David Flores-Vega v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID FLORES-VEGA, No. 14-70690
Petitioner,
Agency No.
v. A096-106-096
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 16, 2019
Seattle, Washington
Filed August 2, 2019
Before: Michael Daly Hawkins and William A. Fletcher,
Circuit Judges, and Richard Seeborg,* District Judge.
Opinion by Judge W. Fletcher
*
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
2 FLORES-VEGA V. BARR
SUMMARY**
Immigration
Denying David Flores-Vega’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that: 1) Flores-Vega’s conviction under Oregon Revised
Statute § 163.187(1) for “strangulation” was categorically a
crime of violence aggravated felony that made him removable
and ineligible for asylum; 2) the BIA abused its discretion in
concluding that the conviction was a particularly serious
crime that made Flores-Vega ineligible for withholding of
removal; and 3) the BIA’s denial of withholding of removal
and relief under the Convention Against Torture (“CAT”)
was supported by substantial evidence.
Under 8 U.S.C. § 1101(a)(43)(F), “a crime of violence (as
defined in section 16 of Title 18, but not including a purely
political offense) for which the term of imprisonment is at
least one year,” constitutes an aggravated felony. Applying
the categorical approach, the panel concluded that
strangulation, as defined at O.R.S. § 163.187(1), is a crime of
violence within the meaning of 18 U.S.C. § 16(a), which
covers “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.” In so concluding, the panel explained
that Flores-Vega had not established a realistic probability
that Oregon would apply its statute to conduct falling outside
the scope of § 16(a). Accordingly, the panel concluded that
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLORES-VEGA V. BARR 3
Flores-Vega’s conviction was an aggravated felony that made
him removable and ineligible for asylum.
The panel concluded that the BIA abused its discretion in
concluding that Flores-Vega’s conviction was also a
particularly serious crime that made him ineligible for
withholding of removal. The panel explained that where, as
here, a withholding applicant was sentenced to fewer than
five years imprisonment for an aggravated felony conviction,
the BIA may determine that the conviction qualifies as a
particularly serious crime. The applicable legal standard is
based on a list of factors the BIA set forth in Matter of
Frentescu, 18 I. & N. Dec. 244 (BIA 1982). The panel
concluded that the BIA misapplied the Frentescu factors in
two key respects: 1) it failed to engage in a case-specific
factual analysis of the circumstances and underlying facts of
the conviction; and 2) it erroneously looked at the potential
penalty for a violation, but the relevant factor instructs the
agency to examine the type of sentence imposed.
Nonetheless, the panel found no error in the BIA’s
alternate ground that Flores-Vega failed to carry his burden
of showing eligibility for withholding of removal. First, the
panel rejected the government’s contention that the court
lacked jurisdiction to review the merits of Flores-Vega’s
withholding claim. Under 8 U.S.C. § 1252(a)(2)(C), the court
lacks jurisdiction to review any final order against an alien
who is removable for having committed an aggravated
felony. However, the panel explained that, under this court’s
precedent, that provision applies only to removal orders, and
not to applications for asylum and related relief. Where, as
here, the BIA denies relief on the merits, rather than based on
a conviction, the court retains jurisdiction to review the
merits.
4 FLORES-VEGA V. BARR
Next, the panel concluded that substantial evidence
supported the denial of withholding, concluding that Flores-
Vega failed to establish a clear probability of future
persecution based on a protected ground. The panel
acknowledged testimony from Flores-Vega and witnesses on
his behalf that he would be targeted because people in
Mexico would know he came from the United States and
would assume his family had money for a ransom, as well as
testimony about general conditions of violence related to
gangs and an ongoing land dispute in his hometown.
However, the panel concluded that there was no evidence in
the record that the danger he may face had the required nexus
to a protected ground.
Finally, the panel concluded that the BIA’s denial of
Flores-Vega’s application for protection under CAT is also
supported by substantial evidence, concluding that he had not
shown that he is more likely than not to be tortured in Mexico
with the consent or acquiescence of a public official.
COUNSEL
Randy J. Tanner (argued) and Matthew B. Hayhurst, Boone
Karlberg PC, Missoula, Montana, for Petitioner.
Matthew J. Glover (argued) and David H. Wetmore, Trial
Attorneys; John S. Hogan, Assistant Director. Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
FLORES-VEGA V. BARR 5
OPINION
W. FLETCHER, Circuit Judge:
We are asked to decide whether a conviction under
Oregon Revised Statute § 163.187(1) for “strangulation” is
categorically a crime of violence for purposes of removability
under the Immigration and Nationality Act (“INA”). We
have jurisdiction pursuant to 8 U.S.C. § 1252 and conclude
that it is. Because the petitioner is removable and is unable
to show he is otherwise entitled to immigration relief, we
deny his petition for review of the decision of the Board of
Immigration Appeals (“BIA”).
I. Background
David Flores-Vega is a native and citizen of Mexico. He
entered the United States in June 2002 when he was sixteen
years old and adjusted his status to lawful permanent resident
on November 26, 2003.
In September 2009, Flores-Vega pleaded guilty to
violating O.R.S. § 163.187(1), which reads:
(1) A person commits the crime of
strangulation if the person knowingly impedes
the normal breathing or circulation of the
blood of another person by:
(a) Applying pressure on the throat, neck
or chest of the other person; or
(b) Blocking the nose or mouth of the
other person.
6 FLORES-VEGA V. BARR
The information in Flores-Vega’s case reads: “The
defendant, on or about September 12, 2009, in Marion
County, Oregon, did unlawfully and knowingly impede the
normal breathing of [the victim] by applying pressure on the
throat and neck of [the victim].” On September 21, 2009,
Flores-Vega signed a “Petition to Enter Plea.” On the form,
in the blank following the printed words “The factual basis
for my guilt and my plea:,” the words “as alleged” are written
by hand. The court accepted the plea on September 25, 2009.
Flores-Vega was given a suspended sentence of 365 days of
imprisonment and 36 months of probation.
The Department of Homeland Security (“DHS”) issued a
Notice to Appear and initiated removal proceedings on
November 18, 2009. DHS charged Flores-Vega as removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted
of an aggravated felony, specifically, a crime of violence.
Flores-Vega contested his removability, arguing that his
conviction under O.R.S. § 163.187(1) did not qualify as a
“crime of violence.” On June 20, 2011, an Immigration
Judge (“IJ”) issued an oral decision holding that a violation
of O.R.S. § 163.187(1) categorically constitutes a crime of
violence. The IJ wrote that O.R.S. § 163.187(1) “necessarily
contemplates the volitional application of active physical
force that is capable of causing, and in fact does cause,
physical injury to another[.]”
Flores-Vega applied for defensive immigration relief in
the form of asylum; withholding of removal under the INA;
and protection under the Convention Against Torture
(“CAT”), which includes withholding and deferral of
removal. After two venue transfers, Flores-Vega appeared
for a merits hearing before a new IJ. Flores-Vega testified
FLORES-VEGA V. BARR 7
through an interpreter, as did his mother, his uncle, and the
pastor of his church. Regarding his criminal conviction,
Flores-Vega testified that he was falsely accused and had
never committed the crime of strangulation, but that his
attorney had advised him to plead guilty to “get out faster”
and had not told him the “consequences” of a guilty plea.
Regarding his fear of returning to Mexico, Flores-Vega
testified that residents of his hometown were involved in a
violent land dispute with a neighboring town. He further
testified that all of Mexico was unsafe due to crime and that
he was afraid he would be kidnapped because people in
Mexico would assume his family in the United States had
money for a ransom. The other three witnesses testified to
similar fears.
On September 23, 2013, the IJ denied relief and ordered
Flores-Vega removed to Mexico. The IJ found Flores-Vega
credible, with the exception of his denial that he had
committed the crime of strangulation, and found the other
witnesses credible. The IJ did not independently evaluate
whether Flores-Vega had committed a crime of violence, but
cited the decision of the first IJ so holding. The IJ found
Flores-Vega removable and held that he was ineligible for
asylum, withholding of removal, and CAT relief because he
had committed a “particularly serious crime.” In the
alternative, if Flores-Vega’s Oregon conviction did not
qualify as a particularly serious crime, the IJ found he had not
carried his burden to show eligibility for withholding or CAT
relief.
Flores-Vega appealed to the BIA. The BIA adopted and
affirmed the IJ’s decision. First, the BIA upheld the
determination that strangulation under O.R.S. § 163.187(1) is
categorically a crime of violence and therefore an aggravated
8 FLORES-VEGA V. BARR
felony, which made Flores-Vega removable and ineligible for
asylum. The BIA also agreed that Flores-Vega’s conviction
was for a “particularly serious crime,” which made him
ineligible for withholding of removal and CAT relief.
Finally, the BIA upheld the IJ’s “alternative finding” that
Flores-Vega had not demonstrated on the merits that he
qualified for withholding of removal or CAT relief.
This petition for review followed.
II. Crime of Violence
Under 8 U.S.C. § 1227(a)(2)(A)(iii), “Any alien who is
convicted of an aggravated felony at any time after admission
is deportable.” Although we lack jurisdiction to review “any
final order of removal against an alien who is removable by
reason of having committed” an aggravated felony, 8 U.S.C.
§ 1252(a)(2)(C), we have jurisdiction to review as a question
of law whether a petitioner’s prior offense qualifies as an
aggravated felony. Id. § 1252(a)(2)(D); Morales-Alegria v.
Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006).
An “aggravated felony” for purposes of the INA includes
“a crime of violence (as defined in section 16 of Title 18, but
not including a purely political offense) for which the term of
imprisonment is at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). A “crime of violence” is defined at
18 U.S.C. § 16 as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
FLORES-VEGA V. BARR 9
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that
physical force against the person or property
of another may be used in the course of
committing the offense.
In Sessions v. Dimaya, 138 S. Ct. 1204, 1212–16 (2018), the
Supreme Court held that § 16(b) was unconstitutionally
vague. Therefore, Flores-Vega’s conviction qualifies as a
crime of violence only if it meets the definition contained in
§ 16(a). We conclude that it does.
We review de novo whether a conviction qualifies as a
crime of violence. See Flores-Lopez v. Holder, 685 F.3d 857,
861–62 (9th Cir. 2012). To determine whether a conviction
under O.R.S. § 163.187(1) is for a crime of violence, without
regard to the facts underlying the particular conviction, we
apply the categorical approach from Taylor v. United States,
495 U.S. 575 (1990). Id. at 862. Under this approach, we
look “only to the fact of conviction and the statutory
definition of the prior offense.” Id. (quoting Taylor, 495 U.S.
at 602).
We consider whether the state statute describes “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(b); Flores-Lopez,
685 F.3d at 862. The physical force “must actually be violent
in nature,” meaning it is “capable of hurting or causing
injury[.]” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016
(9th Cir. 2006) (citation omitted). By contrast, “conduct
involving mere offensive touching does not rise to the level
of a ‘crime of violence’ within the meaning of 18 U.S.C.
§ 16(a).” Id. at 1017. A statute is a categorical match for
10 FLORES-VEGA V. BARR
§ 16(a) only if “every violation of the statute necessarily
involves violent force.” Solorio-Ruiz v. Sessions, 881 F.3d
733, 737 (9th Cir. 2018) (citing Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013)).
To show that a conviction does not qualify as a conviction
for a crime of violence, a petitioner must demonstrate “a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside” the
scope of § 16(a). See United States v. Ruiz-Apolonio,
657 F.3d 907, 914 (9th Cir. 2011) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). A petitioner can
demonstrate a realistic probability either if “[t]he state
statute’s greater breadth is evident from its text,” United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007), abrogated
on other grounds by United States v. Stitt, 139 S. Ct. 399
(2018), or if the petitioner can “point to at least one case in
which the state courts applied the statute in the manner that
he posits,” Ruiz-Apolonio, 657 F.3d at 914.
Flores-Vega argues that Oregon v. Kaylor, 289 P.3d 290
(Or. Ct. App. 2012), demonstrates Oregon state courts apply
the strangulation statute to non-violent conduct. In Kaylor,
the defendant was a certified nursing assistant in a nursing
home. Id. at 292. Kaylor began washing a resident, who
suffered from dementia, and the resident resisted. Id. A
second nurse offered to help. Id. The resident was “yelling”
as the two nurses rolled him onto his side to clean him. Id.
When the second nurse noticed that the resident had gone
quiet, she looked up to see Kaylor covering his mouth. Id.
The second nurse later testified that Kaylor’s hand remained
in place for ten seconds, during which time the resident “was
bright red in the face” and “looked terrified,” as if he could
not breathe. Id. The court noted that “[t]he state presented no
FLORES-VEGA V. BARR 11
evidence that the victim had difficulty breathing after
defendant removed her hand from his mouth.” Id. at 295.
Kaylor was convicted by a jury of violating O.R.S.
§ 163.187(1). Id. at 292.
Kaylor’s conduct, as described by the state court, was
plainly “capable of hurting or causing injury.” See Ortega-
Mendez, 450 F.3d at 1016 (emphasis added). Though the
resident may not have suffered lasting physical harm, he
turned “bright red” and “looked terrified” during the
encounter. See Kaylor, 289 P.3d at 292. The force used in
Kaylor goes beyond “mere offensive touching.” See Ortega-
Mendez, 450 F.3d at 1017. Flores-Vega points to no other
case demonstrating that O.R.S. § 163.187(1) has been applied
to conduct other than violent, physical force.
The application of the statute to non-violent conduct is
not “evident from its text.” See Grisel, 488 F.3d at 850. To
be convicted under the statute, a person must “knowingly
impede[] the normal breathing or circulation of the blood of
another person.” O.R.S. § 163.187(1). It is difficult to
imagine how a defendant could apply enough force to impede
normal functions without exerting physical force that is
“capable of hurting or causing injury.” If such a case exists,
there is no evidence that Oregon intended for the statute to
encompass it or would prosecute it.
Strangulation, as defined at O.R.S. § 163.187(1), is “an
offense that has as an element the use . . . of physical force.”
18 U.S.C. § 16(a). Flores-Vega has been convicted of a
crime of violence within the meaning of § 16(a). He is
accordingly removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as
a noncitizen “who [was] convicted of an aggravated felony.”
12 FLORES-VEGA V. BARR
III. Particularly Serious Crime
Flores-Vega applied for defensive relief in the form of
asylum, withholding of removal, and protection under CAT
in the event he was found removable. A noncitizen convicted
of a “particularly serious crime” is barred from a grant of
asylum and from withholding of removal under the INA or
CAT. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii);
8 C.F.R. § 1208.16(d)(2). The only immigration relief
available to a noncitizen convicted of a “particularly serious
crime” is deferral of removal under CAT, which provides
fewer protections than withholding. See Eneh v. Holder,
601 F.3d 943, 946 (9th Cir. 2010).
For purposes of asylum, an aggravated felony is per se a
particularly serious crime. 8 U.S.C. § 1158(b)(2)(B)(i). We
determined above that strangulation, as defined at O.R.S.
§ 163.187(1), is a crime of violence and an aggravated felony
under the INA. Flores-Vega is therefore categorically
ineligible for asylum relief.
The analysis is different for withholding of removal. An
aggravated felony is per se a particularly serious crime if the
withholding applicant was sentenced to a term of
imprisonment of at least five years. 8 U.S.C.
§ 1231(b)(3)(B). Where, as here, the applicant was sentenced
to fewer than five years, the BIA may determine that an
applicant’s aggravated felony conviction qualifies as a
particularly serious crime. 8 U.S.C. § 1231(b)(3)(B).
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we “lack
jurisdiction over the BIA’s ultimate determination that
[Flores-Vega] committed a particularly serious crime.”
Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010)
FLORES-VEGA V. BARR 13
(internal quotations and citation omitted). But we retain
jurisdiction to “determine whether the BIA applied the correct
legal standard.” Id. (citation omitted). We review the BIA’s
decision for abuse of discretion. Arbid v. Holder, 700 F.3d
379, 383 (9th Cir. 2012). In particular, we review whether
“the agency relied on the appropriate factors and proper
evidence to reach [its] conclusion.” Avendano-Hernandez v.
Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (internal
quotations and citation omitted). We conclude the BIA
abused its discretion in this case.
The applicable legal standard is based on the BIA’s
decision in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA
1982), as subsequently modified by the BIA. Anaya-Ortiz,
594 F.3d at 679. Frentescu lists the factors to consider as:
“[the] nature of the conviction, the circumstances and
underlying facts of the conviction, the type of sentence
imposed, and, most importantly, whether the type and
circumstances of the crime indicate that the alien will be a
danger to the community.” Frentescu, 18 I. & N. Dec. at 247.
Under a BIA regulation promulgated after Frentescu, the
final factor does not trigger an independent inquiry. Instead,
“an alien who has been convicted of a particularly serious
crime shall be considered to constitute a danger to the
community.” 8 C.F.R. § 1208.16(d)(2); see also Gomez-
Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir. 2018)
(“[T]here is no statutory requirement for a separate
determination of dangerousness focusing on the likelihood of
future serious misconduct on the part of the alien.”).
The BIA misapplied the Frentescu factors in two key
respects. First, in examining “the circumstances and
underlying facts of the conviction,” the BIA failed to engage
in a case-specific factual analysis. We have previously held
14 FLORES-VEGA V. BARR
that the BIA’s particularly serious crime determination cannot
rest solely on the elements of conviction. In Afridi v.
Gonzales, 442 F.3d 1212, 1220 (9th Cir. 2006), overruled on
other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d
1147 (9th Cir. 2008), we held that the BIA committed
reversible error where it “failed to engage in a case-specific
analysis” and instead “generalized to conclude that the type
of crime committed by [the petitioner] was particularly
serious,” in that case, “unlawful sexual intercourse with a
minor.” Similarly, in Blandino-Medina v. Holder, 712 F.3d
1338, 1346 (9th Cir. 2013), we held that the BIA may not
designate certain crimes as “particularly serious crimes per
se” by relying solely on the elements of the offense. We held
that the BIA must instead engage in Frentescu’s “case-by-
case analysis.” Id. at 1347.
The BIA failed to do so here. The BIA explicitly adopted
the IJ’s analysis, which relied on the BIA’s earlier decision in
Matter of N–A–M–, 24 I. & N. Dec. 336 (BIA 2007), to hold
that “the elements of the offense alone can establish that the
offense, by its nature, qualifies as particularly serious.” But
our decision in Blandino-Medina rejected Matter of N–A–M–
to the extent it so held. See Blandino-Medina, 712 F.3d
at 1347–48.
The BIA’s analysis did nothing to correct the IJ’s error.
The BIA wrote that the crime “likely induced great fear in his
victim” and that it was concerned by “the bodily harm that
the victim suffered.” These statements are based on pure
conjecture. The BIA had no evidence of the victim’s
subjective fear or bodily harm. Because Flores-Vega’s own
account of the crime was found not credible, the BIA had
only the information filed in the criminal case, which simply
restated the statutory definition of the crime with the victim’s
FLORES-VEGA V. BARR 15
name inserted. As in Afridi, “there is nothing in the BIA’s
analysis regarding [Flores-Vega’s] conviction for
[strangulation] that would separate it from an analysis
regarding any other person’s conviction for the same
offense.” See Afridi, 442 F.3d at 1219. The BIA relied on
the elements of the crime and then imagined facts that might
have existed to support the conviction. Neither constitutes
“proper evidence” in this context. See Avendano-Hernandez,
800 F.3d at 1077.
Second, the BIA erroneously looked at the potential
penalty for a violation of O.R.S. § 163.187(1), noting that the
crime “carries a substantial penalty.” But the third Frentescu
factor instructs the agency to examine “the type of sentence
imposed,” not the maximum possible sentence for an offense.
Frentescu, 18 I. & N. Dec. at 247 (emphasis added). In
Frentescu, the BIA held that “a suspended sentence after
spending a relatively short period of time in prison
(3 months)” weighed against finding the offense to be a
particularly serious crime. Id. at 247. Here, neither the IJ nor
the BIA even mentioned, in analyzing the Frentescu factors,
that Flores-Vega received an entirely suspended one-year
sentence.
It is not our role to “reweigh the evidence and reach our
own determination about the crime’s seriousness.”
Avendano-Hernandez, 800 F.3d at 1077 (citation omitted).
But it is our role to ensure that the BIA “relie[s] on the
appropriate factors and proper evidence” in determining
whether a conviction constitutes a particularly serious crime.
See id. Because the BIA did not do so here, it abused its
discretion.
16 FLORES-VEGA V. BARR
IV. Withholding of Removal and CAT Relief
We nonetheless deny Flores-Vega’s petition for review
because we find no error in the BIA’s alternate ground that
Flores-Vega failed to carry his burden of showing eligibility
for withholding of removal or for protection under CAT.
A. Jurisdiction
To start, we reject the government’s contention that we
lack jurisdiction to review the merits of Flores-Vega’s claim
for withholding of removal. We have no jurisdiction to
review “any final order of removal against an alien who is
removable by reason of having committed” an aggravated
felony. 8 U.S.C. § 1252(a)(2)(C). But this provision applies
only “to removal orders, and not to applications for asylum,
withholding of removal, or CAT relief.” Arteaga v. Mukasey,
511 F.3d 940, 942 n.1 (9th Cir. 2007) (citing Morales v.
Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)). Where the
BIA denies withholding on the merits, rather than based on an
aggravated felony conviction, we retain jurisdiction to review
the merits determination. See Morales, 478 F.3d at 980;
Bromfield v. Mukasey, 543 F.3d 1071, 1075–76 (9th Cir.
2008). The government disagrees with our decision in
Morales, but concedes that under that decision and its
progeny we have jurisdiction in this case.
B. Discussion
We review for substantial evidence factual findings
underlying the denial of a withholding or CAT claim.
Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir. 2005)
(citation omitted). We uphold the agency’s determination
“unless the evidence presented would compel a reasonable
FLORES-VEGA V. BARR 17
finder of fact to reach a contrary result.” Id. (quoting Singh-
Kaur v. INS, 183 F.3d 1147, 1149–50 (9th Cir. 1999)).
“Where, as here, the BIA cites [Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994)] and also provides its own review of the
evidence and law, we review both the IJ’s and the BIA’s
decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir.
2011).
To show eligibility for withholding of removal under the
INA, an applicant bears the burden of proving that his “life or
freedom would be threatened in the proposed country of
removal on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 C.F.R.
§ 208.16(b) (emphasis added). An applicant for withholding
of removal must show “it is more likely than not that he will
be persecuted if deported.” Unuakhaulu, 416 F.3d at 937
(internal alteration and citation omitted). For purposes of
withholding, one or more of the protected grounds listed at
8 C.F.R. § 208.16(b) must be “a reason” for the feared
persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017).
Flores-Vega does not claim to have previously suffered
persecution in Mexico. An applicant who has not suffered
past persecution must show a fear of future persecution that
is “both subjectively genuine and objectively reasonable.”
Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010).
Only the objective prong is at issue here. To meet that prong,
the applicant must show either that he or she will be “singled
out individually for persecution” or that there is a “‘pattern or
practice’ of persecution against the group to which he belongs
in his home country, such that, even without any evidence of
individual targeting, his fear of persecution is deemed
18 FLORES-VEGA V. BARR
reasonable.” See Wakkary v. Holder, 558 F.3d 1049, 1060
(9th Cir. 2009) (citing 8 C.F.R. § 208.16(b)(2)).
Substantial evidence supports the BIA’s determination
that Flores-Vega cannot satisfy the objective prong. There is
no evidence in the record that the danger Flores-Vega may
face in Mexico has the required nexus to a protected ground.
When asked why Flores-Vega would be subjected to violence
in Mexico, both he and his uncle testified that he would be
targeted because people in Mexico would know he came from
the United States and would assume his family had money for
a ransom. Flores-Vega, his mother, and his pastor also cited
general conditions of violence related to gangs and an
ongoing land dispute in Flores-Vega’s hometown.
For purposes of our decision, we accept that Flores-Vega
may be in danger if he is removed to Mexico. But the danger
is not on account of a protected ground. See Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be
free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a
protected ground.”); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151 (9th Cir. 2010) (holding that “returning Mexicans from
the United States” was not a cognizable social group for
purposes of establishing a protected ground).
Flores-Vega’s application for immigration relief also
listed his religious identity as a protected ground. But neither
he nor any other witness offered testimony that he would be
singled out for persecution as an evangelical Christian. Nor
do country conditions documents in the record compel the
conclusion that there is a “pattern or practice” of persecution
against evangelical Christians such that his fear of
persecution is reasonable. See Wakkary, 558 F.3d at 1060.
FLORES-VEGA V. BARR 19
The BIA’s determination that Flores-Vega failed to show
eligibility for withholding of removal is supported by
substantial evidence.
The BIA’s denial of Flores-Vega’s application for
protection under CAT is also supported by substantial
evidence. To qualify for withholding or deferral under CAT,
an applicant must show it is “more likely than not” that he
would be tortured in his country of removal. 8 C.F.R.
§ 1208.16(c)(2). Torture is defined, in relevant part, as “any
act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person . . . for any
reason based on discrimination of any kind.” Id.
§ 1208.18(a)(1). Though torture need not be on account of a
protected ground, it must be “inflicted by or at the instigation
of or with the consent or acquiescence of a public official.”
Id. The BIA should consider “all evidence relevant to the
possibility of future torture, . . . including . . . [e]vidence of
past torture inflicted upon the applicant.” Id. § 1208.16(c)(3).
Flores-Vega and his witnesses testified to general
conditions of violence in Mexico. But he has not shown that
he is more likely than not to be tortured with the consent or
acquiescence of a public official. He has not claimed past
mistreatment in Mexico, let alone mistreatment rising to the
level of torture. In terms of future torture, he has not shown
a greater risk to him than any other Mexican national
deported from the United States such that torture would be
“more likely than not” in his case. See Delgado-Ortiz,
600 F.3d at 1152 (“Petitioners’ generalized evidence of
violence and crime in Mexico is not particular to Petitioners
and is insufficient to meet [the CAT] standard.”).
20 FLORES-VEGA V. BARR
Conclusion
We hold that a conviction for strangulation under O.R.S.
§ 163.187(1) is a crime of violence, as defined in 18 U.S.C.
§ 16(a), and is thus an aggravated felony for purposes of
8 U.S.C. § 1227(a)(2)(A)(iii). Flores-Vega’s guilty plea
renders him removable and also bars him from asylum relief.
We hold that the BIA abused its discretion in designating
Flores-Vega’s offense of conviction as a “particularly serious
crime.” We have jurisdiction to review the BIA’s decision on
the merits that Flores-Vega did not show eligibility for
withholding of removal or relief under CAT. We conclude
that the BIA’s denial of Flores-Vega’s application for relief
is supported by substantial evidence.
PETITION FOR REVIEW DENIED.