F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E J E S U S D U R

A N

R O D R I G U E Z , Petitioner
,

v.

W illiam P. B arr, Attorney General, R e

spondent

. No. 16-72957

Ag ency No. A093-457-361

OPI N I ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted F ebruary 5, 2019 * Phoenix , Ariz o na

F iled March 20, 2019

B efore: Michael Daly

Hawkins, Milan D. Smith, J r., and Andrew D. Hurwitz , Circuit J udg es.
Opinion by

J udg e Hawkins; Concurrence by

J udg e Milan D. Smith, J r.

* T h e p an el u n an im o u s ly

co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).D U R A N -R O D R I G U E Z V

. B A R

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SUMMARY * *

Im m igration

The p anel denied a p e tition for review of the B o ard o f I mmig r a tion Appeals’ dismissal of a n appeal, in a case in which J ose Duran-Rodrig uez soug ht asy lum, withholding o f removal, a

nd protection under the Convention Ag ainst Torture on account of his membership i n a social g r oup o f Mex ican police officers.

The p a n el held that the e vidence did not compel the conclusion that Duran-Rodrig uez suffered past harm rising to the level of persecution, w here he received two death threats from “sicarios,” or h itmen of the Sinaloa d rug c artel, to cooperate with them in transporting d rug s to the Mex ican border. T he panel ex plained that althoug h death threats alone

can constitute persecution, they constitute persecution in only

a small categ ory of c ases, and only when the t h r e at s are so menacingas to cause sig nificant actual suffering or harm.

The panel held that the evidence did not compel reversal of the B oard’s d ete r m ination that Duran-Rodrig uez could relocate within Mex ico to avoid future harm, and that DuranRodrig uez therefore failed to e stablish elig ibility for asy lum

an d withholding relief. The panel held that the B oard properly denied CAT relief because Duran-Rodrig uez failed
to establish that he was tortured in the past, or th at i t was

more likely than not he would be subjected to torture by o r with the acquiescence of a public official in the future.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D U R A N -R O D R I G U E Z V

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Specially concurring
, J u dg e M. Smith wrote separately to elaborate on t h e p oint that althoug h death threats a lone may constitute persecution, the cas e s underly ing that statement make clear that such d eath threats are alway s accompanied b y

some form of violence or h a r m to the petitioner, a family member, or others closely associated with him.

COUNSEL

J ohn M. Pope, Esquire,B enjamin T. W iesing er, Esquire, a nd Ali Manuchehry
, Esquire, P o pe & Associates, PC, Phoenix
, Ariz ona, for Petitioner.

Chad A. Readler Acting

Assistant Attorney General; J anette L

. Allen, Senior L itig a tion Counsel; Y edidy a Cohen, Trial Attorney ; O ffice of I mmig ration L itig ation, Civil D ivision, United States Department of J ustice, Washing ton, D.C.; for Respondent.D U R A N -R O D R I G U E Z V

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OP INION

HAW KI NS, Senior Circuit J udg e:

Petitioner J ose J esus D uran-Rodrig uez ( “DuranRodrig uez ”) seeks r eview o f a n order of the B oard o f I mmig r a tion Appea l s (“B I A”), affirming the I mmig r ation J udg e ’s (“I J ”) denial of his application f or a s y lum, withholding of removal, and p rotection under the Convention Ag ainst Torture (“CAT”). W e deny the petition. 1

F ACTS AND P ROCEDURAL HISTORY

Duran-Rodrig

u ez is a native and citiz en of Mex ico, who entered the United Sta tes in J anuary 2 014 without being admitted o r paroled. The Department of Homeland Security commenced removal proceeding s shortly thereafter, a nd Duran-Rodrig

uez conceded removability but indicated he intended to seek asy lum, withholding of r e moval, and CAT protection.

Duran-Rodrig

u ez lived in the sma l l town of Villa Hidalg o, Sonora, Mex ico from 2010 to 2014, a city with a population o f about 3500. He initially worked as a municipal worker fix ing roads, and in September 2012, h e joined the town’s four-member police force.

Duran-Rodrig

u ez testif i e d that in December 2013 he received two threats. W hen h e was off duty
, he received a call one morning from an ind ividual w ho identified himself

as “Se v enty .” Seventy w as the leader of a g roup of hitmen known as the “z icarios” or “ sicarios.” Duran-Rodrigu e z

1 P u b licatio n is p u rsu an t to Nin th

Circu it Ru le 3 6

– 2 (g ).D U R A N -R O D R I G U E Z V

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indicated Seventy had a reputation as a dang erous person w ho worked f or the Sinalo a d rug cartel led by “El Chapo,” a nd that h e knew of Seventy ’s r eputation throug h his co-workers. Seventy wanted Duran-Ro d r ig uez ’s help in g etting drug s to the border, but he refused. Seventy told Duran-Rodrig uez he had three day s to think about it and threatened to kill h i m if he did not cooperate.

Duran-Rodrig

u ez was then also approached in p erson b y

a g roup of seven armed sicarios, including Seventy

. Seventy told Duran-Rodrig

uez h e wanted his help to be a lookout a nd clear a roadway to the border and offered him $7000 to d o so. Duran-Rodrig

uez refused and Seventy ag ain g ave him three day s to c onsider the request and told him if he r efused to h elp he should leave the city or be killed.

Duran-R o d r ig uez then spoke with his commander, w ho advised h im to leave Villa H idalg o

. He also informed the
may or of the threats, but did not report t h e t hreats to any hig her law enforcement authority because he was afraid that he would be killed. He did not know if any other officers in Vi lla Hidalg o had been threatened or harmed, nor did he personally know of other officers w ho were killed for failing
to cooperate with sicarios, but he had heard of such thing s happening to p olice n ear the bord e rs

. He indicated h e h ad witnessed Seventy in the town on abo u t fo u r previous occasions armed with weapons.

Duran-Rodrig

u ez fled from the town on D ecember 15, 2013, and traveled to his aunt’s h ome in Hermosillo, stay ing there for about two weeks without incident and then traveled to the United States.D U R A N -R O D R I G U E Z V

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The I J denied his a

pplication for asy lum. The I J f ound that Duran-Rodrig

uez testified c r e dibly
, that he was “consistent in all material r espects,” and t h a t his “demeanor demonstrated a g enuine effort to reflect upon prior events a nd
to provide accurate answ e r s.” The I J c oncluded, however, that the t w o threats did not rise to the level of past persecution, noting that threats a lone r ise to that level only in “a small categ o ry

of cases.”

W ith respect to fear of f

uture harm, the I J determined that Duran-Rodrig

uez h ad not e stablished either that he had been individually sing led o ut for future persec ution o r that there

was a p attern or practice of persecution of similarly s i tuated
persons on account of a p rotected ground. The I J f urther noted that the f

ear of future persecution was not w ell-founded because Duran-Rodrig

uez could avoid persec ution b y relocating within Mex ico, and that it would be reasonable for him to do so. F inally
, the I J determ ined Duran-Rodrig uez failed to establish it was more likely tha n not he would be tortured if removed to Mex ico.

The B I A adopted and affirmed the I J ’s decisi on. I t ag reed that: the threats did not rise to the level o f persecution; Duran-Rodrig uez h a d not carried his b urden o f demonstrating a pattern or practice o f persecution of police officers in Mex ico; Duran-Rodrig uez could safely relocate to another p art of Mex ico; it was n o t more likely than not he would be subjected to torture if h e returned to Mex ico where he received threats from p rivate actors; and the r e w a s no evidence any one had soug ht h i m out after he left his small town. This petition for review followed.D U R A N -R O D R I G U E Z V

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SCOP E AND STANDARD OF REVIEW

W h ere, as here, t h e BI A ag r ees w ith the I J decision a nd also adds its own reasoning
, we review the decision of the B I A and those parts o f the I J ’s decision upon which it relies. Ali v. Holder , 637 F .3d 1025, 1028 (9th Cir. 2011).

W e review the denial of asy lum, withholding of removal and CAT claims for substantial evidence. Singh v

. H o l d er , 764 F .3d 115 3
, 1 159 (9th Cir. 2 014); Gonzalez-Caraveo v

. Sessions
, 882 F. 3 d 885, 895 (9th Cir. 2018). Under this standard, w e must uphold the ag ency determination u nless the evidence c ompels a contrary conclusion. INS v. EliasZacarias , 502 U.S. 478, 481 & n.1 (1992).

D ISCUSSION

I. Asylum and Withholding of Rem oval

Duran-Rodrig

u ez bears the burden of proving eli gibility for asy lum a

nd must d emonstrate that h e has suffered past persecution or has a well-founde d f ear of future persecution

on a ccount o f race, relig ion, natio n al ity
, membership in a particular s o c i al g roup, or political opinion. 8 U .S.C. § 1101(a)(42). Persecution is “ an e x treme concept that does
not include every sort of treatm e nt our society reg ards a s offensive.” Nagoulko v. INS , 333 F .3d 1 012, 1016 (9th Cir. 2003).

A. P ast P ersecution

Duran-Rodrig

u ez conten d s that he suffered persecution in
t h e f o rm of death threats on account of his membership in a particular social g roup (police o f f i c e rs in Mex ico). The I JD U R A N -R O D R I G U E Z V

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and B I A concluded, however, that the two threats he received in December 2013 did not rise to the level of persecution.

Althoug h Duran-Rodrig

uez is correct that credible “death threats alone can constitute persecution,” Navas v. INS
, 217 F .3d 646, 6 5 8 ( 9 t h Cir. 2 000) ( g athering cases), they constitute “persecution in o nly a small categ ory of cases, a nd only when the threats are so menacing as to cause sig nificant actual suffering or h arm,” Lim v INS, 224 F .3d 9 2 9, 936 (9th Cir. 2000) (internal quotation and citation omitted).

W e g enerally look at a ll of the surrounding circumstances
to determine whether the threats are a c tually credible and r ise
to the level o f persecution. Nahrvani v. Gonzales
, 399 F .3d 1148, 1153 (9th Cir. 2005) (“[ W ] e ty pically r ely on all of the surrounding e vents, including the death threat, in d e c i ding whether persecution ex ists.”). W e have been mos t l i k e ly to find persecution w here threats are re p e a ted, specific a nd “combined with confrontation or other m i s t reatment.” Lim
, 224 F .3d at 936; see also Mashiri v

. A shcroft, 3 83 F

. 3 d 1112, 1119 (9th Cir. 2004) ( d eath threats may constitute persecution

es p e c ially “when they are specific and menacing a nd a re accompanied by evidence of violent confrontations, n e arconfrontations and vandalism”). On the other hand, cases with threats alone, particularly anony mous o r v a gue ones, rarely c onstitute persecution. Lim
, 224 F .3d at 936 (multiple threats by phone and mail from New People’s Army ).

Here, over the course o f two day s, Du ran-Rodrig uez received a threat over the phone, and a nother in person. The

men who approached him were believed to b e h i t men o r “sicarios,” but Duran-Rodrig uez did not personally know if they had ever carried o ut threats ag a i n s t other o f ficers for failing to cooperate as requested. T he men took no actions o fD U R A N -R O D R I G U E Z V

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violence ag ainst Duran-Rodrig uez , his family or property bey ond the threats. On these facts, althoug h it may have been possible for the I J to conclude that the threats were sufficiently serious an d c r edible to r ise to the level o f persecution, we cannot say the evidence compe l s the conclusion that Duran-Rodrig uez suffered past persec u tion. Elias-Zacarias
, 5 02 U.S a t 481 & n.1; Nahrvani
, 399 F .3d at 1154 (“B e cause reasonable minds could differ as to whether the threats received by Nahrvani constituted persecution, the record does n ot compel us to mak e a f inding that the threats did constitute persecution.”) (internal quotation omitted).

B. F uture P ersecution

Absent e vidence of past persecution, Duran-Rodrig uez must establish a well-founded fear of future persec u t i o n b y showing both a subjective fear of future persecution, as w ell

as a n objectively “reasonable possibility ” of persecution upon

r e turn to the country in q u estion. Recinos De Leon v Gonzales
, 400 F .3d 1185, 1190 (9th Cir. 2005). However, an applicant “does not h ave a well-foun d ed fear of persecution if the applicant could avoid persecution b y r e locating to another part of the applicant’s country of nationality

. . . [ and] under a ll the circumstances it would be reasonable to ex pect the applicant to do so.” 8 C.F .R. § 1208.13 (b)(2)(ii). DuranRodr i gu ez had the burden o f proving that such relocation would not be possible or r easonable. 8 C.F .R. § 1208.13(b)(3)(i); Recinos De Leon , 400 F .3d at 1190. 2

2 W e n eed n o t ad dress Du ran

- Ro d rig u ez’ s ad d itio n al arg u m en ts ab o u t a w ell- f

o u n d ed f e ar o f f u t u re p ersecu t io n b ecau se th e in tern al relo catio n

issu e is d isp o sitiv e.D U R A N -R O D R I G U E Z V

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Even assuming Duran-Rodrig u ez has a subjective fear o f future p e rsecution, he has not dem o nstrated that the record compels reversal of the ag ency ’s internal relocation finding

. As the B I A held, relocation within Mex ico was p ossible a nd reasonable:

After [ D uran-Rodr i g uez ] was warned that he
must leave town or be killed if he w o u ld not

a s s ist the drug traffickers, he left his smal l
town and remained with his aunt in Hermosillo for 2 weeks b efore coming to the United States. There is no evidence or claim that the drug traffickers h ave soug ht the respondent since he left h is hometown or that he could not safely re l o c at e to H ermosillo o r another part of Mex ico, especially where he is

no long er a p o l ice officer and could not now provide d rug traffickers with the assistance they desire.

W e thus deny D uran-Rodrig uez ’s petition with respect to his claim for asy

lum.

To qualify for withholding of removal, an applicant must satisfy a more st r i n g ent standard and d e monstrate that it is “more likely than not” he would be persecuted on account o f

a protected g round if returned to the desig nat e d c ountry

. 8 C.F

. R. § 1208.16(b)(2). B e c ause Duran-Rodrig uez has not established elig ibility for asy lum, it necessarily follows that he has n ot e stab l i s h ed elig ibility for withholding

. See Mansour v. Ashcroft
, 390 F .3d 667, 673 (9th Cir. 2004).D U R A N -R O D R I G U E Z V

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II. Convention Against Torture

To qualify for r e l i e f under CAT, Duran-Rodrig uez must de m onstrate that it is more likely than not that h e w ould be tortured if r emoved to M ex i c o

. 8 C.F .R. § 1208.16(c)(2); Kamalthas v

. I

N S
, 251 F .3d 1279, 1284 ( 9th Cir. 2001). Torture is define d as “any a ct by which severe pain o r suffering
, whether phy sical or mental, is intentionally inflicted on a person

. . . by or at the instig ation of or with the
consent or acquiescence of a pub l i c o f ficial or other person acting in an official capacity .” 8 C.F .R. § 1208.18(a)(1).

The I J a nd B I A correctly analy

z ed Duran-Rodrig

u e z ’s CAT claim. He has not been tortured in the past, nor has he shown that it is more likely than not h e will be subjected to torture by or w i t h the acquiescence of a public official. He received threats from private actors and, as noted above, there is no evidence or claim that any one has soug ht him or has any continuing interest in him since he departed Villa Hidalg o.

P ETITION DENIED

.

M. SMI TH, Circuit J udg e , specially concurring :
Althoug h we have previously stated t h a t death threats alone may constitute persecuti o n , t h e cases underly ing that

s t a tement make clear that such death threats are alw a y s accompanied by some form of v i o lence or harm to the petitioner, a family member, o r others c losely associated with him. I write separately

to elaborate on that point.D U R A N -R O D R I G U E Z V

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“Persecution is an ‘ ex treme concept.’” H e v. Holder
, 749 F .3d 792, 7 96 (9th Cir. 2014) (quoting Donchev v. Mukasey
, 553 F

. 3d 1206, 1213 (9th Cir. 2009)). F or t h i s reason, “[ t] hreats s t a n d i n g a lone

. . . constitute past p ersecution in only a small categ ory of cases, and only when the threats a re

so menacing as to cause sig nificant actual ‘suffering o r harm.’” Lim v. I.N.S.
, 22 4 F. 3 d 9 29, 936 (9th Cir. 2 000) (quoting S

a n g h a v. INS
, 103 F .3d 1482, 1487 (9th Cir. 1997)). T o suffice as past persecution, threats must be specific and credible. They must a lso be accompanied b y phy sical violence or h arm to p etitioner, petitioner’s f amily
, o r others similarly

closely associated with him.

To b e sure, our writing s on this issue have sometimes been inex act. F or ex a mple, our d ecision in Navas v. I.N.S. is often cited for the p r opositio n that death threats alone constitute persecution. 2 1 7 F .3d 646 (9th Cir. 2000). T h ere,

we stated that “we have consistently held that death t h reats alone can constitute persecution.” Id. at 658.

B u t that statement, in isolation, is c l e arly misleading

. I n Navas
, the court f

ound that the p etitioner had been persecuted because “ he was shot at” by the Salvadoran military and those

same military o fficers murdered his aunt before g oing to the petitioner’s mother’s house in search of him. Id. at 652, 658. “W h e n they discovered that he w a s not there, they beat his mother and threatened to kill both mother and son unless [ the petitioner] left the country .” Id. at 652. I t is uncontroversial that when threats are combine d w i th the infliction of such violence a

nd h arm to a petit i o n e r ’s family
, they establish persecution.

F urthermore, all the case s on which Navas r elied for its
matter of fact proposition similarly involved v iolence or harmD U R A N -R O D R I G U E Z V

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to the petitioner o r someone closely associated with him. See Del Carmen M

olina v. I.N.S.
, 1 70 F .3d 1247, 1249 (9th Cir. 1999) (finding persecution where, in a d dition to death threats, petitioner’s cousins and their families were murdered); Garrovillas v. INS
, 1 56 F .3d 1010, 1016 (9th Cir. 1 998) (finding persecution where petitioner received two l et t ers with black ribbons and “[ m] any people

. . . who had received similar letters containing b lack ribbons had subsequently been killed by the [ N ew People’s A rmy ].”); Gonzales-Neyra

v. I.N.S.
, 1 22 F .3d 1293, 1296 (9th Cir. 1997), amended by 13 3 F. 3d 726 (9th Cir. 1998) ( finding persecution where petitioner was “ hunted”); Gonzalez v. I.N.S.
, 82 F

. 3 d 903, 910 (9th Cir. 1996) (finding death threats constituted persecution where petitioner’s father w as ren d e r e d deaf and mute by a bomb, mother’s lands were seiz ed, brothers were incarcerated and forced into the militar y , s ister-in-law was beaten, petitioner’s ration card w as confiscated, petitioner’s business license was denied, and petitioner’s h o u s e was vandaliz ed and seiz ed); Gomez-Saballos v

. I .N.S.
, 79 F .3d 9 1 2, 916 (9th Cir. 1 996) (finding persecution w here the individual making the death threat previously led to the ex ecution of petitioner’s brother for harboring the same p olitical opinion); A g uileraCota v. I.N.S.
, 914 F .2d 13 7 5
, 1380 (9th Cir. 1990) (finding death threats in addition to numer o us other a ctions—cousin killed, niece wounded, p e titioner’s house ransacked, sister questioned in-person about p e titioner, petitioner interrog ated and detained twice—amounted to persecution). 1

1 So to o d o o th er cases co n f irm th at t h reats m u st b e acco m

p an ied b y

v io len ce or h arm to co n stitu te p ersecu tio n

. S

ee Ba b a lla h v. Ash cro

f t , 3 6 7 F.3 d 1 0 6 7
, 1 0 7 5 (9 th Cir. 2 0 0 4 ) (f in d i n g d eath th reats, b ein g s h o t at, as

w ell as a b r o t h e r ’s im

p riso n m en t an d b eatin g am o u n ted to persecu tio n ); S a la za r -Pa u ca r v. INS
, 2 8 1 F.3 d 1 0 6 9, 10 7 5 (9 th Cir

. 2 0 0 2 ) (f in d in g d eath th reats to g eth er w ith b eatin g s o f f am i ly m em

b ers an d m

u rd ers of p o litical

co u n terp arts co n stitu

ted p ast p ersecu t io n ), amen ded b y 2 9 0 F.3 d 9 6 4 (9 th Cir. 2 0 0 2 ); Reyes-Gu errero v. I.N.S

. , 1 9 2 F.3 d 1 2 4 1
, 12 4 6 (9 th Cir. 19 9 9)D U R A N -R O D R I G U E Z V

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W e know of no case, nor has Duran-Rodrig uez p ointed to
one, where death thre a t s alone, not involving violence o r other harm to pet itioner, his family
, or others closely associated with him, constituted persecution.

W ith this framework established, it is clear that the threats
ag ainst Duran-Rodrig

uez d o n o t amount to past persecution

nor su p port an objectively reasonable finding of a wellfounded fear o f future persecution. D uran-Rodrig uez had no pe rs o n al k

nowledg e of violence by “Seventy ” or the “sicari o s ” ag ainst other p olice o fficers who had refused to help mo v e drug s to the border. Nor did Duran-Rodrig uez alleg e any harm or violence taken by these men ag ainst him, his famil y members, o r the o ther Villa Hidalg o police officers. I ndeed, he was able to r emain at his aunt’s house in He r m osillo, less than ten k ilometers o r six -and-a-half miles
away from Villa Hidalg o, for two weeks without incident.

Duran-Rodrig

u ez presents evidence of vi o l e n c e a c r o ss the
reg ion by drug cartel g ang s. B ut that violence targ eted rival
g ang s, innocent by standers, p olitical le a d e rs, and police officers, a

nd it is well established that a ge n e ral, undifferentiated claim of persecution will not suffice; DuranRodrig uez “must show that h e is at particular risk—that his ‘predicament is appreciably different from the dang ers faced by [ h is] fellow citiz ens.’” Kotasz v. I.N.S.
, 31 F .3d 847, 852 (9th Cir. 1994) (quoting V ides-Vides v. I.N.S.
, 783 F .2d 1463, 1469 (9th Cir. 1986)). B ecause Duran-Rodriquez has failed to make that showing , he is not entitled to relief.

(f in d in g de a t h t h reats b y d ef en d an ts ag ain st a p ro secu to r in a co u n try

w h ere “ [m ]ag istrates, j u d g es, atto rn ey s, an d p ro secu t o rs h av e b een

s ub o rn ed
, th reaten ed
, assassin ated
, o r h ad f am ily m em

b ers k illed in

co n n ectio n w ith cer t a in cases” allo w ed u s to f in d a w ell- f

o u n d ed f ear of f u tu re p ersecu tio n ).