GONZALEZ CHAVEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-09No. No. 19-70798

Summary · law.co

Holding. The petition for review is denied, affirming the Board of Immigration Appeals' decisions on the competency issue, asylum and withholding of removal claims, and Convention Against Torture relief.

Gonzalez Chavez challenged the Board of Immigration Appeals' decisions regarding his removal proceedings on three grounds. First, he contended that the Board erred in finding he was mentally competent to participate in his case, given his mental health conditions and medications. The court found the Board properly determined that Chavez understood the nature of his proceedings, could communicate with his attorney, and had the chance to present evidence. Second, Chavez argued the Board wrongly rejected his asylum and withholding of removal claims, but the court concluded that substantial evidence supported the Board's finding that his fears of persecution were generalized rather than tied to a legally protected category. Third, he sought relief under the Convention Against Torture, asserting he would likely be tortured if returned to Mexico, but the court upheld the Board's conclusion that his speculative future scenarios did not meet the legal standard requiring a showing that torture would probably occur with government involvement.

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

Key issues

Mental competency to participate in removal proceedings
Asylum eligibility and nexus to protected grounds
Withholding of removal under immigration law
Convention Against Torture relief standards and proof requirements

Procedural posture

Gonzalez Chavez petitioned for review of the Board of Immigration Appeals' affirmance of the Immigration Judge's removal decision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Jorge Gonzalez Chavez claims the Board of Immigration Appeals erred by finding he was competent to participate in his removal proceedings due to his mental illness and prescription treatments. We review for abuse of discretion whether the Board clearly departed from its own standards. Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir. 2018). The Board exercised discretion appropriately when it held Chavez had a rational and factual understanding of the nature and object of his removal proceedings, could consult with his attorney, and had a reasonable opportunity to present evidence. See Matter of M-A-M-, 25 I. & N. Dec. 474, 474 (B.I.A. 2011).

Gonzalez Chavez further argues that the Board erred in denying his claims for asylum and withholding of removal. The Boards factual findings are reviewed for substantial evidence, but legal questions are reviewed de novo. Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). Under the substantial evidence standard, we affirm the Boards decision unless compelled to conclude to the contrary. Id. Substantial evidence supports the Boards conclusion that petitioners generalized speculations do not qualify as a reasonable fear of persecution on account of a statutorily protected ground. See Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003). Because generalized fear does not establish a nexus to a protected ground, both the asylum and withholding of removal claims necessarily fail. See, e.g., Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010).

Gonzalez Chavez also argues that the Board erred in denying relief under the Convention Against Torture (CAT). To qualify for CAT relief, the petitioner bears the burden of establishing that he will more likely than not be tortured with the consent or acquiescence of a public official if removed to his native country. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Past torture is a relevant factor in determining whether a petitioner will be tortured in the future. 8 C.F.R. § 1208.16(c)(3). Petitioner does not claim past torture, and substantial evidence supports the Boards conclusion that his hypothetical chain of future events failed to show he would probably be tortured by or with the consent of the Mexican government if returned to Mexico.

Because the Board affirmed the Immigration Judge on the merits, it did not need to address whether petitioners asylum application was timely. See I.N.S. v. Bagamasbad, 429 U.S. 24, 25–26, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976).

The petition for review is DENIED.