Bonifacio Torres-Hurtado v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 28 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BONIFACIO TORRES-HURTADO, No. 18-73141
Petitioner, Agency No. A091-760-693
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2022**
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,*** District Judge.
Petitioner Bonifacio Torres-Hurtado (Petitioner) is a native and citizen of
Mexico. He seeks review of an order from 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
(BIA) dismissing his appeal from the denial of his request for deferral of removal
under the Convention Against Torture (CAT). We have jurisdiction under 8
U.S.C. § 1252 and we DENY the petition.
1. We review the factual findings underlying the BIA’s determination that a
petitioner is ineligible for deferral of removal under CAT for substantial evidence.
See Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). We grant a petition for
review only if the evidence compels the conclusion that the BIA’s decision was
erroneous. See Jie Shi Liu v. Sessions, 891 F.3d 834, 837 (9th Cir. 2018).
Substantial evidence supports the BIA’s determination that Petitioner failed
to demonstrate that it was more likely than not that he would be tortured if
removed to Mexico. Petitioner testified that he was shot five times twenty years
ago and that the attack was motivated by a local gang’s attempt to recruit his
brother Roberto to join their ranks. In the twenty years since the shooting,
however, Roberto died and Petitioner has returned to Mexico without incident.
Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001) (noting that when
evaluating a CAT claim, “all evidence relevant to the possibility of future torture
shall be considered, including, but not limited to: [e]vidence of past torture
inflicted upon the applicant; [and] [e]vidence that the applicant could relocate to a
part of the country of removal where he or she is not likely to be tortured”)
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(emphasis omitted). Petitioner’s testimony therefore failed to establish that he is
more likely than not to experience future torture.1
Substantial evidence also supports the conclusion that Petitioner does not
face a clear probability of torture by or with government acquiescence. Petitioner
testified that the police knew the identity of the man who shot him, but did not
arrest him. This testimony is insufficient to establish government acquiescence
without a showing that the police are “unable or unwilling to oppose . . . crime.”
Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Although
Petitioner testified regarding his belief that the police did not arrest the man that
shot him because “the government works with the cartel,” he did not present any
evidence establishing corruption, or that his belief was anything more than
speculation. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021)
(“[S]peculative fear of torture is not sufficient to satisfy the applicant's burden.”)
This record does not compel a conclusion that the BIA erred in denying CAT
relief. See Liu, 891 F.3d at 837.
1
Petitioner argues that the Immigration Judge (IJ) applied a flawed
analytical structure by failing to consider all aspects of his claim, and failing to
separately discuss the likelihood of future torture, government acquiescence and
internal relocation. However, our review is limited to the BIA’s decision. See
Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015) (“Because the BIA
conducted an independent review of the facts and law, we review only the BIA’s
decision.”)
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2. We review the BIA’s decision not to take administrative notice of the
evidence Petitioner submitted with his appeal brief for an abuse of discretion. See
Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1028 (9th Cir. 1992). Because this
country conditions evidence was not presented to the Immigration Judge, the BIA
did not abuse its discretion by declining to take administrative notice of these new
facts and engage in factfinding to decide Petitioner’s appeal. See Brezilien v.
Holder, 569 F.3d 403, 413 n.3 (9th Cir. 2009).
PETITION DENIED.
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