Jose Tzompantzi-Salazar v. Merrick Garland ( 2022 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSE TZOMPANTZI-SALAZAR,                           No. 20-71514
    Petitioner,
    Agency No.
    v.                            A200-196-389
    MERRICK B. GARLAND, Attorney
    General,                                           ORDER AND
    Respondent.                    AMENDED
    OPINION
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted October 21, 2021 *
    Pasadena, California
    Filed February 9, 2022
    Amended April 21, 2022
    Before: Ryan D. Nelson and Lawrence VanDyke, Circuit
    Judges, and Karen E. Schreier, ** District Judge.
    Order;
    Opinion by Judge VanDyke
    *
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    **
    The Honorable Karen E. Schreier, United States District Judge for
    the District of South Dakota, sitting by designation.
    2             TZOMPANTZI-SALAZAR V. GARLAND
    SUMMARY ***
    Immigration
    The panel filed an order (1) amending the opinion filed
    on February 9, 2022; and (2) stating that no further petitions
    for rehearing or rehearing en banc would be entertained. In
    the amended opinion, the panel denied Jose Tzompantzi-
    Salazar’s petition for review of a decision of the Board of
    Immigration Appeals, holding that (1) the Board did not
    abuse its discretion in denying Tzompantzi-Salazar’s motion
    to reopen in which he raised a challenge to his charging
    document under Pereira v. Sessions, 
    138 S. Ct. 2105
     (2018);
    and (2) substantial evidence supported the Board’s denial of
    relief under the Convention Against Torture.
    Tzompantzi-Salazar sought to reopen proceedings
    arguing that the agency lacked jurisdiction because his
    Notice to Appear (NTA) did not include the time and date of
    his hearing. The panel concluded that Tzompantzi-Salazar’s
    argument failed for two reasons. First, Tzompantzi-
    Salazar’s current proceeding was initiated with a different
    charging document—a Notice of Referral to Immigration
    Judge (NOR)—which the panel concluded alone made
    Pereira inapplicable to his proceeding. Second, the panel
    concluded that even if it were to assume NTAs and NORs
    are analogous in the way Tzompantzi-Salazar claimed, his
    argument was foreclosed by precedent holding that when
    hearing details are later provided, as they were here, there is
    no jurisdictional defect.
    ***
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    TZOMPANTZI-SALAZAR V. GARLAND                   3
    The panel held that substantial evidence supported the
    Board’s denial of CAT relief. First, the panel explained that
    while petitioners seeking CAT relief are not required to
    prove that safe relocation would be factually impossible,
    they do carry the overall burden of proof to demonstrate that
    it is more likely than not that they will be tortured if
    removed. And in deciding whether a petitioner has satisfied
    his or her burden, the IJ must consider all relevant evidence,
    including but not limited to the possibility of relocation
    within the country of removal. The panel agreed with the
    Board that Tzompantzi-Salazar could avoid any risk of
    future torture by relocating to his home state in central
    Mexico, Tlaxcala—thousands of miles from the border
    where his two kidnappings allegedly occurred.
    Tzompantzi-Salazar argued that relocation to his home
    state would not be reasonable because he is “still relatively
    young with limited job prospects in Mexico with not having
    been back for some time,” and because if removed he would
    once again stay in Tijuana near the border to be close to his
    children in the United States.          The panel rejected
    Tzompantzi-Salazar’s argument, explaining that in assessing
    eligibility for CAT relief, the agency must consider the
    possibility of relocation—without regard for the
    reasonableness of relocation that is considered in other types
    of applications, such as asylum and withholding of removal.
    The panel concluded that the evidence (including
    Tzompantzi-Salazar’s own testimony) showed that
    relocation to his home state in central Mexico, where he had
    no issues of past harm and the majority of his family still
    resides, was eminently possible.
    The panel concluded that even putting aside the
    possibility of relocation, the remaining CAT factors did not
    push Tzompantzi-Salazar past the 50% threshold required
    4           TZOMPANTZI-SALAZAR V. GARLAND
    for CAT relief. The panel wrote that although past torture
    can be relevant in assessing an applicant’s risk of future
    torture, that alone does not establish or even give rise to a
    presumption that the applicant will suffer future torture. The
    panel explained that, as the agency emphasized, CAT relief
    is “forward looking,” and Tzompantzi-Salazar’s previous
    kidnappings—even assuming they occurred just as
    described and the first was committed by real police
    officers—do not establish that he continues to face a risk of
    future torture more than ten years later. Nor did the record
    compel the conclusion that the kidnappings rose to the level
    of torture, which the panel explained is reserved for extreme
    cruel and inhuman treatment that results in severe pain or
    suffering. The panel concluded that the record would not
    compel the conclusion that Tzompantzi-Salazar established
    a more than 50% chance of future torture because he failed
    to provide any evidence that someone in his circumstance is
    more likely than not to be kidnapped and mistreated.
    Finally, the panel wrote that the remaining CAT factors,
    including the country conditions evidence and other relevant
    context, all undercut Tzompantzi-Salazar’s belief that he
    faces the extremely high threshold of future torture required
    by statute. The panel explained that the country conditions
    evidence confirmed what the agency emphasized was the
    important context surrounding Tzompantzi-Salazar’s
    kidnappings, which occurred near the border, in an area with
    notoriously higher rates of crime, where Tzompantzi-Salazar
    voluntarily chose to stay as he searched for a smuggler to
    bring him illegally across the border in violation of a prior
    removal order. The panel wrote that country conditions
    evidence acknowledged crime and police corruption in
    Mexico generally, as well as higher rates in Tijuana, but
    failed to show that Tzompantzi-Salazar faces a
    TZOMPANTZI-SALAZAR V. GARLAND                    5
    particularized, ongoing risk of future torture higher than that
    faced by all Mexican citizens.
    COUNSEL
    Murray David Hilts, Law Offices of Murray D. Hilts, San
    Diego, California, for Petitioner.
    Jessica D. Strokus, Trial Attorney; Anthony C. Payne,
    Assistant Director; Brian Boynton, Acting Assistant
    Attorney General; Office of Immigration Litigation, Civil
    Division, United States Department of Justice, Washington,
    D.C.; for Respondent.
    ORDER
    The Opinion filed on February 9, 2022, is amended as
    follows:
    On slip opinion page 17, replace  with .
    The Clerk shall file the amended opinion submitted with
    this Order. No future petitions for rehearing or rehearing en
    banc will be entertained.
    OPINION
    VANDYKE, Circuit Judge:
    Jose Tzompantzi-Salazar (Petitioner), a native and
    citizen of Mexico, petitions for review of the agency’s
    rejection of his claim for protection under the Convention
    Against Torture (CAT) and rejection of his separate motion
    to reopen and remand his removal proceedings based on
    claimed jurisdictional defects in his charging documents.
    Petitioner has illegally entered the United States at least
    seven times, spending much of his time in Tijuana preparing
    to cross back into the United States. His CAT claim and
    stated fear of future torture if returned to Mexico is based on
    two kidnappings that allegedly occurred in border towns
    during the summer of 2011, while Petitioner was preparing
    to re-enter the United States.
    The Board of Immigration Appeals (BIA) affirmed the
    Immigration Judge’s (IJ) denial of CAT relief and
    determination that Petitioner—having received no threats
    since the 2011 kidnappings—did not face a higher risk of
    torture than that faced by all Mexican citizens. The BIA also
    agreed with the IJ that Petitioner could avoid torture in
    TZOMPANTZI-SALAZAR V. GARLAND                   7
    Mexico by avoiding the border and relocating to his home
    state in central Mexico, where his parents and siblings safely
    reside.
    The BIA also denied Petitioner’s motion to reopen and
    remand because his jurisdictional arguments relied solely on
    Pereira v. Sessions, 
    138 S. Ct. 2105
     (2018), which our court
    has already squarely rejected as relevant to the agency’s
    jurisdiction. See Karingithi v. Whitaker, 
    913 F.3d 1158
    ,
    1159–62 (9th Cir. 2019) (affirming agency’s jurisdiction and
    holding that Pereira “does not control” and “has no
    application here” when the hearing time and date were later
    provided).
    The agency did not abuse its discretion in denying
    Petitioner’s motion to reopen and remand. Nor did it err in
    denying Petitioner’s CAT claim, as he can relocate to his
    home state in central Mexico and away from the border,
    where his previous harms occurred. Accordingly, pursuant
    to our jurisdiction under 
    8 U.S.C. § 1252
    , we deny the
    petition for review.
    I. FACTUAL BACKGROUND
    Petitioner grew up in central Mexico in the state of
    Tlaxcala, and first illegally entered the United States around
    August 2004 when “some friends offered [him] the
    opportunity.” He returned to his home state in 2010 for a
    family funeral, where he remained with no issues for a few
    months.
    But Petitioner ran into trouble getting back into the
    United States unnoticed. In his 2010 and 2011 attempts to
    illegally re-enter, Petitioner was apprehended several times
    by the Department of Homeland Security (DHS) and issued
    multiple orders to voluntarily return to Mexico. Each time
    8           TZOMPANTZI-SALAZAR V. GARLAND
    Petitioner returned to Mexico he stayed near the border town
    of Tijuana, where he planned and prepared for his next
    attempt to cross the border to be in the United States near his
    wife, Ana Melendez, and their children. According to
    Petitioner, he faced hardships south of the border during his
    most recent attempts to enter the United States and those
    events make him fear returning to Mexico. He claims he was
    kidnapped in Tijuana in July 2011, while looking for a
    smuggler to bring him across the border, and later kidnapped
    in the mountains while attempting to cross the border in
    August 2011.
    A. First Kidnapping: July 16, 2011
    According to Petitioner, he stayed a few weeks in July
    2011 at Hotel Cortez near Tijuana while looking for a
    smuggler to bring him across the border. During his stay, he
    received routine wire payments from Ms. Melendez to cover
    his expenses. On July 16, 2011, he was stopped by two men
    “dressed like policeman” who asked him for identification.
    After looking over Petitioner’s consulate card, they forced
    him into a van and drove him to a house where he was
    beaten, strip-searched, and held for ransom. He initially
    refused to give the kidnappers Ms. Melendez’s number but
    eventually relented after he was beaten with brass knuckles
    that caused hearing damage.
    The kidnappers demanded that Ms. Melendez wire
    $20,000 to “Sandra Ruiz,” or they would harm Petitioner.
    Ms. Melendez did not have $20,000, but wired what she
    could—almost $3,000—according to the kidnappers’
    instructions. A few days later, on July 19, 2011, the
    kidnappers released Petitioner with instructions to
    “disappear.” Petitioner did not seek medical treatment for
    his injuries or report the kidnapping.
    TZOMPANTZI-SALAZAR V. GARLAND                   9
    B. Expedited Removal Order: July 22, 2011
    Three days after he was released by the kidnappers,
    Petitioner again crossed the border into the United States,
    was apprehended by DHS and, because of his previous
    encounters with border patrol, taken into custody and issued
    an expedited removal order. Petitioner does not recall being
    asked if he feared returning to Mexico, but he expressed no
    fear during his July 2011 processing and his intake
    photograph reflected no visible injuries from the alleged
    recent kidnapping.
    C. Second Kidnapping: August 2011
    After being deported pursuant to the expedited removal
    order on July 24, 2011, Petitioner claims he remained in
    Tijuana for a few weeks at Hotel San Diego (with no threats
    or issues) while he waited for the right smuggler to again
    escort him over the border. When crossing the hills between
    Tijuana and San Diego, Petitioner and his smuggler were
    kidnapped and held for a day and a half by criminals who
    beat Petitioner and demanded his family’s phone number so
    they could collect a ransom. Petitioner testified that the
    second group of kidnappers were not police officers or
    pretending to be police officers; instead, they were “dressed
    in normal clothing” and wore bandanas. Petitioner was
    released when the group’s food ran out. He returned to
    Tijuana, where he remained for a few weeks (again with no
    issues) before making his last entrance into the United States
    on or about September 5, 2011.
    10          TZOMPANTZI-SALAZAR V. GARLAND
    II. PROCEDURAL BACKGROUND
    A. Charging Documents
    Shortly after his September 2011 entrance, Petitioner
    was taken into DHS custody and received two different
    charging documents. The first, a Notice to Appear, was
    mistakenly issued but later withdrawn when those
    proceedings were terminated because Petitioner (with the
    reinstatement of his prior expedited removal order) was not
    eligible for cancellation of removal. The second, a Notice of
    Referral to Immigration Judge (NOR), was filed on April 6,
    2012, and reflected the location of Petitioner’s IJ hearing but
    indicated the time and date were “[t]o be set.” Three days
    later Petitioner received his missing hearing details in a
    “Notice of Withholding-Only Hearing.” No party disputes
    that Petitioner received all hearing notices and attended all
    IJ hearings.
    Petitioner appeared for a reasonable fear interview on
    February 14, 2012. An asylum officer made a reasonable
    fear determination on March 29, 2012, and referred
    Petitioner to an IJ for credible fear hearings that took place
    on May 30, 2012, and June 14, 2012.
    B. Initial IJ Hearing: 2012
    In his initial hearing before the IJ, Petitioner testified
    about both kidnappings (the second of which was omitted
    from his prior written declaration). Ms. Melendez also
    testified and described paying the ransom to the first set of
    kidnappers, but she did not recall the second kidnapping
    until prompted by Petitioner.
    The IJ found Ms. Melendez credible. And despite
    concerns with “several discrepancies” in Petitioner’s
    TZOMPANTZI-SALAZAR V. GARLAND                         11
    testimony that he failed to explain (conflicting timelines and
    the omission of any stated fear or evident injuries in his July
    2011 deportation that followed his first kidnapping), the IJ
    stopped short of making an adverse credibility determination
    but warned that “it’s a close case on your credibility.” 1 But
    even without an adverse credibility determination, the IJ
    noted it was not clear that the kidnappings rose to the level
    of torture, that they were committed by or with government
    acquiescence, or that Petitioner was harmed because of any
    ground protected by the Immigration and Nationality Act
    (INA).
    Petitioner initially sought withholding of removal under
    both the INA and the CAT. The IJ denied both claims,
    concluding Petitioner failed to show past persecution based
    on a protected ground (preventing INA relief) or that he
    would more likely than not face future torture if returned to
    Mexico (preventing CAT relief).
    C. First BIA Decision and Ninth Circuit Remand: 2016
    The BIA affirmed the IJ’s denial of Petitioner’s
    application, agreeing he failed to satisfy his burden for
    withholding of removal or CAT relief. A panel of this court
    reviewed the agency’s decision on June 29, 2016, affirming
    dismissal of Petitioner’s withholding of removal claim but
    1
    For example, Petitioner initially testified that he remained in
    Mexico from June 28, 2011, into part of August. But he later conceded
    that his July 22, 2011, apprehension by U.S. Border Patrol made that
    timeline a physical impossibility.        He never explained these
    inconsistencies.
    12          TZOMPANTZI-SALAZAR V. GARLAND
    remanding for reconsideration of Petitioner’s CAT claim,
    which the BIA then remanded to a second IJ. 2
    D. IJ Decision Post-Remand: 2018
    On remand, and considering the only remaining claim
    for CAT relief, the second IJ gave Petitioner and the
    government an opportunity to provide any additional
    documents or updated country conditions evidence before a
    merits hearing on June 8, 2018. At the hearing, Petitioner
    chose to provide no additional testimonial evidence, relying
    instead on the testimony given in 2012 and the updated
    country reports submitted by both parties.
    The second IJ denied Petitioner’s application for CAT
    relief, emphasizing Petitioner’s burden of proof and his
    failure to show that he would more likely than not face future
    torture with government acquiescence. The second IJ also
    found Petitioner credible. But even assuming Petitioner
    testified credibly and the first kidnapping was actually
    committed by police, the second IJ found that the remaining
    CAT factors (Petitioner’s ability to safely relocate and the
    greater context of his kidnappings, which both occurred near
    the border and had not resulted in any threats or harm in the
    years since) diminished Petitioner’s risk of future torture
    below the more-likely-than-not standard.
    E. Second BIA Decision on Appeal: 2020
    On May 19, 2020, the BIA agreed with the second IJ that
    Petitioner failed to establish the higher than 50% risk of
    future torture required for CAT relief and dismissed the
    2
    On October 27, 2016, Petitioner’s IJ proceedings moved from
    Adelanto, California, to San Diego, California.
    TZOMPANTZI-SALAZAR V. GARLAND                  13
    appeal. The BIA considered Petitioner’s recollection of the
    past kidnappings but found them insufficient to establish
    CAT relief, emphasizing the “forward-looking” nature of the
    statute. It also considered country conditions reports
    showing generalized crime and corruption but found them
    too general to show that Petitioner faced any particularized
    threat of torture. And like the second IJ, the BIA relied
    specifically on Petitioner’s ability to safely relocate,
    affirming the second IJ’s determination that Petitioner could
    avoid any threat of torture by relocating to his home state in
    Tlaxcala.
    Petitioner also filed a motion to reopen and remand his
    removal proceeding in light of the Supreme Court’s Pereira
    decision, which the BIA denied, dismissing any application
    of the case as “inapposite” to Petitioner’s proceeding.
    III. STANDARD OF REVIEW
    “Where the BIA issues its own decision but relies in part
    on the immigration judge’s reasoning, we review both
    decisions.” Flores-Lopez v. Holder, 
    685 F.3d 857
    , 861 (9th
    Cir. 2012).
    This court reviews the denial of a motion to reopen for
    abuse of discretion, with broad deference to the agency’s
    decision. INS v. Doherty, 
    502 U.S. 314
    , 323–24 (1992);
    Shouchen Yang v. Lynch, 
    822 F.3d 504
    , 508 (9th Cir. 2016);
    Movsisian v. Ashcroft, 
    395 F.3d 1095
    , 1098 (9th Cir. 2005)
    (same standard for review of motions to remand). Under that
    standard, this court defers to the Board’s decision unless it
    acted arbitrarily, irrationally, or contrary to law. Yan Rong
    Zhao v. Holder, 
    728 F.3d 1144
    , 1147 (9th Cir. 2013) (citing
    Chang Hua He v. Gonzales, 
    501 F.3d 1128
    , 1131 (9th Cir.
    2007)).
    14          TZOMPANTZI-SALAZAR V. GARLAND
    We review the denial of CAT relief for substantial
    evidence. Guo v. Sessions, 
    897 F.3d 1208
    , 1212 (9th Cir.
    2018) (internal citations omitted). “Under the substantial
    evidence standard, administrative findings of fact are
    conclusive unless any reasonable adjudicator would be
    compelled to conclude to the contrary.” Zehatye v.
    Gonzales, 
    453 F.3d 1182
    , 1185 (9th Cir. 2006) (emphasis
    added) (internal citation and quotation marks omitted). This
    standard “precludes relief absent a conclusion that no
    reasonable factfinder could have reached the agency’s
    result.” Don v. Gonzales, 
    476 F.3d 738
    , 741 (9th Cir. 2007)
    (internal citation omitted).
    IV. DISCUSSION
    A. The Agency Reasonably Denied the Motion to
    Reopen and Remand.
    Motions to reopen (or remand) in immigration
    proceedings are disfavored. We review them under a highly
    deferential standard of review, overturning the agency’s
    decision only if the agency abused its discretion by acting
    arbitrarily, irrationally, or contrary to law. See Chang Hua
    He, 
    501 F.3d at 1131
    ; Feng Gui Lin v. Holder, 
    588 F.3d 981
    ,
    984 (9th Cir. 2009). As relevant here, the agency may deny
    a motion to reopen if (1) the petitioner failed to establish a
    prima facie case for the relief sought; or (2) the petitioner
    failed to introduce previously unavailable material evidence.
    See INS v. Abudu, 
    485 U.S. 94
    , 105 (1988). Because
    Petitioner here did not provide any new evidence in support
    of his motion and instead relied entirely on the Supreme
    Court’s decision in Pereira v. Sessions, he failed to establish
    a prima facie case for the relief sought and the agency
    reasonably denied his motion to reopen. 
    138 S. Ct. 2105
    (2018).
    TZOMPANTZI-SALAZAR V. GARLAND                          15
    1. Pereira Has No Application to Petitioner’s
    Proceeding.
    In Pereira, the Supreme Court answered what it
    described as a “narrow question,” holding that a Notice to
    Appear (NTA) lacking the time and date of a petitioner’s
    hearing was not an NTA for purposes of the stop-time rule
    for cancellation of removal proceedings. Pereira v.
    Sessions, 
    138 S. Ct. 2105
    , 2109–10 (2018). Pereira did not
    address agency jurisdiction, but Petitioner argues that
    because his NTA failed to specify the time and date of his
    hearing, the agency lacked jurisdiction over his proceeding.
    Petitioner’s argument fails for two reasons. First, as the
    agency pointed out, Petitioner’s current proceeding was
    initiated with a different charging document—a Notice of
    Referral to Immigration Judge (NOR)—which alone makes
    Pereira inapplicable to his proceeding. 3 
    Id.
     Second, even if
    we were to assume NTAs and NORs are analogous in the
    way Petitioner claims, 4 his argument is foreclosed by our
    3
    Petitioner was initially served with an NTA that mistakenly
    initiated a cancellation of removal proceeding. But that proceeding was
    terminated because Petitioner, after his prior expedited removal order
    was reinstated, is not eligible for cancellation of removal. Petitioner’s
    current withholding-only proceeding was initiated with an entirely
    different charging document, an NOR, which, although it also lacked the
    time and date of his hearing, was followed by a notice of hearing that
    provided the hearing details.
    4
    Such an assumption is unwarranted.           The only obvious
    commonality between NTAs and NORs is that they are listed together as
    two of the three potential “charging documents” that, when filed, vest
    the Immigration Court with jurisdiction. See 
    8 C.F.R. § 1003.13
    (defining “charging document”); see also Romero v. Att’y Gen. U.S. of
    Am., 
    997 F.3d 145
    , 148–49 & 148 n.5 (3d Cir. 2021). Beyond 
    8 C.F.R. § 1003.14
    , which does not mention any time, place, or date requirements,
    16            TZOMPANTZI-SALAZAR V. GARLAND
    precedent holding that when hearing details are later
    provided (as they were here) there is no jurisdictional defect.
    See Karingithi, 913 F.3d at 1159–62 (emphasizing Pereira’s
    “narrow ruling” and rejecting its application in the
    jurisdictional context because, when the time and date of a
    hearing that were missing from an original NTA are later
    provided, there is no jurisdictional defect); Aguilar Fermin
    v. Barr, 
    958 F.3d 887
    , 889–91 (9th Cir. 2020) (also affirming
    agency’s jurisdiction and rejecting application of Pereira,
    explaining that “an initial [charging document] need not
    contain time, date, and place information to vest an
    immigration court with jurisdiction if such information is
    provided before the hearing”).
    Because Pereira is inapplicable to Petitioner’s
    proceeding, the BIA did not abuse its discretion in denying
    Petitioner’s motion to reopen on that basis as he failed to
    show prima facie eligibility for relief. See Abudu, 
    485 U.S. at 104
    ; see also Singh v. INS, 
    213 F.3d 1050
    , 1053 (9th Cir.
    2000) (“Unless the [Board] acted arbitrarily, irrationally, or
    contrary to law, we should not disturb [its] ruling.”) (citation
    and quotation marks omitted).
    B. Substantial Evidence Supports the Denial of CAT
    Relief.
    The dispositive question in assessing a CAT claim is
    “whether the alien is more likely than not to be tortured in
    the country of removal.” 
    8 C.F.R. § 1208.16
    (c)(4). All
    no regulation dictates what an NOR must contain. In contrast, the
    agency’s regulations do dictate that an NTA must contain the time, place,
    and date of the initial removal hearing. See 
    8 C.F.R. § 1003.18
    .
    TZOMPANTZI-SALAZAR V. GARLAND                    17
    evidence relevant to the possibility of future torture is to be
    considered, including:
    (i) Evidence of past torture inflicted upon the
    applicant; (ii) Evidence that the applicant
    could relocate to a part of the country of
    removal where he or she is not likely to be
    tortured; (iii) Evidence of gross, flagrant or
    mass violations of human rights within the
    country of removal, where applicable; and
    (iv) Other relevant information regarding
    conditions in the country of removal.
    
    8 C.F.R. § 1208.16
    (c)(3) (emphases added).
    1. The Possibility of Relocation Justifies the
    Denial of CAT Relief.
    Here, the second CAT factor (possibility of safe
    relocation) is well-established by Petitioner’s own testimony
    that he could avoid any risk of future torture by relocating to
    his home state in central Mexico, Tlaxcala—thousands of
    miles from the border where the two kidnappings allegedly
    occurred. Petitioner testified he was never harmed by
    anyone in Tlaxcala and expressed no fear of being tortured
    there, and neither he nor his parents nor his siblings who still
    reside there have been subjected to any harm, persecution,
    or torture in Tlaxcala. See Santos-Lemus v. Mukasey,
    
    542 F.3d 738
    , 747–48 (9th Cir. 2008) (affirming the denial
    of CAT relief because the ongoing safety of petitioner’s
    family in his hometown constituted substantial evidence that
    petitioner would not more than likely be tortured), abrogated
    in part on other grounds by Henriquez-Rivas v. Holder,
    
    707 F.3d 1081
     (9th Cir. 2013).
    18            TZOMPANTZI-SALAZAR V. GARLAND
    On appeal, Petitioner argues that relocation to his home
    state would not be reasonable because he is “still relatively
    young with limited job prospects in Mexico with not having
    been back for some time.” Before the IJ, Petitioner
    explained that if removed he would once again stay in
    Tijuana near the border to be close to his children in the
    United States.
    But in assessing eligibility for CAT relief, the agency
    must consider the possibility of relocation—without regard
    for the reasonableness of relocation that is considered in
    other types of applications (asylum and withholding of
    removal under the INA). See 
    8 C.F.R. § 1208.16
    (c)(3).
    Indeed, the asylum and CAT regulations with respect to the
    relocation factor “differ markedly.” Maldonado v. Lynch,
    
    786 F.3d 1155
    , 1163 (9th Cir. 2015) (en banc). 5
    While petitioners seeking CAT relief are not required to
    prove that safe relocation would be factually impossible,
    they do “carr[y] the overall burden of proof.” Maldonado,
    786 F.3d at 1164. As the court explained in Maldonado,
    petitioners “must demonstrate that it is more likely than not
    that he or she will be tortured if removed.” Id. And in
    deciding whether a petitioner has satisfied his or her burden,
    5
    Compare 
    8 C.F.R. § 1208.16
    (c)(3)(ii) (when assessing
    withholding of removal under CAT, the agency considers “[e]vidence
    that the applicant could relocate to a part of the country of removal where
    he or she is not likely to be tortured”) (emphasis added), with
    § 1208.16(b)(2) (when assessing withholding of removal under INA, the
    agency considers whether “under all the circumstances, it would be
    reasonable to expect the applicant to” relocate to another part of the
    country of removal) (emphasis added), and § 1208.13(b)(3)(ii) (when
    assessing eligibility for asylum, the agency presumes relocation is
    unreasonable if the past persecution was state-sponsored, unless the
    government rebuts the presumption by a preponderance of the evidence)
    (emphasis added).
    TZOMPANTZI-SALAZAR V. GARLAND                           19
    “the IJ must consider all relevant evidence, including but not
    limited to the possibility of relocation within the country of
    removal.” Id. Here the evidence (including Petitioner’s own
    testimony) shows that relocation to his home state in central
    Mexico, where he had no issues of past harm and the
    “majority” of his family still resides, is eminently possible.
    Petitioner argues that such relocation is unreasonable. But
    the reasonableness of a relocation is not relevant to a CAT
    claim, where the agency considers only whether safe
    relocation is possible, not whether it is reasonable (or
    comfortable or convenient). 
    8 C.F.R. § 1208.16
    (c)(3)(ii).
    Additionally, the country reports of a “high rate of murders”
    that Petitioner re-raises on appeal actually underscore the
    possibility (and reasonableness) of relocating to his home
    state, as most of the crime detailed in the reports is
    concentrated near the border where Petitioner claims he was
    kidnapped.
    2. Remaining CAT Factors Do Not Compel a
    Different Conclusion.
    Even putting aside the possibility of relocation, the
    remaining CAT factors do not push Petitioner past the 50%
    threshold required for CAT relief. 6              
    8 C.F.R. § 1208.16
    (c)(3).
    a. Past Torture
    In assessing eligibility for CAT relief, the first factor
    (evidence of past torture), can be relevant in assessing an
    6
    Even though our court has stated that “no one factor is
    determinative” in evaluating a CAT claim, Maldonado, 786 F.3d
    at 1164, it is hard to imagine what evidence could outweigh Petitioner’s
    own testimony that safe relocation to his home state, while not personally
    preferable, is possible.
    20          TZOMPANTZI-SALAZAR V. GARLAND
    applicant’s risk of future torture but does not alone establish
    or even give rise to a presumption that the applicant will
    suffer future torture. See Dawson v. Garland, 
    998 F.3d 876
    ,
    882 (9th Cir. 2021) (citing 
    8 C.F.R. § 1208.16
    (c)(3)). As the
    agency emphasized here, CAT relief is “forward looking,”
    and Petitioner’s previous kidnappings—even assuming they
    occurred just as described and the first was committed by
    real police officers—do not establish that he continues to
    face a risk of future torture more than ten years later.
    Nor does the record compel the conclusion that the
    kidnappings (even as described by Petitioner) rose to the
    level of torture, which is reserved for extreme cruel and
    inhuman treatment that results in severe pain or suffering.
    See 
    8 C.F.R. § 1208.18
    (a). Indeed, harm far more extreme
    and severe than what Petitioner allegedly suffered has been
    held by this court to fall below the high threshold for torture.
    See, e.g., Vitug v. Holder, 
    723 F.3d 1056
    , 1066 (9th Cir.
    2013) (concluding that physical beatings and economic
    deprivation did not rise to the level of torture); Ahmed v.
    Keisler, 
    504 F.3d 1183
    , 1201 (9th Cir. 2007) (concluding
    that petitioner being taken into custody, beaten four times,
    and witnessing the murder of his uncle did not justify CAT
    relief); Kumar v. Gonzales, 
    444 F.3d 1043
    , 1055 (9th Cir.
    2006) (concluding that “a month-long detention that
    included severe physical attacks and threats to [the
    petitioner’s] life” did not justify CAT relief).
    b. Contextual and Country Conditions Evidence
    Even if the BIA had ignored the relocation possibility,
    substantial evidence supports the agency’s decision. The
    record still would not compel the conclusion that Petitioner
    established a more than 50% chance of future torture
    because Petitioner has not provided any evidence that
    someone in his circumstance is more likely than not to be
    TZOMPANTZI-SALAZAR V. GARLAND                         21
    kidnapped and mistreated. There is no evidence, for
    example, that over half of the people waiting in border towns
    to enter the U.S. illegally end up getting tortured or worse,
    which is what Petitioner’s generalized evidence would need
    to show to warrant CAT relief.
    The remaining CAT factors, including the country
    conditions evidence and other relevant context, all undercut
    Petitioner’s belief that he faces the extremely high threshold
    of future torture required by statute. The agency emphasized
    the context surrounding Petitioner’s kidnappings, which
    occurred near the border, in an area with notoriously higher
    rates of crime, where he voluntarily chose to stay as he
    searched for a smuggler to bring him illegally across the
    border in violation of a prior removal order.
    The country conditions evidence confirms this important
    context: Tijuana is an especially dangerous part of Mexico
    with higher rates of crime, including the kidnapping and
    extortion schemes that Petitioner claims to have suffered. 7
    But to qualify for CAT relief, Petitioner had to demonstrate
    that he, in particular, would more likely than not face torture
    with government consent or acquiescence upon his return to
    Mexico. 
    8 C.F.R. § 1208.16
    (c)(2); Zheng v. Holder,
    
    644 F.3d 829
    , 835–36 (9th Cir. 2011) (rejecting torture claim
    where “claims of possible torture remain speculative”);
    Dawson, 998 F.3d at 885 (country conditions evidence
    showing generalized violence did not compel a conclusion
    7
    The emphasis on Tijuana in the country conditions evidence
    offered by Petitioner only bolsters the agency’s determination that any
    risk of torture he may face is highly concentrated in this border area,
    which Petitioner could avoid simply by not returning to that area.
    22          TZOMPANTZI-SALAZAR V. GARLAND
    that the petitioner herself would more likely than not be
    subjected to such violence).
    Here, the country conditions evidence acknowledged
    crime and police corruption in Mexico generally, as well as
    higher rates in Tijuana. But the evidence fails to show that
    Petitioner faces a particularized, ongoing risk of future
    torture. See Dhital v. Mukasey, 
    532 F.3d 1044
    , 1051 (9th
    Cir. 2008) (per curiam). After being kidnapped twice,
    Petitioner may understandably have a fear of being
    kidnapped a third time, but the previous kidnappings alone
    do not make a third kidnapping any more likely. Petitioner
    offered no evidence to show that he faces any particularized
    risk of torture (or kidnapping or extortion) higher than that
    faced by all Mexican citizens.
    Additionally, as the BIA pointed out, “the record
    evidence does not show that anyone has sought him or has
    any interest in him since the two kidnappings in Tijuana.”
    With no evidence of threats or harm since Petitioner was
    kidnapped more than ten years ago, the record certainly does
    not compel the conclusion that Petitioner faces any ongoing
    or particularized threat of torture. The absence of any threats
    after Petitioner’s kidnappings also lends further credence to
    the relocation factor because with no ongoing interest in him,
    Petitioner can safely relocate. See Duran-Rodriguez v. Barr,
    
    918 F.3d 1025
    , 1029 (9th Cir. 2019) (“There is no evidence
    or claim that the [kidnappers] have sought the respondent
    since he left his hometown or that he could not safely
    relocate . . . .”).
    The record does not compel what Petitioner failed to
    prove: that if returned to Mexico it is more likely than not
    that he would be tortured with government consent or
    acquiescence. Accordingly the agency did not err in
    concluding that Petitioner is not eligible for CAT relief. See
    TZOMPANTZI-SALAZAR V. GARLAND                         23
    
    8 C.F.R. § 1208.16
    (c)(2); Delgado-Ortiz v. Holder, 
    600 F.3d 1148
    , 1152 (9th Cir. 2010) (per curiam) (determining that
    generalized evidence of violence and crime in Mexico was
    not particular to petitioners and therefore was insufficient to
    establish CAT eligibility); Ramirez-Munoz v. Lynch,
    
    816 F.3d 1226
    , 1230 (9th Cir. 2016) (“Where Petitioners
    have not shown they are any more likely to be victims of
    violence and crimes than the populace as a whole in Mexico,
    they have failed to carry their burden [under CAT].”).
    V. CONCLUSION
    Because the agency neither abused its discretion in
    denying Petitioner’s motion to reopen and remand, nor erred
    in denying Petitioner’s CAT claim, the petition for review is
    DENIED. 8
    8
    Petitioner’s motion for stay of deportation is also DENIED.