FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ZAMORA-CHAVEZ, No. 13-74144
Petitioner, Agency No. A043-363-407
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2016**
Pasadena, California
Before: PREGERSON, NGUYEN, and OWENS, Circuit Judges.
Jose Zamora-Chavez, a Mexican citizen and a lawful permanent resident,
petitions for review of the Board of Immigration Appeals (BIA)’s dismissal of his
appeal of an Immigration Judge (IJ)’s (1) finding that Zamora-Chavez is ineligible
for a discretionary waiver of deportation under the former Immigration and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nationality Act (INA) § 212(c), and (2) denial of Zamora-Chavez’s application for
deferral of removal under the Convention Against Torture (CAT). Because the
parties are familiar with the facts, we do not recount them here.
Because the BIA conducted its own review of the evidence and law rather
than simply adopting the IJ’s decision, this court’s “review is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks and citation
omitted). We review the BIA’s factual findings for substantial evidence and
review its legal conclusions de novo. Garcia v. Holder, 749 F.3d 785, 789 (9th
Cir. 2014). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition.
First, the BIA did not err in finding that Zamora-Chavez is ineligible for
relief under § 212(c). When Zamora-Chavez entered his plea of no contest to a
controlled substance charge in August 1996, and when his deportation proceedings
commenced in December 1996, § 440(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) barred him from receiving relief in the form of a
§ 212(c) waiver because he was an “alien who [was] deportable by reason of
having committed any criminal offense covered in” INA § 241(a)(2)(B)(i), now
codified at 8 U.S.C. § 1227(a)(2)(B)(i).
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Neither the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001),
nor this court’s decision in Pascua v. Holder, 641 F.3d 316 (9th Cir. 2011),
changes this result. These decisions establish that an alien who was eligible for
§ 212(c) relief at the time he or she entered a guilty plea remains eligible for that
relief even if deportation proceedings were commenced after the effective date of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), St. Cyr, 533 U.S. at 326, or if deportation proceedings commenced
before that date and deportation charges were added based on post-IIRIRA
convictions, Pascua, 641 F.3d at 319; however, neither decision allows relief for
an alien who was not eligible for a waiver under § 212(c) in the first instance.
Zamora-Chavez was not eligible for such relief because he entered his no contest
plea subject to § 440(d) of AEDPA and its withdrawal of eligibility for § 212(c)
relief from aliens convicted of a controlled substance crime. See Matter of
Abdelghany, 26 I. & N. Dec. 254, 271-72 (BIA 2014); see also 8 U.S.C. § 1182(c)
(1996). Therefore, the BIA correctly determined that Zamora-Chavez is ineligible
for relief under INA § 212(c).
Second, for the CAT claim, the BIA’s conclusion that it was not more likely
than not that Zamora-Chavez would be tortured upon return to Mexico was
supported by substantial evidence. The CAT defines torture as “an extreme form
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of cruel and inhuman treatment,” and requires that it have been “specifically
intended to inflict severe physical or mental pain or suffering.” 8 C.F.R.
§ 1208.18(a). As the IJ found and the BIA affirmed, Zamora-Chavez failed to
carry his burden of establishing that he was more likely than not to be tortured
based on his (1) mental illness, (2) bisexuality, or (3) foreign or “Americanized”
appearance. See 8 C.F.R. § 1208.16(c)(2) (burden of proof on applicant); see also
8 C.F.R. § 1208.17(a) (applicant who establishes eligibility for CAT withholding
but is subject to mandatory denial shall be granted CAT deferral).
Zamora-Chavez’s contentions regarding his mental illness were too
speculative to carry his burden of proof, particularly because petitioner did not
know how much his medication would cost in Mexico and simply theorized that he
would be unable to obtain it and would then be tortured. See Xiao Fei Zheng v.
Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (finding that the petitioner’s “claims
of possible torture remain[ed] speculative” and therefore did not compel reversal);
see also Maroufi v. INS, 772 F.2d 597, 599 (9th Cir. 1985) (rejecting an asylum
application that “consisted solely of conclusory and speculative inferences drawn
from generalized events”). Furthermore, even if Zamora-Chavez established that
he would be institutionalized and that the conditions of the institution would
amount to torture, he failed to establish that the Mexican government created the
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conditions with the specific intent of torturing the institution’s patients. See
Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).
With respect to his bisexuality, Zamora-Chavez showed that discrimination
against LGBT individuals exists in Mexico, but failed to establish that (1) the
discrimination rises to the level of torture, or (2) it is so widespread as to make it
more likely than not that petitioner would himself be tortured. See Alphonsus v.
Holder, 705 F.3d 1031, 1049 (9th Cir. 2013). Similarly, Zamora-Chavez failed to
establish that any kidnapping of foreign nationals (1) would amount to torture, or
(2) was so widespread as to make it more likely than not that it would happen to
him. Accordingly, the record does not compel reversal of the BIA’s decision. See
Garcia, 749 F.3d at 789 (this court upholds the BIA’s factual findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary” (quoting 8
U.S.C. § 1252(b)(4)(B))).
PETITION FOR REVIEW DENIED.
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