                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           OCT 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROSALBA MENDOZA CARDENAS,                        No.   12-72982

              Petitioner,                        Agency No. A087-264-469

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     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 her


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
removed. 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).


      1
       In a separately filed memorandum disposition, we grant Mendoza’s petition
to reopen the underlying removal proceedings and reverse and remand the Board of
Immigration Appeals’s dismissal of her appeal challenging the IJ’s denial of the
motion to reopen. In light of our disposition, we stay the order of deportation
pending resolution of the proceedings in case No. 13-71180.
                                         2
      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 Circuit authority, and there is no

indication that Mendoza acted in bad faith in filing the petition in Nevada. She


                                          3
was arrested in Nevada; it was only later that she was transferred to the Salt Lake

City detention center, where both the asylum officer and the IJ heard her claim.

      Petition for review DENIED.




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