NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERTO MENDOZA-ORTEGA, 

Petitioner, 

v. 

MATTHEW G. WHITAKER, Acting 

Attorney General,

Respondent. 

No. 17-71566

Agency No. A076-730-670

MEMORANDUM *

On Petition for Review of an

Immigration Judge’s Decision

Argued and Submitted January 17, 2019

San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and ADELMAN, District 

Judge. **

Petitioner, Alberto Mendoza-Ortega, has been ordered removed to Mexico. 

He petitioned for a deferral of removal under the Convention Against Torture

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Lynn S. Adelman, United States District Judge for the 

Eastern District of Wisconsin, sitting by designation.

FILED

FEB 6 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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(“CAT”). To obtain such a deferral, he ultimately would have needed to show that 

“it is more likely than not that he . . . would be tortured if removed to the proposed 

country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is defined as “pain or 

suffering . . . inflicted by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an official capacity.” Id. 

§ 208.18(a)(1). A beating or killing satisfies the definition of “torture.” Bromfield 

v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008). Petitioner would not have needed 

to show that the government would torture him, but rather that the “government 

acquiesces in torture” of individuals in a similar situation. Id. “Acquiescence by 

government officials ‘requires only that [they] were aware of the torture but 

remained willfully blind to it, or simply stood by because of their inability or 

unwillingness to oppose it.’” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) 

(alteration in original; internal quotation marks omitted) (quoting Bromfield, 543 

F.3d at 1079).

Because Petitioner was convicted of an aggravated felony, he was subject to 

an expedited removal process. Thus, a first step in Petitioner’s CAT application

was the “reasonable fear determination.” 8 C.F.R. § 208.31(b). This is a

streamlined process beginning with an interview in which an asylum officer 

determines whether the petitioner reasonably fears torture if removed. The asylum 

officer must find that the petitioner has a reasonable fear if the petitioner 
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establishes “a reasonable possibility” that he would be tortured in the country of 

removal. Id. § 208.31(c). The parties agree that the standard governing this 

determination is the same as the standard for establishing a “well-founded fear” of 

persecution in the asylum context. See Bartolome v. Sessions, 904 F.3d 803, 809 

n.4 (9th Cir. 2018). To meet this standard, the petitioner’s fear must be “both 

subjectively genuine and objectively reasonable.” Ahmed v. Keisler, 504 F.3d 

1183, 1191 (9th Cir. 2007) (quoting Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 

2004)). The subjective component is satisfied by credible testimony that the 

applicant genuinely fears torture. See Bartolome, 904 F.3d at 809. As is relevant to 

this case, the objective prong may be satisfied by pointing to credible, direct, and 

specific evidence in the record of facts that would support a well-founded fear of 

torture. See id. To establish a well-founded fear, the petitioner does not have to 

prove that torture is more likely than not. See Al-Harbi v. I.N.S., 242 F.3d 882, 888

(9th Cir. 2001). Even a ten percent chance may establish a well-founded fear. 

Bartolome, 904 F.3d at 809.

In the present case, the asylum officer determined that Petitioner was 

credible but had not shown a reasonable fear of torture in Mexico. Petitioner then

sought review of that determination before an immigration judge, who reviewed 

the asylum officer’s determination de novo. The immigration judge agreed with the 

asylum officer. We have jurisdiction to review the immigration judge’s 
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determination under 8 U.S.C. § 1252. We review the determination for substantial 

evidence. Bartolome, 904 F.3d at 811. Under this standard, we may reverse only if 

the evidence in the record compels a reasonable factfinder to conclude that the 

decision is incorrect. Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014).

Petitioner’s claim that he reasonably fears being tortured in Mexico arises 

out of his involvement with the Knights Templar drug cartel. According to his 

statements to the asylum officer and the immigration judge, in 2010, he started 

selling drugs with his cousin, Juan Hidalgo, in Tacoma, Washington. Hidalgo had 

connections to the Knights Templar cartel. Petitioner hired someone named 

“Willy” to participate in the operation. Petitioner later fired Willy. In November 

2012, Willy and some of his associates came to a duplex where Hidalgo, a person 

named Diaz, and drugs and money were located. These men apparently intended to 

rob Petitioner and Hidalgo. The men who came to the apartment killed Diaz.

Hidalgo escaped. Later that day, the police arrested Hidalgo. Petitioner was 

arrested a few days later. At the time of his arrest, Petitioner was responsible for 

$300,000 to $400,000 in drugs and money. Petitioner states that the drugs and 

money were “lost,” meaning that they were seized by the police.

Petitioner was eventually convicted of conspiracy to sell methamphetamine 

and sentenced to nine years in prison. While he was serving his sentence, 

Washington police officers approached him and informed him that they had 
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captured seven men who were involved in the murder of Diaz. The police told 

Petitioner that these men had intended to kill him, too. The police asked Petitioner 

to testify against Willy and the others, and he agreed to testify against those he 

could identify. Petitioner did not testify in exchange for a reduced sentence; 

instead, he testified because he wanted to see the men who murdered his friend 

Diaz punished. However, apparently in recognition of his cooperation, a court later 

reduced his sentence by four years.

In 2016, Petitioner testified at three trials involving the men who killed Diaz. 

These men were not members of the Knights Templar cartel. However, Petitioner 

states that, as part of his testimony, he identified Hidalgo—who was affiliated with 

the cartel—as the person who owned the drugs. He also states that he mentioned 

the names of people in Mexico. 

Petitioner told the asylum officer and the immigration judge that he fears 

that, when he returns to Mexico, the cartel will torture him because he cooperated 

with the police and will be deemed a “snitch.” He also fears that the cartel will 

hold him responsible for the $400,000 in lost drugs and money. He further 

contends that the cartel controls the local police and that if he went to the police for 

help, they would simply turn him over to the cartel. 

The immigration judge determined that Petitioner’s fear of torture was 

speculative, and we conclude that the record does not compel a contrary 
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conclusion. Petitioner claims, primarily, that his fear of torture is reasonable 

because the cartel will deem him a “snitch.” We are willing to assume that the

cartel tortures, with government acquiescence, at least one out of every ten persons 

it deems a snitch. However, Petitioner’s fear that the cartel would deem him a 

snitch is based on speculation, and “[s]peculation on what could occur is not 

enough to establish a reasonable fear.” Bartolome, 904 F.3d at 814. Petitioner did 

not do anything that is likely to be characterized as “snitching” against the cartel.

He did not assist law enforcement in thwarting the cartel’s activities or supply 

evidence that was used to arrest or convict cartel members. Instead, he testified 

against individuals who murdered his friend during an attempt to steal drugs and 

money that belonged to the cartel. In his testimony, Petitioner identified Hidalgo as

the owner of the drugs and mentioned names of people in Mexico. But, in so 

testifying, Petitioner was simply trying to secure the convictions of the murderers; 

he was not helping law enforcement catch or convict cartel members. Of course, 

because cartels are ruthless and sometimes unpredictable, no one knows for certain 

whether the cartel would consider Petitioner’s testimony to be “snitching.” But we 

cannot say that the record compelled the immigration judge to conclude that 

Petitioner has at least a one-in-ten chance of being deemed a snitch and tortured 

with government assistance.

Petitioner also told the asylum officer that he fears that the cartel will hold 
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him “responsible” for at least part of the approximately $400,000 in drugs and 

money that were lost in the aftermath of the murder. He believes that the cartel will 

want him to repay this money, and that he will be unable to do so. Although 

Petitioner did not say this explicitly, we will assume that he fears the cartel will 

torture him if he is unable to reimburse it for the lost drugs and money. However,

as far as the record reveals, Petitioner did not help the police locate the drugs or the 

money. Nor does the record contain evidence suggesting that the cartel is prone to 

torturing those who happened to be “responsible” for drugs and money at the time 

when they are seized by the police even if they did not help the police find the

drugs and the money. So again, Petitioner relies on speculation, which cannot 

provide objective support for his fear of torture. See Bartolome, 904 F.3d at 814.

PETITION FOR REVIEW DENIED.