Porfirio Chavez-Gonzalez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PORFIRIO CHAVEZ-GONZALEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1679
Agency No.
A059-998-983
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2023**
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and RAKOFF, District
Judge.***
Porfirio Chavez-Gonzalez, a citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) denial of his withholding of removal, as well as the BIA’s denial of his
* 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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
JUN 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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application for protection under the Convention Against Torture (“CAT”).
Where, as here, the BIA found no clear error in the IJ’s findings and did not
conduct its own independent analysis but relied on the IJ’s reasoning, we review
both the IJ’s and the BIA’s decisions. Alanniz v. Barr, 924 F.3d 1061, 1065
(9th Cir. 2019). We treat the agency’s findings as conclusive “unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition.
1. Substantial evidence supports the BIA’s denial of Petitioner’s
application for withholding of removal. “To secure withholding of removal, a
petitioner must demonstrate that his ‘life . . . would be threatened in [the]
country [of removal] because of [his] race, religion, nationality, membership in
a particular social group, or political opinion.’” Barbosa v. Barr, 926 F.3d 1053,
1059 (9th Cir. 2019) (as amended) (quoting 8 U.S.C. § 1231(b)(3)(A)) (ellipsis
and third correction in original). Petitioner claims membership in a particular
social group defined as “prior cartel associate to smuggling activities” who is
“identifiable by his tattoos.” 1 Petitioner’s claimed particular social group is not
1 The government argues that we lack jurisdiction to review Petitioner’s
withholding of removal claim because Petitioner purportedly failed to identify
this claimed particularized social group before the Immigration Judge. We
disagree. The IJ recognized that Petitioner was “afraid of returning to Mexico
because he has tattoos, and he fears being identified by cartels or authorities
and being harmed and threatened” and addressed that proposed social group
in the decision.

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cognizable under our precedent because it does not involve an immutable
characteristic. See Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir. 2007)
(holding particular social group of former gang member identifiable by tattoos
is not cognizable). Although we understand that Petitioner fears personal
retribution from criminal organizations, such retribution is not persecution
because of a protected ground under asylum law. Ayala v. Holder, 640 F.3d
1095, 1098 (9th Cir. 2011) (“Rather than demonstrating that [the petitioner] was
persecuted on account of his membership in a particular social group, the
evidence demonstrates that [he] was only . . . threatened because . . . he had
arrested a particular drug dealer. Though disturbing, this type of persecution is
not cognizable under the INA.”).
2. Substantial evidence supports the BIA’s denial of Petitioner’s CAT
claim. “To establish entitlement to protection under CAT, an applicant must
show ‘it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.’” Plancarte Sauceda v. Garland, 23 F.4th
824, 834 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). To meet the
standard, the applicant must “demonstrate ‘a chance greater than fifty percent
that he will be tortured’ if removed to” Mexico. Castillo v. Barr, 980 F.3d 1278,
1283 (9th Cir. 2020). Additionally, the torture must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” Zheng v. Ashcroft, 332 F.3d 1186, 1188
(9th Cir. 2003) (quoting 8 C.F.R. § 208.18(a)(1) (2002)) (emphasis and internal

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quotation marks omitted). The record here does not compel the conclusion that
Chavez-Gonzalez will more likely than not be tortured with the government’s
acquiescence if returned to Mexico. Chavez-Gonzalez experienced no past
torture and presented no evidence that government officials would acquiesce to
his future torture. Although Petitioner testified that he received a threat, he and
his family have not been harmed. Unlike the petitioner in Velasquez-Samayoa
v. Garland, 49 F.4th 1149, 1152 (9th Cir. 2022), most of Petitioner’s tattoos are
not gang tattoos, he has not previously experienced gang violence, and there is
no expert evidence establishing Petitioner’s level of risk. Petitioner generally
argues that there is evidence of widespread corruption in Mexico, but evidence
of nationwide gang violence that is not particular to Petitioner’s case cannot
establish the state action necessary for CAT relief. Lopez v. Sessions, 901 F.3d
1071, 1078 (9th Cir. 2018).
3. The BIA did not violate Chavez-Gonzalez’s due process right by not
discussing its reasons for denying his CAT claim in its opinion. When the BIA
cites Matter of Burbano, 20 I&N Dec. 872 (BIA 1994), in its decision and does
not express disagreement with any part of the IJ’s decision, the BIA adopts the
IJ’s decision in its entirety, and “we review the IJ’s order as if it were the
BIA’s.” Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (citations omitted).
Here, the BIA cited Burbano and adopted the IJ’s decision and reasoning.
Accordingly, the BIA did not violate Petitioner’s due process rights.

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The petition is DENIED.2
2 The temporary stay of removal remains in place until the mandate issues. The
motion for stay of removal is otherwise denied.

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