovered no such finding. Consequently, Lopez-
Cortaza has failed to show the Board made an erroneous factual finding.
We decline to consider Lopez-Cortaza’s challenge to the Board’s conclusion
that his proposed social group is not a cognizable protected group. “As a general rule
courts and agencies are not required to make findings on issues the decision of which
is unnecessary to the results they reach.” INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(per curiam) (citations omitted). In Saldana v. Lynch, we noted that the Board failed
to address directly the question of whether petitioners had identified a cognizable
social group. 820 F.3d 970, 975 (8th Cir. 2016). However, we concluded that
resolution of that issue was unnecessary because substantial evidence supported the
Board’s conclusion that petitioners could avoid future persecutions through internal
relocation and because petitioners feared persecution by private, not governmental,
actors. Id. at 975–78. Here, as in Saldana, it was unnecessary for the Board to resolve
whether Lopez-Cortaza identified a cognizable protected social group. Substantial
evidence supports the Board’s finding that the Mexican police harassed Lopez-
Cortaza because of police corruption and his use of foreign automobile license plates.
C. Withholding of Removal under the CAT
Lopez-Cortaza next argues that the Board erred by reversing the IJ’s order to
withhold his removal under the CAT. He asserts that the Board improperly discounted
the threat of future persecutions, minimized general country condition evidence, and
placed undue emphasis on internal relocation. We disagree.
“An applicant seeking relief under the Convention Against Torture bears the
burden of establishing ‘it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.’” Guled v. Mukasey, 515 F.3d 872, 881
(8th Cir. 2008) (quoting 8 C.F.R. § 208.16(c)(2)). “Torture is narrowly defined as an
extreme form of cruel and inhuman treatment intentionally inflicted by or with the
acquiescence of a public official.” Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir.
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2005) (citations omitted). In assessing a CAT claim, “all evidence relevant to the
possibility of future torture should be considered, including, but not limited to: past
torture inflicted upon the applicant; the applicant’s ability to relocate to another area
of the country where torture is unlikely; and gross, flagrant, or mass violations of
human rights.” Ngure v. Ashcroft, 367 F.3d 975, 992 (8th Cir. 2004) (emphasis added)
(citing 8 C.F.R. § 208.16(c)(3)).
Here, the Board did not discount the threat of future torture. The Board left
undisturbed the IJ’s finding that the 2011 Las Choapas incident amounted to torture.
But the Board found that substantial evidence supported the IJ’s conclusion that
Lopez-Cortaza could eliminate any future threat by avoiding travel in Las Choapas.3
And even if Lopez-Cortaza did not avoid the area, future torture is still unlikely.
Lopez-Cortaza could readily avoid driving a car with American license plates. Lopez-
Cortaza bore the burden of proof to show the likelihood of future torture, and evidence
was lacking. See 8 C.F.R. § 1208.16(c)(2).
The Board also did not disregard or minimize the evidence of general country
conditions. General country background evidence is required whenever available. See
Matter of S-M-J-, 21 I. & N. Dec. 722, 724 (BIA 1997) (en banc); see also Matter of
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 213 (BIA 2010) (“State Department reports
on country conditions . . . are highly probative evidence and are usually the best
source of information on conditions in foreign nations.”). In its order, the Board
acknowledged Mexico’s reputation for governmental corruption and human rights
violations, but it nevertheless concluded that the general country evidence, along with
Lopez-Cortaza’s experiences with the Mexican authorities, was insufficient to
establish a likelihood of future torture. Lopez-Cortaza, in arguing that the Board
minimized or disregarded the general country evidence, essentially is asking us to re-
weigh the evidence, and that we will not do. See Mazariegos v. Office of the U.S.
3
Lopez-Cortaza does not dispute that his presence in Las Choapas is required.
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Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (“We have described the
substantial evidence test as ‘deferential,’ and have emphasized we may not ‘re-weigh
the evidence’ from scratch.” (citation omitted)); see also Woldemeskel v. INS, 257
F.3d 1185, 1192 (10th Cir. 2001) (“We may not weigh the evidence, and we will not
question the immigration judge’s or BIA’s credibility determinations as long as they
are substantially reasonable.”).
Finally, the Board did not place undue weight on internal relocation. This factor
is one of several required in the CAT analysis, see Ngure, 367 F.3d at 992. Here, the
Board determined that internal relocation is feasible; Lopez-Cortaza presented no
evidence showing that he could not relocate. See Poniman v. Gonzales, 481 F.3d
1008, 1011 (8th Cir. 2007) (“When the applicant has not established past persecution,
the applicant bears the burden of establishing relocation would be unreasonable.”)
(citing 8 C.F.R. § 1208.16(b)(3)(i); Mohamed v. Ashcroft, 396 F.3d 999, 1006 (8th
Cir. 2005)); see also Malonga, 546 F.3d at 556 (concluding that petitioner’s CAT
application failed because petitioner failed to “establish that he could not travel to an
area of the country where he would not be subject to torture”). Furthermore, other
considerations favored removal as well. Even assuming Lopez-Cortaza experienced
one incident of torture, he has not shown he is likely to face that same threat upon his
return to Mexico. See Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005)
(“Under the CAT future torture is not presumed on the basis of a showing of past
torture.”). Lopez-Cortaza could avoid being stopped by the authorities by driving a
car registered to operate in Mexico. Finally, the record shows that Lopez-Cortaza
could live—and did live—in numerous localities in Mexico without the threat of
torture. On this record, substantial evidence supports the Board’s decision to deny
Lopez-Cortaza withholding of removal under the CAT and does not compel a contrary
conclusion.
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III. Conclusion
Accordingly, we deny Lopez-Cortaza’s petition for review.
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