Jose Tzompantzi-Salazar v. Merrick Garland ( 2022 )

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.