TORRES v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-25No. No. 16-71850

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court upheld the agency's denial of withholding of removal because Torres failed to establish the required nexus to a protected ground and the new particular social group was not properly raised before the agency. The court also upheld the denial of Convention Against Torture relief because Torres did not meet the applicable evidentiary standard.

Francisco David Torres, a Mexican citizen, sought review of immigration decisions denying his application for withholding of removal and relief under the Convention Against Torture. The court examined whether Torres established a sufficient connection between his claimed persecution and a legally protected ground, as required for withholding of removal. The court found that the agency's determination that Torres failed to demonstrate any nexus to a protected ground was supported by the record evidence. Additionally, Torres could not raise a new particular social group for the first time on appeal because he had not presented it to the immigration agency during the initial proceedings.

Regarding his Convention Against Torture claim, Torres failed to meet the legal standard requiring him to show that torture by the government or with government consent or acquiescence would more likely than not occur if he returned to Mexico. The court concluded that substantial evidence supported the agency's denial of this relief as well.

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

Key issues

Whether Torres established nexus between persecution and a legally protected ground for withholding of removal
Whether a new particular social group raised for first time on appeal may be considered
Whether Torres demonstrated likelihood of torture by or with consent of Mexican government

Procedural posture

Torres petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Francisco David Torres, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

The agencys determination that Torres failed to establish any nexus to a protected ground is supported by the record. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). We therefore do not remand for the agency to apply Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (holding that the protected ground need only be “a reason” for withholding of removal claims, whereas it must be “one central reason” for asylum claims). We lack jurisdiction to consider the new particular social group proposed in Torress opening brief, “family members of taxi drivers targeted by cartels,” because he did not raise this group before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Thus, Torress withholding of removal claim fails.

Substantial evidence supports the agencys denial of CAT relief because Torres failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.