NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ISIDRO PENA-MIER, No. 19-73072 Petitioner, Agency No. A092-823-175 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 11, 2022** Pasadena, California Before: CLIFTON, M. SMITH, and WATFORD, Circuit Judges. Isidro Pena-Mier, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from the decision of an immigration judge (IJ) denying his application for deferral of removal under the Convention Against Torture (CAT). We deny the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 5 1. Pena first contends that the BIA erred in affirming the IJ’s finding that Pena’s 2004 beating at the hands of four police officers in Mexicali did not amount to past torture. Torture is defined under the CAT regulations as “an extreme form of cruel and inhuman treatment.” 8 C.F.R. § 1208.18(a)(2). Pena suffered several broken bones and spent three or four weeks recovering at the home of a stranger, but he never sought treatment from a medical professional. As the IJ noted, the police officers’ conduct was abhorrent, but the evidence does not compel a finding that it amounted to torture. See Kumar v. Gonzales, 444 F.3d 1043, 1055–56 (9th Cir. 2006) (upholding the IJ’s finding that a petitioner who was detained and physically abused by police for a month did not suffer past torture). Pena also notes that the IJ failed to acknowledge his contact with cartel members after the attack. However, the BIA correctly concluded that this error was not material to the issue of past torture. The cartel members did not harm Pena, and there is no suggestion that they threatened him with imminent death, as required to establish torture under these circumstances. See 8 C.F.R. § 1208.18(a)(4)(iii). 2. The BIA correctly upheld the IJ’s finding that Pena did not establish that he was more likely than not to be tortured if returned to Mexico. The country conditions reports and the testimony of Pena’s expert show widespread cartel violence with the involvement or acquiescence of public officials. While this Page 3 of 5 evidence suggests that Pena could be identified as a former gang member based on his tattoos and that cartels sometimes target former gang members for recruitment, it does not compel the conclusion that he would be identified, targeted for recruitment, and killed because of his refusal to join. Pena contends that he was targeted by police officers in 2004 because of his gang-related tattoos and that he would once again be targeted on this basis if returned to Mexico. However, the IJ’s contrary …
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