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Garcia-Moctezuma v. Sessions

United States Court of Appeals, Eighth Circuit

January 11, 2018

Jhonny Garcia-Moctezuma Petitioner
Jefferson B. Sessions, III, United States Attorney General Respondent

          Submitted: October 19, 2017

         Petition for Review of an Order of the Board of Immigration Appeals

          Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG, [1] Judge.

          GOLDBERG, Judge.

         Petitioner Jhonny Garcia-Moctezuma seeks review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). The BIA's order dismissed Garcia-Moctezuma's appeal from the decision of the Immigration Judge ("IJ") that found him removable and denied his applications for withholding of removal and for protection under the Convention Against Torture ("CAT").

         Garcia-Moctezuma alleges prior and future persecution and torture in Mexico on account of his faith in the deity Santa Muerte. The IJ concluded that Garcia-Moctezuma failed to establish a sufficient nexus between his faith and his mistreatment in Mexico and also that he failed to establish a likelihood of torture if removed to Mexico. After careful review of the decisions of the IJ and the BIA and consideration of the parties' briefs and oral argument, we deny Garcia-Moctezuma's petition for review.


         Garcia-Moctezuma is a native and citizen of Mexico who first entered the U.S. without authorization in 2001. On April 1, 2010, Garcia-Moctezuma was ordered removed from the U.S. Garcia-Moctezuma testified that, upon his return to Mexico in 2010, he began praying to Santa Muerte, a deity venerated primarily in Mexico. Some Mexican government officials and other observers have associated worship of Santa Muerte with criminal activity, specifically with membership in a drug cartel. Garcia-Moctezuma testified that by 2012 he was a devotee of Santa Muerte, prompting him to get two Santa Muerte-related tattoos on his body.

         Again without authorization, Garcia-Moctezuma reentered the U.S. on November 20, 2014 and was detained by Immigration and Customs Enforcement on June 16, 2015. Upon finding that Garcia-Moctezuma had expressed a reasonable fear of persecution in Mexico, an asylum officer referred Garcia-Moctezuma's removal case to an IJ.

         Having violated a prior removal order, Garcia-Moctezuma was not eligible to apply for asylum. 8 U.S.C. § 1231(a)(5). Therefore, in defense of removal, Garcia-Moctezuma applied for withholding of removal, see 8 U.S.C. § 1231(b)(3), and CAT protection, see 8 C.F.R. § 1208.16(c). Garcia-Moctezuma sought relief on the basis of two beatings he sustained at the hands of Mexican law enforcement in 2014. In March 2014, Mexican soldiers intercepted Garcia-Moctezuma on his way home, accused him of working for a drug cartel, and beat him on the head, stomach, and back. Garcia-Moctezuma testified that the soldiers stated that his Santa Muerte tattoos showed that he was associated with drug cartels.

         In August 2014, Garcia-Moctezuma was passing by a cemetery on his way to the store. Mexican federal police pulled Garcia-Moctezuma into the cemetery, where they had several other men in custody on suspicion of drug trafficking. Garcia-Moctezuma testified that the police told him that he was being detained because he had been identified as a drug dealer by one of the other men in custody. Garcia-Moctezuma denied any association with drug activity. Police then repeatedly struck Garcia-Moctezuma with a piece of wood, placed a bag over his head, and filled the bag with water, leading Garcia-Moctezuma to believe he would drown. Police later pulled on Garcia-Moctezuma's tongue with pliers, threatening to cut it off, before letting him go.

         Garcia-Moctezuma testified that he suffered only bruises from these two encounters, but that he also began to have chronic lower back pain around the time of the March 2014 incident.

         In a September 18, 2015 decision, the IJ denied Garcia-Moctezuma's applications for relief. The IJ found Garcia-Moctezuma's testimony credible, including his statement that the March 2014 beating was expressly motivated by his association with Santa Muerte. Nevertheless, the IJ ruled that withholding of removal was not appropriate because Garcia-Moctezuma had established neither prior persecution on account of a protected ground nor a clear probability of future persecution. According to the IJ, the March 2014 beating was too "minor" to be considered persecution and the August 2014 beating was insufficiently related to a protected ground, Garcia-Moctezuma's faith. The IJ also denied Garcia-Moctezuma's CAT claim, finding that he failed to establish that it is more likely than not he would face torture in Mexico. Garcia-Moctezuma timely appealed to the BIA.

         On March 29, 2016, the BIA remanded, in part because the IJ had failed to make a finding as to whether the March and August beatings constituted "past persecution in the aggregate." On remand, the IJ determined that the harm suffered by Garcia-Moctezuma across the two beatings indeed rose to the level of persecution. However, the IJ ruled that Garcia-Moctezuma still failed to establish a sufficient nexus between his persecution and his faith. Accordingly, the IJ again denied Garcia-Moctezuma's applications for relief from ...

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