Armando Tolentino-Pochotitlan v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 4 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO TOLENTINO- Nos. 18-72252
POCHOTITLAN, 19-72740
Petitioner, Agency No. A205-259-705
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 2, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.
Armando Tolentino-Pochotitlan, a Mexican citizen, petitions for review of
two decisions by the Board of Immigration Appeals (“BIA”): one, affirming an
Immigration Judges’s (“IJ”) decision denying him withholding of removal 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).
relief under the Convention Against Torture (“CAT”), and the other denying his
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252.
Reviewing the denial of withholding of removal and CAT relief for
substantial evidence, Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019), and the denial of the motion to reopen for abuse of discretion, Aguilar
Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020), we deny the petition in part and
dismiss in part.
I
Substantial evidence supports the BIA’s decision affirming the denial of
withholding of removal. An applicant seeking withholding of removal must show
that his “life or freedom would be threatened” in the proposed country of removal
on account of his race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b). “[The]
applicant must show a ‘clear probability’ of future persecution,” Garcia v. Holder,
749 F.3d 785, 791 (9th Cir. 2014) (citation omitted), and the stated protected
ground must be “a reason” for persecuting the applicant, Barajas-Romero v. Lynch,
846 F.3d 351, 358 (9th Cir. 2017).
Substantial evidence supports the BIA’s conclusion that Tolentino-
Pochotitlan has not shown that he suffered past persecution. Tolentino-
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Pochotitlan’s proffered evidence as to the past persecution he suffered involved
one episode that was not “so menacing as to cause significant actual suffering or
harm,” Duran-Rodriguez, 918 F.3d at 1028 (citation omitted), and another that did
not involve a credible threat of violence, cf. Ayala v. Sessions, 855 F.3d 1012, 1021
(9th Cir. 2017) (extortion combined with the threat of violence on the basis of a
protected characteristic can constitute persecution). Substantial evidence supports
the BIA’s conclusion, and Tolentino-Pochotitlan has not demonstrated that the
harm to his sisters “create[s] a pattern of persecution closely tied to [himself].” See
Korablina v. INS, 158 F.3d 1038, 1043–44 (9th Cir. 1998) (citation omitted).
Substantial evidence also supports the conclusion that there is no “clear
probability” that Tolentino-Pochotitlan will be persecuted in Mexico. There is no
evidence that any of the individuals who mistreated him would likely do so again,
nor does the record compel the conclusion that he would likely be persecuted for
being a member of an indigenous group or for having a disabled child.
We reject Tolentino-Pochotitlan’s remaining arguments because “[i]n
reviewing the decision of the BIA, we consider only the grounds relied upon by
that agency.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)
(citation omitted). The BIA cited and applied the proper standard for withholding
of removal, and it expressly declined to reach the relocation issue; therefore,
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Tolentino-Pochotitlan’s objections to the IJ’s treatment of these issues are outside
the scope of our review.
II
Substantial evidence supports the BIA’s decision affirming the denial of
CAT relief. To be eligible for CAT relief, a petitioner must prove that it is more
likely than not he will be tortured if returned to the proposed country of removal. 8
C.F.R. § 1208.16(c)(2); see also Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir.
2019). Substantial evidence supports the BIA’s conclusion that Tolentino-
Pochotitlan does not face any particularized threat of torture in Mexico. Because
this finding supports the denial of Tolentino-Pochotitlan’s CAT claim, we do not
reach the BIA’s finding on government acquiescence.
Additionally, remand is not necessary because there is no indication that
either the BIA or the IJ failed to consider any particular piece of evidence. See
Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (concluding that the IJ
did not err in rejecting a CAT claim without “discuss[ing] every piece of evidence”
where the IJ made a “general statement that he considered all the evidence before
him”). Nor did the BIA engage in impermissible factfinding.
III
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The BIA did not abuse its discretion in denying the motion to reopen
because Tolentino-Pochotitlan failed to show a prima facie case of eligibility for
the underlying relief sought. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228
(9th Cir. 2016). It is not likely that Pereira v. Sessions, 138 S. Ct. 2105 (2018), is
applicable to his proceedings, and even if it is, Karingithi v. Whitaker, 913 F.3d
1158 (9th Cir. 2019), forecloses his argument that the failure to include particular
information in a charging document deprives the immigration court of jurisdiction.
To the extent Tolentino-Pochotitlan challenges the denial of his motion to
reopen on the basis of his 2012 expedited removal order, we lack jurisdiction to
consider challenges to removal orders underlying a reinstated removal order. See
Garcia de Rincon v. DHS, 539 F.3d 1133, 1136–37 (9th Cir. 2008).
PETITION DENIED IN PART, DISMISSED IN PART.
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