Gabriel Benito-Sanchez v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
NOV 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL BENITO-SANCHEZ, ) No. 16-71223
)
Petitioner, ) Agency No. A079-764-476
)
v. ) MEMORANDUM*
)
JEFFERSON B. SESSIONS III, )
Attorney General, )
)
Respondent. )
)

On Petition for Review of an Order of the
Immigration Judge

Submitted November 7, 2017**
Portland, Oregon

Before: FERNANDEZ, W. FLETCHER, and MELLOY,*** Circuit Judges.

Gabriel Benito-Sanchez petitions for review of the Immigration Judge’s (IJ)

April 27, 2016, decision concurring in the determination by the Asylum Officer

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Michael J. Melloy, United States Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
(AO) that Benito had not shown a reasonable fear1 of persecution2 or torture3 in

Mexico.4 We deny the petition.

(1) Benito asserts that the petition should be granted and the matter

should be remanded because the IJ did not sufficiently set forth the basis of her

decision. We do not agree. The IJ sufficiently supported her decision to deny

Benito relief when she considered the “detailed findings and decision” of the AO

and concurred in them. Certainly, there was no due process violation because the

alien, who was represented by counsel at all times, was not subjected to a

fundamentally unfair process. See Padilla-Martinez v. Holder, 770 F.3d 825, 830

(9th Cir. 2014); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 380 (9th Cir. 2003)

(en banc); see also Wilkinson v. Austin, 545 U.S. 209, 220, 225–26, 125 S. Ct.

2384, 2393, 2395-96, 162 L. Ed. 2d 174 (2005); Buckingham v. Sec’y of U.S. Dep’t

1
See 8 C.F.R. § 241.8(e); id. § 208.31(a), (c), (g)(1); see also 8 U.S.C.
§ 1231(a)(5).
2
See 8 C.F.R. § 208.16(b); see also 8 U.S.C. § 1231(b)(3)(A).
3
See United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18 (hereafter
CAT); see also 8 C.F.R. § 208.16(c).
4
The IJ ordered the return of the case to the Department of Homeland
Security, which had ordered reinstatement of an April 2002 removal that had
previously been reinstated in 2008. See 8 U.S.C. § 1231(a)(5).

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of Agric., 603 F.3d 1073, 1082–84 (9th Cir. 2010).

(2) Benito also asserts that the IJ and AO erred when they determined that

the evidence before them did not establish that he had a reasonable fear that he

would be persecuted or tortured in Mexico. We disagree. The reasonable fear

regulation provides that the alien must set forth sufficient evidence to establish a

“reasonable possibility” that he would be persecuted or tortured. 8 C.F.R.

§ 208.31(c); see also Ayala v. Sessions, 855 F.3d 1012, 1015–16 (9th Cir. 2017).

We have carefully reviewed the record and are unable to say that it compels

a determination5 that Benito met that standard.6 He personally suffered no

persecution in Mexico, and the IJ could properly find that his claims regarding

possible persecution due to membership in his family7 are purely speculative and

are wholly unsupported by the evidence.8 Similarly, Benito’s relatively mild

encounters with police officers, who did not threaten him with future harm or

encounter him again, did not give rise to a reasonable possibility that he would be

5
See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483–84, 112 S. Ct.
812, 815 & n.1, 817, 117 L. Ed. 2d 38 (1992); Andrade-Garcia v. Lynch, 828 F.3d
829, 833 (9th Cir. 2016).
6
See Andrade-Garcia, 828 F.3d at 836.
7
See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).
8
See Arriaga-Barrientos v. U.S. I.N.S., 937 F.2d 411, 414 (9th Cir. 1991);
see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010).

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tortured, which requires conduct even more severe than persecution. See Nuru v.

Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005).

Petition DENIED.

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