Arturo Jimenez-Flores v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTURO JIMENEZ-FLORES, No. 17-73228
Petitioner, Agency No. A095-297-437
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 13, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Petitioner Arturo Jimenez-Flores seeks review of a final order of removal
issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed
Petitioner’s appeal of the Immigration Judge’s (“IJ”) order denying Petitioner’s
applications for asylum and withholding of removal under the Immigration and
*
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).
Nationality Act and protection pursuant to the Convention Against Torture (“CAT”).
We have jurisdiction pursuant to 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003,
1007 (9th Cir. 2017), and we deny the petition.
We review factual findings for substantial evidence. Id. (quoting Garcia v.
Holder, 749 F.3d 785, 789 (9th Cir. 2014)). “[T]o reverse such a finding, we must
find that the evidence not only supports a contrary conclusion, but compels it.” Id.(cleaned up). And where the BIA adopts the IJ’s decision, we review the IJ’s
decision as if it were the decision of the BIA. Deloso v. Ashcroft, 393 F.3d 858, 863
(9th Cir. 2005).
1. The BIA affirmed the IJ’s denial of Petitioner’s asylum and
withholding of removal claims because Jimenez-Flores did not establish past
persecution or a well-founded fear of future persecution on account of a protected
ground under 8 U.S.C. § 1101(a)(42)(A). We agree.
Jimenez-Flores claims that he suffered past persecution on account of his
membership in the particular social group “Mexican males, who support the rule of
law, refuse participation with the ‘Cartel’ criminal organizations and refuse to pay
the criminal organizations money.” Substantial evidence supports the IJ’s
determination that none of Jimenez-Flores allegations rise to the level of persecution.
Jimenez-Flores claims that he was threatened and extorted by the Familia
Michoacana cartel, and that while attempting to reenter the United States, he was hit
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with a rifle and robbed by Mexican police officers. He also claims that he reported
the incidents and fled Mexico but that his brother is now being harassed by the Zetas
cartel.
These accusations do not compel a finding of persecution. “[P]ersecution is
an extreme concept that does not include every sort of treatment our society regards
as offensive.” Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995) (citation omitted).
And, “some circumstances that cause petitioners physical discomfort or loss of
liberty do not qualify as persecution, despite the fact that such conditions have
caused the petitioners some harm.” Mihalev v. Ashcroft, 388 F.3d 722, 729 (9th Cir.
2004). While the events Jimenez-Flores claims he experienced are unfortunate, they
are not extreme as to rise to the level of persecution, and there is no evidence that he
experienced them on account of any protected ground. Compare Fon v. Garland,
34 F.4th 810, 814 (9th Cir. 2022) (finding past persecution on account of a political
opinion when petitioner suffered stabbings and repeated threats on his life from the
Cameroonian military for providing medical treatment to separatist fighters), with
Hoxha v. Ashcroft, 319 F.3d 1179, 1181–82 (9th Cir. 2003) (single incident of
physical violence “was not connected with any particular threat” and that there was
“no evidence that the attackers knew who [the petitioner] was or that they showed
any continuing interest in him.”).
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Nor does the record support a finding of future persecution. Jimenez-Flores
contends that he will be persecuted because of his family relations and that he will
be perceived as an American in a cartel-infested city. But Jimenez-Flores offers no
evidence to support that contention. And he similarly provides no evidence that
relocation within Mexico would be futile. Duran-Rodriguez v. Barr, 918 F.3d 1025,
1029 (9th Cir. 2019); 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not have a
well-founded fear of persecution if the applicant could avoid persecution by
relocating to another part of the applicant’s country of nationality . . . [and] under all
the circumstances it would be reasonable to expect the applicant to do so.”).
2. Because Jimenez-Flores cannot compel the determination that he
experienced persecution that renders him eligible for asylum, he also cannot
establish eligibility for the higher standard of withholding of removal. Wang, 861
F.3d at 1009.
3. Jimenez-Flores also challenges the BIA’s denial of his CAT claim.
Protection under CAT requires a showing that an alien will (1) more likely than not
be tortured if removed to the proposed country of removal and (2) “that the torture
would be inflicted with government acquiescence.” Ruiz-Colmenares v. Garland,
25 F.4th 742, 748 (9th Cir. 2022); 8 C.F.R. §§ 208.16(c)(2), 208.18(a). There is no
record evidence that Jimenez-Flores will be tortured upon removal and no evidence
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suggesting that the Mexican government will consent or acquiesce to his torture.
Jimenez-Flores is thus not eligible for CAT relief.
PETITION DENIED.
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