NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3687
___________
MARIO MURGUIA-BRISENO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A031-080-721)
Immigration Judge: Honorable Kuyomars Q. Golparvar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 21, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: March 23, 2017)
___________
OPINION*
___________
PER CURIAM
Petitioner Mario Murguia-Briseno asks us to review an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s decision
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
denying withholding of removal and protection under the Convention Against Torture
(CAT). Because substantial evidence supported the BIA’s conclusions, we will deny his
petition for review.
Murguia-Briseno, a native and citizen of Mexico, came to the United States as a
lawful permanent resident in 1971. After he suffered several criminal convictions, he
was removed to Mexico. He has since unlawfully reentered the United States five times.
In 2013, he reentered, was arrested almost immediately, and was later convicted of
unlawful reentry. Before he was again removed, he sought withholding of removal and
protection under the CAT. He alleged past persecution and a clear probability of future
persecution and torture if returned to Mexico.
Murguia-Briseno represented himself at his removal hearing before the
Immigration Judge (IJ). Murguia-Briseno testified that when he was living in Mexico,
shortly before his most-recent reentry into the United States, four individuals—who he
alleged might have been Mexican police officers—kidnapped and beat him. During the
second beating, the attackers taunted him, asked him whether he was a Sureno—a
member of a Southern California prison gang—and whether he knew anything about the
murders of two Mexican police officers. He did not report these beatings to the Mexican
police or any other arm of the government, however, because he feared reprisal. The IJ
found his testimony credible, but denied the request for withholding because he had not
shown that he was attacked on account of his membership in a particular social group.
The IJ also denied CAT protection because Murguia-Briseno did not introduce sufficient
2
evidence to show that it was more likely than not that he would be tortured if returned to
Mexico.
Murguia-Briseno appealed the IJ’s ruling to the BIA, which upheld the denial of
withholding because the Sureno prison gang was not a distinct social group recognized
by Mexican society, and because the evidence was insufficient to show that the group of
men targeted him because he was a Sureno. The BIA also upheld the denial of CAT
relief, holding that Murguia-Briseno failed to introduce evidence that the Mexican
government, either intentionally or through willful blindness, acquiesced in past torture,
or that it was more likely than not that he would be tortured if he was returned to Mexico.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a)(1).
Where the BIA issues its own opinion on the merits, we review the decision of the BIA,
not that of the Immigration Judge. Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir.
2014). Nevertheless, where the BIA expressly adopts a portion of the IJ’s opinion, we
review both the decisions of the IJ and the BIA. See Voci v. Gonzales, 409 F.3d 607,
612 (3d Cir. 2005).
The Immigration Nationality Act requires withholding of removal where “the
Attorney General decides that the alien’s life or freedom would be threatened in [the
country of removal] because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Whether or not
Murguia-Briseno established that his membership in a particular social group was the
reason he was attacked is a question of fact that we review under the substantial evidence
standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential
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standard, Murguia-Briseno must establish that the evidence does not just support a
contrary conclusion, but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002).
Here, the BIA upheld the IJ’s determination that Murguia-Briseno had not proven
that the attacks were motivated by his membership in the Sureno prison gang.1 The
BIA’s determination was supported by record evidence. Murguia-Briseno testified that,
before the first attack, one of the men asked Murguia-Briseno whether his name was
“Mario Murguia.” When he responded “yes,” they kidnapped him and beat him while
interrogating him about the murder of two Mexican police officers. They called him
names and asked him questions, but made no reference to the Sureno gang. When the IJ
asked him why he was attacked, Murguia-Briseno testified that the men could have been
targeting him because he was recently removed from the United States; he did not
theorize that it was on account of his past-Sureno membership. Although he claimed that
during the second attack the attackers called him “sissy,” “Sureno,” and other names, he
repeatedly told the attackers he was not doing work for the Surenos. Nevertheless, they
attacked him a third time, continued to interrogate him, and called him “all kinds of
names.” Neither the attackers’ words, actions, nor the context in which the attacks
occurred establish that they were targeting Murguia-Briseno because he was a Sureno.
1
Before the IJ, Murguia-Briseno testified that he joined the Surenos when he was very
young, but that he was no longer an active member. He testified that although he “never
really” formally withdrew his membership, he was not currently active in the gang. We
need not decide here whether past membership in a prison gang constitutes “a particular
social group” under 8 U.S.C. § 1231(b)(3)(A) because the record supports the factual
finding that Murguia-Briseno was not attacked on account of his membership, past or
current, in the Sureno gang.
4
See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007); Mouawad v. Gonzales, 485
F.3d 405, 412 (8th Cir. 2007) (holding that petitioner failed to establish a clear
probability of persecution on the basis of a protected class where he was beaten to extract
information about the Lebanese military, not because of his religion). Accordingly we
will not disturb the BIA’s withholding ruling.
Murguia-Briseno also challenges the BIA’s ruling that he was ineligible for CAT
relief. To warrant CAT protection, Murguia-Briseno bears the burden to establish,
through objective evidence, “that it is more likely than not” that he will be tortured if
removed. 8 C.F.R. § 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
2002). “Torture is defined as any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining . . .
information or a confession, punishing [him] . . . for an act [he] has committed or is
suspected of having committed, intimidating or coercing, or for any reason based on
discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).
The BIA adopted the IJ’s finding that Murguia-Briseno had not proven, with
record evidence, that it was more likely than not that his attackers would torture him
again if he was returned to Mexico. See Konou v. Holder, 750 F.3d 1120, 1125-26 (9th
Cir. 2014) (explaining that evidence of prior torture, in and of itself, is insufficient to
establish a likelihood of future torture). That factual finding rested on his testimony that
his attackers probably thought he was dead, had not attempted to contact or threaten him
since the attacks, and may not have been on the lookout for him since then. See Kaplun
v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010) (holding that the agency’s conclusion
5
about “what is likely to happen to the petitioner if removed” is an issue of fact).
Murguia-Briseno did not testify about any recent, specific threats that he would be
tortured on his return to Mexico. See Malonga v. Mukasey, 546 F.3d 546, 556 (8th Cir.
2008). Moreover, Murguia-Briseno did not claim to the BIA that Surenos generally
faced torture in Mexico. Nor did he establish that he could not travel to an area of the
country where he would not be subject to torture. See id.; see also Tamang v. Holder,
598 F.3d 1083, 1095 (9th Cir. 2010) (“evidence of relevant country conditions is
extremely important, as is the ability of [petitioner] to safely relocate to another part of
his country of origin”); 8 C.F.R. § 1208.16(c)(3)(ii). Because the BIA’s ruling is
supported by record evidence, we will not upset its determination. 2
For the reasons set forth above, we will deny Murguia-Briseno’s petition for
review.
2
On appeal, Murguia-Briseno complains that the BIA did not speak to his documentary
evidence. However, the IJ expressly reviewed that evidence and incorporated it into the
IJ’s factual findings, which the BIA adopted.
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