ZEPEDA LOPEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-05No. No. 18-72709

Summary · law.co

Holding. The court denied the petition for review and affirmed the Board of Immigration Appeals' dismissal of both the withholding of removal claim and the Convention Against Torture claim.

Alfonso Ignacio Zepeda Lopez petitioned for judicial review of the Board of Immigration Appeals' dismissal of his claims for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture. The court examined whether the record compelled a contrary conclusion to the BIA's findings. On the INA claim, the court found that substantial evidence supported the BIA's determination that Lopez failed to demonstrate past persecution—his mother's testimony about a single childhood incident was insufficient to establish psychological trauma or brainwashing rising to the level of persecution. Additionally, Lopez could not establish the required nexus between any alleged harm and a protected ground, instead expressing generalized fear of cartels without identifying specific reasons they would target him.

Regarding the CAT claim, the court concluded that substantial evidence supported the BIA's denial because Lopez did not establish a particularized probability of torture upon removal. His testimony showed he did not recall past harm, did not know why his mother was kidnapped, and did not explain why cartels would specifically target him. Reliance on generalized country reports describing violence in Mexico was insufficient to meet the standard for torture protection.

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

Key issues

Whether past persecution was established by alleged childhood trauma and family kidnapping
Whether alleged harm had the required nexus to a protected ground under immigration law
Whether a particularized probability of torture was demonstrated or only generalized country conditions

Procedural posture

The petitioner sought judicial review under 8 U.S.C. § 1252(a) of a Board of Immigration Appeals decision dismissing his withholding of removal and Convention Against Torture claims.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Petitioner Alfonso Ignacio Zepeda Lopez (“Petitioner”) seeks review of the Board of Immigration Appeals’ dismissal of his withholding of removal claims under both the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), and the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252(a),

and we deny the petition.

First, substantial evidence supports the BIAs denial of Petitioners withholding of removal claim. See Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018) (“We review denials of ․ withholding of removal ․ for substantial evidence and will uphold a denial supported by reasonable, substantial, and probative evidence on the record considered as a whole.” (internal quotation marks and citation omitted)). Specifically, the record does not compel a conclusion contrary to the BIAs determination that Petitioner did not show he experienced any harm rising to the level of past persecution. See Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014) (noting the substantial evidence “standard of review is extremely deferential: administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary” (internal quotation marks and citations omitted)). Petitioner could not recall experiencing any past harm in Mexico. And his mothers testimony of a single incident where Petitioner as a young child threatened to return her to her captors, does not, without more, establish that he was brainwashed or otherwise experienced any psychological trauma rising to the level of persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“Persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” (internal quotation marks and citation omitted)). As Petitioner has not established that any past harm rises to the level of persecution, he is not entitled to a rebuttable presumption of future persecution. See 8 C.F.R. §§ 1208.16(b)(1)(i)-(iii).

Nor does the record compel a conclusion contrary to the BIAs determination that Petitioners ties to his mother was not a reason for the cartels to target him. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017); 8 U.S.C. § 1231(b)(3)(A). Petitioner admitted that he did not know who kidnapped his mother or why she was kidnapped, nor did he know of any other family members having problems in Mexico. Petitioner also stated that he did not fear any particular person in Mexico, but rather, feared cartels in general. But “[a]n aliens desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). The evidence does not compel a determination that Petitioner established the requisite nexus between the harm he alleges and the protected ground he relies on, which is fatal to his withholding of removal claim.

Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a protected ground is dispositive of [the petitioners] asylum and withholding of removal claims.”); 8 U.S.C. § 1231(b)(3)(A).

Second, substantial evidence supports the BIAs denial of Petitioners CAT claim. See Guo, 897 F.3d at 1212. Specifically, the record does not compel a conclusion contrary to the BIAs determination that Petitioner did not establish a probability of harm rising to the level of torture at the acquiescence of the government. See Jiang, 754 F.3d at 738. Petitioners testimony that he did not recall any past harm, that he did not know the reason for his mothers kidnapping, that he did not know why cartels would target him, and his primary reliance on generalized information in country reports supports the BIAs determination that Petitioner did not establish a particularized probability of torture upon removal. See 8 C.F.R. § 1208.16(c)(2); Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008) (per curiam) (determining that the State Department reports “do not indicate that [the petitioner] would face any particular threat of torture beyond that of which all citizens of [that country] are at risk”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (generalized evidence of violence and crime in Mexico not particular to petitioners was insufficient to establish CAT eligibility).

PETITION DENIED.

FOOTNOTES

. We do not address the agencys denial of cancellation of removal or asylum because Petitioner did not raise those issues in his opening brief before this court. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). For similar reasons, we do not address the IJs competency finding or determination that Petitioner was deportable as charged.

. See also Nasrallah v. Barr, ––– U.S. ––––, 140 S. Ct. 1683, 1694, 207 L.Ed.2d 111 (2020) (determining that “§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizens factual challenges to a CAT order”).

. The parties are familiar with the facts, so we do not repeat them here.

. Given the lack of requisite nexus, and the BIAs focus on lack of past persecution and lack of nexus, we do not address Petitioners argument that he established an objectively reasonable fear of future persecution. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (“We cannot affirm the BIA on a ground upon which it did not rely.” (internal quotation marks and citation omitted)).