Abraham Valdovinos v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABRAHAM AGUILAR VALDOVINOS, No. 20-73612
Petitioner, Agency No. A095-795-558
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Abraham Aguilar Valdovinos, a native and citizen of Mexico, petitions for
review of the Immigration Judge’s (“IJ”) negative reasonable fear determination.
As the parties are familiar with the facts, we do not recount them here.
To prevail in a reasonable fear review hearing, a non-citizen must
*
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).
“establish[ ] a reasonable possibility” of persecution or torture, 8 C.F.R.
§ 208.31(c), “which has been defined to require a ten percent chance that the non-
citizen will be persecuted or tortured if returned to his or her home country.”
Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195 (9th Cir. 2021). “We review
the IJ’s determination that the alien did not establish a reasonable fear of
persecution or torture for substantial evidence.” Bartolome v. Sessions, 904 F.3d
803, 811 (9th Cir. 2018). “We review de novo due process challenges to
reasonable fear proceedings.” Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019)
(per curiam). We deny the petition for review.
Substantial evidence supports the IJ’s determination that Valdovinos did not
have a reasonable fear of persecution. A reasonable factfinder could find that
Valdovinos did not have even a ten percent chance of demonstrating that the
violence he feared was connected to a protected ground. See Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground.”); cf. Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir.
2019) (concluding that individuals returning to Mexico who are believed to be
wealthy is not a cognizable particular social group). Additionally, a reasonable
factfinder could find that Valdovinos could avoid future persecution by relocating
within Mexico, away from the region where the local gang operated. See 8 C.F.R.
2
§ 1208.16(b)(2)-(3).
Substantial evidence also supports the IJ’s determination that Valdovinos did
not have a reasonable fear of torture. The record does not show that Valdovinos
would face “a particularized threat of torture” at the hands of government officials.
Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam) (emphasis,
internal quotation marks, and citation omitted). Nor does the record demonstrate
that the Mexican government would acquiesce to Valdovinos’ torture by local gang
members, as the government has previously attempted to control the gang. See
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[G]eneral
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence.”). And again, a reasonable factfinder could find that
Valdovinos could avoid future torture at the hands of the local gang by relocating
within Mexico. See 8 C.F.R. § 1208.16(c)(3)(ii).
Finally, the IJ did not deprive Valdovinos of a fair reasonable fear hearing or
violate his due process rights. No evidence supports Valdovinos’ contention that
the IJ required absolute certainty of persecution or torture. Instead, the record
supports the conclusion that the IJ applied the correct standard.
PETITION FOR REVIEW DENIED.1
1
Valdovinos’ motions for a stay of removal, Dkt. Nos. 1, 6, are denied as moot.
3