Fernando Herrera Millan v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Fernando Herrera Millan,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 21-870
Agency No. A071-912-609
MEMORANDUM*
On Petition for Review of an Order of the
Department of Homeland Security
Submitted February 17, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges.
Fernando Herrera Millan, also known as Bartolo Millan Flores, a native
and citizen of Mexico, seeks review of an immigration judge’s decision
concurring in a negative reasonable-fear determination. We have jurisdiction
under 8 U.S.C. § 1252. See 8 C.F.R. § 208.31(g)(1). We deny the petition.
* 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).
FILED
FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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We review factual findings related to reasonable-fear determinations for
substantial evidence, upholding the immigration judge’s conclusion unless “any
reasonable adjudicator would be compelled to conclude to the contrary.”
Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting Ai Jun
Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). “We review de novo due
process challenges to reasonable fear proceedings.” Orozco-Lopez v. Garland,
11 F.4th 764, 774 (9th Cir. 2021) (quoting Zuniga v. Barr, 946 F.3d 464, 466
(9th Cir. 2019) (per curiam)).
1. Substantial evidence supports the immigration judge’s conclusion that
Herrera Millan did not face “a reasonable possibility that he . . . would be
persecuted” if returned to Mexico, whether on a protected ground or otherwise.
8 C.F.R. §§ 208.31(c), 1208.31(c). With no history of past persecution, Herrera
Millan emphasizes two facts that he says establish a likelihood of future
persecution: (1) he received two threatening phone calls claiming that “they”
were waiting for him in Mexico, and (2) his fellow informant, Vladimiro
Gutierrez Navarro, was murdered after returning to Mexico. The immigration
judge permissibly discounted those fears. First, the immigration judge noted that
the threatening phone calls were made approximately ten years ago and that
both the identity and motive of the callers were unknown. Second, Gutierrez
Navarro’s murder occurred twenty years after he stopped working as an
informant, making any relationship between his murder and his work as an
informant tenuous. The immigration judge also noted that Herrera Millan was
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never an official informant and that the people he assisted in prosecuting are in
the United States, not Mexico.
Because Herrera Millan did not establish a reasonable possibility of any
persecution, the immigration judge had no need to reach the question of his
membership in a proposed social group.
2. Substantial evidence supports the immigration judge’s conclusion that
Herrera Millan did not show “a reasonable possibility that he . . . would be
tortured” in Mexico, 8 C.F.R. §§ 208.31(c), 1208.31(c), because he did not
establish that anyone he fears would act “with the consent or acquiescence of a
public official,” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).
Herrera Millan fears harm from drug traffickers, not public officials. His
example of past harm, when drug dealers held a gun to his head and threatened
him, occurred in the United States. Herrera Millan stated that no Mexican
officials have ever mistreated him, that he did not know of any connection
between the people who had previously threatened him and Mexican officials,
and that his fellow informants who were killed upon return to Mexico were
murdered by criminal organizations, not public officials.
Herrera Millan argues that his feared future harm would occur with
government acquiescence because (1) there are some reports of collusion
between organized crime and the Mexican government, (2) a previous handler
for his informant work was arrested for participating in a bribery scheme linked
to organized crime, and (3) Herrera Millan’s arresting officer mentioned that
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Mexican authorities had been inquiring about his whereabouts. That evidence
does not compel a conclusion that he faces a reasonable possibility of torture
with government acquiescence if returned to Mexico. First, the reports alleging
collusion do not establish a reasonable possibility that the unspecified criminal
organizations Herrera Millan fears are connected to the Mexican government.
Second, the corruption of his handler, an American official, has no bearing on
the potential for Mexican public officials to acquiesce to torture. Third, despite
his speculations, the fact that Mexican authorities were asking about Herrera
Millan does not necessarily indicate that those authorities are connected to any
harm he fears.
3. Herrera Millan’s conclusory allegations of the immigration judge’s
bias are unsupported and meritless.
The motions for a stay of removal (Dkt. Nos. 3, 8) are denied. The
temporary stay of removal is lifted.
PETITION DENIED.
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