Pedro Avila Cruz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO AVILA CRUZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-946
Agency No.
A205-720-058
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2023**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District
Judge.***
Pedro Avila Cruz (“Avila”), a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal
from the Immigration Judge’s (“IJ”) denial of his applications for asylum,
* 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 John R. Tunheim, United States District Judge for
the District of Minnesota, sitting by designation.
FILED
JUN 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal, and relief under the Convention Against Torture
(“CAT”). As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review the agency’s legal conclusions de novo and its factual findings
for substantial evidence, under which they are “conclusive unless any
reasonable adjudicator would be compelled to conclude the contrary.” Flores
Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022) (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
Avila admittedly did not experience past persecution, and substantial
evidence supports the BIA’s determination that he failed to show a well-
founded fear of future persecution on account of his proposed particular social
group (“PSG”) of family. He argues that cartels in Michoacan may harm him
because they would believe that he had returned to avenge the killings of his
cousin in 2003 or 2004 and his sister-in-law’s nephew in 2017, though he does
not know who the perpetrators were. Substantial evidence supports the
conclusion that his fear rests on mere speculation. See Nagoulko v. INS, 333
F.3d 1012, 1018 (9th Cir. 2003) (holding that substantial evidence supported the
BIA’s finding that the petitioner failed to establish a well-founded fear where
the possibility of harm was speculative). Avila’s claim is further undermined
by the fact that his immediate family members have lived in Mexico unharmed
since his departure more than twenty years ago. See Tamang v. Holder, 598
F.3d 1083, 1094 (9th Cir. 2010) (“[A] petitioner’s fear of future persecution ‘is

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weakened, even undercut, when similarly-situated family members’ living in
the petitioner’s home country are not harmed.” (citations omitted)). And
nothing in the record compels the conclusion that he could not safely relocate
within Mexico.
Having failed to establish a well-founded fear for asylum, it follows that
Avila also failed to meet the more stringent standard for withholding of removal
based on his PSG of family. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th
Cir. 2006) (noting that the “clear probability” standard for withholding of
removal is more stringent than that for asylum (citation omitted)).
Reviewing de novo, Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42
(9th Cir. 2020), we agree with the BIA that Avila’s proposed PSG of “Mexican
males who fled Mexico at a young age who are now returning after a lengthy
stay in the United States and are acculturated to the United States” is not
cognizable. It lacks particularity and social distinction. See Ramirez-Munoz v.
Lynch, 816 F.3d 1226, 1228-29 (9th Cir. 2016) (holding that the proposed PSG
of “imputed wealthy Americans,” who would allegedly be targeted because of
their American appearance and mannerisms, was not cognizable); Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (per curiam) (holding
that the proposed PSG of “returning Mexicans from the United States” was not
cognizable).
To the extent that Avila fears general violence—e.g., kidnapping and
ransom based on his perceived wealth—he has failed to show nexus to a

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protected ground for either asylum or withholding of removal. See Zetino v.
Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[A petitioner]’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.”).
Finally, regarding his CAT claim, substantial evidence supports the
agency’s determination that Avila failed to establish that he will more likely
than not be tortured in Mexico. General violence and corruption do not amount
to grounds for CAT protection; Avila must establish a particularized risk of
torture, see Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (per
curiam), which he has failed to do.
The stay of removal remains in place until the mandate issues.
PETITION DENIED.

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