Samuel Cruz-Gonzalez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL CRUZ-GONZALEZ,
Plaintiff-Appellant,
v.
MERRICK B. GARLAND, Attorney
General,
Defendant-Appellee.
No. 21-70288
Agency No. A200-719-734
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2022**
San Francisco, California
Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge.
Samuel Cruz-Gonzalez (“Cruz-Gonzalez” or “Petitioner”) petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision: (1) affirming the
* 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).
*** The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
FILED
JUN 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Immigration Judge’s (“IJ”) denial of withholding of removal based on Petitioner’s
convictions for selling heroin, and (2) vacating the IJ’s grant of deferral of removal
under the Convention Against Torture (“CAT”), which was based on her finding
that it was “more likely than not” that Cruz-Gonzalez would be tortured if returned
to Mexico.1 Petitioner (now 49 years old) claims that he was abused by his father
between the ages of five to six and is still afraid of future harm. Further, he claims
that unknown individuals murdered his cousin in 2014, and he fears suffering the
same fate.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s
legal conclusions de novo and its factual findings for substantial evidence. See
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). Where the BIA has considered
the IJ’s decision and adopted it in part and vacated it in part, we examine both
decisions. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
The IJ held, and the BIA affirmed, that Cruz-Gonzalez was ineligible for
withholding of removal under the Immigration and Nationality Act (“INA”) §
241(b)(3) or under the CAT because his 1990 convictions for selling heroin
constituted “particularly serious crimes.”2 For aliens whose controlled substance
1 In his removal proceedings, Petitioner conceded both removability and
ineligibility for asylum.
2 An alien cannot qualify for withholding of removal under the INA or under the
CAT if the Attorney General (or his delegate) determines that the applicant:

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convictions occurred prior to 2002, the factors set out in Matter of Frentescu, 18 I.
& N. Dec. 244, 247 (BIA 1982), are applied for purposes of engaging in a case-
specific factual analysis.3
As stated in Bare v. Barr, 975 F.3d 952 (9th Cir. 2020):
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction over
the BIA’s ultimate determination that [the alien] committed a
particularly serious crime. But we retain jurisdiction to determine
whether the BIA applied the correct legal standard. We review for
an abuse of discretion. Under the abuse-of-discretion standard,
we may reverse the BIA’s decision only if the BIA acted
arbitrarily, irrationally, or contrary to law. Our review is limited
to ensuring that the agency relied on the appropriate factors and
proper evidence to reach this conclusion.
Id. at 961 (citations and quotation marks omitted).
The IJ and BIA cited to and applied the proper Frentescu standard to the
“having been convicted by a final judgment of a particularly serious crime is a
danger to the community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii); see
also 8 C.F.R. § 1208.16(d)(2).
3 In In re Y-L-, 23 I. & N. Dec. 270 (Op. Att’y Gen. 2002), disapproved of on other
grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), the Attorney General
held that drug trafficking offenses are per se “particularly serious crimes” under
the INA, unless the alien demonstrates “extraordinary and compelling
circumstances that justify treating a particular drug trafficking crime as falling
short of that standard.” Id. at 276. In Miguel-Miguel v. Gonzales, 500 F.3d 941
(9th Cir. 2007), we held that the “adjudicative decision” in In re Y-L- could not be
applied retroactively and, hence, the Frentescu analysis is still applicable for
convictions that occurred prior to the In re Y-L- decision. Id. at 951-52. The
Government concedes this point because Petitioner’s convictions were in 1990.

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evidence.4 The BIA provided a reasoned explanation for affirming the IJ’s
conclusion that Petitioner had committed particularly serious crimes. See
Dominguez v. Barr, 975 F.3d 725, 741 (9th Cir. 2020). Additionally, the BIA did
assess the three pieces of evidence (Petitioner’s age at the time of the conviction,
his testimony regarding personal use, and the social worker’s evaluation) that
Petitioner claims the BIA failed to address. The BIA did not abuse its discretion.
Nevertheless, an alien who is deemed ineligible for withholding of removal
may nevertheless qualify for deferral of removal under the CAT. See 8 C.F.R. §
1208.17(a); Delgado v. Holder, 648 F.3d 1095, 1099 n.7 (9th Cir. 2011) (en banc)
(“Deferral of removal and withholding of removal are different forms of CAT
protection.”). An alien seeking deferral of removal bears the burden of proving
that he or she is “more likely than not to be tortured” upon deportation to his or her
home country. 8 C.F.R. § 1208.17(a); see also Hosseini v. Gonzales, 471 F.3d
953, 959 (9th Cir. 2006). The factors to consider in such an assessment are
delineated in 8 CFR § 1208.16(c)(3), including “[e]vidence that the applicant could
relocate to a part of the country of removal where he or she is not likely to be
tortured.”
4 The Frentescu factors are “the nature of the conviction, the circumstances and
underlying facts of the conviction, the type of sentence imposed, and, most
importantly, whether the type and circumstances of the crime indicate that the alien
will be a danger to the community.” 18 I. & N. at 247.

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Because it vacated the IJ’s decision regarding the deferral of removal under
the CAT, the BIA was required to review the IJ’s findings of fact under a “clearly
erroneous” standard and determinations on questions of law under a de novo
standard. See Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012). The BIA did
not err in finding that the IJ’s conclusion (that it was more likely than not that
Petitioner would be tortured if removed to Mexico) was clearly erroneous.
The past torture that Cruz-Gonzalez suffered consisted entirely of his
father’s mistreatment of him when he was five to six years old on the family farm,
over 43 years ago. After his grandmother removed him from the farm at the age of
seven, Petitioner did not experience any further harm.5 There is no evidence in the
record that any public officials were aware of his mistreatment. At the time of the
2018 hearing, Petitioner conceded that he did not know where his father was or
even if he were still alive.6 Likewise, Petitioner’s cousin’s murder provided no
5 The BIA correctly distinguished the sole case relied upon by the IJ for the
proposition that past incidents of mistreatment can constitute “permanent and
continuing harm” that supports a finding of future torture. The BIA noted that
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), involved entirely different
facts (e.g., the “widespread practice” of female genital mutilation (“FGM”) in
Somalia) and a totally different legal context (i.e., a claim of ineffective assistance
of counsel due to the failure to raise the alien’s past FGM).
6 See Konou v. Holder, 750 F.3d 1120, 1125 (9th Cir. 2014) (stating that the BIA
was not required “to presume that [petitioner] would be tortured again because of
his own credible testimony that he had been subjected to torture as a homeless
child”); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029-30 (9th Cir. 2019) (stating

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support for deferral of removal because Petitioner had no evidence as to who
committed the murder, and he had no knowledge as to why the murder was
perpetrated. Finally, as to Cruz-Gonzalez’s argument against his relocation to
other parts of Mexico because of the level of corruption/lawlessness in that country
and his “unfamiliarity” with Mexico, the BIA found that the evidence clearly
supported the conclusion that he could safely live apart from his father ̶ that is
sufficient. See Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018) (holding
that the BIA did not err in denying deferral under the CAT where the alien merely
referenced generalized evidence of violence and crimes not particularized to him,
and his hearing from “a lot of people” that returnees from the United States are
perceived as having money, which may cause them to become targets of Mexican
gangs); Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022) (“[T]he
reasonableness of a relocation is not relevant to a CAT claim, where the agency
considers only whether safe relocation is possible, not whether it is reasonable (or
comfortable or convenient).”).
PETITION FOR REVIEW DENIED.
that the absence of evidence that any feared actor has sought the petitioner or has
any continuing interest in him undermines a CAT claim).

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