AVINA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-26No. No. 19-72098

Summary · law.co

Holding. The petition is denied. The court affirmed the agency's determinations that Avina failed to establish he would more likely than not be tortured or persecuted if removed to Mexico, because the record supported the conclusion that he could safely relocate within the country.

Jose Medina Avina, a Mexican citizen, appealed the denial of his applications for asylum, withholding of removal, and Convention Against Torture protection. Avina claimed he faced persecution and torture from the Jalisco cartel because he had made inquiries about his brother-in-law's death. The immigration authorities denied his claims, and Avina sought judicial review of that decision.

The court examined whether Avina met the legal requirements for each form of relief. For CAT protection, an applicant must show it is more likely than not he would be tortured by or with the acquiescence of government officials if removed. For asylum, he must demonstrate past persecution or a well-founded fear of future persecution based on a protected ground. The court found that although Avina may have attracted cartel attention in his home state of Colima, the record showed he successfully relocated to other Mexican states—Puebla, Morelia, and Baja California—where he experienced no further threats or harm for extended periods. His family members also remained safely in Mexico after relocating. Because Avina could relocate to other parts of Mexico, the court concluded the evidence did not compel a finding that he would more likely than not face torture or persecution if removed.

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Key issues

Whether applicant established eligibility for Convention Against Torture protection
Whether applicant demonstrated well-founded fear of persecution for asylum
Role of internal relocation as alternative to removal in asylum and CAT cases
Standard of review for agency decisions in immigration proceedings

Procedural posture

Avina petitioned for review of the Board of Immigration Appeals' affirmance of an Immigration Judge's denial of asylum, withholding of removal, and CAT protection.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Medina Avina (“Avina”), a citizen and native of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judges (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Avina contends he will be subject to future persecution and torture at the hands of the Jalisco cartel because of his inquiries about the death of his brother-in-law. The agencys decision must be upheld if it is supported by reasonable, substantial, and probative evidence on the record as considered as a whole and may be reversed only if a reasonable factfinder would be compelled to conclude to the contrary. See Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011). We deny the petition.

To qualify for relief under CAT, Avina must establish that “it is more likely than not that he [ ] would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Furthermore, the torture must be inflicted by, at the direction of, or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1). In assessing whether it is more likely than not that an alien would be subject to torture if removed to a country, the agency can consider whether relocation within that country is possible. 8 C.F.R. § 1208.16(c)(3)(ii).

After leaving his home state, where Avina may have drawn the attention of the Jalisco cartel by making inquiries about the death of his brother-in-law, Avina stayed with his daughters in Puebla and then in Morelia; later with his girlfriend in Rosarita—for a month at each location without further threats or harm. See Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005). Although there was testimony that people came by Avinas house and business looking for him, there is no evidence that the cartel pursued him outside the state of Colima. His family continues to reside in Mexico, as does another brother-in-law who had also been threatened but relocated to Michoacan. See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009).

Although Avina may not be able to return to Colima, the record does not compel the conclusion that it is more likely than not Avina would be tortured if returned to other parts of Mexico. We therefore need not reach the second prong of the CAT analysis, “whether there is sufficient state action involved” in the feared torture. Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

To qualify for asylum, Avina must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of a protected ground. Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006). Avina does not claim past persecution but claims to have a well-founded fear of future persecution on account of membership in a particular social group (his familial connection with his wife and brother-in-law).

As with his CAT claim, the IJ and BIA held that Avina did not have a well-founded fear of future persecution because of his ability to safely relocate within the country. See 8 C.F.R. § 1208.13(b). For the reasons discussed in Section I above, the record does not compel the conclusion that the agencys determination about Avinas ability to internally relocate is erroneous.

PETITION DENIED.

FOOTNOTES

. Because the ability to relocate forecloses Avinas asylum claim, we need not address the issue of whether the alleged persecution is on account of Avinas membership in a particular social group.