Flores-Torres v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATHAN MOISES FLORES-TORRES, No. 22-477
Agency No.
Petitioner, A202-144-921
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 8, 2023
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and ANTOON, District Judge.**
Jonathan Moises Flores-Torres, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals (BIA) decision dismissing
his appeal of an Immigration Judge (IJ) order denying deferral of removal under
the Convention Against Torture (CAT). We review the denial of CAT relief for
substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021).
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon, United States District Judge for the
Middle District of Florida, sitting by designation.
“Under this standard, we must uphold the agency determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019). We have jurisdiction under 8 U.S.C. § 1252 and deny
the petition.
The BIA denied relief because Flores-Torres was not credible and because
he failed to meet his burden under CAT. We need not and do not reach the
adverse credibility determination because we find that even assuming Flores-
Torres was credible, substantial evidence supports the denial of CAT relief.
“To qualify for CAT relief, a petitioner must show that [he] more likely
than not will be tortured if [he] is removed to [his] native country.” Vitug v.
Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Torture is “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a
person . . . for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official.” Sharma, 9 F.4th at 1067 (quoting 8 C.F.R. § 208.18(a)(1)).
Flores-Torres argues that the BIA failed adequately to address his expert’s
testimony. We discern no error. Dr. Robert Kirkland testified that MS-13 would
seek to harm Flores-Torres because he (1) resisted gang recruitment and (2)
witnessed the murder of his brother. But the BIA agreed with the IJ that Flores-
Torres did not provide evidence that gang members remain interested in harming
him, citing the fact that his “alleged harm occurred many years ago.” The BIA
further noted that “country condition evidence, including statistics of similarly
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situated individuals, did not demonstrate a clear probability of an individualized
risk of harm.” The BIA sufficiently addressed the evidence in support of Flores-
Torres’s claim that he would face torture in El Salvador due to his past encounters
with MS-13.
The BIA’s analysis was not, as Flores-Torres asserts, limited to the
assumption that he would be considered a member of a rival gang. Rather, the
BIA mentioned this as one factor among several for discounting the likelihood of
future torture. Nor did the BIA fail to evaluate Flores-Torres’s “overall risk of
being tortured.” Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1155 (9th Cir.
2022) (quoting Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011)). The BIA and
IJ both considered the “aggregate risk of torture from all sources,” and concluded
that Flores-Torres did not meet his burden for establishing eligibility for deferral
of removal under CAT.
Additionally, even if Flores-Torres established a likelihood of torture, the
record does not compel the conclusion that such torture would be “inflicted by or
at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” Parada v. Sessions, 902 F.3d 901,
914 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.18(a)(1)). Though Dr. Kirkland did
suggest “some government officials” might acquiesce in Flores-Torres’s harm if
they perceived him as a gang member, the BIA’s conclusion that Flores-Torres
would not be seen as a gang member by the government of El Salvador is
supported by substantial evidence. And the BIA reasonably determined that the
3 22-477
Salvadoran government is engaged in efforts to combat violence and that “general
ineffectiveness” in the government’s response “will not suffice to show
acquiescence” to torture. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir.
2016).
Accordingly, substantial evidence supports the denial of CAT relief.1
PETITION DENIED.
1
Flores-Torres’s motion for stay of removal is denied as moot.
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