Opinion
23-2941
10-02-2024
M.T.B., Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
NONPRECEDENTIAL DISPOSITION
Argued September 5, 2024
Petition for Review of an Order of the Board of Immigration Appeals. No. A000-000-000
Before FRANK H. EASTERBROOK, Circuit Judge, THOMAS L. KIRSCH II, Circuit Judge, JOSHUA P. KOLAR, Circuit Judge
ORDER
M.T.B., a Mexican citizen, petitions for review of the denial of his application for deferral of removal under the Convention Against Torture. M.T.B. fears he will be tortured by the Sinaloa Cartel if he is removed to Mexico. Because substantial evidence supports the immigration judge's decision that M.T.B. failed to show he faced a substantial risk of torture, we deny the petition for review.
M.T.B. has been a lawful permanent resident of the United States for over 30 years. After he pled guilty to possession with intent to distribute methamphetamine, the Department of Homeland Security initiated removal proceedings. Although conceding his removability, M.T.B. applied for deferral of removal under the Convention Against Torture. He claimed his wife's family will ask the Sinaloa Cartel to locate and torture him because he had a falling out with the family and because he cooperated with a federal investigation of the cartel.
At a hearing before an immigration judge (IJ), M.T.B. testified that if he is removed to Mexico, he would be unable to hide from the cartel because he will remain in contact with his wife, S.V., and her family will tell the cartel where he is. M.T.B. also had an expert witness, Dr. Rosen, testify that someone targeted by the cartel could not relocate safely in Mexico. The IJ found the testimony of M.T.B. and Dr. Rosen credible.
After the hearing, the IJ denied M.T.B.'s application. The IJ determined that M.T.B. did not show "that each step in the hypothetical chain of events leading to any future torture is more likely than not to happen." Specifically, the IJ found M.T.B. did not adequately show (1) that his wife's family would ask the cartel (or that the cartel would agree) to locate and torture M.T.B. over a family vendetta, (2) that his wife's family knows or will find out he cooperated with law enforcement, and (3) that the cartel could locate him in Mexico. The Board of Immigration Appeals adopted and affirmed the IJ's decision, determining that the IJ's findings were not clearly erroneous.
In his petition, M.T.B. first challenges the Board's application of clear error review. But M.T.B. does not explain how the Board misapplied clear error review, and the case law he relies on does not help his argument. In Estrada-Martinez v. Lynch, 809 F.3d 886 (7th Cir. 2015), we granted the petition because the Board did not give enough deference to the IJ's findings of fact. Id. at 894-95. Here, M.T.B. would need to show the opposite-that the Board was too deferential to the IJ's findings. He has not done so. The Board articulated the correct standard of review and appropriately explained what facts in the record supported the IJ's findings.
M.T.B. next argues that the IJ erred by failing to consider the aggregate risk of torture posed by the family vendetta and his cooperation with law enforcement. But we have advised that "the agency may address risk factors individually so long as it considers all sources of and reasons for risk cumulatively to determine whether there is a substantial risk of torture." Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021). That is what the IJ did here. He considered the two risk factors individually and then determined that the aggregate risk the cartel posed to M.T.B. was not substantial, in part because it was likely M.T.B. could safely relocate within Mexico. M.T.B. suggests that the IJ erred by placing the burden on him to show he could not safely relocate in Mexico, but he bore the burden of establishing the likelihood of torture if he is returned to Mexico. Barry v. Barr, 916 F.3d 666, 669 (7th Cir. 2019). That inquiry encompasses several factors, including evidence of the inability to relocate within the country. Id.
Finally, M.T.B. challenges the Board's overall denial of his application. To be entitled to deferral of removal under the Convention Against Torture, M.T.B. had to show that he faces a "substantial risk" of torture that is "intentionally inflicted with the consent or acquiescence of a public official." Meraz-Saucedo v. Rosen, 986 F.3d 676, 686 (7th Cir. 2021). When the Board "adopts and affirms the IJ's decision and adds its own analysis, as it did here, we review both decisions." Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014). Our review is limited to "the highly deferential substantial evidence test," which requires us to affirm if the Board's decision is supported "by reasonable, substantial, and probative evidence on the record considered as a whole and permits us to reverse only if the facts compel the opposite conclusion." Mabuneza v. Garland, 16 F.4th 1222, 1226 (7th Cir. 2021) (cleaned up). Here, the Board agreed with the IJ that M.T.B. does not face a substantial risk of torture by the Sinaloa Cartel.[*] The Board's decision rested mainly on three findings, all of which are supported by the record.
First, the Board found that M.T.B. had not shown that S.V.'s family was part of the cartel, which made it unlikely that they would ask for and receive the cartel's assistance. M.T.B.'s testimony on this issue was speculative and uncertain, and the IJ did not need to find it persuasive just because he found M.T.B. credible. See Garland v. Ming Dai, 593 U.S. 357, 371-72 (2021); Pineda-Teruel v. Garland, 16 F.4th 1216, 1222 (7th Cir. 2021). Second, the Board found that the reduction in M.T.B.'s sentence would not cause S.V.'s family to suspect he cooperated with law enforcement. This finding was adequately supported by the record. M.T.B.'s reduced sentence was still comparable to his co-defendants, and S.V.'s family is aware that sentences can change for reasons other than cooperation-S.V.'s own brother was released early. Third, the Board found that M.T.B. had not shown that S.V. would tell her family where he is in Mexico or that he cooperated with law enforcement. The evidence showed that M.T.B. and S.V. maintain a somewhat friendly relationship and that S.V. is unwilling to get in the middle of anything involving M.T.B. and her family. M.T.B.'s alternative reading of the record, while plausible, does not compel the opposite conclusion.
DENIED.
[*] Because the Board did not address whether the risk of torture M.T.B. faces is "intentionally inflicted with the consent or acquiescence of a public official," Meraz-Saucedo, 986 F.3d at 686, we do not consider the issue either, see Moab v. Gonzales, 500 F.3d 656, 659-60 (7th Cir. 2007) (stating that our review is limited to the basis the Board articulated for denying relief under the Convention Against Torture).