NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAVIER LOPEZ-GONZALEZ,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 14-72810 Agency No. A072-912-895

MEMORANDUM *

On Petition for Review of an Order of the Board of Im m igration Appeals Subm itted April 24, 2018 * * Pasadena, California Before: HAWKINS, PARKER, * * * and MURGUIA, Circuit Judges. Javier Lopez-Gonzalez (“Lopez”), a native and citizen of Mexico, seeks review of the Board of Im m igration Ap p eals’ (“BIA”) order affirm ing the im m igration 

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JUL 09 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this c a se is suitable for decision without oral argum ent. See Fed. R. App. P. 34(a)(2).

* * * The Honorable B arrington D. Parker, Jr., United States C ircuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.judge’s (“IJ”) denial o f Convention A gainst Torture (“CAT”) relief. W e have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. Subst an t i al evidence supports the BIA’s denial of CAT relief. 1 Lopez’s speculative belief of future torture—based largely on past torture—does not com pel the conclusion that it is “m ore likely than not that [ he] will be tortured upon return to” Mexico. Garcia-Milian v. Holder , 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting Tamara-Gomez v. Gonzales , 447 F.3d 343, 351 (5th Cir. 2006)). In m aking this determ ination, w e m

ust consider “[a] ll e vidence relev an t t o the possibility of future
t o rture[.] ” Nuru v. Gonzales , 404 F.3d 1207, 1217 (9th Cir. 2005) (quoting C.F.R. § 1208.16(c)(3)). This includes past torture, see id. at 1216

– 17, w hich holds particular weight when th e p et i t i oner knows the identity of his assailants, is tortured for an extended period of tim e, and flees the country im m ediately following the torture, see id. at 1212

– 14, 1219. In and of itself, however, a showing of p as t t o rt u re “does not give rise to a regulatory presum ption of

. . . future torture.” Mohammed v. Gonzales , 400 F.3d 785, 802 (9th Cir. 2005) (citing 8 C.F.R. § 1208.16(c)(3)). Here, L opez testified that he was abducted and tortured by unknown assailants who threatened to kill him if they saw him again. But Lopez can n o t i den t ify his

1 “We review for substantial evidence the factual findings supporting the BIA’s decision that an applicant has not established eligibility for

. . . relief u n der CAT.” Madrigal v. Holder , 716 F.3d 499, 503 (9th Cir. 2013) (internal citations om itted). 2as s ai lan ts , who they are affiliated with, or why they abducted him

. Further, rather

than im m ediately fleeing Mexico following these events, Lopez rem a ined for eleven

m onths w ithout in ci d en t. Thus, Lopez failed to show the necessary likelihood of future torture. 2 Likewise, even assum ing Lopez w ould likely be tortured upon return to Mexico, he failed to show “sufficient state action involved in that torture.” GarciaMilian , 755 F.3d at 1033 (quoting Tamara-Gomez, 447 F.3d at 351). Lopez largely relies on country reports and ot h er ar ticles allegedly showing that Mexico ignores cartel violence. B ut the record also reveals that Mexico has reduced cartel violence by adopting international protocols to c om b at torture and arresting or killing m ajor cartel leaders. The B IA properly relied on its expertise in this arena to c onclude that Lopez failed to show the requisite state action. See Alphonsu s v. Ho lder , 705 F.3d 1031 , 1049

– 50 (9th Cir. 2013) (explaining that the B IA m ay “use its e xpertise” in

c onside ring c ontra dic tory a n d a m biguous re c ords); se e also B arajas-Romero v
. Ly nc h , 846 F.3d 351, 363 (9th Cir. 2017) (“CAT relief is unavailable, despite a likelihood of torture, w ithout evidence that the police are unwilling or unable to oppose the crim e,

2 See Zheng v. Holder , 644 F.3d 829, 835

– 37 (9th Cir. 2011) (denying CAT claim because fear of torture was speculative); see also Toure v. Holder , 6 2 4 F.3d 422, 428

– 30 (7th Cir. 2010) (rejecting CAT claim because petitioner “had no idea who the attackers were, w hat ethnic group they belonged to, or w hy they attacked her and her fam ily”). 3not just that they are unable to solve it, a s when the torturers c a nnot be identified.”).

Further, Lopez failed to report the incidents at issue here to Mexican authorities, which renders his state-action argum ent speculative. See Santos-Lemus v. Mukasey , 542 F.3d 738, 748 (9th Cir. 2008) (denying CAT relief because petitioner “failed to report any incidents to the police” and his argument regarding state action was therefore “unsupported a nd speculative”), a b r o g ated in part on other grounds by Henriquez-Rivas v
. Holder , 707 F .3 d 1 0 8 1 (9th Cir. 2013). The BIA, therefore, properly denied CAT relief. PETITION DENIED.

41

Lopez

- Gonzalez v. Sessions , No. 14

- 72810 Murguia, Circuit Judge, dissenting: An applicant is entitled to relief under C AT if “he establishes that it is more likely than not that he

. . . would be tortured if removed to the proposed country of removal,” and that a public official would acquiesce in that torture. Madrigal v. Holder , 716 F.3d 499, 508 (9th Cir. 2013) (internal quotation marks and citation omitted). I do not agree with the majority’s conclusion that Lopez failed to show the

necessar y likelihood of future torture. When an a pplicant who has previously been tortured seeks relief under CAT, t he “ principal factor ” on which we rely for evaluating the likelihood of future torture is past torture. Nuru v. Gonzales , 404 F.3d 1207, 121 7

– 1 8 (9th Cir. 2005). Here, Lopez testified exten sively before the immigration judge about how armed assailants beat him, kidnapped him, tortured him, and threatened to kill him if they ever saw him again

. The IJ found his testimony credible

. Because Lopez’s credible testimony is sufficient to sustain hi s burden of proof, s ee 8 C.F.R. § 208.16(b) , I dis agree with the majority’s conclusion that Lopez failed to show the necessary likelihood of future torture to be entitled to CAT relief. 1

1 The majority cites an out of circuit case to support its position that , because Lopez can not identify his attackers, Lopez’s fear of future torture is merely speculative

. See Disp. a t 2 n.2 (citing Toure v. Holder , 624 F.3d 422, 428

– 30 (7th 

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JUL 9 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

I also d isa gree with the majority’s conclusion that Lopez failed to show

s ufficient government acquiescence to his torture to be entitled to CAT relief

. Lopez ’s purported failure to identify his past attackers seems to be the result of the circumstances of his torture

— his attackers blindfolded him. However, because Lopez’s attackers interrogated him about which cartel he worked for, Lopez is able to infer that the y belong ed to one of the two La Familia Michoacana divisions, and that they attacked him for purportedly snitching on his uncle’s drug activities. I n Madrigal , we recognized that Mexican police officers often are involved in activities like kidnapping and extortion on behalf of organized crime and drug traffickers

. Madrigal , 716 F .3d at 507. And, as the IJ noted in the case here , the evidence in the record show s that states like Michoacán have been infiltrated by sophisticated criminal enterprises including La Famili a , and that most Mexicans “face a daily struggle to survive under a government that is either absent or corrupt.” Therefore, I believe Lo pez met his burden to establish, at minimum, a likelihood of government acquiescence by “willful blindness” to his futu re torture,

Cir. 2010 ) ). However, in that case , the petitioner “had no idea who the attackers were, what ethnic group they belonged to, or why they attacked her and her family.” Toure , 624 F.3d at 428. Lopez’s case is distinguishable. Lopez cannot identify his attackers because they blindfolded him, not because he has no idea who they are or why they attack ed him. Indeed, Lo pez testified that he believes his assailants belonged to one of the two La Familia Michoacana divisions, and that they attacked him for snitching on his uncl e’s drug activities. The IJ found Lopez’s testimony credible and consistent with his I

- 589 Form

.3

see Zheng v. Ashcroft , 332 F.3d 1186, 1196 (9th Cir. 2003), and relief should be granted. I respectfully dissent.