Serafin Torres Urbina v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERAFIN TORRES URBINA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1384
Agency No.
A205-719-064
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2023**
Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO, Senior
District Judge.***
Serafin Torres Urbina (“Torres”), a native and citizen of Mexico, petitions
for review of a Board of Immigration Appeals’ (“BIA”) decision dismissing 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 Kiyo A. Matsumoto, United States Senior District
Judge for the Eastern District of New York, sitting by designation.
FILED
OCT 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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appeal of the Immigration Judge’s (“IJ”) denial of his application for Withholding
of Removal and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Substantial evidence supports the BIA’s conclusion that Torres failed to
establish eligibility for withholding of removal. To establish eligibility for
withholding of removal in the absence of past persecution, an applicant must
establish that he possesses “a subjective fear of persecution in the future, and that
this fear is objectively reasonable–which, in the withholding context, means that
the chance of future persecution is ‘more likely than not.’” Wakkary v. Holder,
558 F.3d 1049, 1060 (9th Cir. 2009). Torres asserts that he is afraid to return to
Mexico because he will be persecuted by Los Zetas gang members on account of
his membership in social groups related to his family or his family’s status as
business owners.1 Torres argues that his fear of future harm is objectively
reasonable because Los Zetas and other cartels are a “continuous problem for the
authorities in Mexico” and he knows of two people killed in Mexico by cartels.
However, as the BIA observed, Torres’s fear of harm is not objectively reasonable
1 Specifically, Torres argues that he will be persecuted because he is a (1) Mexican
national whose family owns a business; (2) Mexican national whose family is
being persecuted by Los Zetas; (3) Mexican national who is perceived to have
more wealth than locals because his family owns a business; (4) family member of
Ustorio Torres Rodriguez and Rosalia Vialda Padilla; (5) Mexican national who
has been deported from the United States; (6) family member of Mexican business
owners who refuse to pay extortion fees.

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because his family no longer owns a business, and his family members in Mexico
have never been harmed–even after they ignored extortion demands. See Sinha v.
Holder, 564 F.3d 1015, 1022 (9th Cir. 2009). Therefore, even if Torres’s evidence
supports some likelihood of future persecution, it does not compel the conclusion
that he is more likely than not to face persecution if removed.2
2. The BIA correctly concluded that Torres’s proposed particular social
group, “Mexican national who has been deported from the United States” is not
cognizable. Cognizability requires the applicant to show “that the proposed social
group is (1) composed of members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within the society in
question.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020) (internal
citations omitted). We have held that social groups similarly defined as “Mexican
national who has been deported from the United States” were “too amorphous,
overbroad and diffuse because it included men, women, and children of all ages,
regardless of the length of time they were in the United States, the reasons for their
2 The BIA also correctly noted that Torres waived any challenge to the IJ’s
determination that he could reasonably relocate within Mexico, and thus, he cannot
meet his burden of proof to establish eligibility for withholding on that ground
alone. Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir. 2021). Torres’s argument
that the agency failed to cite affirmative evidence to support its finding that he
could relocate to a part of Mexico where he is not likely to be tortured is
unexhausted and is therefore not properly before us. Bare v. Barr, 975 F.3d 952,
960 (9th Cir. 2020).

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removal, or the recency of their removal” to be cognizable. Reyes v. Lynch, 842
F.3d 1125, 1139 (9th Cir. 2016); see also Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151–52 (9th Cir. 2010).
3. Substantial evidence supports the BIA’s conclusion that Torres did not
establish eligibility for CAT protection. To obtain relief under CAT, a petitioner
“must show that it is more likely than not that he or she will be tortured, and not
simply persecuted upon removal” and “that such torture would be inflicted by or at
the instigation of or with the consent or acquiescence of a public official.” Dhital
v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (internal quotation marks
omitted). Although Torres testified that he has not experienced past torture in
Mexico, he contends that he is at risk of future torture because criminals in Mexico
will identify him as a recent deportee from the United States based on his accent,
mannerisms, and appearance, and assume that he is wealthy. However, evidence
of violence towards deportees, Mexicans returning home from the United States, or
Mexicans appearing American is not sufficiently particularized to support a CAT
claim. Such descriptions constitute only “generalized evidence of violence and
crime in Mexico” and are “not particular to [Torres] and [are] insufficient to meet
[CAT’s] standard.” Delgado-Ortiz, 600 F.3d at 1152; Ramirez-Munoz v. Lynch,
816 F.3d 1226, 1229–30 (9th Cir. 2016). Torres also asserts that he faces a risk of
future torture because his family was extorted in Mexico years ago. But Torres’s

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argument is undermined by the fact that his family has never been harmed despite
living in Mexico and refusing to respond to extortion attempts. Moreover, Torres’s
family members were only threatened with harm and “[u]nfulfilled threats are very
rarely sufficient to rise to the level of persecution,” Hussain, 985 F.3d at 647,
much less torture. Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (“Torture is
more severe than persecution.”) (internal quotation omitted).
Further, substantial evidence supports the BIA’s conclusion that any torture
Torres might suffer would not be inflicted with the consent or acquiescence of the
Mexican government. Although Torres cites the U.S. Department of State’s
Country Report on Human Rights Practices for 2018 noting continued corruption
by government officials in Mexico, the report also notes Mexico’s increased
response to local corruption, including the creation of a federal anticorruption
force, and new laws that authorize the Mexican military to support civilian
authorities, combat organized criminal groups, and protect migrants. Further,
Torres testified that nothing has “directly” happened in his town or to his family to
suggest that government officials work with criminals. Therefore, the record does
not compel the conclusion that any torture inflicted upon Torres would be inflicted
by or with the consent or acquiescence of public officials. See Sanjaa v. Sessions,
863 F.3d 1161, 1164 (9th Cir. 2017).
PETITION DENIED.

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