Roberto Garcia Nava v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO ALEJANDRO GARCIA NAVA, No. 21-70323
Petitioner, Agency No. A209-864-872
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2023**
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Roberto Alejandro Garcia Nava petitions for review of a decision of the
Board of Immigration Appeals dismissing his appeal from an immigration judge’s
*
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).
Page 2 of 3
order denying his applications for withholding of removal and protection under the
Convention Against Torture (“CAT”). We deny the petition.
1. Substantial evidence supports the agency’s determination that Garcia
Nava did not demonstrate the “clear probability of persecution” necessary for
withholding of removal. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). The
record supports the agency’s finding that he had not suffered any past persecution
because Garcia Nava testified that he had never been threatened or harmed while
living in Mexico. Regarding future persecution, the agency had sufficient evidence
to conclude that it is not “more likely than not” that Garcia Nava will be persecuted
if he is removed to Mexico. Aden v. Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir.
2021) (citation omitted). Garcia Nava’s testimony and the evidence that he
presented detailing the dangerous conditions in Mexico, especially in his home city
of Acapulco, do not adequately establish that he faces any particularized risk of
persecution. See Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005). His
claimed fear of persecution is also undermined by the agency’s finding that his
immediate relatives live safely in Acapulco. The record therefore does not compel
the conclusion that Garcia Nava faces a clear probability of persecution if he
Page 3 of 3
returns to Mexico. See Sharma v. Garland, 9 F.4th 1052, 1059–60 (9th Cir.
2021).1
2. The record does not compel reversal of the agency’s denial of CAT
protection. See Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011). For a
successful CAT claim, the applicant must show that it is more likely than not he
would be tortured upon return to his homeland with the consent or acquiescence of
the government. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir.
2014). “Torture is more severe than persecution.” Davila v. Barr, 968 F.3d 1136,
1144 (9th Cir. 2020) (citation and quotation marks omitted). Because substantial
evidence supports the agency’s conclusion that it is not more likely than not that
Garcia Nava will suffer persecution if removed to Mexico, the same is true of the
agency’s determination that Garcia Nava failed to establish that it is “more likely
than not that he would be tortured if returned to Mexico.”
PETITION FOR REVIEW DENIED.
1
Garcia Nava’s request that we remand for the agency to consider the COVID-19
pandemic’s effect on his claim is more appropriately addressed through a motion
to reopen. See Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (“A
motion to reopen is a traditional procedural mechanism . . . to give aliens a means
to provide new information relevant to their cases to the immigration authorities.”
(citation and quotation marks omitted)).