NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO CAMACHO CABALLERO, No. 19-70641
Petitioner, Agency No. A205-699-975
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Gustavo Camacho Caballero, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014). We deny in part and grant in part the petition for review, and we
remand.
Substantial evidence supports the agency’s determination that Camacho
Caballero failed to establish the harm he experienced or fears in Mexico was or
would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground”). Thus, Camacho Caballero’s withholding of removal claim
fails.
As to CAT, the IJ misstated the record in finding that Camacho Caballero
did not present “any evidence” that the Mexican government is willfully blind to
torture. As the IJ found, Camacho Caballero credibly testified that the municipal
police in Nogales work for the cartel that tortured him in 2017. In the BIA’s
analysis of Camacho Caballero’s CAT claim, it found no error in the IJ’s factual
determinations. Thus, the agency erred by failing to consider all relevant evidence
and remand is warranted. See Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir.
2011) (agency decision cannot stand where there is any indication it did not
consider all evidence before it, including “misstating the record”); see also Diaz-
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Reynoso v. Barr, 968 F.3d 1070, 1089-90 (9th Cir. 2020) (remanding where the
BIA failed to consider all evidence relevant as to CAT).
Thus, we grant the petition for review and remand Camacho Caballero’s
CAT claim to the BIA to reconsider the claim in consideration of all relevant
evidence, including his credible testimony and the corroborating documentary
evidence. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
The parties shall bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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