Luis Mendoza Hernandez v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 1 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS FELIPE MENDOZA No. 20-73042
HERNANDEZ; MARIA A. SALAS
ESPINOZA; RAUL D. SANOVAL Agency Nos. A208-930-199
SALAS; JOSE R. MENDOZA SALAS., A208-930-165
A208-930-166
Petitioners, A208-930-167
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2021**
Pasadena, California
*
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).
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LIBURDI,***
District Judge.
Luis Felipe Mendoza Hernandez (Mendoza), his wife, Maria Salas Espinoza
(Salas), and their two minor children (collectively, the petitioners), petition for
review of the denial of their applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
“We review for substantial evidence factual findings underlying the denial
of a withholding or CAT claim. . . .” Flores-Vega v. Barr, 932 F.3d 878, 886 (9th
Cir. 2019) (citation omitted). Under substantial evidence review, “[t]o reverse [the
Board of Immigration Appeals’ (BIA’s) factual finding], we must find that the
evidence not only supports that conclusion, but compels it.” Zheng v. Holder, 644
F.3d 829, 835 (9th Cir. 2011) (citation omitted) (emphases in the original).
When the BIA conducts its own review of the evidence and law rather than
adopting the Immigration Judge’s (IJ’s) decision, our review “is limited to the
BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006), as amended (citation
omitted). However, if “the BIA adopts the IJ’s decision while adding some of its
***
The Honorable Michael T. Liburdi, United States District Judge for
the District of Arizona, sitting by designation.
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own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d
1110, 1111 (9th Cir. 2011).
The Immigration Judge denied asylum and withholding of removal because
the petitioners did not establish the requisite nexus to a protected ground. The IJ
denied CAT protection because the petitioners did not demonstrate a likelihood of
torture with the acquiescence of a public official. The BIA adopted and affirmed
the IJ’s decision.
Substantial evidence supports the agency’s determination that the petitioners
had only a subjective fear of generalized violence in Mexico and failed to establish
a nexus between a protected ground and any past or future persecution in Mexico.
Mendoza testified that his father was killed outside his home in 2016, but he
does not know by whom or why, and other family members were only threatened
in a vague manner and were never harmed.
Salas and Mendoza also testified that they were afraid to return to Mexico
because of “criminal acts in Mexico,” “a lot of delinquency,” and “death all over
the place.” However, we have explained that a non-citizen’s “desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,
1016, as amended (9th Cir. 2010) (citations omitted).
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When asked if they could relocate within Mexico, Salas acknowledged that
she could live with her brothers in Michoacan. But Mendoza declared that while
his uncle and brother live together in Michoacan, it would not be safe to live with
them because the assailants who attacked his father might “take vengeance against
them.” This expressed fear of future harm was not objectively reasonable because
Mendoza also testified that his brother has never had any problems while living in
Mexico. See Lim v. I.N.S., 224 F.3d 929, 938 (9th Cir. 2000) (concluding that
there was no reasonable fear of future persecution when family members remain in
the country “unharmed”). Therefore, substantial evidence supports the agency’s
determination that these responses failed to satisfy petitioners’ burden to establish
that “it would be either unsafe or unreasonable for [them] to relocate.” Kaiser v.
Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004)1.
Because of the petitioners’ inability to demonstrate an individualized risk of
persecution, an objectively reasonable fear of future persecution, or a sufficient
nexus between their feared harm and a protected ground, the agency’s denial of
asylum and withholding of removal is supported by substantial evidence. See
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014), as amended; see
1
The petitioners’ argument that the agency impermissibly placed the burden
of proof on them is unpersuasive. See Kaiser, 390 F.3d at 659.
4
also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (holding that failure to
qualify for asylum “necessarily results in a failure to demonstrate eligibility for
withholding of [removal]”) (citation omitted).
Petitioners also challenge the Immigration Judge’s denial of CAT relief
based on the finding that the petitioners did not establish that it is “more likely than
not” that they will be tortured if returned to Mexico. Nevertheless, the record does
not compel a finding that petitioners are more likely than not to be tortured by, or
with the acquiescence of, government officials. See Garcia-Milian, 755 F.3d at
1033-35.
PETITION DENIED.
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