NOT FOR PUBLICATION FILED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 finding—that the attack was

random and unrelated to his gang membership—is supported by substantial

evidence.

Because Pena did not establish that he had suffered past torture or been

targeted based on his gang affiliation, the BIA properly concluded that the IJ’s

failure to consider his subsequent contact with cartel members was not material to

his likelihood of future torture. The BIA also correctly held that the IJ’s error in

misconstruing Pena’s testimony regarding his gang-related tattoos was harmless.

The IJ analyzed Pena’s claim on the assumption that he did have gang-related

tattoos, and she found him otherwise credible.

3. Pena argues that the IJ abused her discretion by affording diminished

weight to Dr. Farfan-Mendez’s testimony. Contrary to the IJ’s finding, Dr. Farfan-

Mendez’s answers to some of the government’s questions—such as her refusal to

estimate what specific percentage of Mexican police officers are corrupt and her Page 4 of 5

inability to empirically evaluate whether the Mexican government is “trying its

best”—were not evasive. Nonetheless, the IJ’s decision to give limited weight to

Dr. Farfan-Mendez’s testimony was not an abuse of discretion. The IJ accepted

Dr. Farfan-Mendez’s central contentions when she found that “the evidence does

set forth a persuasive case that the Mexican police at every level have engaged in,

or acquiesced to, torture and extrajudicial killings.” But the IJ has broad discretion

in weighing evidence, and here she permissibly exercised this discretion by

refusing to accept the expert’s conclusory assertion that Pena would be identified

by cartels and killed if he were returned to Mexico. See Aguilar-Ramos v. Holder,

594 F.3d 701, 706 n.7 (9th Cir. 2010).

4. Pena asserts two final grounds for reversal. First, he contends that the IJ

misconstrued his testimony as vague and failed to consider his more specific

statements regarding the police attack and his contact with the cartels. Second, he

argues that the BIA violated his due process rights by failing to explain its

discounting of Dr. Farfan-Mendez’s testimony and by failing to consider Pena’s

arguments and documentary evidence. These claims are without merit. The IJ

acknowledged Pena’s fear that he would be targeted as a former gang member, and

her characterization of Pena’s testimony is borne out by the record. The BIA

likewise provided a reasoned explanation for its decision, and there is no indication

that it failed to consider any of Pena’s arguments or evidence. See Almaghzar v. Page 5 of 5

Gonzales, 457 F.3d 915, 922 (9th Cir. 2006).

PETITION FOR REVIEW DENIED.