Submitted: October 19, 2017
for Review of an Order of the Board of Immigration Appeals
WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,
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
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.
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.
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.
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.
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.
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.
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.
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