Jose Gomez-Diaz v. Loretta E. Lynch , 623 F. App'x 898 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 02 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE PRIMITIVO GOMEZ-DIAZ, No. 12-72114
Petitioner, Agency No. A087-677-303
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2015**
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Jose Primitivo Gomez-Diaz, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals (BIA) affirming the
decision of the Immigration Judge (IJ) denying his applications for withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal and relief under the Convention Against Torture (CAT).1 Because the
BIA adopted the IJ’s decision while adding its own reasoning, we review both
decisions. Carrillo v. Holder, 781 F.3d 1155, 1157 (9th Cir. 2015). We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
1. The BIA and IJ did not err in finding Gomez-Diaz ineligible for
withholding of removal. Gomez-Diaz claimed that he would face persecution in
Mexico on the basis of his membership in a particular social group, gay men. See
Castro-Martinez v. Holder, 674 F.3d 1073, 1080 (9th Cir. 2011). However, there
is no evidence that Gomez-Diaz suffered past persecution “in the proposed country
of removal.” Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011).
Although Gomez-Diaz experienced deplorable childhood sexual abuse in the
United States, he did not provide any evidence “that Mexican authorities would
have ignored the rape of a young child or that authorities were unable to provide a
child protection against rape.” Castro-Martinez, 674 F.3d at 1081. Nor did
Gomez-Diaz establish that “the chance of future persecution” of him in Mexico “is
‘more likely than not.’” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009)
(quoting 8 C.F.R. § 208.16(b)(2)). Additionally, Gomez-Diaz did not demonstrate
that he would suffer persecution if he moved to a part of Mexico that affords
1
Gomez-Diaz concedes that his application for asylum is time-barred.
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protections to LGBT individuals. See 8 C.F.R. § 1208.13(b)(2)(ii). Gomez-Diaz is
therefore ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3); 8
C.F.R. § 1208.16(b).
2. Substantial evidence supports the BIA’s and IJ’s determination that
Gomez-Diaz is ineligible for CAT relief. Although Gomez-Diaz provided
“generalized evidence of violence and crime” against gay men in Mexico, he did
not establish that “it is more likely than not that [he] would be tortured if returned
to Mexico.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); see
also 8 C.F.R. § 208.16(c)(2).
PETITION DENIED.
3