FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE JESUS DURANRODRIGUEZ,

Petitioner,

v.

William P. Barr, Attorney

General,

Respondent.

No. 16-72957

Agency No. 

A093-457-361

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 5, 2019*

Phoenix, Arizona

Filed March 20, 2019

Before: Michael Daly Hawkins, Milan D. Smith, Jr., and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge Milan D. Smith, Jr.

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 DURAN-RODRIGUEZ V. BARR

SUMMARY**

Immigration

The panel denied a petition for review of the Board of

Immigration Appeals’ dismissal of an appeal, in a case in

which Jose Duran-Rodriguez sought asylum, withholding of

removal, and protection under the Convention Against

Torture on account of his membership in a social group of

Mexican police officers.

The panel held that the evidence did not compel the

conclusion that Duran-Rodriguez suffered past harm rising to

the level of persecution, where he received two death threats

from “sicarios,” or hitmen of the Sinaloa drug cartel, to

cooperate with them in transporting drugs to the Mexican

border. The panel explained that although death threats alone

can constitute persecution, they constitute persecution in only

a small category of cases, and only when the threats are so

menacing as to cause significant actual suffering or harm.

The panel held that the evidence did not compel reversal

of the Board’s determination that Duran-Rodriguez could

relocate within Mexico to avoid future harm, and that DuranRodriguez therefore failed to establish eligibility for asylum

and withholding relief. The panel held that the Board

properly denied CAT relief because Duran-Rodriguez failed

to establish that he was tortured in the past, or that it was

more likely than not he would be subjected to torture by or

with the acquiescence of a public official in the future.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DURAN-RODRIGUEZ V. BARR 3

Specially concurring,Judge M. Smith wrote separately to

elaborate on the point that although death threats alone may

constitute persecution, the cases underlying that statement

make clear that such death threats are always accompanied by

some form of violence or harm to the petitioner, a family

member, or others closely associated with him.

COUNSEL

John M. Pope, Esquire,Benjamin T. Wiesinger, Esquire, and

Ali Manuchehry, Esquire, Pope & Associates, PC, Phoenix,

Arizona, for Petitioner.

Chad A. Readler Acting Assistant Attorney General; Janette

L. Allen, Senior Litigation Counsel; Yedidya Cohen, Trial

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.
4 DURAN-RODRIGUEZ V. BARR

OPINION

HAWKINS, Senior Circuit Judge:

Petitioner Jose Jesus Duran-Rodriguez (“DuranRodriguez”) seeks review of an order of the Board of

Immigration Appeals (“BIA”), affirming the Immigration

Judge’s (“IJ”) denial of his application for asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). We deny the petition.1

FACTS AND PROCEDURAL HISTORY

Duran-Rodriguez is a native and citizen of Mexico, who

entered the United States in January 2014 without being

admitted or paroled. The Department of Homeland Security

commenced removal proceedings shortly thereafter, and

Duran-Rodriguez conceded removability but indicated he

intended to seek asylum, withholding of removal, and CAT

protection.

Duran-Rodriguez lived in the small town of Villa

Hidalgo, Sonora, Mexico from 2010 to 2014, a city with a

population of about 3500. He initially worked as a municipal

worker fixing roads, and in September 2012, he joined the

town’s four-member police force.

Duran-Rodriguez testified that in December 2013 he

received two threats. When he was off duty, he received a

call one morning from an individual who identified himself

as “Seventy.” Seventy was the leader of a group of hitmen

known as the “zicarios” or “sicarios.” Duran-Rodriguez

1

 Publication is pursuant to Ninth Circuit Rule 36–2(g).
DURAN-RODRIGUEZ V. BARR 5

indicated Seventy had a reputation as a dangerous person who

worked for the Sinaloa drug cartel led by “El Chapo,” and

that he knew of Seventy’s reputation through his co-workers. 

Seventy wanted Duran-Rodriguez’s help in getting drugs to

the border, but he refused. Seventy told Duran-Rodriguez he

had three days to think about it and threatened to kill him if

he did not cooperate. 

Duran-Rodriguez was then also approached in person by

a group of seven armed sicarios, including Seventy. Seventy

told Duran-Rodriguez he wanted his help to be a lookout and

clear a roadway to the border and offered him $7000 to do so.

Duran-Rodriguez refused and Seventy again gave him three

days to consider the request and told him if he refused to help

he should leave the city or be killed. 

Duran-Rodriguez then spoke with his commander, who

advised him to leave Villa Hidalgo. He also informed the

mayor of the threats, but did not report the threats to any

higher law enforcement authority because he was afraid that

he would be killed. He did not know if any other officers in

Villa Hidalgo had been threatened or harmed, nor did he

personally know of other officers who were killed for failing

to cooperate with sicarios, but he had heard of such things

happening to police near the borders. He indicated he had

witnessed Seventy in the town on about four previous

occasions armed with weapons.

Duran-Rodriguez fled from the town on December 15,

2013, and traveled to his aunt’s home in Hermosillo, staying

there for about two weeks without incident and then traveled

to the United States.
6 DURAN-RODRIGUEZ V. BARR

The IJ denied his application for asylum. The IJ found

that Duran-Rodriguez testified credibly, that he was

“consistent in all material respects,” and that his “demeanor

demonstrated a genuine effort to reflect upon prior events and

to provide accurate answers.” The IJ concluded, however,

that the two threats did not rise to the level of past

persecution, noting that threats alone rise to that level only in

“a small category of cases.”

With respect to fear of future harm, the IJ determined that

Duran-Rodriguez had not established either that he had been

individually singled out for future persecution or that there

was a pattern or practice of persecution of similarly situated

persons on account of a protected ground. The IJ further

noted that the fear of future persecution was not well-founded

because Duran-Rodriguez could avoid persecution by

relocating within Mexico, and that it would be reasonable for

him to do so. Finally, the IJ determined Duran-Rodriguez

failed to establish it was more likely than not he would be

tortured if removed to Mexico.

The BIA adopted and affirmed the IJ’s decision. It

agreed that: the threats did not rise to the level of

persecution; Duran-Rodriguez had not carried his burden of

demonstrating a pattern or practice of persecution of police

officers in Mexico; Duran-Rodriguez could safely relocate to

another part of Mexico; it was not more likely than not he

would be subjected to torture if he returned to Mexico where

he received threats from private actors; and there was no

evidence anyone had sought him out after he left his small

town. This petition for review followed.
DURAN-RODRIGUEZ V. BARR 7

SCOPE AND STANDARD OF REVIEW

Where, as here, the BIA agrees with the IJ decision and

also adds its own reasoning, we review the decision of the

BIA and those parts of the IJ’s decision upon which it relies. 

Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011).

We review the denial of asylum, withholding of removal

and CAT claims for substantial evidence. Singh v. Holder,

764 F.3d 1153, 1159 (9th Cir. 2014); Gonzalez-Caraveo v.

Sessions, 882 F.3d 885, 895 (9th Cir. 2018). Under this

standard, we must uphold the agencydetermination unless the

evidence compels a contrary conclusion. INS v. EliasZacarias, 502 U.S. 478, 481 & n.1 (1992).

DISCUSSION

I. Asylum and Withholding of Removal

Duran-Rodriguez bears the burden of proving eligibility

for asylum and must demonstrate that he has suffered past

persecution or has a well-founded fear of future persecution

on account of race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§ 1101(a)(42). Persecution is “an extreme concept that does

not include every sort of treatment our society regards as

offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.

2003). 

A. Past Persecution

Duran-Rodriguez contends that he suffered persecution in

the form of death threats on account of his membership in a

particular social group (police officers in Mexico). The IJ
8 DURAN-RODRIGUEZ V. BARR

and BIA concluded, however, that the two threats he received

in December 2013 did not rise to the level of persecution.

Although Duran-Rodriguez is correct that credible “death

threats alone can constitute persecution,” Navas v. INS, 217

F.3d 646, 658 (9th Cir. 2000) (gathering cases), they

constitute “persecution in only a small category of cases, and

only when the threats are so menacing as to cause significant

actual suffering or harm,” Lim v INS, 224 F.3d 929, 936 (9th

Cir. 2000) (internal quotation and citation omitted).

We generally look at all of the surrounding circumstances

to determine whether the threats are actually credible and rise

to the level of persecution. Nahrvani v. Gonzales, 399 F.3d

1148, 1153 (9th Cir. 2005) (“[W]e typically rely on all of the

surrounding events, including the death threat, in deciding

whether persecution exists.”). We have been most likely to

find persecution where threats are repeated, specific and

“combined with confrontation or other mistreatment.” Lim,

224 F.3d at 936; see also Mashiri v. Ashcroft, 383 F.3d 1112,

1119 (9th Cir. 2004) (death threats mayconstitute persecution

especially “when they are specific and menacing and are

accompanied by evidence of violent confrontations, nearconfrontations and vandalism”). On the other hand, cases

with threats alone, particularly anonymous or vague ones,

rarely constitute persecution. Lim, 224 F.3d at 936 (multiple

threats by phone and mail from New People’s Army).

Here, over the course of two days, Duran-Rodriguez

received a threat over the phone, and another in person. The

men who approached him were believed to be hitmen or

“sicarios,” but Duran-Rodriguez did not personally know if

they had ever carried out threats against other officers for

failing to cooperate as requested. The men took no actions of
DURAN-RODRIGUEZ V. BARR 9

violence against Duran-Rodriguez, his family or property

beyond the threats. On these facts, although it may have been

possible for the IJ to conclude that the threats were

sufficiently serious and credible to rise to the level of

persecution, we cannot say the evidence compels the

conclusion that Duran-Rodriguez suffered past persecution. 

Elias-Zacarias, 502 U.S at 481 & n.1; Nahrvani, 399 F.3d at

1154 (“Because reasonable minds could differ as to whether

the threats received by Nahrvani constituted persecution, the

record does not compel us to make a finding that the threats

did constitute persecution.”) (internal quotation omitted). 

B. Future Persecution

Absent evidence of past persecution, Duran-Rodriguez

must establish a well-founded fear of future persecution by

showing both a subjective fear of future persecution, as well

as an objectively “reasonable possibility” of persecution upon

return to the country in question. Recinos De Leon v

Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005). However, an

applicant “does not have a well-founded fear of persecution

if the applicant could avoid persecution by relocating to

another part of the applicant’s country of nationality . . . [and]

under all the circumstances it would be reasonable to expect

the applicant to do so.” 8 C.F.R. § 1208.13 (b)(2)(ii). DuranRodriguez had the burden of proving that such relocation

would not be possible or reasonable. 8 C.F.R.

§ 1208.13(b)(3)(i); Recinos De Leon, 400 F.3d at 1190.2

2 We need not address Duran-Rodriguez’s additional arguments

about a well-founded fear of future persecution because the internal

relocation issue is dispositive. 
10 DURAN-RODRIGUEZ V. BARR

Even assuming Duran-Rodriguez has a subjective fear of

future persecution, he has not demonstrated that the record

compels reversal of the agency’s internal relocation finding. 

As the BIA held, relocation within Mexico was possible and

reasonable:

After [Duran-Rodriguez] was warned that he

must leave town or be killed if he would not

assist the drug traffickers, he left his small

town and remained with his aunt in

Hermosillo for 2 weeks before coming to the

United States. There is no evidence or claim

that the drug traffickers have sought the

respondent since he left his hometown or that

he could not safely relocate to Hermosillo or

another part of Mexico, especially where he is

no longer a police officer and could not now

provide drug traffickers with the assistance

they desire.

We thus deny Duran-Rodriguez’s petition with respect to his

claim for asylum. 

To qualify for withholding of removal, an applicant must

satisfy a more stringent standard and demonstrate that it is

“more likely than not” he would be persecuted on account of

a protected ground if returned to the designated country. 

8 C.F. R. § 1208.16(b)(2). Because Duran-Rodriguez has not

established eligibility for asylum, it necessarily follows that

he has not established eligibility for withholding. See

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004). 
DURAN-RODRIGUEZ V. BARR 11

II. Convention Against Torture

To qualify for relief under CAT, Duran-Rodriguez must

demonstrate that it is more likely than not that he would be

tortured if removed to Mexico. 8 C.F.R. § 1208.16(c)(2);

Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001). 

Torture is defined as “any act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted on a person . . . by or at the instigation of or with the

consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). 

The IJ and BIA correctly analyzed Duran-Rodriguez’s

CAT claim. He has not been tortured in the past, nor has he

shown that it is more likely than not he will be subjected to

torture by or with the acquiescence of a public official. He

received threats from private actors and, as noted above, there

is no evidence or claim that anyone has sought him or has any

continuing interest in him since he departed Villa Hidalgo. 

PETITION DENIED.

M. SMITH, Circuit Judge, specially concurring:

Although we have previously stated that death threats

alone may constitute persecution, the cases underlying that

statement make clear that such death threats are always

accompanied by some form of violence or harm to the

petitioner, a familymember, or others closely associated with

him. I write separately to elaborate on that point. 
12 DURAN-RODRIGUEZ V. BARR

“Persecution is an ‘extreme concept.’” He v. Holder, 749

F.3d 792, 796 (9th Cir. 2014) (quoting Donchev v. Mukasey,

553 F.3d 1206, 1213 (9th Cir. 2009)). For this reason,

“[t]hreats standing alone . . . constitute past persecution in

only a small category of cases, and only when the threats are

so menacing as to cause significant actual ‘suffering or

harm.’” Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000)

(quoting Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.

1997)). To suffice as past persecution, threats must be

specific and credible. They must also be accompanied by

physical violence or harm to petitioner, petitioner’s family, or

others similarly closely associated with him. 

To be sure, our writings on this issue have sometimes

been inexact. For example, our decision in Navas v. I.N.S. is

often cited for the proposition that death threats alone

constitute persecution. 217 F.3d 646 (9th Cir. 2000). There,

we stated that “we have consistently held that death threats

alone can constitute persecution.” Id. at 658. 

But that statement, in isolation, is clearly misleading. In

Navas, the court found that the petitioner had been persecuted

because “he was shot at” by the Salvadoran military and those

same military officers murdered his aunt before going to the

petitioner’s mother’s house in search of him. Id. at 652, 658. 

“When they discovered that he was not there, they beat his

mother and threatened to kill both mother and son unless [the

petitioner] left the country.” Id. at 652. It is uncontroversial

that when threats are combined with the infliction of such

violence and harm to a petitioner’s family, they establish

persecution. 

Furthermore, all the cases on which Navas relied for its

matter of fact proposition similarly involved violence or harm
DURAN-RODRIGUEZ V. BARR 13

to the petitioner or someone closely associated with him. See

Del Carmen Molina v. I.N.S., 170 F.3d 1247, 1249 (9th Cir.

1999) (finding persecution where, in addition to death threats,

petitioner’s cousins and their families were murdered); 

Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir. 1998)

(finding persecution where petitioner received two letters

with black ribbons and “[m]any people . . . who had received

similar letters containing black ribbons had subsequently

been killed by the [New People’s Army].”); Gonzales-Neyra

v. I.N.S., 122 F.3d 1293, 1296 (9th Cir. 1997), amended by

133 F.3d 726 (9th Cir. 1998) (finding persecution where

petitioner was “hunted”); Gonzalez v. I.N.S., 82 F.3d 903, 910

(9th Cir. 1996) (finding death threats constituted persecution

where petitioner’s father was rendered deaf and mute by a

bomb, mother’s lands were seized, brothers were incarcerated

and forced into the military, sister-in-law was beaten,

petitioner’s ration card was confiscated, petitioner’s business

license was denied, and petitioner’s house was vandalized

and seized); Gomez-Saballos v. I.N.S., 79 F.3d 912, 916 (9th

Cir. 1996) (finding persecution where the individual making

the death threat previously led to the execution of petitioner’s

brother for harboring the same political opinion); AguileraCota v. I.N.S., 914 F.2d 1375, 1380 (9th Cir. 1990) (finding

death threats in addition to numerous other actions—cousin

killed, niece wounded, petitioner’s house ransacked, sister

questioned in-person about petitioner, petitioner interrogated

and detained twice—amounted to persecution).1

1 So too do other cases confirm that threats must be accompanied by

violence or harm to constitute persecution. See Baballah v. Ashcroft, 367

F.3d 1067, 1075 (9th Cir. 2004) (finding death threats, being shot at, as

well as a brother’s imprisonment and beating amounted to persecution);

Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9thCir. 2002) (finding death

threats together with beatings of family members and murders of political

counterparts constituted past persecution), amended by 290 F.3d 964 (9th

Cir. 2002); Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1246 (9th Cir. 1999)
14 DURAN-RODRIGUEZ V. BARR

We know of no case, nor has Duran-Rodriguez pointed to

one, where death threats alone, not involving violence or

other harm to petitioner, his family, or others closely

associated with him, constituted persecution. 

With this framework established, it is clear that the threats

against Duran-Rodriguez do not amount to past persecution

nor support an objectively reasonable finding of a wellfounded fear of future persecution. Duran-Rodriguez had no

personal knowledge of violence by “Seventy” or the

“sicarios” against other police officers who had refused to

help move drugs to the border. Nor did Duran-Rodriguez

allege any harm or violence taken by these men against him,

his family members, or the other Villa Hidalgo police

officers. Indeed, he was able to remain at his aunt’s house in

Hermosillo, less than ten kilometers or six-and-a-half miles

away from Villa Hidalgo, for two weeks without incident. 

Duran-Rodriguez presents evidence of violence across the

region by drug cartel gangs. But that violence targeted rival

gangs, innocent bystanders, political leaders, and police

officers, and it is well established that a general,

undifferentiated claim of persecution will not suffice; DuranRodriguez “must show that he is at particular risk—that his

‘predicament is appreciably different from the dangers faced

by [his] fellow citizens.’” Kotasz v. I.N.S., 31 F.3d 847, 852

(9th Cir. 1994) (quoting Vides-Vides v. I.N.S., 783 F.2d 1463,

1469 (9th Cir. 1986)). Because Duran-Rodriquez has failed

to make that showing, he is not entitled to relief.

(finding death threats by defendants against a prosecutor in a country

where “[m]agistrates, judges, attorneys, and prosecutors have been

suborned, threatened, assassinated, or had family members killed in

connection with certain cases” allowed us to find a well-founded fear of

future persecution).