NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUMBERTO PEREZ-BARAJAS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-165

Agency No. A077-165-294

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 07, 2023**

San Francisco, California

Before: FRIEDLAND and NELSON, Circuit Judges, and KATZMANN,***

Judge.

Humberto Perez-Barajas, a Mexican native and citizen, petitions for review 

of the Board of Immigration Appeals’ (BIA) affirmance of an Immigration 

Judge’s (IJ) denial of his applications for withholding of removal under the 

* This disposition is not appropriate for publication and is not 

precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Gary S. Katzmann, Judge for the United States Court 

of International Trade, sitting by designation.

FILED

MAR 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-165

Immigration and Nationality Act (INA) and the Convention Against Torture 

(CAT). “We have jurisdiction under 8 U.S.C. § 1252 to review final orders of 

removal,” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and deny the 

petition. 

“We review the BIA’s denials of . . . withholding of removal[ ] and CAT 

relief for ‘substantial evidence’ and will uphold a denial supported by 

‘reasonable, substantial, and probative evidence on the record considered as a 

whole.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting

Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010)). “Where the BIA 

issues its own decision but relies in part on the immigration judge’s reasoning, 

we review both decisions.” Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) 

(quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012)). 

1. Perez-Barajas contends that the BIA and IJ erred in determining that 

his family was not a particular social group and that he could safely return to 

Mexico. “Withholding of removal requires the petitioner to demonstrate his or 

her ‘life or freedom would be threatened in that country because of the 

[petitioner’s] race, religion, nationality, membership in a particular social group, 

or political opinion.’” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010)

(alteration in original) (quoting 8 U.S.C. § 1231(b)(3)). A petitioner can meet 

this standard by showing past persecution that “establish[es] a presumption of 

fear of future persecution” or “through an independent showing of clear 

probability of future persecution.” Id.
3 22-165

Substantial evidence supports the BIA and IJ’s determination that 

Perez-Barajas did not experience past persecution. Persecution “is an extreme 

concept that means something considerably more than discrimination or 

harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (citation 

omitted). The IJ explained that Perez-Barajas was not persecuted because he has 

not been physically harmed and any threats against his family following his 

father’s murder were unfulfilled. See id. at 1062 (“Mere threats, without more, 

do not necessarily compel a finding of past persecution.” (cleaned up and citation 

omitted)). 

Moreover, the BIA correctly affirmed the IJ’s determination that PerezBarajas does not face a clear probability of future persecution. The BIA noted 

that Perez-Barajas’s family members—who were also threatened—have 

continued to live in the same town as the individual who murdered petitioner’s 

father without harm. Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (“[A] 

petitioner’s fear of future persecution is weakened, even undercut, when 

similarly-situated family members living in the petitioner’s home country are not 

harmed.” (emphasis in original) (internal quotation marks and citation omitted)). 

To the extent Perez-Barajas fears persecution by cartels, that petitioner has 

returned to Mexico on multiple occasions without harm and could reasonably 

relocate to Tijuana, where he previously lived without persecution, is dispositive 

of his claim for withholding of removal under the INA. See Akosung v. Barr, 970 

F.3d 1095, 1101 (9th Cir. 2020) (withholding of removal is unavailable if 
4 22-165

applicant could avoid persecution through relocation and it is reasonable to expect 

applicant to do so). 

2. Perez-Barajas next asserts that the BIA and IJ erred in concluding 

that he is not eligible for CAT relief. CAT relief requires a showing that “it is 

more likely than not that [the petitioner] would be tortured if removed to the 

proposed country of removal” and that the torture is inflicted by, at the instigation 

of, or with the consent or acquiescence of a public official. Gonzalez-Caraveo v. 

Sessions, 882 F.3d 885, 894 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.16(c)(2)). 

That the perpetrator was imprisoned following the murder of PerezBarajas’s father shows that the government did not instigate or acquiesce in 

torture, as required under 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Moreover, 

as previously noted, substantial evidence supports the BIA and IJ’s determination 

that Perez-Barajas could safely and reasonably relocate within Mexico. See 

Tzompantzi-Salazar v. Garland, 32 F.4th 696, 704–05 (9th Cir. 2022) (the ability 

to relocate is sufficient to deny relief under CAT). Perez-Barajas is therefore not 

entitled to relief on his CAT claim.

The petition for review and motion to stay removal (Dkt. No. 3) are 

DENIED.