Three Mexican nationals, Audel Hernandez Avellaneda, Rubi Valdez Garcia, and their minor son, sought review of a Board of Immigration Appeals decision that affirmed an immigration judge's denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge had determined that the petitioners did not demonstrate that the Mexican government was unwilling or unable to protect them from harm, and that they could relocate to a different part of Mexico to avoid violence. The BIA summarily adopted the immigration judge's decision without issuing its own opinion. The petitioners filed a petition for review in the Ninth Circuit, arguing against these findings, but the court found their legal arguments insufficient to overturn the agency's decision.
The Ninth Circuit reviewed the case under the standard that when the BIA summarily adopts an immigration judge's decision, the court reviews the immigration judge's decision as if it were the BIA's. The court applied a substantial evidence standard to the denials of asylum, withholding of removal, and CAT relief, meaning it would uphold the decision if supported by reasonable, substantial, and probative evidence on the record as a whole. First, the court addressed the petitioners' claims regarding government protection. The court held that the petitioners waived any challenge to the agency's conclusion that the Mexican government was willing to protect them. Under Ninth Circuit precedent, arguments made in passing without support from the record or case authority are deemed waived. The petitioners' opening brief failed to meaningfully challenge this finding, which is dispositive for both asylum and withholding of removal claims. Additionally, the petitioners did not address the denial of humanitarian asylum, which the court treated as forfeited. Second, the court examined the Convention Against Torture claim. The court found substantial evidence supported the agency's conclusion that the petitioners did not experience past torture and that, despite experiencing some violence, they could relocate to an area in Mexico where they would be unlikely to face further torture. To succeed on a CAT claim, petitioners must meet a high threshold by establishing that it is more likely than not that they will be tortured by or with the consent or acquiescence of a public official. The evidence in the record did not compel the court to conclude that this high threshold was met.
The immediate practical effect of this decision is that the temporary administrative stay of removal is lifted, and the petitioners are subject to removal proceedings. The denial of asylum, withholding of removal, and CAT relief means the petitioners no longer have a legal basis to remain in the United States based on these specific claims. The decision reinforces the requirement that petitioners must actively and substantively argue against agency findings regarding government protection and relocation options, as failure to do so results in waiver. It also confirms that the high evidentiary bar for CAT relief requires proof of a likelihood of future torture that the record evidence did not support in this instance.
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