JOSE TZOMPANTZI-SALAZAR V. MERRICK GARLAND, No. 20-71514 (9th Cir. 2022)
Annotate this Case
Petitioner petitioned for review of the agency’s rejection of his Convention Against Torture (“CAT”) claim and rejection of his motion to reopen and remand his removal proceedings.
The Ninth Circuit denied Petitioner’s review of a decision of the Board of Immigration Appeals (“BIA”). The court held that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen and substantial evidence supported the BIA’s denial of relief under the Convention Against Torture (“CAT”).
The court reasoned that Petitioner’s current proceeding was initiated with a different charging document which made Pereira inapplicable. Even if the court were to assume the Notice to Appear (“NTA”) and Notice of Referral to Immigration Judge (“NOR”) was analogous, his argument is foreclosed by precedent holding that when hearing details are later provided there is no jurisdictional defect.
Further, the court explained that while petitioners seeking CAT relief are not required to demonstrate that safe relocation would be impossible, they do carry the burden to establish that it is more likely than not that they will be tortured. Here, the court concluded that the evidence established that Petitioner’s relocation to his home state was eminently possible. Moreover, the court found that the record would not compel the finding that Petitioner established a more than 50% chance of future torture. Finally, the court explained that Petitioner failed to show that he faces a particularized, ongoing risk of future torture higher than that faced by all other citizens in his country.
Court Description: Immigration. The panel filed an order (1) amending the opinion filed on February 9, 2022; and (2) stating that no further petitions for rehearing or rehearing en banc would be entertained. In the amended opinion, the panel denied Jose Tzompantzi- Salazar’s petition for review of a decision of the Board of Immigration Appeals, holding that (1) the Board did not abuse its discretion in denying Tzompantzi-Salazar’s motion to reopen in which he raised a challenge to his charging document under Pereira v. Sessions, 138 S. Ct. 2105 (2018); and (2) substantial evidence supported the Board’s denial of relief under the Convention Against Torture. Tzompantzi-Salazar sought to reopen proceedings arguing that the agency lacked jurisdiction because his Notice to Appear (NTA) did not include the time and date of his hearing. The panel concluded that Tzompantzi-Salazar’s argument failed for two reasons. First, Tzompantzi- Salazar’s current proceeding was initiated with a different charging document—a Notice of Referral to Immigration Judge (NOR)—which the panel concluded alone made Pereira inapplicable to his proceeding. Second, the panel concluded that even if it were to assume NTAs and NORs are analogous in the way Tzompantzi-Salazar claimed, his argument was foreclosed by precedent holding that when hearing details are later provided, as they were here, there is no jurisdictional defect. TZOMPANTZI-SALAZAR V. GARLAND 3 The panel held that substantial evidence supported the Board’s denial of CAT relief. First, the panel explained that while petitioners seeking CAT relief are not required to prove that safe relocation would be factually impossible, they do carry the overall burden of proof to demonstrate that it is more likely than not that they will be tortured if removed. And in deciding whether a petitioner has satisfied his or her burden, the IJ must consider all relevant evidence, including but not limited to the possibility of relocation within the country of removal. The panel agreed with the Board that Tzompantzi-Salazar could avoid any risk of future torture by relocating to his home state in central Mexico, Tlaxcala—thousands of miles from the border where his two kidnappings allegedly occurred. Tzompantzi-Salazar argued that relocation to his home state would not be reasonable because he is “still relatively young with limited job prospects in Mexico with not having been back for some time,” and because if removed he would once again stay in Tijuana near the border to be close to his children in the United States. The panel rejected Tzompantzi-Salazar’s argument, explaining that in assessing eligibility for CAT relief, the agency must consider the possibility of relocation—without regard for the reasonableness of relocation that is considered in other types of applications, such as asylum and withholding of removal. The panel concluded that the evidence (including Tzompantzi-Salazar’s own testimony) showed that relocation to his home state in central Mexico, where he had no issues of past harm and the majority of his family still resides, was eminently possible. The panel concluded that even putting aside the possibility of relocation, the remaining CAT factors did not push Tzompantzi-Salazar past the 50% threshold required 4 TZOMPANTZI-SALAZAR V. GARLAND for CAT relief. The panel wrote that although past torture can be relevant in assessing an applicant’s risk of future torture, that alone does not establish or even give rise to a presumption that the applicant will suffer future torture. The panel explained that, as the agency emphasized, CAT relief is “forward looking,” and Tzompantzi-Salazar’s previous kidnappings—even assuming they occurred just as described and the first was committed by real police officers—do not establish that he continues to face a risk of future torture more than ten years later. Nor did the record compel the conclusion that the kidnappings rose to the level of torture, which the panel explained is reserved for extreme cruel and inhuman treatment that results in severe pain or suffering. The panel concluded that the record would not compel the conclusion that Tzompantzi-Salazar established a more than 50% chance of future torture because he failed to provide any evidence that someone in his circumstance is more likely than not to be kidnapped and mistreated. Finally, the panel wrote that the remaining CAT factors, including the country conditions evidence and other relevant context, all undercut Tzompantzi-Salazar’s belief that he faces the extremely high threshold of future torture required by statute. The panel explained that the country conditions evidence confirmed what the agency emphasized was the important context surrounding Tzompantzi-Salazar’s kidnappings, which occurred near the border, in an area with notoriously higher rates of crime, where Tzompantzi-Salazar voluntarily chose to stay as he searched for a smuggler to bring him illegally across the border in violation of a prior removal order. The panel wrote that country conditions evidence acknowledged crime and police corruption in Mexico generally, as well as higher rates in Tijuana, but failed to show that Tzompantzi-Salazar faces a TZOMPANTZI-SALAZAR V. GARLAND 5 particularized, ongoing risk of future torture higher than that faced by all Mexican citizens.
This opinion or order relates to an opinion or order originally issued on February 9, 2022.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.