Javier Gutierrez Zavala v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 17-1612 ____________ JAVIER GUTIERREZ ZAVALA a/k/a Javier Moreno Nino, a/k/a Javier Garcia Lopez, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-897-986) Immigration Judge: Honorable Walter A. Durling ____________ Submitted Under Third Circuit L.A.R. 34.1(a) October 10, 2017 Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges. (Filed: November 30, 2017) ____________ OPINION* ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge. Javier Moreno Nino1 petitions for review of an order of the Board of Immigration Appeals (BIA) denying him withholding of removal and deferral of removal under the Convention Against Torture (CAT). We will deny the petition. I A citizen of Mexico, Moreno was first removed from the United States in 2005 following a conviction for alien smuggling. In April of 2008, Moreno rebuffed a recruitment effort by a drug cartel, La Familia Michoacana. Three of Moreno’s cousins— Jesus, Miguel, and Jorge—were recruited by the cartel after they were removed from the United States. Jorge joined the cartel, Miguel disappeared, and Jesus was turned over to the cartel by local police in 2008, but escaped by paying them. In September of 2008, Moreno re-entered the United States and was removed again. A few days following his return to Mexico, Moreno was shot in the back by a cartel member, but he did not report the crime because he feared collusion between the police and the cartel. Moreno then re-entered the United States at the end of 2008 with his cousin Jesus. In 2011, Jesus returned to Mexico and disappeared. In 2015, Moreno was apprehended, his prior deportation order was reinstated, and he was later referred to an Immigration Judge (IJ) for withholding only proceedings. 1 Petitioner advises that Moreno is his true surname, contrary to the caption. 2 While the IJ found Moreno credible, he declined to grant withholding of removal based on either past persecution or the Convention Against Torture (CAT). Regarding past persecution, the IJ found that “deportees who avoided recruitment by the gangs” did not constitute a protected class. App. 10. The IJ also observed that “no one from the gang ever articulated” that they were motivated by Moreno’s deportee status, and that it seemed likely Moreno “just happened to be a deportee when he was targeted.” App. 11. As for CAT protection, the IJ determined that while police corruption “is an ongoing problem,” the Mexican government’s “concerted efforts over the years to combat organized crime” precluded a finding of acquiescence or willful blindness to torture by gangs. App. 12. A one-member panel of the BIA affirmed the IJ’s decision on both claims. The panel found no clear error in the IJ’s findings of fact regarding why Moreno was targeted by gangs. It further agreed with the IJ that Moreno ...

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