Cardenas v. Lynch
| Decision Date | 12 October 2016 |
| Docket Number | No. 12-72982,12-72982 |
| Parties | ROSALBA MENDOZA CARDENAS, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 7, 2016
Submission Vacated June 8, 2016
Resubmitted October 12, 2016 Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges, and KORMAN,** District Judge.
Rosabela Mendoza Ortiz ("Mendoza"), née Rosabela Mendoza Cardenas, petitions for review of the decision of an Immigration Judge ("IJ") ordering herremoved. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny Mendoza's petition,1 and the government's motion to transfer venue.
1. The IJ's 2012 determination that Mendoza did not have a reasonable fear of persecution or torture if removed to Mexico is supported by substantial evidence. See Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016). The IJ acknowledged that the asylum officer found Mendoza credible, accepted that Mendoza had a genuine subjective fear, and credited as true Mendoza's testimony regarding Mario Antonio Montes de Oca's abuse and threats, Nevertheless, the IJ concluded (and Mendoza concedes, )that Montes de Oca's abuse of Mendoza occurred in the United States, not Mexico. Because abuse constitutes past persecution only if it occurred in the "proposed country of removal," Gonzalez-Medina v. Holder, 641 F.3d 333, 337 (9th Cir. 2011), the IJ concluded that the abuse Mendoza suffered did not qualify as past persecution. Thus, Montes de Oca's abuse did not give rise to a rebuttable presumption that Mendoza had a well-founded fear of future persecution. See Agbuya v. I.N.S., 219 F.3d 962, 966 (9th Cir. 2000); 8 C.F.R. § 1208.16(b)(1).
Substantial evidence also supports the IJ's conclusion that Mendoza failed to show that her fear of future persecution, though genuine, was objectively reasonable. See 8 C.F.R. § 1208.31(c). Mendoza had not had personal contact with Montes de Oca since 1998. Montes de Oca had made no attempt to see Mendoza since 1998, despite having contact information for Mendoza's family members. Moreover, both Montes de Oca and Mendoza remarried. Though Mendoza had heard from her brother that Montes de Oca told other residents of Pihuamo that he would kill her if he saw her, the IJ reasonably concluded that a single, third-hand threat from a town three days' drive from Mendoza's location did not establish the "reasonable possibility" of harm warranting eligibility for relief under 8 C.F.R. §§ 208.31(c) & 1208.31(c).
2. We deny the government's motion to transfer venue to the United States Court of Appeals for the Tenth Circuit pursuant to 28 U.S.C. § 1631. While the government is correct that venue was proper in the Tenth Circuit and improper in the Ninth Circuit when Mendoza filed her petition, transfer would not "serve[ ] the interest of justice." Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010). Mendoza's petition has been pending in this Circuit for almost four years, the parties completed briefing based on Ninth...
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