Elizabeth Gonzalez-Marciel v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH GONZALEZ-MARCIEL, No. 19-70868
Petitioner, Agency No. A202-010-773
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 2, 2020**
Pasadena, California
Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.
Elizabeth Gonzalez-Marciel, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his1 appeal from
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
1
Gonzalez-Marciel’s preference for masculine pronouns is reflected herein.
an immigration judge’s (IJ) order denying him withholding of removal and
protection under the Convention Against Torture (CAT). He argues that it is
neither safe nor reasonable for him to relocate to Mexico City because he would
likely be persecuted or tortured there. However, despite his credibility and past
persecution for being a transgender male, the record supports the BIA’s finding
that with relocation to Mexico City he has not shown a probability of future
persecution or torture. Accordingly, his petition is denied.2
Gonzalez-Marciel contends that the IJ improperly placed the burden on him
to prove that relocation to Mexico City would be unreasonable, a legal error left
uncorrected by the BIA. We review the agency’s legal determinations de novo,
including “interpretation of the Immigration and Nationality Act.” Garcia-
Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (citation omitted). The
IJ’s decision, when read in its entirety, reflects a proper application of 8 C.F.R. §
1208.16(b)(1) (placing burden on the government to rebut presumption of future
persecution). The IJ: (1) stated that Gonzalez-Marciel’s past persecution gave rise
to a presumption of future persecution; (2) found that the presumption was rebutted
by a preponderance of the evidence; and then (3) afforded Gonzalez-Marciel the
opportunity to show it would be unsafe or unreasonable for him to relocate to
2
Because the parties are familiar with the facts of this application, we do not
discuss them at length here.
2
Mexico City. The BIA correctly found that the IJ did not place the burden on
Gonzalez-Marciel to prove that relocation to Mexico City would be unreasonable.
The BIA denied Gonzalez-Marciel’s claim for withholding of removal,
agreeing with the IJ that the record as a whole shows that Gonzalez-Marciel could
safely relocate to Mexico City. We review factual findings under the deferential
substantial evidence standard. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir.
2011). A decision may be “supported by substantial evidence despite the presence
of conflicting or ambiguous information in the country reports.” Singh v. Holder,
753 F.3d 826, 833 (9th Cir. 2014).
Gonzalez-Marciel contends that the BIA relied on changes in Mexican law
designed to protect LGBT people, without verifying if those laws were effective.
However, the IJ, as instructed by the BIA,3 looked beyond mere changes in the
law. The IJ cited multiple reports of tangible improvements in the treatment of the
LGBT community in Mexico City. The BIA agreed that it would be “substantially
safer” for Gonzalez-Marciel to live in Mexico City than in his home state, Singh v.
Whitaker, 914 F.3d 654, 659–60 (9th Cir. 2019), a finding that is supported by
substantial evidence.
3
The BIA initially remanded to the immigration court, instructing the
second IJ to account for any failure of the Mexican legal system to protect
transgender people. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir.
2017) (en banc).
3
The BIA denied Gonzalez-Marciel’s claim for CAT relief, primarily because
he did not prove that Mexican officials were involved or acquiesced in his past
beatings and rapes. Gonzalez-Marciel was raped by his brother and beaten by
other family members when he was young, without any police awareness. He
further alleged that he was threatened by local gangsters, but did not show that they
had any clear connection to the police. Without any showing that officials knew
about his past mistreatment, Gonzalez-Marciel needed to prove that it is more
likely than not that he will be tortured if removed to Mexico City, by supplying
evidence of his inability to safely relocate there, and gross, flagrant, or mass
human rights violations in Mexico. 8 C.F.R. § 1208.16(c).
Because substantial evidence supports the BIA’s determination that
Gonzalez-Marciel can safely relocate to Mexico City, the petition for review is
DENIED.
4