                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                                FILED
                            FOR THE NINTH CIRCUIT                                 SEP 13 2013

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

ARMANDO GUTIERREZ, AKA Arturo                    No. 11-71788
Ramirez,
                                                 Agency No. A095-733-635
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                       Argued and Submitted August 8, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Armando “Lupita” Gutierrez appeals from the denial of her request for

withholding of removal under the Convention Against Torture (“CAT”). The

Board of Immigration Appeals (“BIA”) determined that Ms. Gutierrez had failed to

show that it is more likely than not that she will be tortured as a transgender



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
woman if she is returned to Mexico and lives in a large city.1 We conclude this

determination is supported by substantial evidence such that a contrary conclusion

is not compelled.2 See 8 U.S.C. § 1252(b)(4)(B).

      Ms. Gutierrez bears the burden of proving her eligibility for relief under

CAT, and that the BIA’s conclusion is not supported by reasonable, substantial and

probative evidence. See 8 U.S.C. §§ 1229a(c)(4), 1252(b)(4)(B); see also Al-Harbi

v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (“To qualify for withholding of removal,

an alien must demonstrate that ‘it is more likely than not that he would be subject

to persecution on one of the specified grounds.’”) (quoting INS v. Stevic, 467 U.S.

407, 429-30 (1984)).

      Torture is defined as “an extreme form of cruel and inhuman treatment and

does not include lesser forms of cruel, inhuman or degrading treatment or

punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Moreover,

the petitioner must show that torture would be “inflicted by or at the instigation of

or with the consent or acquiescence of a public official or other person acting in an


      1
             In a separate opinion filed concurrently with this memorandum
disposition we hold that the Department of Homeland Security (“DHS”) properly
filed a Notice to Appear while Ms. Gutierrez was subject to a withholding of
removal order.
      2
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                          2
official capacity.” 8 C.F.R. § 1208.18(a)(1). Past torture, although a prime factor

in evaluating the likelihood of future torture, does not create a presumption of

future torture. Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir. 2005); see

also 8 C.F.R. § 1208.16(c)(3).

      We review the denial of relief under CAT for substantial evidence and may

only grant relief if the evidence compels a contrary conclusion. See 8 U.S.C. §

1252(b)(4)(B) (“the administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary”); see also

Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (“Even if we

might have reached a conclusion different from that reached by the BIA, we may

not reverse unless we determine that any reasonable factfinder would have been

compelled to reach that conclusion.”).

      Ms. Gutierrez’s testimony shows that she was tortured by the police in her

home town of Jerez before she moved to Zacatecas in 1993. Her testimony is also

reasonably understood not to allege any incidents of torture by the police or others

between 1993 and 1999, when petitioner lived in Zacatecas and later Guadalajara.

In addition, the evidence presented by both Ms. Gutierrez and Department of

Human Services shows that Mexico has made strides toward protecting the civil

rights of gay, lesbian, and transgender persons. The BIA reasonably determined


                                          3
that Ms. Gutierrez likely will not suffer torture if she is returned to a larger city in

Mexico, even though the culture may remain highly repressive in its attitude

toward gay, lesbian, transgender, and HIV-positive persons.

      We conclude that the BIA’s determination that Ms. Gutierrez is not likely to

be tortured if returned to Mexico is supported by substantial evidence.

Accordingly, the petition for review is DENIED.




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