Eduardo Reyes-Martinez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO REYES-MARTINEZ, AKA No. 20-70897
Eduardo Reyes-Santander, AKA Carlos
Santander, Agency No. A076-211-691
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred March 2, 2021
Submitted September 20, 2021**
San Francisco, California
Before: McKEOWN and IKUTA, Circuit Judges, and ERICKSEN,*** District
Judge.
*
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 Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
1
Petitioner Eduardo Reyes-Martinez, a Mexican citizen and national, seeks
review of a decision of the Board of Immigration Appeals (“BIA”). An
Immigration Judge (“IJ”) denied Petitioner’s request for protection under the
Convention Against Torture (“CAT”), and for withholding of removal from the
United States based on fear of future persecution by Mexican police. The BIA’s
order affirmed that denial. Petitioner also challenges a regulation that prevents
noncitizens subject to a reinstated removal order from applying for asylum.
We find that substantial evidence supported the IJ’s order, and that
Petitioner’s challenge to the regulation precluding his asylum application must fail.
Accordingly, we deny the petition.
This Court has jurisdiction to review final orders of removal under 8 U.S.C.
§ 1252. The BIA’s denial of withholding of removal (“WOR”) and CAT relief is
reviewed for substantial evidence and will be upheld if it is supported by
“reasonable, substantial, and probative evidence on the record considered as a
whole.” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting
Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); Pagayon v. Holder, 675
F.3d 1182, 1190 (9th Cir. 2011); Haile v. Holder, 658 F.3d 1122, 1130–31 (9th
Cir. 2011)). The Court will reverse the BIA only if the evidence compels a
contrary conclusion. 8 U.S.C. § 1252(b)(4)(A)–(B).
2
To obtain relief under the CAT, a petitioner bears the burden to prove that it
is “more likely than not that he or she would be tortured” if removed to the
proposed country of removal. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir.
2018) (citing 8 C.F.R. § 1208.16(c)(2)). Petitioner raises four arguments
challenging the IJ’s denial of CAT relief: (1) that the IJ failed to recognize that
Mexican police officers who previously tortured Petitioner were public officials,
and therefore applied the wrong legal standard regarding the Mexican
government’s acquiescence to torture; (2) that the IJ improperly placed the burden
of proof on Petitioner to show his inability to safely relocate within Mexico; (3)
that the IJ erroneously disregarded threats that Mexican police made against
Petitioner; and (4) that the IJ failed to consider relevant evidence about past torture
and country conditions. The BIA found that the IJ did not err with respect to the
likelihood of torture, the government’s acquiescence, or the possibility of
relocation.
The record as a whole supports the IJ’s finding that Petitioner did not show
that he would more likely than not be tortured if he were removed to Mexico. The
IJ adequately considered individualized evidence with respect to Petitioner’s
ability to relocate safely within Mexico. The IJ also considered relevant evidence
about past torture and country conditions. Any error the IJ made as to whether the
potential torturers Petitioner feared were public officials does not affect the IJ’s
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finding against a likelihood of future torture. Nor does the IJ’s failure to consider
evidence that Mexican police officers told Petitioner he would “get really beaten
up” if he refused to pay them. Such a statement does not itself amount to torture or
establish a specific threat of torture. See Nahrvani v. Gonzales, 399 F.3d 1148,
1153 (9th Cir. 2005) (“[M]ost threats do not rise to the level of persecution.”).
Considering the record as a whole, substantial evidence supported the IJ’s finding
that Petitioner had not shown an individualized likelihood of torture. Petitioner is
not entitled to relief under the CAT.
The IJ also denied Petitioner’s request for withholding of removal under 8
U.S.C. § 1231(b)(3)(A), because Petitioner did not show that he faced past
persecution, or a “clear probability” of future persecution, based on a protected
ground.1 See Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th Cir. 2007).
Petitioner claimed as a protected ground his membership in a social group
comprised of “long term United States resident deportee[s] with family ties in the
United States.” We agree with the IJ and BIA’s determination that Petitioner has
failed to show a nexus between his membership in the proposed social group and a
history or particularized fear of persecution. We therefore need not decide whether
membership in this group is cognizable as a basis for protection from persecution.
1
A protected ground may be “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
4
Petitioner also challenges a Department of Homeland Security regulation
that prevents noncitizens subject to a reinstated removal order from applying for
asylum. 8 C.F.R. § 1208.31(e). Petitioner contends that this regulation
contravenes 8 U.S.C. § 1158(a)(1), which allows “[a]ny alien who is physically
present in the United States . . . irrespective of such alien’s status, [to] apply for
asylum.” This argument is foreclosed by circuit precedent addressing this exact
question and upholding the challenged regulation. Perez-Guzman v. Lynch, 835
F.3d 1066, 1079 (9th Cir. 2016). And contrary to Petitioner’s assertions, no
intervening change in law supports revisiting that precedent.
PETITION FOR REVIEW DENIED.2
2
Accordingly, Petitioner’s Motion to Supplement the Record on Appeal [ECF
No. 13] is denied as moot.
5