JORGE AVENDANO-BARRAZA V. MERRICK GARLAND ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE AVENDAÑO-BARRAZA, No. 21-70858
Petitioner, Agency No. A098-431-652
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2022**
Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and GLEASON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sharon L. Gleason, Chief United States District Judge
for the District of Alaska, sitting by designation.
Jorge Avendaño-Barraza, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (BIA) decision affirming the denial of
his application for withholding of removal and protection under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and deny the
petition.
Substantial evidence supports the BIA’s decision to deny Avendaño-
Barraza’s application for withholding of removal. See Del Carmen Molina v.
I.N.S., 170 F.3d 1247, 1249 (9th Cir. 1999). Avendaño-Barraza did not experience
any past persecution, so the BIA accurately stated the law by concluding that
Avendaño-Barraza was not entitled to a rebuttable presumption of future
persecution pursuant to 8 C.F.R. § 1208.16(b)(1)(i).
Avendaño-Barraza does not qualify for withholding of removal based on a
clear probability of future persecution because the BIA properly concluded that he
could relocate elsewhere in Mexico and that it is reasonable to expect him to do so.
See Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011) (holding that
“[w]here the applicant has not established past persecution,” he or she bears the
burden of establishing that relocation is unreasonable within Mexico). Avendaño-
Barraza’s evidence of generalized violence in Mexico is insufficient to challenge
the BIA’s relocation findings. Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021)
(“Relocation is generally not unreasonable solely because the country at large is
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subject to generalized violence.”).
Avendaño-Barraza’s ability to avoid future persecution by relocating within
Mexico is dispositive of his withholding claim, 8 C.F.R. § 1208.16(b)(2), so the
BIA did not need to, and did not address his contentions that he would suffer future
persecution on account of his membership in a particular social group and that the
Mexican government is unable or unwilling to protect him from persecution. See
I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that the BIA is
“not required to make findings on issues the decision of which is unnecessary to
the results they reach”). This panel declines to reach these issues.
Avendaño-Barraza relies on generalized evidence of violence and crime in
Mexico that is not particular to him and does not establish eligibility for CAT
protection. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per
curiam). Avendaño-Barraza also contends that the Mexican government did not
help find his brother-in-law, submitting evidence that the Mexican government is
ineffective in investigating criminal activities, but this does not merit CAT
protection either. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir.
2014).
Avendaño-Barraza asks this Court to remand to the BIA to consider the
recent discovery of his brother-in-law’s body. A petitioner who seeks remand to
pursue relief, however, bears a “heavy burden” of proving that the new evidence
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would likely change the result in the case. Young Sun Shin v. Mukasey, 547 F.3d
1019, 1025 (9th Cir. 2008) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473
(BIA 1992)). Avendaño-Barraza has not met this burden because both the IJ and
the BIA acknowledged that his brother-in-law was kidnapped and presumably
killed for his membership in a gang.
PETITION DENIED
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