NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER FLORES MEDINA, No. 19-70678
AKA Francisco Flores, AKA Javier Flores,
AKA Roberto Cenovio Flores, AKA Marco Agency No. A077-057-256
Medina, AKA Slow Moniker
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2021
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,** District Judge.
Petitioner Francisco Javier Flores Medina (Flores) is a transgender citizen of
Mexico who identifies as female. In her prior petition to this court, Flores appealed
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the
Immigration Judge’s (“IJ”) decision that she did not qualify for asylum, withholding
of removal, or Convention Against Torture (“CAT”) protection. We granted the
petition in part and remanded to the BIA for further limited proceedings. Medina v.
Sessions, 734 Fed. App’x. 479 (9th Cir. 2018). As relevant to the current appeal,
we found that while the BIA adequately addressed Flores’s sexual orientation, the
BIA erred in failing to consider separately the effect of Flores’s transgender identity
as to her claims for asylum, withholding of removal, and CAT protection. Id. at 482-
83, 484. The case was remanded to the BIA “for the limited purpose of assessing
the effect of Flores’s transgender identity on her claims for asylum, withholding of
removal, and CAT protection . . . .” Id. at 484.
On remand, the BIA considered the same record as had been previously
submitted, affirmed the IJ’s order, and dismissed Flores’s appeal. The BIA held that
Flores’s 2014 arson conviction was a particularly serious crime that rendered her
statutorily ineligible for asylum or withholding of removal eligibility. Alternatively,
assuming her eligibility, the BIA concluded that Flores failed to establish the merits
of her claims for asylum, withholding of removal, or CAT protection.
Flores is now before the court on a petition to review the decision of the BIA
on remand. Flores challenges the BIA decision only as to its denial of CAT
protection, while not appealing the BIA’s decision as to her asylum and withholding
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of removal claims.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA’s
denial of a claim for CAT protection. Avendano-Hernandez v. Lynch, 800 F.3d
1072, 1078 (9th Cir. 2015). “We review for substantial evidence the factual findings
underlying the BIA’s determination that an applicant is not eligible for CAT
protection.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).
Because the BIA adopted the reasoning of the IJ, we review the decision of both the
IJ and the BIA. Becker v. Gonzales, 473 F.3d 1000, 1001 n.2 (9th Cir. 2007). With
the benefit of oral argument, we DENY the petition for review.
The BIA separately considered the effect of Flores’s transgender identity on
the likelihood that she would be tortured in Mexico based on that identity, and
affirmed the IJ’s decision to deny CAT protection. The BIA decided that although
the record established that some transgender individuals have experienced violence
in Mexico, Flores had not shown that such violence is so common throughout
Mexico that it is more likely than not that she will personally experience it.
On appeal Flores asserts both procedural and substantive deficiencies by the
BIA. Flores argues that the BIA failed to consider all the relevant evidence, thereby
creating procedural infirmities, and that its findings were not supported by
substantial evidence. Flores asks the court to grant her petition and remand to the
BIA with instructions to grant her CAT claim, or alternatively to remand to the BIA
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to comprehensively address her country conditions evidence.
Our review of the record shows that there are neither procedural nor
substantive errors by the BIA. The BIA considered the record evidence concerning
Flores’s transgender identity separately, as directed by this court, and substantial
evidence supports the denial of CAT protection. The BIA’s determination that it
was not more likely than not that Flores would experience future torture based on
her transgender status was supported by substantial evidence. We previously
concluded that Flores did not suffer past torture, Medina, 743 Fed. App’x. at 484,
and that is the law of the case, see Musacchio v. United States, 577 U.S. 237, 244-
45 (2016). This ruling as to a lack of past torture distinguishes Flores’s
circumstances from those in Avendano-Hernandez, where the petitioner suffered
torture at the hands of a Mexican military official, a conclusion that “[t]he IJ and
BIA d[id] not appear to question.” 800 F.3d at 1079. Without evidence of past
torture, Flores must rely on country conditions evidence. See Dhital v. Mukasey,
532 F.3d 1044, 1051-52 (9th Cir. 2008); 8 C.F.R. § 1208.16(c)(3). The country
conditions evidence alone is not enough in this case because it is not sufficiently
particularized to compel the conclusion that Flores would more likely than not be
the subject of torture should she return to Mexico. See Lopez v. Sessions, 901 F.3d
1071, 1078 (9th Cir. 2018).
PETITION DENIED.
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