JOSE JESUS DURAN-RODRIGUEZ v. WILLIAM P. BARR
No. 16-72957
United States Court of Appeals, Ninth Circuit
March 20, 2019
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JESUS DURAN-RODRIGUEZ,
Petitioner,
v.
William P. Barr, Attorney
General,
Respondent.
No. 16-72957
Agency No.
A093-457-361
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2019*
Phoenix, Arizona
Filed March 20, 2019
Before: Michael Daly Hawkins, Milan D. Smith, Jr., and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hawkins;
Concurrence by Judge Milan D. Smith, Jr.
* The panel unanimously concludes this case is suitable for decision
without oral argument. See
DURAN-RODRIGUEZ V. BARR
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ dismissal of an appeal, in a case in
which Jose Duran-Rodriguez sought asylum, withholding of
removal, and protection under the Convention Against
Torture on account of his membership in a social group of
Mexican police officers.
The panel held that the evidence did not compel the
conclusion that Duran-Rodriguez suffered past harm rising to
thе level of persecution, where he received two death threats
from “sicarios,” or hitmen of the Sinaloa drug cartel, to
cooperate with them in transporting drugs to the Mexican
border. The panel explained that althоugh death threats alone
can constitute persecution, they constitute persecution in only
a small category of cases, and only when the threats are so
menacing as to cause significant actual suffering or harm.
The panel held that the evidence did not compel reversal
of the Board’s determination that Duran-Rodriguez could
relocate within Mеxico to avoid future harm, and that Duran-
Rodriguez therefore failed to establish eligibility for asylum
and withholding relief. The panel held that the Board
properly denied CAT relief because Duran-Rodriguez failed
to establish that he was tortured in the past, or that it was
more likely than not he would be subjected to torture by or
with the acquiescence of a public official in the future.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff fоr the convenience of the reader.
DURAN-RODRIGUEZ V. BARR 3
Specially concurring, Judge M. Smith wrote separately to
elaborate on the point that although death threats alone may
constitute persecution, the cases underlying that statement
make clear that such death threats are always accompanied by
some form of violence or harm to the petitioner, a family
member, or others closely associated with him.
COUNSEL
John M. Pope, Esquire, Benjamin T. Wiesinger, Esquire, and
Ali Manuchehry, Esquire, Pope & Associates, PC, Phoenix,
Arizona, for Petitioner.
Chad A. Readler Acting Assistant Attorney General; Janette
L. Allen, Senior Litigation Counsel; Yedidya Cohen, Trial
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
4 DURAN-RODRIGUEZ V. BARR
OPINION
Petitioner Jose Jesus Duran-Rodriguez (“Duran-
Rodriguez”) seeks review of an order of the Board of
Immigration Appeals (“BIA”), affirming the Immigration
Judge’s (“IJ”) denial of his application for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). We deny the petition.1
FACTS AND PROCEDURAL HISTORY
Duran-Rodriguez is a native and citizen of Mexico, who
entered the United States in January 2014 without being
admitted or paroled. The Department of Homeland Security
commenced removal proceedings shortly thereafter, and
Duran-Rodriguez conceded removability but indicated he
intended to seek asylum, withholding of removal, and CAT
protection.
Duran-Rodriguez lived in the small town of Villa
Hidalgo, Sonora, Mexico from 2010 to 2014, a city with a
population of about 3500. He initially worked as a municipal
worker fixing roads, and in September 2012, he joined the
town’s four-member police force.
Duran-Rodriguez testified that in December 2013 he
received two threats. When he was off duty, he received a
call
as “Seventy.” Seventy was the leader of a group of hitmen
known as the “zicarios” or “sicarios.” Duran-Rodriguez
DURAN-RODRIGUEZ V. BARR 5
indicated Seventy had a reputation as a dangerous person who
worked for the Sinaloa drug cartel led by “El Chapo,” and
that he knew of Seventy’s reputation through his co-workers.
Seventy wanted Duran-Rodriguez’s help in getting drugs to
the border, but he refused. Seventy told Duran-Rodriguez he
had three days to think about it and threatened to kill him if
he did not cooperate.
Duran-Rodriguez was then also approached in person by
a group of seven armed sicarios, including Seventy. Seventy
told Duran-Rodriguez he wanted his help to be a lookout and
clear a roadway to the border and offered him $7000 to do so.
Duran-Rodriguez refused and Seventy again gave him three
days to consider the request and told him if he refused to help
he should leave the city or be killed.
Duran-Rodriguez then spoke with his commander, who
advised him to leave Villa Hidalgo. He also informed the
mayor of the threats, but did not report the threats to any
higher law enforcement authority because he was afraid that
he would be killed. He did not know if any other officers in
Villa Hidalgo had been threatened or harmed, nor did he
personally know of other officers who were killed for failing
to cooperate with sicarios, but he had heard of such things
happening to police near the borders. He indicated he had
witnessed Seventy in the town on about four previous
occasions armed with weapons.
Duran-Rodriguez fled from the town on December 15,
2013, and traveled to his aunt’s home in Hermosillo, staying
there fоr about two weeks without incident and then traveled
to the United States.
6 DURAN-RODRIGUEZ V. BARR
The IJ denied his application for asylum. The IJ found
that Duran-Rodriguez testified credibly, that he was
“consistent in all material respects,” and that his “demeanor
demonstrаted a genuine effort to reflect upon prior events and
to provide accurate answers.” The IJ concluded, however,
that the two threats did not rise to the level of past
persecution, noting that threats alone rise to that level only in
“a small category of cases.”
With respect to fear of future harm, the IJ determined that
Duran-Rodriguez had not established either that he had been
individually singled out for future persecution or that there
was a pattern or practice of persecutiоn of similarly situated
persons on account of a protected ground. The IJ further
noted that the fear of future persecution was not well-founded
because Duran-Rodriguez could avoid persecution by
relocating within Mexico, and that it would be reasonable for
him to do so. Finally, the IJ determined Duran-Rodriguez
failed to establish it was more likely than not he would be
tortured if removed to Mexico.
The BIA adopted and affirmed the IJ’s decision. It
agreed that: the threats did not rise to the level of
persecution; Duran-Rodriguez had not carried his burden of
demonstrating a pattern or practice of persecution of police
officеrs in Mexico; Duran-Rodriguez could safely relocate to
another part of Mexico; it was not more likely than not he
would be subjected to torture if he returned to Mexico where
he received threats from private actors; and there was no
evidence anyone had sought him out after he left his small
town. This petition for review followed.
DURAN-RODRIGUEZ V. BARR 7
SCOPE AND STANDARD OF REVIEW
Where, as here, the BIA agrees with the IJ decision and
also adds its own reasoning, we review the decision of the
BIA and those parts of the IJ’s decision
We review the denial of asylum, withholding of removal
and CAT claims for substantial evidence. Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014); Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 895 (9th Cir. 2018). Under this
standard, we must uphold the agency determination unless the
evidence compels a contrary conclusion. INS v. Elias-
Zacarias, 502 U.S. 478, 481 & n.1 (1992).
DISCUSSION
I. Asylum and Withholding of Removal
Duran-Rodriguez bears the burden of proving eligibility
for asylum and must demonstrate that he has suffered past
persecution or has a well-founded fear of future persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion.
not include every sort of treatment our society regards as
offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.
2003).
A. Past Persecution
Duran-Rodriguez contends that he suffered persecution in
the form of death threats on account of his membership in a
particular social group (police officers in Mexico). The IJ
8 DURAN-RODRIGUEZ V. BARR
and BIA concluded, however, that the two threats he received
in December 2013 did not rise to the level of persecution.
Although Duran-Rodriguez is correct that credible “death
threats alone can constitute persecution,” Navas v. INS, 217
F.3d 646, 658 (9th Cir. 2000) (gathering cases), they
constitute “persecution in only a small cаtegory of cases, and
only when the threats are so menacing as to cause significant
actual suffering or harm,” Lim v INS, 224 F.3d 929, 936 (9th
Cir. 2000) (internal quotation and citation omitted).
We generally look at all of the surrounding circumstances
to determine whether the threats are actually credible and rise
to the level of persecution. Nahrvani v. Gonzales, 399 F.3d
1148, 1153 (9th Cir. 2005) (“[W]e typically rely on all of the
surrounding events, including the death threat, in deciding
whether persecution exists.”). We have been most likely to
find persecution where threats are repeated, specific and
“combined with confrontation or other mistreatment.” Lim,
224 F.3d at 936; see also Mashiri v. Ashcroft, 383 F.3d 1112,
1119 (9th Cir. 2004) (death threats may constitute persecution
especially “when they are specific and menacing and are
accompanied by evidence of violent confrontations, near-
confrontations and vandalism”). On the other hand, cases
with threats alone, particularly anonymous or vague ones,
rarely constitute persecution. Lim, 224 F.3d at 936 (multiple
threats by phone and mail from New People’s Army).
Here, over the course of two days, Duran-Rodriguez
received a threat over the phone, and another in person. The
men who approached him were believed to be hitmen or
“sicarios,” but Duran-Rodriguez did not personally know if
they had ever carried out threats against other officers for
failing to cooperate as requested. The men took no actions of
DURAN-RODRIGUEZ V. BARR 9
violence against Duran-Rodriguez, his family or property
beyond the threats. On these facts, although it may have been
possible for the IJ to conclude that the threats were
sufficiently serious and credible to rise to the level of
persecution, we cannot say the evidence compels the
conclusion that Duran-Rodriguez suffered past persecution.
Elias-Zacarias, 502 U.S at 481 & n.1; Nahrvani, 399 F.3d at 1154the threats received by Nahrvani constituted persecution, the
record does not compel us to make a finding that the threats
did constitute persecution.”) (internal quotation omitted).
B. Future Persecution
Absent evidence of past persecution, Duran-Rodriguez
must establish a well-founded fear of future persecution by
showing both a subjective fear of future persecution, as well
as an objectively “reasonable possibility” of persecution upon
return to the country in question. Recinos De Leon v
Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005). However, an
applicant “does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to
another part of the applicant’s cоuntry of nationality . . . [and]
under all the circumstances it would be reasonable to expect
the applicant to do so.”
Rodriguez had the burden of proving that such relocation
would not be possible or reasonable.
about a well-founded fear of future persecution because the internal
relocation issue is dispositive.
10 DURAN-RODRIGUEZ V. BARR
Even assuming Duran-Rodriguez has a subjective fear of
future persecution, he has not demonstrated that the record
compels reversal of the agency’s internal relocatiоn finding.
As the BIA held, relocation within Mexico was possible and
reasonable:
After [Duran-Rodriguez] was warned that he
must leave town or be killed if he would not
assist the drug traffickers, he left his small
town and remained with his aunt in
Hermosillo for 2 weeks before coming to the
United States. There is no evidence or claim
that the drug traffickers have sought the
respondent since he left his hometown or that
he could not safely relocate to Hermosillo or
another part of Mexico, especially where he is
no longer a police officer and could not now
provide drug traffickers with the assistance
they desire.
We thus deny Duran-Rodriguez’s petition with respect to his
claim for asylum.
To qualify for withholding of removal, an applicant must
satisfy a more stringent standard and demonstrate that it is
“more likely than not” he would be persecuted on account of
a protected ground if returned to the designated country.
established eligibility for asylum, it necessarily follows that
he has not established eligibility for withholding. See
Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).
DURAN-RODRIGUEZ V. BARR 11
II. Convention Against Torture
To qualify for relief under CAT, Duran-Rodriguez must
demonstrate that it is more likely than not that he would be
tortured if removed to Mexico.
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001).
Torture is defined as “any act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.”
The IJ and BIA correctly analyzed Duran-Rodriguez’s
CAT claim. He has not been tortured in the past, nor has he
shown that it is more likely than not he will be subjected to
torture by or with the acquiescence of a public official. He
received threats from private actors and, as noted above, thеre
is no evidence or claim
continuing interest in him since he departed Villa Hidalgo.
PETITION DENIED.
M. SMITH, Circuit Judge, specially concurring:
Although we have previously stated that death threats
alone may constitute persecution, the cases underlying that
statement make clear that such death threats are always
accompanied by some form of violence or harm to the
petitioner, a family member, or others closely associated with
him. I write separately to elaborate on that point.
12 DURAN-RODRIGUEZ V. BARR
“Persecution is an ‘extreme concept.’” He v. Holder, 749
F.3d 792, 796 (9th Cir. 2014) (quoting Donchev v. Mukasey,
553 F.3d 1206, 1213 (9th Cir. 2009)). For this reason,
“[t]hreats standing alone . . . constitute past persecution in
only a small category of cases, and only when the threats are
so menacing as to cause significant actual ‘suffering or
harm.’” Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000)
(quoting Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.
1997)). To suffice as past persecution, threats must be
specific and credible. They must also be accompanied by
physical violence or harm to petitioner, petitioner’s family, or
others similarly closely associated with him.
To be sure, our writings on this issue have sometimes
been inexact. For example, our decision in Navas v. I.N.S. is
often cited for the proposition that death threats alone
constitute persecution. 217 F.3d 646 (9th Cir. 2000). There,
we stated that “we have consistently held that deаth threats
alone can constitute persecution.” Id. at 658.
But that statement, in isolation, is clearly misleading. In
Navas, the court found that the petitioner had been persecuted
because “he was shot at” by the Salvadoran military and those
same military officers murdered his aunt before going tо the
petitioner’s mother’s house in search of him. Id. at 652, 658.
“When they discovered that he was not there, they beat his
mother and threatened to kill both mother and son unless [the
petitioner] left the country.” Id. at 652. It is uncontroversial
that when threats are combined with the infliction of such
violence and harm to a petitioner’s family, they establish
persecution.
Furthermore, all the cases on which Navas relied for its
matter of fact proposition similarly involved violence or harm
DURAN-RODRIGUEZ V. BARR 13
to the petitioner or someone closely associated with him. See
Del Carmen Molina v. I.N.S., 170 F.3d 1247, 1249 (9th Cir.
1999) (finding persecution where, in addition tо death threats,
petitioner’s cousins and their families were murdered);
Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir. 1998)
(finding persecution where petitioner received two letters
with black ribbons and “[m]any people . . . who had received
similar letters containing black ribbons had subsequently
been killed by the [New People’s Army].”); Gonzales-Neyra
v. I.N.S., 122 F.3d 1293, 1296 (9th Cir. 1997), amended by
133 F.3d 726 (9th Cir. 1998) (finding persecution where
petitioner was “hunted”); Gonzalez v. I.N.S., 82 F.3d 903, 910
(9th Cir. 1996) (finding death threats constituted persecution
where petitioner’s father was rendered deaf and mute by a
bоmb, mother’s lands were seized, brothers were incarcerated
and forced into the military, sister-in-law was beaten,
petitioner’s ration card was confiscated, pеtitioner’s business
license was denied, and petitioner’s house was vandalized
and seized); Gomez-Saballos v. I.N.S., 79 F.3d 912, 916 (9th
Cir. 1996) (finding persecution where the individual making
the death threat previously led to the execution of petitioner’s
brother for harboring the same political
Cota v. I.N.S., 914 F.2d 1375, 1380 (9th Cir. 1990) (finding
death threats in addition to numerous other actions—cousin
killed, niece wounded, petitioner’s house ransacked, sister
questioned in-person about petitioner, petitioner interrogated
and detained twice—amounted to persecution).1
violence or harm to constitute persecution. See Baballah v. Ashcroft, 367
F.3d 1067, 1075 (9th Cir. 2004) (finding death threats, being shot at, as
well as a brother’s imprisonment and beating amounted tо persecution);
Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir. 2002) (finding death
threats together with beatings of family members and murders of political
counterparts constituted pаst persecution), amended by 290 F.3d 964 (9th
Cir. 2002); Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1246 (9th Cir. 1999)
14 DURAN-RODRIGUEZ V. BARR
We know of no case, nor has Duran-Rodriguez pointed to
one, where death threats alone, not involving violence or
other harm to petitioner, his family, or others closely
associated with him, constituted persecution.
With this framework established, it is clear that the threats
against Duran-Rodriguez do not amount to past persecution
nor support an objectively reasonable finding of a well-
founded fear of future persecution. Duran-Rodriguez had no
personal knowledge of violence by “Seventy” or the
“sicarios” against other police officers who had refused to
help move drugs to the border. Nor did Duran-Rodriguez
allege any harm or violence taken by these men against him,
his family members, or the other Villa Hidalgo police
officers. Indeed, he was able to remain at his aunt’s house in
Hermosillo, less than ten kilometers or six-and-a-half miles
away from Villa Hidalgo, for two weeks without incident.
Duran-Rodriguez presents evidence of violence across the
region by drug cartel gangs. But that violence targeted rival
gangs, innocent bystanders, political leaders, and police
officers, and it is well established that a general,
undifferentiated claim of persecution will not suffice; Duran-
Rodriguez “must show that he is at particular risk—that his
‘predicament is appreciably different from the dangers faced
by [his] fellow citizens.’” Kotasz v. I.N.S., 31 F.3d 847, 852
(9th Cir. 1994) (quoting Vides-Vides v. I.N.S., 783 F.2d 1463,
1469 (9th Cir. 1986)). Because Duran-Rodriquez has failed
to make that showing, he is not entitled to relief.
(finding death threats by defendants against a prosecutor in a country
where “[m]agistrates, judges, attorneys, and prosecutors have been
suborned, threatened, assassinated, or had family members killed in
connection with certain cases” allowed us to find a well-founded fear of
future persecution).