NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 02 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GUSTAVO AMEZCUA GONZALEZ, No. 17-73229
Petitioner, Agency No. A200-006-731
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2019
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Petitioner Gustavo Amezcua Gonzalez seeks review of the Board of
Immigration Appeals’s (BIA) denial of his applications for withholding of removal
and protection under the United Nations Convention Against Torture (CAT). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
have jurisdiction under 8 U.S.C. § 1252(a), and we grant the petition in part, deny
it in part, and remand to the agency for further proceedings.
1. Substantial evidence supports the agency’s denial of Amezcua Gonzalez’s
withholding of removal claim. “Where the BIA issues its own decision but relies
in part on the immigration judge’s reasoning, [the court] review[s] both decisions.”
Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (quoting Flores-Lopez v.
Holder, 685 F.3d 857, 861 (9th Cir. 2012)). Pursuant to statute and regulation, the
Attorney General may not remove an unlawfully present alien to a particular
country if that person’s “life or freedom would be threatened in that country
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). A withholding of removal
applicant must demonstrate that the asserted protected ground is “a reason” for
persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 358–59 (9th Cir. 2017).
Amezcua Gonzalez contends that La Familia Michoacána targeted him for
violence based on his family connections, a well-recognized distinct social group.
See Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018). We conclude,
however, that substantial evidence supports the agency’s conclusion that La
Familia Michoacána targeted Amezcua Gonzalez based on his refusal to join the
cartel, not because of any family relationship. Accordingly, we agree with the
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agency that Amezcua Gonzalez failed to demonstrate past persecution. We deny
Amezcua Gonzalez’s petition for review as to his withholding of removal claim.
2. We do not find, however, that the BIA’s conclusions that Amezcua Gonzalez
failed to establish that he suffered past torture and that Mexican officials were
willfully blind to that abuse are supported by substantial evidence. The
convention’s implementing regulations define torture to include “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person[.]” 8 C.F.R. § 1208.18(a)(1). In this case, Amezcua Gonzalez credibly
testified that drug cartel members abducted him in broad daylight on the street
outside a grocery store. Two police officers, sitting in their car across the street,
heard Amezcua Gonzalez’s screams for help and turned their eyes away. Amezcua
Gonzalez’s kidnappers beat him with a gun and held a knife to his throat; he
testified that he feared for his life. Within a few months, another group of men
abducted Amezcua Gonzalez again, told him they had “been looking for him,” and
then beat him to the point of unconsciousness before he was able to escape by
jumping from a moving truck. We conclude that this record compels the
conclusion that Amezcua Gonzalez experienced past torture and that government
officials acquiesced in that mistreatment through wilful blindness.
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“To qualify for CAT relief, a petitioner must establish that ‘it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.’” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.
§ 208.16(c)(2)). In making this determination, the agency must consider all the
relevant evidence, see id. at 771 (citing 8 C.F.R. § 1208.16(c)(3)), including
“[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.” 8 C.F.R. § 1208.16(c)(3)(ii). The
BIA’s decision did not address Amezcua Gonzalez’s ability to safely relocate
within Mexico. Consequently, we grant the petition in part and remand Amezcua
Gonzalez’s CAT claim to the agency so that it may reconsider whether he is likely
to face future torture upon his return.
PETITION GRANTED IN PART, DENIED IN PART, and
REMANDED. Each party to bear its own costs on appeal.
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FILED
MAY 02 2019
Amezcua Gonzalez v. Barr, No. 17-73229
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CALLAHAN, Circuit Judge, concurring in part and dissenting in part:
I concur in affirming of the denial of Amezcua Gonzalez’s withholding of
removal claim. However, unlike my colleagues, I do not read the record in this
case as “compelling” the conclusions that Amezcua Gonzalez experienced past
torture or that government officials acquiesced in his mistreatment. Accordingly,
while I concur in the remand, I do not consider the remand limited to the question
of relocation.