FILED
NOT FOR PUBLICATION
APR 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO QUINONES- No. 13-73648
HERRERA,
Agency No. A097-395-893
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2016**
San Francisco, California
Before: WALLACE, SCHROEDER, and N.R. SMITH, Circuit Judges.
Jose Alberto Quinones-Herrera, a citizen and native of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA) affirming an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge’s (IJ) denial of withholding of removal and relief under the
Convention Against Torture (CAT).1
Substantial evidence supports the BIA’s conclusion that Quinones-Herrera
did not establish past persecution or a clear probability of future persecution. To
qualify for withholding of removal, Quinones-Herrera must show the source of the
persecution is the government or persons or groups that the government is
unwilling or unable to control. See Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th
Cir. 2007); Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000).
Quinones-Herrera does not argue that the source of persecution (drug smugglers
from Mexico2) was the government, and he failed to show that the drug smugglers
were “forces that the government [was] unwilling or unable to control.” See
Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006); see also
Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (failure to report
1
Quinones-Herrera did not challenge the BIA’s denial of CAT relief in his
opening brief. Thus, this argument is waived. See Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996).
2
Quinones-Herrera alleges he fears persecution in Mexico, because he has
had interactions with drug smugglers in Mexico and testified against human
smugglers during a trial in the United States. Quinones-Herrera has not presented
any evidence that he will be targeted or harmed because of his testimony at trial.
2
non-governmental persecution due to belief that police would do nothing did not
establish that government was unwilling or unable to control persecutors).
According to Quinones-Herrera, he did not report the 2003 incident with the
smugglers to government authorities, because he did not believe the police would
help him. The only evidence Quinones-Herrera presented to show that the
government would be unwilling or unable to help him, however, was his confusing
hearing testimony about his interactions with the police when he first entered the
United States. See Castro-Martinez v. Holder, 674 F.3d 1073, 1081 (9th Cir.
2011).
Further, the record evidence of country conditions does not compel a finding
that the Mexican government is unable or unwilling to protect Quinones-Herrera
from smugglers in Mexico. Although the Country Report suggests widespread
violence and corruption throughout Mexico, it also suggests that measures have
been taken to combat police abuses. Quinones-Herrera did not “demonstrate
[Mexico’s] lack of ability or willingness to respond to violence by ‘establishing
that private persecution of a particular sort is widespread and well-known but not
controlled by [it]’ or ‘showing that others have made reports of similar incidents to
no avail.’” Id. (quoting Rahimzadeh, 613 F.3d at 922). Further, Quinones-Herrera
did not “demonstrat[e] that [Mexico’s] laws or customs effectively deprive[d]
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[him] of any meaningful recourse to governmental protection” nor did he
“establish that going to the authorities would have been futile or would have
subjected [him] to further abuse.” Id. (quoting Rahimzadeh, 613 F.3d at 921-22)
(alterations omitted).
Because we find that the source of the persecution was not the government
or forces that the government is unwilling or unable to control, we need not
address whether Quinones-Herrera was persecuted an account of a protected
ground.
PETITION FOR REVIEW DENIED.
4