Eduardo Avila Rubio v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO AVILA RUBIO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72359
Agency No. A073-980-777
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and FITZWATER,*** District
Judge.
Eduardo Avila Rubio petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) order
* 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denying asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
Reviewing the agency’s factual findings for substantial evidence, see Flores
Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we deny the petition for
review in part and dismiss it in part.
1. The BIA did not err in denying Avila Rubio’s application for
withholding of removal.1 Avila Rubio does not address the agency’s finding that
he failed to show the Mexican government is unwilling or unable to control the
persons who kidnapped and killed his brother—an independent basis to uphold the
denial of withholding of removal. See Riera-Riera v. Lynch, 841 F.3d 1077, 1080
(9th Cir. 2016). Regardless, substantial evidence supports the agency’s finding.
Avila Rubio testified that the Mexican authorities “tried to investigate” his
brother’s murder. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005)
(holding that when police investigated complaints of mistreatment, they were not
“unable or unwilling to control those [responsible]” merely because they “were
ultimately unable to solve the crimes”).
2. The BIA did not err in denying Avila Rubio’s application for CAT
protection. Substantial evidence supports the agency’s finding that Avila Rubio
1 The agency denied Avila Rubio’s asylum claim as untimely. He does not
challenge this finding.

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did not show it was more likely than not that he would be tortured. His claim that
the unknown persons who killed his brother more than 20 years earlier would
discover he had returned to Mexico and assume he was there to seek vengeance is
entirely speculative. See Gomez Fernandez v. Barr, 969 F.3d 1077, 1091 (9th Cir.
2020) (rejecting CAT relief applicant’s “speculation that the same individuals who
targeted his family members in 1996 would target him [decades later] if he
returned [to Mexico]” as “insufficient” to establish a likelihood of torture). Avila
Rubio testified that he was “not too sure” when his family last received a threat
from the unknown persons and that “about a year or two” earlier, his mother said
only “that they could still be out there.”
3. We dismiss Avila Rubio’s challenge to the agency’s denial of voluntary
departure, in which he merely highlights facts that support granting such relief.
We lack jurisdiction to review an “assertion that the agency did not properly weigh
the equities in denying voluntary departure.” Olea-Serefina v. Garland, 34 F.4th
856, 867 (9th Cir. 2022); see 8 U.S.C. § 1229c(f).
PETITION DENIED in part and DISMISSED in part.

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