Oscar Humberto Perrusquia Palomares v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR HUMBERTO PERRUSQUIA
PALOMARES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-910
Agency No.
A070-765-665
MEMORANDUM*
OSCAR HUMBERTO PERRUSQUIA
PALOMARES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-326
Agency No.
A070-765-665
On Petition for Review of an Order of the
Board of Immigration Appeals
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Submitted December 8, 2023**
San Francisco, California
Before: BRESS and JOHNSTONE, Circuit Judges, and MOSKOWITZ, District
Judge.***
Concurrence by MOSKOWITZ, District Judge.
Oscar Humberto Perrusquia Palomares, a native and citizen of Mexico,
petitions for review of two decisions from the Board of Immigration Appeals
(“BIA”). First, Perrusquia challenges the BIA’s dismissal of his appeal of the
Immigration Judge’s (“IJ”) decision denying him protection under the Convention
Against Torture (“CAT”). Second, Perrusquia challenges the BIA’s decision
denying his motion to reopen based on changed country conditions. We have
jurisdiction under 8 U.S.C. § 1252. We review the BIA’s legal conclusions de novo
and its factual findings for substantial evidence. B.R. v. Garland, 26 F.4th 827, 835
(9th Cir. 2022). “We review the denial of a motion to reopen for abuse of
discretion.” Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021). We deny
the petitions.
1. Substantial evidence supports the BIA’s determination that Perrusquia is
not eligible for CAT protection because he failed to establish that “it is more likely
than not he . . . would be tortured” by or with the consent or acquiescence of a
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.

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Mexican public official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The Mexico
2020 Human Rights Report and the news articles that Perrusquia offers are
insufficient to show the government would either torture him or acquiesce in his
torture by cartel members. See B.R., 26 F.4th at 845; Andrade-Garcia v. Lynch,
828 F.3d 829, 836–37 (9th Cir. 2016). While the Mexico 2020 Human Rights
Report shows the government’s general ineffectiveness at preventing crime and
violence, that is not sufficient to demonstrate acquiescence. Andrade-Garcia, 828
F.3d at 836. Further, the report provides general statements about the Mexican
government’s involvement in some instances of torture, but Perrusquia does not
explain how these instances of torture are related to the danger he allegedly faces
as a deported former gang member with gang tattoos. See B.R., 26 F.4th at 844.
2. The BIA did not abuse its discretion in denying Perrusquia’s motion
because Perrusquia failed to prove material changes in country conditions in
Mexico between his October 2021 hearing and his September 2022 motion to
reopen. Perrusquia’s evidence demonstrates pervasive violence in Mexico but does
not demonstrate to what extent a change occurred or that the change is more than
merely incremental. See Rodriguez, 990 F.3d at 1210. Nor did Perrusquia
demonstrate how any increase in cartel violence made it more likely that he would
be tortured by a cartel or the government. See, e.g., Greenwood v. Garland, 36
F.4th 1232, 1235–36 (9th Cir. 2022) (explaining “that an otherwise untimely

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motion to reopen must be based on evidence of changed country conditions that ‘is
material’”). This determination is dispositive; therefore, we do not address the
remainder of Perrusquia’s arguments. See Rodriguez, 990 F.3d at 1207. The
pending motions for stay of removal are denied as moot.1
PETITIONS DENIED.
1 The temporary stay shall remain in effect until issuance of the mandate. See
General Order 6.4(c).

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1
Perrusquia Palomares v. Garland, Nos. 22-910 & 23-326
MOSKOWITZ, District Judge, concurring:
I concur completely in the Memorandum Disposition. However, I believe
that Perrusquia has established a likelihood that upon his removal, a drug cartel
will recruit him based on his gang tattoos. If he refuses to join their illegal venture,
he will likely be beaten or killed. The likelihood of this occurring diminishes if he
is removed to a non-border port of entry. Therefore, I recommend to the
Department of Homeland Security that, if Perrusquia is removed, he be removed to
an interior port of entry. I understand that this is within the discretion of the
Department of Homeland Security and that recommendations are rare. See, e.g.,
Bbale v. Lynch, 840 F.3d 63, 68 (1st Cir. 2016) (recommending that DHS not
remove the petitioner because “he would face a significant threat to his safety if he
were to be returned to Uganda . . . ”); Cole v. Holder, 659 F.3d 762, 775 (9th Cir.
2011) (Noonan, J., concurring) (recommending that the BIA delay the petitioner’s
deportation so he can remove his gang tattoos); see also Huang v. Gonzales, 238
Fed. Appx. 691, 693 (2d Cir. 2007) (recommending “that the BIA consider that
any further remand be made to a different IJ”). I offer this recommendation
because it is a way to avoid a potentially life-threatening situation.
FILED
DEC 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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