Gonzalez-Martinez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GONZALEZ-MARTINEZ, No. 21-292
Agency No.
Petitioner, A092-709-359
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 17, 2023
San Francisco, California
Before: WARDLAW, M. SMITH, and RAYES.**
Jose Gonzalez-Martinez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) final order of removal,
which dismissed his appeal of the Immigration Judge’s (IJ) denial of his
applications for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
Convention Against Torture (CAT). Because the parties are familiar with the
facts, we do not recount them here except as necessary for context. “Where the
BIA conducts its own review of the evidence and law rather than adopting the
IJ’s decision, ‘our review is limited to the BIA’s decision, except to the extent
that the IJ’s opinion is expressly adopted.’” Reyes v. Lynch, 842 F.3d 1125,
1140 (9th Cir. 2016) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.
2006)). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny review.
1. The agency did not abuse its discretion by concluding that Gonzalez-
Martinez’s robbery conviction was a particularly serious crime, foreclosing
asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii); Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (noting that
the abuse of discretion standard applies to the BIA’s particularly serious crime
determination). Where, as here, the petitioner’s crime of conviction is not an
aggravated felony, the agency applies “a multi-factor test to determine on a
case-by-case basis whether a crime is particularly serious.” Bare, 975 F.3d at
961. The agency considers (1) “the nature of the conviction,” (2) “the type of
sentence imposed,” and (3) “the circumstances and underlying facts of
conviction.” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007), overruled in
part on other grounds by Blandino-Medina v. Holder, 712 F.3d 1338, 1347–48
(9th Cir. 2013). Gonzalez-Martinez argues only that that the agency failed to
properly consider the third factor. We disagree. The agency adequately
accounted for the circumstances and underlying facts of Gonzalez-Martinez’s
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conviction—including his role as the getaway driver and the fact that he was not
armed—and reasonably concluded that these circumstances did not lessen the
severity of the crime. At bottom, Gonzalez-Martinez’s arguments go to the
weight of the evidence rather than the agency’s application of the legal
standard, which exceeds the narrow scope of our review. See Bare, 975 F.3d at
961 (explaining that we lack jurisdiction over the agency’s ultimate particularly
serious crime determination, and instead are limited to assessing whether the
agency relied on appropriate factors and proper evidence).
2. Substantial evidence supports the agency’s conclusion that Gonzalez-
Martinez is ineligible for CAT protection because he has not shown a
probability that he will be subjected to torture by or with the acquiescence of the
Mexican government if removed there. 8 C.F.R. § 1208.16(c)(2); Konou v.
Holder, 750 F.3d 1120, 1124 (9th Cir. 2014) (observing that the substantial
evidence standard applies to CAT protection determinations). As a preliminary
matter, we reject Gonzalez-Martinez’s contention that the BIA failed to explain
its basis for affirming the IJ’s denial of CAT relief. The BIA discussed both the
IJ’s reasons for denying Gonzalez-Martinez CAT protection: he failed to
establish (1) a likelihood of future torture in Mexico or (2) that any harm would
occur by or with the acquiescence of the Mexican government. The BIA then
explained why it found no error with either of the IJ’s reasons. The record also
belies Gonzalez-Martinez’s argument that the agency failed to aggregate his risk
of torture from all sources. See Hernandez v. Garland, 52 F.4th 757, 772–73
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(9th Cir. 2022) (finding that the agency aggregated the risk of torture when it
considered the combined probability of all sources of torture). As the BIA
recognized, the IJ addressed Gonzalez-Martinez’s allegations of harm at the
hands of both the Zetas cartel and the police.
On the merits, Gonzalez-Martinez does not challenge the agency’s
finding that he did not suffer past torture. Indeed, as the agency found,
Gonzalez-Martinez’s case is distinguishable from Xochihua-Jaimes v. Barr, 962
F.3d 1175, 1185 (9th Cir. 2020), because the petitioner there established that
local government officials had acquiesced in a past instance of torture. Further,
substantial evidence supports the agency’s determination that Gonzalez-
Martinez failed to establish a likelihood of future torture in Mexico or that any
harm would occur by or with the acquiescence of the Mexican government.
Gonzalez-Martinez presented evidence concerning the brutality of the Zetas
cartel, in general, but failed to establish a probable future threat against him, in
particular. He testified that, after he stopped showing up to work, members of
the Zetas cartel started trailing him. But he was unable to link the harassment he
later experienced to the Zetas cartel, let alone with the acquiesce or participation
of the Mexican police. Gonzalez-Martinez described being chased by a group of
people who had gathered on the street outside his window and hearing a
gunshot as he fled. But he was unable to identify those people, did not know
whether they identified him or whether he was their target, and could not
ascertain whether they fired at him. He also described being forcibly handled by
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individuals purporting to be the police, but his own testimony suggested that he
believed these individuals to be impersonating law enforcement, undermining
his allegation that Mexican authorities participated or acquiesced in his
mistreatment. Lastly, Gonzalez-Martinez described his arrest by police after
reporting that people were trying to kill him. The police ultimately released him
in exchange for cash but told him to leave town and to never come back, which
Gonzalez-Martinez interpreted as a threat of future harm. Gonzalez-Martinez
failed, however, to connect this incident to any threats from the Zetas cartel, and
the agency reasonably determined that the police harassment Gonzalez-
Martinez experienced did not establish a probability of future torture.
The temporary stay of removal remains in place until the mandate issues.
The motion for a stay of removal is otherwise denied.
PETITION DENIED.
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