Irma Brito-Martinez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA BRITO-MARTINEZ, Nos. 19-71528 & 20-70615
Petitioner, Agency No. A089-589-713
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 10, 2021**
Pasadena, California
Before: R. NELSON and BADE, Circuit Judges, and HELLERSTEIN,*** District
Judge.
Irma Brito-Martinez, a native and citizen of Venezuela, petitions for review
of two orders issued by the Board of Immigration Appeals (“BIA”), on May 22, 2019
*
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).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
and February 10, 2020. The 2019 order vacated an immigration judge’s (“IJ’s”)
decision granting Petitioner protection under the Convention Against Torture
(“CAT”). The 2020 order denied Petitioner’s motion to reopen her petition for
adjustment of status, asylum, withholding of removal, and relief under the CAT on
the ground of changed conditions. Petitioner argues that the BIA erred in reversing
the IJ’s grant of relief under the CAT and abused its discretion in denying her motion
to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny
both petitions.
We review an agency’s factual findings for substantial evidence, and “[t]he
agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692
(2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). Substantial evidence supports the BIA’s
determination that Petitioner failed to establish eligibility for CAT protection. To
receive CAT relief, Petitioner must show that she would “more likely than not” be
tortured if removed. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). Petitioner must prove “a
chance greater than fifty percent that [s]he will be tortured” if removed to Venezuela,
Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004), and that the torture would
be “inflicted by or at the instigation of or with the consent or acquiescence of a
[Venezuelan] public official or other person acting in an official capacity,” Cole v.
Holder, 659 F.3d 762, 771 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(1)).
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Here, Petitioner has cited only general concerns of Venezuela’s political
instability, high crime rate, and deteriorating economic climate—conditions that
affect all Venezuelan citizens. She has not pointed to any evidence showing that it
is more likely than not that she would be tortured by, or with the consent or
acquiescence of, a Venezuelan public official. And she is “not too sure” who would
be interested in torturing her in Venezuela. The BIA recognized that, although some
of Petitioner’s family members were killed in Venezuela, there was no evidence that
their deaths were because of their religion, and Petitioner never experienced harm
while living in Venezuela. Moreover, the BIA cited Petitioner’s testimony
indicating that her brother-in-law was killed in a random act of violence, a car-
jacking, that was not harm instigated by, or with the consent or acquiescence of, the
government.
Petitioner’s arguments on appeal lack merit. First, Petitioner claims that the
BIA erred in requiring a nexus to a protected ground in its CAT determination. But
the BIA did not make such a nexus requirement. Instead, the BIA found clear error
in the IJ’s determination because the IJ’s grant of relief “was based primarily on
evidence of an economic crisis in Venezuela and high levels of crime,” not “a clear
probability of torture.” The BIA considered whether Petitioner had shown that it
was more likely than not that she would be tortured in Venezuela for any reason, and
did not impose a nexus requirement.
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Second, Petitioner contends that the BIA failed to consider the evidence in
the aggregate. Specifically, she alleges that the BIA ignored evidence demonstrating
violence and instability in Venezuela, such as travel warnings and the President’s
imposition of sanctions and travel restrictions against Venezuela. We presume that
the BIA reviewed all the evidence in the record. Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006). Petitioner has not overcome this presumption because the
BIA mentioned and cited to the country conditions evidence. Additionally, this
evidence does not compel a finding that Petitioner would be more likely than not to
experience torture upon her return. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th
Cir. 2019) (noting that generalized evidence of violence and crime not particular to
a petitioner is insufficient to meet the CAT standard).
Third, Petitioner alleges that the BIA erred in finding that the IJ’s decision
was based on speculation. The IJ found that “anyone associated with the United
States” would likely have problems, and that Petitioner “could encounter some very
significant problems that would rise, potentially, to the level of torture.” The IJ
recognized that Petitioner had the burden of establishing that it was more likely than
not that she would be tortured if returned to Venezuela but simply concluded that
“she should receive protection under the [CAT].” These findings are speculative, as
the BIA correctly determined, and clearly erroneous. See Matter of J-J-F-, 23 I &
N Dec. 912, 920-21 (A.G. 2006) (explaining that to obtain relief under CAT,
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petitioner must show that each link in the chain is more likely than not to occur).
The record is also devoid of any suggestion that state action will be directed against
Petitioner. It requires a leap to conclude from findings of Venezuela’s poor
economy, “amorphous” conditions, and high crime rate that it is more likely than not
that Petitioner herself will be tortured “at the instigation of or with the consent or
acquiescence of a [Venezuelan] public official or other person acting in an official
capacity.” Cole, 659 F.3d at 771.1
We review the BIA’s denial of a motion to reopen for abuse of discretion, and
we “will reverse the denial of a motion to reopen only if the [agency] acted
1
The implementing regulations for the CAT provide for withholding of removal, 8
C.F.R. § 1208.16(c), or deferral of removal, 8 C.F.R. § 1208.16(c)(4), § 1208.17(a).
Petitioner asserts that the Government failed to appeal the IJ’s grant of withholding
of removal under the CAT, and as a result, Petitioner remains the beneficiary of a
grant of withholding. This argument is meritless. First, Petitioner did not raise this
issue during the appeal of the IJ’s 2017 decision to the BIA or raise it in her
subsequent motion to reopen before the BIA. She improperly raises this issue, for
the first time, in her second opening brief. See 8 U.S.C. § 1252(d)(1) (“A court may
review a final order of removal only if the alien has exhausted all administrative
remedies available to the alien as of right.”). Second, even if this issue is properly
before this court, the burden of proof and standards for either form of protection is
the same. 8 C.F.R. § 1208.16(c)(2); see also § 1208.16(c)(4) (providing that if an
applicant shows she is more likely than not to be tortured, she “will be granted
[protection] either in the form of withholding of removal or in the form of deferral
of removal”). Substantial evidence supports the BIA’s finding that Petitioner is
ineligible for CAT protection. Petitioner has shown only political instability and
economic hardship experienced by all Venezuelan citizens and has failed to point to
evidence that compels the conclusion that it is more likely than not that she will be
tortured by, or with the consent or acquiescence of, the government if retuned to
Venezuela.
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arbitrarily, irrationally, or contrary to law.” Martinez-Hernandez v. Holder, 778
F.3d 1086, 1088 (9th Cir. 2015) (citation omitted). The BIA acted within its
discretion in denying Petitioner’s motion to reopen.2 In deciding a motion to reopen,
the critical question is “whether circumstances have changed sufficiently that a
petitioner who previously did not have a legitimate claim” now does. Malty v.
Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Here, the newly submitted evidence
includes “travel warnings and [advisories] issued for United States citizens,”
information about the “economic sanctions imposed on Venezuela by the United
States, and other evidence of the general ongoing political instability and economic
suffering experienced by all Venezuelan citizens.”3 These reports “simply recount[]
2
Petitioner also challenges the BIA’s sua sponte denial of reopening for adjustment
of status. This court is without jurisdiction to consider a sua sponte denial of
reopening, other than for the “limited purpose of reviewing the reasoning behind the
decision[] for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th
Cir. 2016); see also Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020). Petitioner
raises no such error on appeal. As a result, the BIA’s denial of Petitioner’s motion
requesting sua sponte reopening is not subject to review by this court.
3
Under Rule 28(j) of the Federal Rules of Appellate Procedure, Petitioner cites to
supplemental authorities noting the recent designation of Venezuela for Temporary
Protected Status (“TPS”) by the Department of Homeland Security. See 86 Fed.
Reg. 13,574 (Mar. 9, 2021). However, the designation of Venezuela for TPS does
not support Petitioner’s claim under the CAT. The only section of the supplemental
authorities discussing human rights focuses on the Maduro regime’s repression of
political opponents and mentions nothing of religious persecution. See 86 Fed. Reg.
13,576 (Mar. 9, 2021). Because Petitioner never claims to be a political opponent
to the Maduro regime, the supplemental authorities do not show that “more likely
than not” she would be tortured upon removal. 8 C.F.R. §§ 208.16(c)(2), 208.17(a).
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previous conditions presented at a previous hearing” and are “not sufficient to show
a change in country conditions.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir.
2017).
Petitioner’s request to reopen her asylum claim is particularly unwarranted in
light of her extensive criminal record. Petitioner argues that our recent decision,
Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019), is a changed circumstance
that would justify reopening and remand. There, we held that the petitioner’s
convictions for possessing and transporting methamphetamine did not qualify as
controlled substance offenses giving rise to removability. See id. at 485. However,
Petitioner admitted, not just to one narcotics conviction, but to “five or six”
convictions between 2012 and 2014, including convictions for grand auto theft,
possession of heroin with intent to sell, possession of methamphetamine, and petty
theft. Petitioner’s criminal history remains as extensive and serious after Lorenzo as
it was before. The BIA did not abuse its discretion when it declined to reopen and
remand the case.
PETITIONS FOR REVIEW DENIED.
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