NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL PIMENTEL-ESTRADA, No. 20-70384
Petitioner, Agency No. A023-655-798
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2021**
Portland, Oregon
Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
Rafael Pimentel-Estrada, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals (“BIA”) order that dismissed his appeal of an
Immigration Judge’s (“IJ”) decision that denied his application for deferral of
*
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).
removal under the Convention Against Torture (“CAT”).1 We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition.
The court reviews the BIA’s and IJ’s “legal conclusions de novo and [their]
factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Substantial evidence
review means that we must uphold a factual finding if it is “supported by
reasonable, substantial, and probative evidence in the record.” Melkonian v.
Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). “[F]or this court to reverse the BIA
with respect to a finding of fact, the evidence must compel a different conclusion
from the one reached by the BIA.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011) (denying petition for review where the possibility of torture was too
speculative).
To receive CAT protection, an applicant must establish that it is more likely
than not that he would be tortured by, at the instigation of, or with the acquiescence
of a government official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Pimentel-
Estrada testified he fears cartels in Mexico would torture him for two reasons.
1
Pimentel-Estrada applied for asylum, withholding of removal, and CAT
protection. The IJ determined Pimentel-Estrada’s conviction for possession of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1),
bars him from asylum and withholding of removal pursuant to 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Pimentel-Estrada did not challenge that
finding before the BIA or in his petition for review, so deferral of removal under
CAT is the only issue before this court.
2
First, he fears the Jalisco Cartel Nuevo Generacion (“CJNG”) would know he
worked for a rival cartel, because when he was arrested in 2011 a local television
station in Utah played a video clip of him with weapons, drugs, and money and
identified him with the Sinaloa Cartel, and the clip is available on the internet.
Second, his prison sentence of 144 months was reduced to 120 months because of
a retroactive change to the Sentencing Guidelines, and he fears the Sinaloa will
mistakenly believe he was released early because he cooperated with the
government. Pimentel-Estrada did not testify he suffered any past torture.
Substantial evidence supports the IJ's and BIA’s finding that Pimentel-
Estrada’s fears that he would more likely than not be tortured if returned to Mexico
were too speculative.
First, Pimentel-Estrada testified that he has not been threatened by any cartel
in prison, in the halfway house into which he was initially placed, or since release.
Second, Pimentel-Estrada provided evidence that the video clip is available on the
internet but not that any cartel members have seen it or know about it. The IJ and
BIA concluded that Pimentel-Estrada’s fear CJNG would find him and torture him
because of the video clip is too speculative, Zheng, 644 F.3d at 836, and the
evidence does not compel a different result.
Pimentel-Estrada’s fear of harm from the Sinaloa Cartel because of a
mistaken belief that he cooperated with the government is also too speculative. As
3
discussed, he has not been threatened. He did not provide any evidence that any
cartel members believe he cooperated with the government. He did not in fact
cooperate with the government. His sentence was reduced because of a change in
the law.
Pimentel-Estrada testified that his cousin Jorge was brutally murdered in
2008, probably by a drug cartel. Pimentel-Estrada testified that his brother-in-law
works doing road construction in Mexico and some of his co-workers believed
Pimentel-Estrada had been released early because he cooperated, but he did not
provide evidence the coworkers are connected with a cartel. When his brother,
Rigoberto, declined CJNG’s recruitment attempts, masked individuals told his
parents that they would kill Rigoberto, who fled to the United States. Pimentel-
Estrada’s parents and sister still live in Mexico, and there is no evidence they were
harmed or threatened with harm, or even contacted in relation to Pimentel-Estrada,
which supports the conclusion the cartel is not searching for him.
Pimentel-Estrada testified that in 2010, a man named Juan Carlos, who was
in prison in Mexico with Pimentel-Estrada’s nephew, called and offered to sell him
discounted methamphetamine in exchange for a $100,000 payment to help get Juan
Carlos out of prison. Pimentel-Estrada testified he declined, and then in 2011 Juan
Carlos contacted Pimentel-Estrada’s son in Mexico and threatened him and told
him his father should not cooperate with law enforcement. Both contacts were
4
before Pimentel-Estrada was convicted, and he provided no evidence that Juan
Carlos believes Pimentel-Estrada later cooperated or that Juan Carlos would try to
track him down to torture him.
Pimentel-Estrada provided an expert witness, Dr. Smith, who opined that
“if” the Sinaloa Cartel believed Pimentel-Estrada cooperated against them, then
they would search for him and kill him. The IJ discussed the report and gave it full
weight but did not accept the conclusion, which relied on accepting Pimentel-
Estrada’s premise that the Sinaloa believe he cooperated. See id. at 836 (expert
opinion not supported by the record because it was “based on the assumption” that
the petitioner put forth). Pimentel-Estrada’s fear is speculative because he assumes
without sufficient foundation that the cartel will discover that he was released early
from prison, form the mistaken belief that he cooperated with the government, and
seek him out for torture. See id.
Finally, Pimentel-Estrada testified he fears the police in Mexico would
deliver him to the cartels or acquiesce in harm inflicted on him by the cartels, but
he has not provided evidence to support this fear. The record contains country
conditions evidence that some police officials in Mexico are corrupt and work with
the cartels, but it does not support Pimentel-Estrada’s speculation that officials
would acquiesce in cartels inflicting harm on him. See Alphonsus v. Holder, 705
5
F.3d 1031, 1049 (9th Cir. 2013); Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th
Cir. 2017).
Substantial evidence supports the BIA’s denial because the record does not
compel the conclusion that it is more likely than not that he will be tortured by, or
with the consent or acquiescence of the government if returned to Mexico. See
Zheng, 644 F.3d at 835–36.
The government’s motion to reconsider the stay of removal previously
granted (DN 32) is granted and the stay of removal is denied.
PETITION DENIED.
6