Jgq v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Final Order…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1981
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JGQ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
(Agency Case A000-00-001)
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 26, 2023.
Before: KRAUSE, ROTH, and AMBRO, Circuit Judges
(Filed: February 1, 2024)
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OPINION*
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KRAUSE, Circuit Judge.
Petitioner JGQ, a Mexican citizen, seeks review of the Board of Immigration
Appeals’ final order upholding the Immigration Judge’s denial of his applications for
withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. §
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not
binding precedent.

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1231(b)(3)(A), and for protection under the Convention Against Torture (“CAT”),
adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 86 (entered into force
in United States Nov. 20, 1994). Because the BIA and IJ applied the correct legal
standards and their decisions are supported by substantial evidence, we will deny the
petition for review.
I. DISCUSSION1
On appeal, JGQ claims he is entitled to relief because his membership in the
particular social group (“PSG”) gay men who are HIV-positive would subject him to
persecution and torture if removed to Mexico.2 Because JGQ did not offer evidence of
past persecution, he had the burden to show a “clear probability” of future persecution on
account of his PSG, Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011), and that the
persecution would be committed through the government’s “act or omission,” Galeas
Figueroa v. Att’y Gen., 998 F.3d 77, 86 (3d Cir. 2021), or “by forces the government is
unable or unwilling to control,” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d
1 This Court has jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). We review legal determinations de novo and will uphold factual findings
supported by “substantial evidence.” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582,
590 (3d Cir. 2011). Where, as here, “‘the BIA’s opinion directly states that the BIA is
deferring to the IJ, or invokes specific aspects of the IJ’s analysis and factfinding in
support of the BIA’s conclusions,’” we review both the IJ’s and BIA’s decisions.
Thalayan v. Att’y Gen., 997 F.3d 132, 137 (3d Cir. 2021) (quoting Udin v. Att’y Gen.,
870 F.3d 282, 289 (3d Cir. 2017)).
2 The IJ also rejected JGQ’s asylum claim because he failed to file a timely application.
See 8 U.S.C. § 1158(a)(2)(B), (D). JGQ did not challenge that determination before the
BIA, nor does he do so here, so that issue is forfeited. See United States v. DeMichael,
461 F.3d 414, 417 (3d Cir. 2006).

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Cir. 2011). Likewise, to establish eligibility for CAT protection, he had to show a
likelihood that he would be tortured upon removal by the government or with its
acquiescence. Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n.2 (3d Cir. 2003); 8 C.F.R.
§§ 208.16(c)(2), 208.18(a)(1).
As the deficits in JGQ’s claim for withholding of removal apply to his CAT claim
as well, we will focus on his arguments in the former context before addressing them
briefly in the latter.
A. Withholding of Removal
JGQ raises three arguments concerning the denial of his application for
withholding of removal. None is persuasive.
First, he contends that the IJ and BIA failed to evaluate the likelihood that he will
be persecuted directly by the Mexican government, but the record proves otherwise. In
considering whether JGQ faced a clear probability of direct government persecution, the
IJ specifically examined whether “the government is actively discriminating on people
due to their sexual orientation,” A.R. 66, and whether “the harm is coming directly from
the government,” A.R. 64. She also acknowledged reports of “involvement by police,
military and other government officials” in “violence targeting . . . lesbian, gay, bisexual,
transgender, and intersex persons.” A.R. 64 (citing A.R.238, U.S. Dep’t of State, Human
Rights Report for Mexico 2019 (2020) (“DOS Report”), 74).
At the same time, however, she considered the significant evidence in the record
of state protections for sexual minorities, including anti-discrimination laws, marriage
equality guarantees in Mexico City and ten states, and provisions forbidding sexual

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orientation discrimination in the constitutions of twenty of the nation’s thirty-one states.
And based on that evidence, the IJ found that the government itself was not
“discriminating on people due to their sexual orientation; rather, it appears to be taking
steps to combat these issues.” A.R. 66. Given the substantial evidence on which that
finding rested, the BIA concluded “there [wa]s no legal or clear factual error in this
determination,” A.R. 3, and we cannot say on this record that “‘any reasonable
adjudicator would be compelled to conclude to the contrary,’” Valdiviezo-Galdamez, 663
F.3d at 590 (quoting 8 U.S.C. § 1252(b)(4)(B)).
Second, JGQ claims that the IJ’s analysis of the government’s willingness or
ability to control private actors was faulty because it did not account for police
complicity. Yet the IJ expressly acknowledged that “there is mistreatment and
discrimination against individuals due to their sexual orientation … in Mexico” by
private groups and, in some instances, by police officers. A.R. 64 (citing A.R. 238, DOS
Report at 74). It simply found, in view of the government’s significant “steps to combat
some of the issues that individual may face due to their sexual orientation,” A.R. 65, that
the record as a whole did not establish a likelihood that JGQ would be subject to
persecution by forces the government was unwilling or unable to control.
While JGQ urges a contrary conclusion based on Doe v. Attorney General, 956
F.3d 135 (3d Cir. 2020), we agree with the BIA that this case is distinguishable. A.R. 2.
In Doe, we determined that the Ghanian government was unwilling or unable to protect
LGBT people, in part because of the police’s record of harassing or intimidating them, id.
at 146–48, but the record in that case was “replete with evidence that Ghanian law

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deprives gay men … of any meaningful recourse to government protection,” id. at 147.
Here, in contrast, the record is replete with the evidence catalogued by the IJ that the
Mexican government is working to combat anti-LGBT discrimination. Because “a
reasonable factfinder could agree with [that] determination,” the IJ’s determination was
supported by substantial evidence, and the BIA did not err in upholding it. Thalayan v.
Att’y Gen., 997 F.3d 132, 143 (3d Cir. 2021).
Third, JGQ maintains that the IJ overlooked relevant evidence of the government’s
inability or unwillingness to prevent violence against LGBT people. Petitioner’s Br. 21–
22, 33. But the IJ and BIA are “not required to write an exegesis on every contention, but
only to show that [they have] reviewed the record and grasped the movant’s claims.”
Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002). And here, the IJ’s careful
discussion of many of the sources submitted by JGQ, coupled with her recognition that
JGQ had submitted “other articles” describing discrimination against LGBT people in
Mexico, satisfies us that she fulfilled this obligation. A.R. 86. At bottom, JGQ’s
argument appears to be that the IJ gave insufficient weight to certain parts of the record,
but “[t]he substantial-evidence standard does not permit this Court to re-weigh evidence,”
Thalayan, 997 F.3d at 143, and that standard is met here.
B. Protection Under CAT
JGQ makes similar arguments as to why the IJ and BIA erred in rejecting his CAT
claim, but they also lack support in the record. JGQ offered no evidence that he had
endured past torture or attempted to relocate to a safer location within Mexico, see 8
C.F.R. § 208.16(c)(3), and, after weighing the record in its entirety, the IJ reasonably

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determined that he was not likely to be tortured by or with the consent or acquiescence of
the government. Given the government’s efforts to combat anti-LGBT discrimination,
which the IJ recounted at length, the BIA did not err in concluding that determination was
legally sound and was supported by substantial evidence, A.R. 9.
I. CONCLUSION
For the foregoing reasons, we will deny JGQ’s petition for review.

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