ARMANDO GUTIERREZ, AKA Arturo Ramirez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO GUTIERREZ, AKA Arturo
Ramirez,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71788
Agency No. A095-733-635
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 8, 2013
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Armando “Lupita” Gutierrez appeals from the denial of her request for
withholding of removal under the Convention Against Torture (“CAT”). The
Board of Immigration Appeals (“BIA”) determined that Ms. Gutierrez had failed to
show that it is more likely than not that she will be tortured as a transgender
FILED
SEP 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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woman if she is returned to Mexico and lives in a large city. 1 We conclude this
determination is supported by substantial evidence such that a contrary conclusion
is not compelled.2 See 8 U.S.C. § 1252(b)(4)(B).
Ms. Gutierrez bears the burden of proving her eligibility for relief under
CAT, and that the BIA’s conclusion is not supported by reasonable, substantial and
probative evidence. See 8 U.S.C. §§ 1229a(c)(4), 1252(b)(4)(B); see also Al-Harbi
v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (“To qualify for withholding of removal,
an alien must demonstrate that ‘it is more likely than not that he would be subject
to persecution on one of the specified grounds.’”) (quoting INS v. Stevic, 467 U.S.
407, 429-30 (1984)).
Torture is defined as “an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Moreover,
the petitioner must show that torture would be “inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an
1 In a separate opinion filed concurrently with this memorandum
disposition we hold that the Department of Homeland Security (“DHS”) properly
filed a Notice to Appear while Ms. Gutierrez was subject to a withholding of
removal order.
2 Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
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official capacity.” 8 C.F.R. § 1208.18(a)(1). Past torture, although a prime factor
in evaluating the likelihood of future torture, does not create a presumption of
future torture. Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir. 2005); see
also 8 C.F.R. § 1208.16(c)(3).
We review the denial of relief under CAT for substantial evidence and may
only grant relief if the evidence compels a contrary conclusion. See 8 U.S.C. §
1252(b)(4)(B) (“the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”); see also
Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (“Even if we
might have reached a conclusion different from that reached by the BIA, we may
not reverse unless we determine that any reasonable factfinder would have been
compelled to reach that conclusion.”).
Ms. Gutierrez’s testimony shows that she was tortured by the police in her
home town of Jerez before she moved to Zacatecas in 1993. Her testimony is also
reasonably understood not to allege any incidents of torture by the police or others
between 1993 and 1999, when petitioner lived in Zacatecas and later Guadalajara.
In addition, the evidence presented by both Ms. Gutierrez and Department of
Human Services shows that Mexico has made strides toward protecting the civil
rights of gay, lesbian, and transgender persons. The BIA reasonably determined
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that Ms. Gutierrez likely will not suffer torture if she is returned to a larger city in
Mexico, even though the culture may remain highly repressive in its attitude
toward gay, lesbian, transgender, and HIV-positive persons.
We conclude that the BIA’s determination that Ms. Gutierrez is not likely to
be tortured if returned to Mexico is supported by substantial evidence.
Accordingly, the petition for review is DENIED.
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