Case: 21-870, 02/22/2023, DktEntry: 30.1, Page 1 of 4

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 22 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Fernando Herrera Millan, No. 21-870

Petitioner, Agency No. A071-912-609

v.

MEMORANDUM*

Merrick B. Garland, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Department of Homeland Security

Submitted February 17, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges.

Fernando Herrera Millan, also known as Bartolo Millan Flores, a native

and citizen of Mexico, seeks review of an immigration judge’s decision

concurring in a negative reasonable-fear determination. We have jurisdiction

under 8 U.S.C. § 1252. See 8 C.F.R. § 208.31(g)(1). 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). Case: 21-870, 02/22/2023, DktEntry: 30.1, Page 2 of 4

We review factual findings related to reasonable-fear determinations for

substantial evidence, upholding the immigration judge’s conclusion unless “any

reasonable adjudicator would be compelled to conclude to the contrary.”

Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting Ai Jun

Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). “We review de novo due

process challenges to reasonable fear proceedings.” Orozco-Lopez v. Garland,

11 F.4th 764, 774 (9th Cir. 2021) (quoting Zuniga v. Barr, 946 F.3d 464, 466

(9th Cir. 2019) (per curiam)).

1. Substantial evidence supports the immigration judge’s conclusion that

Herrera Millan did not face “a reasonable possibility that he . . . would be

persecuted” if returned to Mexico, whether on a protected ground or otherwise.

8 C.F.R. §§ 208.31(c), 1208.31(c). With no history of past persecution, Herrera

Millan emphasizes two facts that he says establish a likelihood of future

persecution: (1) he received two threatening phone calls claiming that “they”

were waiting for him in Mexico, and (2) his fellow informant, Vladimiro

Gutierrez Navarro, was murdered after returning to Mexico. The immigration

judge permissibly discounted those fears. First, the immigration judge noted that

the threatening phone calls were made approximately ten years ago and that

both the identity and motive of the callers were unknown. Second, Gutierrez

Navarro’s murder occurred twenty years after he stopped working as an

informant, making any relationship between his murder and his work as an

informant tenuous. The immigration judge also noted that Herrera Millan was

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never an official informant and that the people he assisted in prosecuting are in

the United States, not Mexico.

Because Herrera Millan did not establish a reasonable possibility of any

persecution, the immigration judge had no need to reach the question of his

membership in a proposed social group.

2. Substantial evidence supports the immigration judge’s conclusion that

Herrera Millan did not show “a reasonable possibility that he . . . would be

tortured” in Mexico, 8 C.F.R. §§ 208.31(c), 1208.31(c), because he did not

establish that anyone he fears would act “with the consent or acquiescence of a

public official,” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).

Herrera Millan fears harm from drug traffickers, not public officials. His

example of past harm, when drug dealers held a gun to his head and threatened

him, occurred in the United States. Herrera Millan stated that no Mexican

officials have ever mistreated him, that he did not know of any connection

between the people who had previously threatened him and Mexican officials,

and that his fellow informants who were killed upon return to Mexico were

murdered by criminal organizations, not public officials.

Herrera Millan argues that his feared future harm would occur with

government acquiescence because (1) there are some reports of collusion

between organized crime and the Mexican government, (2) a previous handler

for his informant work was arrested for participating in a bribery scheme linked

to organized crime, and (3) Herrera Millan’s arresting officer mentioned that

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Mexican authorities had been inquiring about his whereabouts. That evidence

does not compel a conclusion that he faces a reasonable possibility of torture

with government acquiescence if returned to Mexico. First, the reports alleging

collusion do not establish a reasonable possibility that the unspecified criminal

organizations Herrera Millan fears are connected to the Mexican government.

Second, the corruption of his handler, an American official, has no bearing on

the potential for Mexican public officials to acquiesce to torture. Third, despite

his speculations, the fact that Mexican authorities were asking about Herrera

Millan does not necessarily indicate that those authorities are connected to any

harm he fears.

3. Herrera Millan’s conclusory allegations of the immigration judge’s

bias are unsupported and meritless.

The motions for a stay of removal (Dkt. Nos. 3, 8) are denied. The

temporary stay of removal is lifted.

PETITION DENIED.

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