Jhonny Garcia-Moctezuma v. Jefferson B. Sessions, III

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-4433 ___________________________ Jhonny Garcia-Moctezuma Petitioner v. Jefferson B. Sessions, III, United States Attorney General Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 19, 2017 Filed: January 11, 2018 ____________ 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”). 1 The Honorable Richard W. Goldberg, Senior Judge, United States Court of International Trade, sitting by designation. 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. BACKGROUND 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, -2- 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 ...

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