NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALBERTO MENDOZA

- ORTEGA ,

P etitioner ,

v. MATTHEW G. WHITAKER , Acting Attorney General,

Respondent

. No. 17

- 71566 Agency No. A076

- 730

- 670

MEMORANDUM *

On Petition for Review of a n Immigration Judge’s Decision Argued and Submitted Januar y 17, 201 9 San Francisco, California Before: WALLACE and FRIEDLAND , Circuit Judges, and ADELMAN, District Judge. **
P etitioner, 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, CLER K U.S. COURT OF APPEAL S2

(“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
acqu iescence 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 sh ow 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 bl ind to it, or simply stood by because of their inability or

un willingness 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 P etitioner’s CAT application

was the “reasonable fear determination.” 8 C.F.R. § 208.31(b). T his is a streamlined process beginning with a n interv iew in which an a sylum officer determine s whether the petitioner reasonably fears torture if removed. The asylum officer must find that the petitioner has a reasonable fear if the petitioner3

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 st andard for establish ing 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 s ubjective component is satisfied by credible testimony that the applica nt genuinely fears torture

. See Bartolome , 904 F.3d at 809. As is relevant to this case, t he objective p rong may be satisfied by pointing to credible, direct, and specific evidence in t he record of facts that would support a well

- founded fear of
torture

. See i d. 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 est ablish a well

- founded fear. Bartolome , 904 F.3d at 809. In the present case, the asylum officer determined that P etitioner was credible but had not shown a rea s o nable fear of torture in Mexico

. P etitioner 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’ s4

de termination 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 de cision is incorrect. Nguyen v. Holder , 763 F.3d 1022, 1029 (9th Cir. 2014).
P etitioner’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 judg e, in 2010, he started selling drugs with his cousin, Juan Hidalgo, in Tacoma, Washington. Hidalgo had connections to t he Knights Templar cartel. P etitioner hired someone named “Willy” to par ticipate in the operation. P etitioner later fired Willy. In Novem ber 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 P etitioner and Hidalgo. The men who came to the apartment killed Diaz

. Hidalgo escaped. L ater that day, the police arr ested Hidalgo. P etitioner was arrested a few days later. At the time of his arrest, P etitioner was responsible for $300,000 to $400,000 in drugs and money

. P etitioner states that the drugs and money were “lost,” meaning th a t th ey were seized by the police

. P etitioner 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 had5

captu red seven men who were involved in the murder of Diaz. The police told
P etitioner that these men had intended to kill him, too. The police asked P etitioner to testify against Willy and th e others, and he agreed to testify against th os e he could identify . P etitioner 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 ye ars. In 2016, P etitioner testified at three trials involving the men who killed Diaz. These men were not members of the Knights Templar cartel. However, P etitioner
state s that, as part of his testimony, he identified Hidalgo

— who was affiliated with the car tel

— as the person who owned the drugs. He also states that he mentioned the names of people in Mexico.
P etitioner told the asylum officer and the immigration judge that he fears that, when he returns to Mex ico, the cartel will torture him because he cooperated with the police and will be deemed a “snitch.” He also fears that the cartel will
h old 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 immigra tion judge determined that P etitioner’s fear of torture was speculative , and we conclude that the record does not compel a contrary6

conclusion

. P etitioner claims, primarily, t hat 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, P etitioner’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. P etitioner did not do anything that is likely to be characterized as “snitching” agai nst the cartel.
H e 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 testi mony , P etitioner identified Hidalgo as the owner of the drugs and mentioned names of people in Mexico

. But, in so testifying, P etitioner was simply trying to secure the convictions of the murderers; he was not helping law enforcement catch or convict cartel members. Of course, b ecause cartels are ruthless and sometim es unpredictable, no one knows for certain whether the cartel wou ld consider P etitioner’s testimony to be “snitching

. ” But w e
cannot say that the record compelled th e immigration judge to conclude that
P etitioner has at least a one

- in

- ten chance of being deemed a snitch and tortured with government assistance

. P etitione r also told the asylum officer that he fears that the cartel will hold7

him “ responsible ” for at least part of the approximately $400,000 in drugs and money that were lost in t he aftermath of the murder. He believes that the cartel will want him to repay th is money, and that he will be unable to do so. Although
P etitioner did not say this explicitly, we will assume that he fears the cartel will
tort ure him if he is unable to reimburse it for the lost drugs and money. However ,

a s far as the record reveals, P etitioner 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 whe n they are seized by the police even if they did not help the police find the drugs and the money

. So again, P etitioner relies on spec ulation, which can not provide objective support for his fear of torture

. See Bartolome , 904 F.3d at 814.
PETITION FOR REVIEW DENIED .