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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDUARDO REYES-MARTINEZ, AKA 

Eduardo Reyes-Santander, AKA Carlos 

Santander,

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 20-70897

Agency No. A076-211-691

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submission Deferred March 2, 2021

Submitted September 20, 2021**

San Francisco, California

Before: McKEOWN and IKUTA, Circuit Judges, and ERICKSEN,*** District 

Judge.

* 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 Joan N. Ericksen, United States District Judge for the 

District of Minnesota, sitting by designation.

FILED

SEP 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Petitioner Eduardo Reyes-Martinez, a Mexican citizen and national, seeks 

review of a decision of the Board of Immigration Appeals (“BIA”). An 

Immigration Judge (“IJ”) denied Petitioner’s request for protection under the 

Convention Against Torture (“CAT”), and for withholding of removal from the 

United States based on fear of future persecution by Mexican police. The BIA’s 

order affirmed that denial. Petitioner also challenges a regulation that prevents 

noncitizens subject to a reinstated removal order from applying for asylum.

We find that substantial evidence supported the IJ’s order, and that 

Petitioner’s challenge to the regulation precluding his asylum application must fail. 

Accordingly, we deny the petition.

This Court has jurisdiction to review final orders of removal under 8 U.S.C. 

§ 1252. The BIA’s denial of withholding of removal (“WOR”) and CAT relief is 

reviewed for substantial evidence and will be upheld if it is supported by 

“reasonable, substantial, and probative evidence on the record considered as a 

whole.” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting 

Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); Pagayon v. Holder, 675 

F.3d 1182, 1190 (9th Cir. 2011); Haile v. Holder, 658 F.3d 1122, 1130–31 (9th 

Cir. 2011)). The Court will reverse the BIA only if the evidence compels a 

contrary conclusion. 8 U.S.C. § 1252(b)(4)(A)–(B).
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To obtain relief under the CAT, a petitioner bears the burden to prove that it 

is “more likely than not that he or she would be tortured” if removed to the 

proposed country of removal. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 

2018) (citing 8 C.F.R. § 1208.16(c)(2)). Petitioner raises four arguments 

challenging the IJ’s denial of CAT relief: (1) that the IJ failed to recognize that 

Mexican police officers who previously tortured Petitioner were public officials, 

and therefore applied the wrong legal standard regarding the Mexican 

government’s acquiescence to torture; (2) that the IJ improperly placed the burden 

of proof on Petitioner to show his inability to safely relocate within Mexico; (3) 

that the IJ erroneously disregarded threats that Mexican police made against 

Petitioner; and (4) that the IJ failed to consider relevant evidence about past torture 

and country conditions. The BIA found that the IJ did not err with respect to the 

likelihood of torture, the government’s acquiescence, or the possibility of 

relocation. 

The record as a whole supports the IJ’s finding that Petitioner did not show 

that he would more likely than not be tortured if he were removed to Mexico. The 

IJ adequately considered individualized evidence with respect to Petitioner’s 

ability to relocate safely within Mexico. The IJ also considered relevant evidence 

about past torture and country conditions. Any error the IJ made as to whether the 

potential torturers Petitioner feared were public officials does not affect the IJ’s 
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finding against a likelihood of future torture. Nor does the IJ’s failure to consider 

evidence that Mexican police officers told Petitioner he would “get really beaten 

up” if he refused to pay them. Such a statement does not itself amount to torture or 

establish a specific threat of torture. See Nahrvani v. Gonzales, 399 F.3d 1148, 

1153 (9th Cir. 2005) (“[M]ost threats do not rise to the level of persecution.”). 

Considering the record as a whole, substantial evidence supported the IJ’s finding 

that Petitioner had not shown an individualized likelihood of torture. Petitioner is 

not entitled to relief under the CAT.

The IJ also denied Petitioner’s request for withholding of removal under 8 

U.S.C. § 1231(b)(3)(A), because Petitioner did not show that he faced past 

persecution, or a “clear probability” of future persecution, based on a protected 

ground.

1

 See Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th Cir. 2007). 

Petitioner claimed as a protected ground his membership in a social group 

comprised of “long term United States resident deportee[s] with family ties in the 

United States.” We agree with the IJ and BIA’s determination that Petitioner has 

failed to show a nexus between his membership in the proposed social group and a

history or particularized fear of persecution. We therefore need not decide whether 

membership in this group is cognizable as a basis for protection from persecution. 

1 A protected ground may be “race, religion, nationality, membership in a 

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
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Petitioner also challenges a Department of Homeland Security regulation 

that prevents noncitizens subject to a reinstated removal order from applying for 

asylum. 8 C.F.R. § 1208.31(e). Petitioner contends that this regulation

contravenes 8 U.S.C. § 1158(a)(1), which allows “[a]ny alien who is physically 

present in the United States . . . irrespective of such alien’s status, [to] apply for 

asylum.” This argument is foreclosed by circuit precedent addressing this exact 

question and upholding the challenged regulation. Perez-Guzman v. Lynch, 835 

F.3d 1066, 1079 (9th Cir. 2016). And contrary to Petitioner’s assertions, no 

intervening change in law supports revisiting that precedent.

PETITION FOR REVIEW DENIED.

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2 Accordingly, Petitioner’s Motion to Supplement the Record on Appeal [ECF 

No. 13] is denied as moot.