FLORES v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-27No. No. 19-70678

Summary · law.co

Holding. The petition for review is denied. The BIA's denial of CAT protection is affirmed because substantial evidence supports the finding that Flores failed to establish it was more likely than not she would experience torture based on her transgender identity.

Francisco Javier Flores Medina, a transgender Mexican citizen, petitioned for review of the Board of Immigration Appeals' decision denying her claim for Convention Against Torture (CAT) protection. The court had previously remanded the case specifically to allow the BIA to separately evaluate how her transgender identity affected her protection claims. On remand, the BIA affirmed the denial, concluding that while violence against transgender individuals exists in Mexico, Flores had not demonstrated it was sufficiently prevalent that she would more likely than not experience torture if returned.

Flores challenged the BIA's decision on both procedural and substantive grounds, arguing the agency failed to consider all relevant evidence and that its findings lacked substantial evidentiary support. The court found no procedural defects and determined that substantial evidence supported the BIA's conclusion. The court noted that because Flores had not suffered past torture—a point established in the earlier remand—she was required to rely on country conditions evidence alone. The court determined that this evidence, while showing some violence against transgender persons in Mexico, was not sufficiently specific to her circumstances to establish that torture was more likely than not.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the BIA properly considered transgender identity separately when evaluating CAT eligibility
Whether country conditions evidence alone is sufficient to establish likelihood of future torture absent evidence of past torture
Whether evidence of violence against transgender individuals in Mexico was sufficiently particularized to Flores' circumstances

Procedural posture

The case returned to the Ninth Circuit on petition for review following remand proceedings before the BIA.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Petitioner Francisco Javier Flores Medina (Flores) is a transgender citizen of Mexico who identifies as female. In her prior petition to this court, Flores appealed the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the Immigration Judges (“IJ”) decision that she did not qualify for asylum, withholding of removal, or Convention Against Torture (“CAT”) protection. We granted the petition in part and remanded to the BIA for further limited proceedings. Medina v. Sessions, 734 Fed. Appx. 479 (9th Cir. 2018). As relevant to the current appeal, we found that while the BIA adequately addressed Floress sexual orientation, the BIA erred in failing to consider separately the effect of Floress transgender identity as to her claims for asylum, withholding of removal, and CAT protection. Id. at 482-83, 484. The case was remanded to the BIA “for the limited purpose of assessing the effect of Floress transgender identity on her claims for asylum, withholding of removal, and CAT protection․” Id. at 484.

On remand, the BIA considered the same record as had been previously submitted, affirmed the IJs order, and dismissed Floress appeal. The BIA held that Floress 2014 arson conviction was a particularly serious crime that rendered her statutorily ineligible for asylum or withholding of removal eligibility. Alternatively, assuming her eligibility, the BIA concluded that Flores failed to establish the merits of her claims for asylum, withholding of removal, or CAT protection.

Flores is now before the court on a petition to review the decision of the BIA on remand. Flores challenges the BIA decision only as to its denial of CAT protection, while not appealing the BIAs decision as to her asylum and withholding of removal claims.

This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIAs denial of a claim for CAT protection. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015). “We review for substantial evidence the factual findings underlying the BIAs determination that an applicant is not eligible for CAT protection.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Because the BIA adopted the reasoning of the IJ, we review the decision of both the IJ and the BIA. Becker v. Gonzales, 473 F.3d 1000, 1001 n.2 (9th Cir. 2007). With the benefit of oral argument, we DENY the petition for review.

The BIA separately considered the effect of Floress transgender identity on the likelihood that she would be tortured in Mexico based on that identity, and affirmed the IJs decision to deny CAT protection. The BIA decided that although the record established that some transgender individuals have experienced violence in Mexico, Flores had not shown that such violence is so common throughout Mexico that it is more likely than not that she will personally experience it.

On appeal Flores asserts both procedural and substantive deficiencies by the BIA. Flores argues that the BIA failed to consider all the relevant evidence, thereby creating procedural infirmities, and that its findings were not supported by substantial evidence. Flores asks the court to grant her petition and remand to the BIA with instructions to grant her CAT claim, or alternatively to remand to the BIA to comprehensively address her country conditions evidence.

Our review of the record shows that there are neither procedural nor substantive errors by the BIA. The BIA considered the record evidence concerning Floress transgender identity separately, as directed by this court, and substantial evidence supports the denial of CAT protection. The BIAs determination that it was not more likely than not that Flores would experience future torture based on her transgender status was supported by substantial evidence. We previously concluded that Flores did not suffer past torture, Medina, 734 Fed. Appx at 484, and that is the law of the case, see Musacchio v. United States, 577 U.S. 237, 244-45, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016). This ruling as to a lack of past torture distinguishes Floress circumstances from those in Avendano-Hernandez, where the petitioner suffered torture at the hands of a Mexican military official, a conclusion that “[t]he IJ and BIA d[id] not appear to question.” 800 F.3d at 1079. Without evidence of past torture, Flores must rely on country conditions evidence. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008); 8 C.F.R. § 1208.16(c)(3). The country conditions evidence alone is not enough in this case because it is not sufficiently particularized to compel the conclusion that Flores would more likely than not be the subject of torture should she return to Mexico. See Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018).

PETITION DENIED.