NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IGNACIO DELENA-GARCIA, No. 20-70547

Petitioner, Agency No. A029-530-005

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 8, 2024** Las Vegas, Nevada

Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.

Petitioner Ignacio Delena-Garcia, a native and citizen of Mexico, was ordered

removed from the United States in 2011. Prior to his removal, Delena-Garcia was

convicted of several felonies, including possession of cocaine with intent to sell

(resulting in a sentence of two years’ incarceration) and burglary, theft, and

* 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). obtaining and using personal identification of another (resulting in a sentence of four

years’ incarceration). Delena-Garcia illegally reentered the United States in

February 2012.

In 2019, the Department of Homeland Security reinstated Delena-Garcia’s

prior removal order and, after he established a reasonable fear of persecution,

referred him to an Immigration Judge (IJ). The petitioner then applied for

withholding of removal and for protection under the Convention Against Torture

(CAT). The IJ concluded Delena-Garcia’s prior convictions barred him from

withholding of removal.1 The IJ also rejected CAT relief. The BIA affirmed the

IJ’s ruling, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).

Delena-Garcia presents two arguments as to why the IJ improperly denied

CAT relief: (1) the IJ erroneously concluded he was not credible regarding his

previous interaction with a cartel and the police, and (2) the IJ erred in assuming his

HIV-related fear was because he could not access medication rather than the stigma

an HIV-positive diagnosis carries in Mexico. “When the BIA cites Matter of

Burbano and does not expressly disagree with the IJ’s decision, it adopts the IJ’s

decision in its entirety.” Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).

Therefore, we “look through the BIA’s decision and treat the IJ’s decision as the

final agency decision for purposes of [the] appeal.” Tamang v. Holder, 598 F.3d

1 Delena-Garcia does not contest this conclusion.

2 1083, 1088 (9th Cir. 2010). We review the IJ’s legal determinations de novo and

the IJ’s factual determinations for substantial evidence, meaning we may only

reverse the IJ’s factual determination if the evidence compels a contrary conclusion.

Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).

CAT provides mandatory relief for an alien who can establish that “it is more

likely than not that he or she would be tortured if removed to the proposed country

of removal.” Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (internal

quotations omitted) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as “an

extreme form of cruel and inhuman treatment,” requiring the “intentional

inflict[ion]” of “severe pain or suffering . . . by, or at the instigation of, or with the

consent or acquiescence of, a public official . . . or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1), (2). In evaluating the likelihood of future

torture, we look to evidence of past torture as well as any evidence of “gross,

flagrant, or mass violations of human rights” within the petitioner’s home nation.

Nuru v. Gonzales, 404 F.3d 1207, 1218–19 (9th Cir. 2005). “[S]omeone who has

been tortured in the past is likely to be tortured in the future if returned to the same

situation,” however “[i]n and of itself, . . . a showing of past torture does not give

rise to a regulatory presumption of future torture.” Dawson v. Garland, 998 F.3d

876, 882 (9th Cir. 2021) (internal quotation, alterations, and citation omitted).

3 Delena-Garcia based his fear of being tortured on two things: his experience

with a cartel and his HIV-positive status. In his I-589 application for asylum and

withholding of removal, Delena-Garcia claimed the cartel had demanded roughly

$500 a week to keep his business open, and after he fled Mexico because of the cartel

activity, the cartel murdered two of his family members. Thus, he fears being

tortured if he is forced to return to Mexico.2 Delena-Garcia also noted he feared

returning to Mexico as a person living with HIV, because of the way in which

Mexican society treats HIV-positive individuals.

First addressing Delena-Garcia’s experience with the cartel, the IJ denied

CAT relief after concluding Delena-Garcia was not a credible witness because of

numerous inconsistencies in the testimony he provided in court as compared to his

reasonable fear interview and his I-589 application. The IJ rejected Delena-Garcia’s

HIV status argument, because the IJ determined Delena-Garcia would have adequate

access to medication to manage his condition.3 Because substantial evidence

2 In his notice of appeal to the BIA, Delena-Garcia stated that the basis of his application for CAT relief was “his fear of returning to Mexico because of past persecution and torture . . . and the clear probability of future persecution and torture if he were to return to Mexico.” However, in this court, Delena-Garcia does not allege his past interactions with the cartel rose to the level of torture. 3 On appeal, Delena-Garcia points out that the IJ misconstrued his fear related to his HIV-positive status. Rather than addressing the threat of harm people living with HIV face in Mexico based on how they are treated by society, the IJ construed Delena-Garcia’s fear to be based on the availability of proper medical treatment to address his HIV diagnosis. Although the IJ erred in failing to address Delena-

4 supports the IJ’s credibility determinations, we deny the Petition as to the cartel-

related CAT allegations. We also deny the Petition as to the HIV-related CAT

allegations, because of Delena-Garcia’s failure to exhaust those claims before the

BIA.

1. The IJ did not err in determining Delena-Garcia was not credible. In 2011,

there was a confrontation between Delena-Garcia and members of the Jalisco cartel

outside Delena-Garcia’s business. According to Delena-Garcia’s reasonable fear

interview with DHS, the cartel demanded he pay $500 per week. Delena-Garcia

then said that the cartel once followed him after he closed his business one evening,

and he pulled over his vehicle near some police officers so that he would be protected

from the cartel. Delena-Garcia claimed the police then “turned [him] in” to the

cartel. After he pulled over, one of the officers called the cartel members following

him, the cartel members pulled over near the officers, and they then took 20,000

pesos from him. The cartel allegedly informed Delena-Garcia that the price of the

quota would increase to $500 and 20,000 pesos and that “they already knew where

[he] lived and what time [he] closed the business” with the implication being that

they would find and harm Delena-Garcia if he did not pay the quota. Following

Garcia’s expressed fear of how he would be treated if people in Mexico knew his HIV status, as discussed below, Delena-Garcia failed to raise this issue in his appeal to the BIA.

5 three months of the quota extortion and after the police incident, Delena-Garcia

closed his business and left Mexico.

As the IJ found, Delena-Garcia provided a starkly different description of

events during his hearing testimony. Delena-Garcia testified that the cartel began to

follow him after he closed his store. But then, the cartel members gestured for him

to pull over, and he did so when he encountered police officers on the side of the

road. Delena-Garcia testified that he spoke with the officers, waited on the side of

the road with them, and then left and that the cartel members did not follow him.

During his reasonable fear interview, Delena-Garcia said the cartel continued

to look for him after he fled Mexico, and then killed his wife’s aunt and nephew

“because they did not tell them where [he] was.” At the immigration court

proceedings, in contrast to his reasonable fear interview, when asked why his

nephew was murdered, Delena-Garcia speculated and responded: “I don’t know.

Maybe because he didn’t tell [the cartel] where I was.”

During his reasonable fear interview Delena-Garcia stated that when his

nephew would not disclose where Delena-Garcia was living, the cartel “grabbed”

and “left marks on [his] nephew” and “chopped him into pieces but they left like a

sign . . . saying that [it was] for not giving [Delena-Garcia’s] address.” But at the

hearing, Delena-Garcia testified his nephew was “asphyxiated” or “choked.” He

also testified that a sign was left by his nephew’s body saying, “for not paying.”

6 Delena-Garcia was asked about these (and other) inconsistencies found by the

IJ but could not satisfactorily explain them. The IJ found that the explanations were

not “plausible.” Substantial evidence supports the IJ’s findings as to inconsistency

and plausibility. These inconsistencies—how the cartel treated Delena-Garcia in

Mexico and why and how his family members died—are “valid and specific reasons

for issuing an adverse credibility determination” and relate to the foundation for

Delena-Garcia’s claim of past and future torture. Ruiz-Colmenares v. Garland, 25

F.4th 742, 750 (9th Cir. 2022). Thus, we uphold the IJ’s credibility finding. See

Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (“only the most

extraordinary circumstances will justify overturning an adverse credibility

determination.” (citation and quotation omitted)).

Without Delena-Garcia’s credible testimony, there was insufficient evidence

to support CAT relief based on his fear of torture from the cartel.4

2. While the IJ misconstrued Delena-Garcia’s CAT claim based on his fear

related to his HIV-positive status, we deny the Petition because Delena-Garcia failed

to exhaust that claim.

Delena-Garcia argues the IJ improperly failed to address his fear that he would

be harmed if returned to Mexico because of his HIV status and instead addressed his

4 Delena-Garcia does not argue that the remaining evidence is sufficient to support CAT relief based on his cartel claims.

7 potential fear related to the “availability of treatment and medications in Mexico for

his HIV.” But as the government notes, Delena-Garcia’s notice of appeal to the BIA

makes no mention of his HIV status or his related fear of persecution and torture.5

While 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not jurisdictional, it

is still subject to the rules regarding waiver and forfeiture as a claims-processing

rule. Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023). Delena-Garcia failed

to argue before the BIA that the IJ erred in failing to address his fears related to his

HIV status. Because 8 U.S.C. § 1252(d)(1) is a claims processing rule which is

“‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly

raises’ it,” we must deny Delena-Garcia’s petition as to his HIV status. Fort Bend

County v. Davis, 139 S. Ct. 1843, 1849 (2019) (alterations omitted) (quoting

Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam)); see Umana-Escobar

v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (denying petition where petitioner

presented a new argument on appeal that was not presented to the BIA because the

petitioner “failed to exhaust . . . as required under 8 U.S.C. § 1252(d)(1)”).

Because the IJ did not err in finding that Delena-Garcia lacked credibility and

5 Delena-Garcia did state in his application for relief that he was “afraid that [he] will be harmed by people in Mexico because [he has] HIV but [did not] know if the police [would be] willing to protect [him].” But he did not provide any testimony, nor did his attorney ask him questions, regarding his HIV status as it relates to the likelihood of his being tortured in the future because of the status.

8 because Delena-Garcia failed to appropriately exhaust his CAT claim as it relates to

his HIV status, we deny Delena-Garcia’s petition.

PETITION DENIED.

9