Judiel Pineda Ortuno v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDIEL DEMETRIO PINEDA ORTUNO, No. 17-73203
Petitioner, Agency No. A200-565-546
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Petitioner Judiel Demetrio Pineda Ortuno seeks review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”). As relevant here, the
BIA dismissed Petitioner’s appeal of the Immigration Judge’s (“IJ”) order denying
*
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).
Petitioner’s applications for withholding of removal under the Immigration and
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 withholding of removal
claim because Pineda Ortuno did not establish that it is more likely than not that he
will be subject to persecution on account of a protected ground. See Al-Harbi v. INS,
242 F.3d 882, 888 (9th Cir. 2001) (stating that to qualify for withholding of removal,
an applicant must demonstrate a likelihood of persecution on account of a protected
ground). On appeal, Pineda Ortuno concedes that we have already held that his
proposed social group is not cognizable. We thus affirm the BIA.
2. Pineda Ortuno also challenges the BIA’s denial of his CAT claim.
Protection under CAT requires a showing (1) that an alien will more likely than not
be tortured in the country of removal and (2) “that the torture would be inflicted with
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government acquiescence.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th
Cir. 2022) (citing 8 C.F.R. §§ 208.16(c)(2), 208.18(a)). Pineda Ortuno makes two
assertions in support of his CAT claim: (1) the police or criminals will kidnap,
torture, and murder him; and (2) the government of Mexico cannot or will not stop
these crimes. In support, Pineda Ortuno claims that newspaper articles, research
articles, and a Department of State travel warning counsel against travel to Mexico
and show that cartels prey upon deportees from the United States and that the police
work as kidnappers for the cartels. He asserts that the Mexican government cannot
control the crime and that he “dreads the grim fate that awaits him in Mexico: a
brutal and painful death administered by ruthless and merciless criminals.”
There is no record evidence, however, that Pineda Ortuno will be tortured
upon removal and no evidence suggesting that the Mexican government will consent
or acquiesce to his torture. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir.
2019) (explaining that to qualify for CAT relief, an applicant must establish both
that it is more likely than not that he will be tortured and that any such torture would
be with the consent or acquiescence of a public official). “Torture is defined as any
act that intentionally inflicts ‘severe pain or suffering’ on a person for the purposes
of obtaining information or a confession; punishment; intimidation; coercion; or
discrimination.” Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (quoting 8
C.F.R. 208.18(a)(1)). Torture is also “more severe than persecution.” Guo v.
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Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018). Pineda Ortuno points to his assault
in a nightclub as evidence, but this does not constitute torture. See id. Pineda Ortuno
similarly does not offer any other evidence of torture beyond his claim of generalized
violence. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)
(“Petitioners’ generalized evidence of violence and crime in Mexico is not particular
to Petitioners and is insufficient to meet [the CAT] standard.”). Pineda Ortuno is
thus ineligible for CAT relief.
PETITION DENIED.
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