G. C. v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDGAR G.C., No. 21-1228

Petitioner, Agency No.

A200-694-332

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 2, 2024

Pasadena, California

Filed July 30, 2024

Before: Ryan D. Nelson, Lawrence VanDyke, and Gabriel

P. Sanchez, Circuit Judges.

Opinion by Judge VanDyke;

Partial Concurrence and Partial Dissent by Judge Sanchez

2 G. C. V. GARLAND

SUMMARY *

Immigration

The panel denied G.C.’s petition for review of the Board

of Immigration Appeals’ decision upholding the denial of

withholding of removal and protection under the Convention

Against Torture.

G.C. contended that he was entitled to withholding and

CAT relief based on a risk of future persecution and torture

by his father and the Los Zetas cartel, of which his father is

a member.

The panel held that the BIA did not abuse its discretion

in determining that G.C.’s assault conviction under

California Penal Code § 245(a)(4) constituted a particularly

serious crime, which rendered him ineligible for withholding

relief. Both the IJ and the BIA relied on appropriate

evidence in conducting their analyses, including evidence of

G.C.’s mental illnesses, and plausibly concluded that G.C.’s

mental illnesses did not render the assault a less reliable

indicator of G.C.’s dangerousness.

With respect to CAT relief, the panel concluded that the

BIA did not err by discounting evidence of G.C.’s history of

abuse at the hands of his father during his childhood in the

United States. Relying on a difference between the CAT and

withholding regulations, G.C. contended that the agency

erred by wrongly discounting evidence of past harm by his

father because such abuse occurred in the United States, not

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

G.C. V. GARLAND 3

Mexico. The panel explained that the CAT regulations

require the same type of connection between the abuse and

the proposed country of removal that the withholding

regulations do, even if the textual reason for that requirement

is different in each regulation. Moreover, while G.C.’s

testimony about his father’s history of abuse might be some

evidence of his father’s intent to cause G.C. harm in the

future, it says nothing at all about his willingness to do so in

Mexico, in view of the threat of arrest or other legal action

by Mexican law enforcement, or about the Mexican

government’s willingness to acquiesce in such torture.

The panel also held that substantial evidence supported

the agency’s findings regarding the likelihood of future

torture. Given the passage of time, past unfulfilled death

threats, and the lack of clarity regarding G.C.’s father’s

motives, the record did not compel the conclusion that

G.C.’s father will more likely than not seek to torture him

upon his return to Mexico.

Concurring in part and dissenting in part, Judge Sanchez

agreed that the BIA did not abuse its discretion in concluding

that G.C.’s assault conviction was a particularly serious

crime. However, Judge Sanchez would find that G.C. is

entitled to CAT protection because the uncontroverted

evidence, including extensive country conditions and expert

evidence, compelled the conclusion that G.C. is likely to be

targeted and tortured by his father upon his removal to

Mexico.

4 G. C. V. GARLAND

COUNSEL

Estelle M. McKee (argued), Supervising Attorney; Alyssa

Kastner (argued), Certified Law Student; Cornell Law

School, Asylum and Convention Against Torture Appellate

Clinic, Ithaca, New York; for Petitioner.

Aric A. Anderson (argued), Trial Attorney; Kohsei

Ugumori, Senior Litigation Counsel; Brian M. Boynton,

Principal Deputy Assistant Attorney General, Civil

Division; Holly M. Smith, Assistant Director; United States

Department of Justice, Civil Division, Office of Immigration

Litigation, Washington, D.C.; for Respondent.

OPINION

VANDYKE, Circuit Judge:

Petitioner G.C. 1 petitions for review of a decision of the

Board of Immigration Appeals (BIA) affirming the denial of

his claims for asylum, withholding of removal, and

Convention Against Torture (CAT) deferral. His petition,

which details the litany of abuses he suffered during

childhood at the hands of his now-deported father, contends

that he is entitled to withholding and CAT relief based on a

risk of future persecution and torture by his father and the

Los Zetas cartel, of which his father is a member.

The record does not compel reversal of the agency’s

denial of G.C.’s claims for withholding and CAT relief.

1

Because the court previously granted (Dkt. No. 27) Petitioner’s motion

to use a pseudonym (Dkt. No. 26) in any written decision of the court,

this opinion refers to him simply as “G.C.”

G.C. V. GARLAND 5

First, the BIA did not abuse its discretion in determining that

G.C.’s assault conviction constituted a particularly serious

crime, which rendered him ineligible for withholding relief.

See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077–78

(9th Cir. 2015). For that reason, we need not consider G.C.’s

challenges to the BIA’s alternative holding that his

withholding claim failed on the merits. And as for his CAT

claim, substantial evidence supports the BIA’s conclusion

that G.C. has failed to show his father would “more likely

than not” torture or kill him upon his return to Mexico. See

Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1023–24 (9th

Cir. 2023). We thus deny G.C.’s petition for review.

I. Background

A. Events Leading Up to G.C.’s Removal Proceedings

G.C. is a native and citizen of Mexico. He was born in

1995 and entered the United States without valid entry

documents shortly thereafter, sometime in 1996. He has

resided in the United States ever since. For much of his

childhood G.C. had no lawful status in the United States, but

in 2012 he obtained lawful permanent residency after filing

a Special Immigrant Juvenile petition.

In February 2018, G.C. was convicted of petty theft

under California Penal Code §§ 484(a)–488 and sentenced

to 10 days’ imprisonment. Later that year, he was charged

with felony assault with force likely to produce great bodily

injury under California Penal Code § 245(a)(4). He pled

guilty and was sentenced to 270 days in county jail and 3

years of probation. In December 2018, the Department of

Homeland Security served him with a notice to appear

charging him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(ii) as an alien “convicted of two or more

6 G. C. V. GARLAND

crimes involving moral turpitude, not arising out of a single

scheme of criminal misconduct.”

G.C. initially appeared before an Immigration Judge

(“IJ”) pro se. But after an inquiry into his competency

pursuant to Franco-Gonzalez v. Holder, No. CV-10-02211,

2014 WL 5475097 (C.D. Cal. Oct. 29, 2014), the IJ

appointed a qualified representative to represent him during

the remainder of the removal proceedings. Through his

qualified representative, G.C. contested removability. After

a contested removal hearing, the IJ sustained the charge

based on his underlying theft and assault convictions.

G.C. then applied for asylum, withholding of removal,

and CAT relief, arguing that he has a well-founded fear of

future persecution and torture upon his return to Mexico

arising from several sources, including (1) the police, (2) his

now-deported father and the Los Zetas cartel, (3) other

cartels, and (4) Mexico’s inadequate psychiatric facilities.

He also claimed membership in three different proposed

classes of particular social groups (“PSGs”): (1) “Sons of

[G.C.’s Father],” (2) “Mexican Criminal Deportees with

Visible Markers of Gang Membership,” and (3) Mexicans

with Perceptible Mental Illness.”

In support of his application, G.C. offered (1) his own

testimony, (2) the testimony of his mother, (3) the testimony

of an expert witness, Dr. Robert Kirkland, (4) a

psychological evaluation produced by a licensed clinical

social worker, Deana Gullo, and (5) various declarations

from friends and family members. The IJ found that G.C.,

his mother, and Dr. Kirkland all testified credibly, and the

BIA did not disturb those credibility determinations.

After arriving in the United States, G.C. lived with his

mother and sporadically with his father, who was in and out

G.C. V. GARLAND 7

of prison during his childhood. His father physically,

emotionally, and sexually abused G.C. and his siblings. He

was particularly abusive toward G.C. He made fun of G.C.’s

learning and speech disabilities, forced him to use drugs and

to steal, molested him, and regularly called him vulgar

names—notably for present purposes including the word

“bitch.”

Though G.C.’s family left Mexico to escape the threat of

violence caused by his father’s involvement with Los Zetas,

his father remained involved with gangs and selling drugs in

the United States. When G.C. was 14, his father was

deported for drug offenses to Mexico, where he remains a

member of the Los Zetas cartel. G.C. has not seen his father

since his father’s arrest and deportation.

Though his father has not abused him since he was

deported, G.C.’s mental health has suffered because of the

abuse he suffered in childhood. He has regularly used drugs

and has attempted suicide several times. At one point he

belonged to a gang. Gullo, the licensed clinical social

worker who examined G.C., diagnosed him with

Post-Traumatic Stress Disorder (PTSD), Major Depressive

Disorder, Unspecified Schizophrenia Spectrum and Other

Psychotic Disorder, Specific Learning Disorder, and Opioid

Use Disorder. The record elsewhere indicates a prior

diagnosis for Bipolar Disorder. He suffers from panic

attacks, sees shadows, and experiences auditory

hallucinations of his father repeating insults from his

childhood. These symptoms persist regardless of whether

G.C. takes his prescribed medication. G.C.’s childhood

history of abuse has led to anger-management issues, and he

responds poorly to being called names his father once called

him, including the “b-word.”

8 G. C. V. GARLAND

The parties dispute the extent to which this evidence of

G.C.’s mental health and anger-management issues is

relevant to analyzing whether his 2018 assault conviction

constitutes a particularly serious crime. G.C., who was

homeless at the time of the assault, was drinking and doing

drugs with two other men on the roof of a parking garage. 2

One of the men called him a “bitch,” and in response, G.C.

“snapped,” “blacked out,” and “started just beating him up.”

G.C. testified that he punched the man, knocking him over,

and continued to kick him after he had fallen to the ground.

A police report of the incident corroborates this testimony,

noting that G.C. continued to kick or knee the victim in the

head from behind after he had fallen over. G.C. was under

the influence of drugs at the time of the assault.

B. G.C.’s Fear of Harm Upon Returning to Mexico

The evidence regarding G.C.’s father’s intentions toward

him is mixed. G.C. and his family believe that his father

resides in the Tijuana area and remains an active member of

the Los Zetas cartel. In his declaration, G.C. stated that

during his childhood his father repeatedly threatened to kill

him, but he has obviously never followed through on such

threats. G.C.’s mother and brother testified that his father

has made more recent death threats toward G.C. since his

deportation. On the other hand, G.C.’s mother testified that

on at least one occasion, G.C.’s father expressed a desire to

help him, but his mother explained she did not believe his

father’s offer to help given his continued involvement with

the cartel and the prior death threats.

As further evidence of his father’s hostility, G.C. noted

that his father recently orchestrated an assault on G.C.’s

2

His mother had kicked him out of her home due to his drug use.

G.C. V. GARLAND 9

maternal grandmother, who lives in Mexico. G.C.’s mother,

however, attributed the assault to his father’s motivation to

force her to reunite with him, not to any hostility toward G.C.

Overall, the record is not entirely clear regarding who in

G.C.’s family his father seeks to harm and what his motives

are for doing so.

Should he be deported, G.C. and Dr. Kirkland anticipate

that his father will easily be able to determine G.C.’s

whereabouts because the United States shares information

about criminal deportees with the Mexican government, and

Los Zetas is readily able to obtain such information through

its government contacts. Cartels like Los Zetas are

particularly active around Tijuana and other ports of entry,

and Los Zetas has “a strong presence in about 17 Mexican

states—or half the country.” Moreover, G.C. has visible,

gang-related tattoos, and he testified that other cartels will

associate him with his father and the Zetas because (1) his

last name is uncommon and therefore recognizable and

(2) his father is well known.

The evidence regarding resources available to G.C. to

mitigate these risks is also mixed. On one hand, Kirkland

testified that G.C. may have a difficult time obtaining police

protection because of his criminal record and because he will

not have lived in Mexico for a long time after his

deportation. But on the other hand, Kirkland testified that

the Mexican National Guard and federal police have made

“significant … improvement” in combatting cartel violence,

and that the government is not “inept” in dealing with the

problems posed by cartels.

Additionally, there are nonprofit organizations operating

on the border that offer recent deportees temporary shelter

and protection from the cartels, and the Mexican government

10 G. C. V. GARLAND

has both a national healthcare system and programs in place

providing financial assistance and identification documents

to help repatriate deportees into Mexican society. Finally,

though most of G.C.’s immediate family lives in the United

States, he does have “some extended family” in Mexico.

C. The IJ’s Decision

The IJ denied G.C.’s application. First, the IJ concluded

that G.C. was ineligible for asylum and withholding because

his conviction for assault with force likely to produce great

bodily injury qualifies as a particularly serious crime. See 8

U.S.C. § 1158(b)(2)(A)(ii); id. § 1231(b)(3)(B)(ii). To

support that conclusion, the IJ considered the elements of the

offense, the length of the sentence and the maximum

sentence that could have been imposed, and the facts and

circumstances underlying the conviction, including evidence

that G.C. was under the influence at the time of the offense

and continued to assault the victim after he had fallen to the

ground. The IJ also considered and rejected the possibility

that certain mental conditions brought on by his history of

abuse mitigated his responsibility for the assault.

The IJ alternatively concluded that G.C. was ineligible

for asylum because he had not established past persecution

or a well-founded fear of future persecution. The IJ first

concluded that G.C. had not alleged any past persecution in

Mexico and thus was not entitled to the presumption of

future persecution. The IJ then concluded G.C.’s proposed

PSGs were not cognizable because they lacked either social

distinction, particularity, immutability, or some combination

G.C. V. GARLAND 11

of the three. 3 The IJ also rejected G.C.’s claims of a well-

founded fear of future persecution because he failed to

demonstrate that the Mexican government would be

unwilling or unable to protect him or that internal relocation

within Mexico was unreasonable. And because G.C. was

unable to meet the “lesser” “well-founded fear standard for

asylum,” the IJ concluded that G.C. had not met the “more

stringent” “clear probability standard required for

withholding of removal.”

Finally, G.C. put forth two “chains of possible events”

underlying his fear of future torture in Mexico, and the IJ

rejected both. First, the IJ rejected G.C.’s argument that it

was more likely than not his father would torture him

because it concluded that his father’s motives were unclear

and that even if his father intended to harm him, there was

insufficient evidence that the Mexican government would be

unwilling or unable to control his father. Then, it rejected

G.C.’s argument that he would be tortured in a Mexican jail

or mental institution, and G.C. did not press this theory

before the BIA. 4

D. The BIA’s Decision

G.C. appealed the IJ’s decision, and the BIA dismissed

his appeal. It concluded that the IJ’s particularly serious

3

Because the BIA did not consider the IJ’s analysis of G.C.’s proposed

PSGs to affirm the denial of relief, we also do not assess the proposed

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

(“In reviewing the BIA’s decisions, we consider only the grounds relied

upon by that agency.”).

4

The BIA thus considered this “second possible chain of events” waived,

and because that theory was not exhausted before the agency, G.C.’s

CAT claim before this court is limited to the risk of future torture by his

father. See Wilkinson, 988 F.3d at 1142.

12 G. C. V. GARLAND

crime determination was not clearly erroneous for two

reasons. First, the IJ properly weighed the factors set out in

Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), and

second, the IJ’s view of the facts underlying the offense—

including its conclusion that G.C.’s mental health did not

mitigate his responsibility for the assault—was “based on a

plausible and reasonable view of the evidence.” The BIA

also agreed with the IJ’s alternative denial of asylum and

withholding, affirming the IJ’s conclusions that (1) “the

government of Mexico would not be unwilling or unable to

protect [G.C.] from his father or the cartel members,” and

(2) “[G.C.] did not meet his burden of showing that

relocation to another part of the country was not reasonable.”

Finally, the BIA affirmed the denial of CAT relief, finding

no clear error in the IJ’s factfinding as to G.C.’s father’s

intent to torture G.C. in the future or the Mexican

government’s ability and willingness to control him.

G.C. petitioned this court for review.

II. Jurisdiction and Standards of Review

At the outset, while the parties agree this court has

jurisdiction to review G.C.’s petition, they disagree as to the

proper basis for that jurisdiction. Their disagreement hinges

on the legal basis for G.C.’s removability. G.C. asserts that

he was charged with removability as an aggravated felon

under 8 U.S.C. § 1227(a)(2)(A)(iii), meaning this court lacks

jurisdiction to consider his petition under 8 U.S.C.

§ 1252(a)(2)(C). G.C. thus resorts to the saving clause in

8 U.S.C. § 1252(a)(2)(D) to preserve jurisdiction over the

issues raised in his petition.

For its part, the government contends that G.C. was

removable under 8 U.S.C. § 1227(a)(2)(A)(ii). This court

lacks jurisdiction to review petitions brought by aliens

G.C. V. GARLAND 13

removable under § 1227(a)(2)(A)(ii) only when both crimes

are punishable by a sentence of one year or longer. 8 U.S.C.

§ 1252(a)(2)(C); id. § 1227(a)(2)(A)(i)(II). Because G.C.’s

petty theft conviction was punishable by a maximum of six

months imprisonment, see Cal. Penal Code § 490, the

government argues that review is not precluded by

§ 1252(a)(2)(C).

The government is correct. Contrary to G.C.’s argument

that he was deemed removable because of an aggravated

felony, the record indicates that he was both charged with

removability and found removable for two crimes involving

moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). Thus, 8

U.S.C. § 1252(a)(2)(C) does not pose a barrier to reviewing

G.C.’s petition, the court has jurisdiction under § 1252(a)(1),

and there is no need to resort to the saving clause in

§ 1252(a)(2)(D) as G.C. suggests.

Our jurisdiction established, G.C. next argues that the

BIA erred in denying his application for three reasons. First,

he argues the agency erred in conducting its particularly

serious crime analysis by failing to consider all the evidence

of G.C.’s mental health and by applying an overly restrictive

legal standard to that portion of the mental health evidence it

did consider. Second, he contends the BIA wrongly rejected

his withholding claim on an alternative basis because it failed

to consider whether the government of Mexico can control

G.C.’s father and Los Zetas, ignored evidence that it is

unwilling to do so, and failed to apply the mandatory

regulatory factors in 8 C.F.R. § 1208.16(b)(3) when

determining whether relocation was reasonable. Finally, he

argues the agency wrongly denied CAT relief because it

ignored evidence demonstrating it is more likely than not that

14 G. C. V. GARLAND

he will be tortured with the acquiescence of the Mexican

government. 5

While a claim that the BIA applied the wrong legal

standard in determining whether a conviction constitutes a

particularly serious crime raises a question of law, see

Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir.

2018), this court reviews the BIA’s determination that a

crime is particularly serious for abuse of discretion. Arbid v.

Holder, 700 F.3d 379, 383 (9th Cir. 2012). The court

reviews the agency’s fact-finding “under the highly

deferential substantial evidence standard,” which treats an

agency’s findings of fact as conclusive unless “any

reasonable adjudicator would be compelled to conclude to

the contrary.” Rodriguez-Zuniga, 69 F.4th at 1016 (citation

omitted). Applying these standards, we conclude that none

of G.C.’s arguments merit granting his petition.

III. The Agency’s Particularly Serious Crime

Determination

We first conclude that the BIA neither applied the wrong

legal standard nor abused its discretion in concluding that

G.C.’s assault conviction was a particularly serious crime.

Aliens “convicted of particularly serious crimes … are

barred from obtaining withholding of removal.” Gomez-

Sanchez, 892 F.3d at 990; see also 8 U.S.C.

§ 1231(b)(3)(B)(ii). While an aggravated felony punishable

by five or more years imprisonment is categorically a

particularly serious crime, the BIA may also conclude on a

case-by-case basis that a crime punishable by less than five

5

Because G.C. has not challenged the BIA’s decision to uphold the IJ’s

denial of asylum relief before this court, that claim is waived. See

Antonio v. Garland, 58 F.4th 1067, 1072 n.7 (9th Cir. 2023).

G.C. V. GARLAND 15

years imprisonment is particularly serious. Id.

§ 1231(b)(3)(B); see also Blandino-Medina v. Holder, 712

F.3d 1338, 1344 (9th Cir. 2013) (“[T]he record in most

proceedings will have to be analyzed on a case-by-case

basis.” (quoting Matter of Frentescu, 18 I. & N. Dec. at

247)).

“The applicable legal standard to determine if a crime is

particularly serious, described in the BIA’s decision in

Matter of Frentescu, … requires the agency to ask whether

‘the nature of the conviction, the underlying facts and

circumstances[,] and the sentence imposed justify the

presumption that the convicted immigrant is a danger to the

community.’” Avendano-Hernandez, 800 F.3d at 1077

(quoting Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir.

2011) (en banc)). When reviewing for abuse of discretion,

the court “is limited to ensuring that the agency relied on the

appropriate factors and proper evidence to reach [its]

conclusion.” Id. (cleaned up). Among the underlying facts

and circumstances relevant to the conviction is “the

defendant’s mental condition at the time of the crime.”

Gomez-Sanchez, 892 F.3d at 996.

Here, both the IJ and the BIA explicitly considered the

factors laid out in Frentescu. 6 The IJ considered the nature

of the conviction by examining the elements of the crime,

noting that it required both the willful use of force against

another and a degree of force likely to cause great bodily

6

“Where, as here, the BIA agrees with the IJ’s reasoning, we review both

decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir.

2018).

16 G. C. V. GARLAND

injury. 7 Regarding G.C.’s sentence, the IJ concluded that

“270 days in county jail and three years of probation is [] a

weighty sentence” and noted that the statute authorized even

harsher penalties of several years’ imprisonment. Finally,

the IJ considered the underlying facts and circumstances,

noting that G.C. continued to attack the victim even after he

had fallen to the ground and was under the influence of drugs

and alcohol at the time of the offense. The BIA found no

clear error in the IJ’s factfinding as to any of the Frentescu

factors and incorporated the IJ’s particularly serious crime

analysis into its decision.

Additionally, both the IJ and the BIA relied on

appropriate evidence in conducting their analyses, including

evidence of G.C.’s mental illnesses. The record reflects that

the IJ and the BIA considered evidence that G.C. was

suffering from PTSD at the time of the assault and the

absence of any evidence that G.C. was experiencing

hallucinations that might have motivated his actions. G.C.

now objects to the fact that the agency did not consider such

evidence sufficient to mitigate the violent nature of the

underlying offense, but this court “may not reweigh the

evidence and reach [its] own determination about the crime’s

seriousness.” Avendano-Hernandez, 800 F.3d at 1077.

G.C. faults the IJ and the BIA for considering only his

PTSD diagnosis and not his accompanying diagnoses for

Major Depressive Disorder, Unspecified Schizophrenia

Spectrum and Other Psychotic Disorder, and Bipolar

7

Although the IJ incorrectly asserted that the elements of the crime alone

were sufficient to establish that G.C.’s offense was particularly serious,

contra Blandino-Medina, 712 F.3d at 1348, the BIA did not make the

same mistake, and the IJ nevertheless proceeded to analyze the other

Frentescu factors.

G.C. V. GARLAND 17

Disorder. But that argument is unconvincing because it fails

to accurately characterize the agency’s reasoning and would

require us to impose a non-existent legal requirement that the

agency must expressly consider every diagnosed mental

disorder no matter whether the applicant attributes his

offense to the diagnosis.

Even though the agency’s decisions expressly name only

G.C.’s PTSD diagnosis, the record does not support the

conclusion that the agency considered only that condition.

As G.C. himself acknowledges, both the IJ and the BIA

considered the absence of any hallucinations as a relevant

factor. Gullo’s report attributes G.C.’s hallucinations not to

his PTSD, but to his Unspecific Schizophrenia Spectrum and

Other Psychotic Disorder, and nowhere in her three-page

description of G.C.’s PTSD diagnosis did Gullo reference

G.C.’s hallucinations. Nor is there any indication, as G.C.

suggests, that the IJ and the BIA wrongly attributed the

hallucinations to the PTSD diagnosis. In short, there is no

reason to assume the agency arbitrarily limited its analysis

of G.C.’s mental health problems to PTSD.

Moreover, evidence of mental illness is only relevant to

the Frentescu analysis insofar as an applicant attributes the

offense to the illness. As this court has recently explained,

“Gomez-Sanchez did not impose a new standard that the IJ

must always reference a petitioner’s mental health in a

‘particularly serious crime’ determination. Rather, … the

consideration of mental illness anticipated by Gomez-

Sanchez is required only where the petitioner … presents …

evidence directly attributing the crime to his mental illness.”

Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021)

(cleaned up).

18 G. C. V. GARLAND

Here, G.C. attributed the attack directly to the victim

calling him a “bitch,” which has “special significance” to

him because “[t]hat’s the wor[d] that [his] dad used to use a

lot towards [him]” and which he testified caused him to

“snap,[]” “black[] out,” and attack the victim. The IJ’s

decision demonstrates that it clearly understood the

relevance of the victim’s verbal provocation given G.C.’s

history of abuse, as it explicitly made the connection

between the use of the word “bitch” and the “abuse [G.C.]

suffered as a child.” The agency then reasonably concluded

that while G.C. “snapped” and “blacked out,” there was no

evidence that reaction was caused by the auditory

hallucinations he sometimes suffered because of his past

abuse.

The agency thus considered G.C.’s mental illness

diagnoses insofar as G.C. suggested that such illnesses

motivated the assault, as Benedicto requires. It

acknowledged the potential that the illnesses might have

contributed to G.C.’s behavior, but stopped short of

concluding he was hallucinating, a factor which might have

mitigated the inference of dangerousness that could be

drawn from G.C.’s behavior. To the extent G.C. separately

relies on Gullo’s report, which lists his many diagnoses, to

argue that the agency must specifically mention each of his

diagnoses by name and then conduct a diagnosis-by-

diagnosis analysis of each one, we rejected such a proposal

in Benedicto, and we again refuse to impose any such

requirement on the agency here. See Benedicto, 12 F.4th at

1062.

Finally, notwithstanding G.C.’s assertions to the

contrary, neither the IJ nor the BIA invented “a non-existent

legal requirement that the [alien] experience hallucinations

during the crime” for his mental health conditions to

G.C. V. GARLAND 19

sufficiently mitigate the seriousness of a criminal

conviction. As this court noted in Gomez-Sanchez, the

“essential key” to the particularly serious crime inquiry is

dangerousness. 892 F.3d at 991 (citation omitted). As such,

the IJ as factfinder should “examine what he or she deems

reliable evidence of mental health and decide whether such

evidence bears on the dangerousness determination.” Id. at

994.

Against this legal backdrop, it is clear enough that the IJ

mentioned the absence of “any visual or auditory

hallucinations at the time of [the] offense” not for the

purpose of suggesting that such hallucinations are

categorically required for a mentally ill applicant to rebut a

particularly serious crime determination. Instead, the IJ

examined the “reliable evidence of mental health” available

in the record, id., and presumably concluded that, had there

been evidence G.C. was suffering from hallucinations, such

evidence might have been one reason to mitigate the

otherwise-violent nature of the offense. Mentioning the

absence of such evidence, then, does not imply that it is

always required—it merely acknowledges that no such

mitigating factor existed on this record.

Indeed, G.C.’s hair-trigger reaction to being called a

“bitch” only magnifies the danger he poses, given that he is

willing to commit assault likely to produce great bodily

injury over a relatively minor provocation. While the litany

of evidence detailing G.C.’s history of mistreatment and his

various diagnoses might make his behavior more

understandable in some sense or perhaps even less culpable

in a criminal case, “[t]he IJ is not retrying the question of

guilt.” Id. Instead, the IJ is concerned with determining how

the crime informs the issue of the applicant’s dangerousness.

Here the agency plausibly concluded that G.C.’s mental

20 G. C. V. GARLAND

illnesses do not render the assault a less reliable indicator of

G.C.’s dangerousness.

For these reasons, the BIA did not abuse its discretion in

concluding that G.C.’s assault conviction was a particularly

serious crime, and it did not commit legal error by expressly

mentioning only the most salient aspects of G.C.’s various

diagnoses of mental illness and concluding those facts did

not mitigate the underlying dangerousness of the offense he

committed. Because the agency’s particularly serious crime

determination means G.C. is “barred from obtaining

withholding of removal,” id. at 990, we proceed no further

in considering G.C.’s challenges to the agency’s rejection of

his withholding claim.

IV. The Agency’s Denial of CAT Relief

That leaves the BIA’s decision affirming the denial of

G.C.’s claim for CAT deferral. As an applicant for CAT

relief, G.C. “must prove [1] that it is more likely than not

that he … would be tortured if removed to the proposed

country” and “[2] that torture must be inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

Rodriguez-Zuniga, 69 F.4th at 1023 (cleaned up). G.C. must

meet his burden at both the likelihood-of-future-torture

prong and the acquiescence prong to demonstrate his

entitlement to relief. Failure at either step is fatal to his CAT

claim.

G.C. assigns two errors to the agency’s CAT analysis,

first criticizing its decision to ignore G.C.’s childhood

history of abuse because it occurred in the United States, not

Mexico, and then arguing the agency’s factfinding regarding

the likelihood of future torture and acquiescence of the

G.C. V. GARLAND 21

Mexican government were unsupported by substantial

evidence. Neither of these arguments is convincing.

A. The BIA did not err by discounting evidence of G.C.’s

history of abuse at the hands of his father during his

childhood in the United States.

G.C. first contends the agency erred by wrongly

discounting evidence of alleged “past torture” at the hands

of his father because such abuse occurred in the United

States, not Mexico. In G.C.’s view, “past torture” must

include abuse outside the proposed country of removal

because unlike 8 C.F.R. § 1208.16(b)(1)(i), which applies to

claims for withholding relief and requires evidence of “past

persecution in the proposed country of removal” (emphasis

added), the text of 8 C.F.R. § 1208.16(c)(3)(i) imposes “no

geographic limitation on past torture” for CAT claims.

In response, the government acknowledges the textual

difference between the two regulations but emphasizes that

the regulatory definition of “torture” requires that the torture

must occur with the acquiescence of the government to be

actionable under CAT. Because that is so, the government

argues, past torture in the United States does not fit the

regulatory definition of “torture” because such torture did

not and indeed could not occur with the acquiescence of the

Mexican government. Consistent with this view of the

relevant regulatory definitions, the government contends

that, practically speaking, “past harm in the United States

says nothing about the likelihood that the Mexican

government will acquiesce to severe harm in Mexico.”

We agree with the government’s interpretation of the

CAT regulations. Under 8 C.F.R. § 1208.18(a)(1),

“[t]orture is defined as any act by which severe pain or

suffering … is intentionally inflicted on a person … when

22 G. C. V. GARLAND

such pain or suffering is inflicted by, or at the instigation of,

or with the consent or acquiescence of, a public official

acting in an official capacity or other person acting in an

official capacity.” Because the regulatory definition of

“torture” itself explains that abuse must be sanctioned or

acquiesced to by an official of the country of removal to be

actionable under CAT, the textual distinction suggested by

G.C. between the withholding and CAT regulations is

ultimately a distinction without a meaningful difference. At

bottom, the CAT regulations require the same type of

connection between the abuse and the proposed country of

removal that the withholding regulations do, even if the

textual reason for that requirement is different in each

regulation.

Moreover, the government’s observation about the

relationship between the torture and the location in which the

torture occurs is also intuitively sensible and accords with

this court’s announced purposes for considering evidence of

past torture. See Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th

Cir. 2005) (“Past torture is the first factor we consider in

evaluating the likelihood of future torture because past

conduct frequently tells us much about how an individual or

a government will behave in the future.”). While G.C.’s

testimony about his father’s history of abuse might be some

evidence of his father’s intent to cause G.C. harm in the

future, it says nothing at all about his willingness to do so in

Mexico, in view of the threat of arrest or other legal action

by Mexican law enforcement, or about the Mexican

government’s willingness to acquiesce in such torture. And

as the regulatory definition of “torture” makes clear, both of

G.C. V. GARLAND 23

these elements are required for abuse or harm to qualify as

past “torture” under CAT. 8

G.C. contends that this court has already conclusively

resolved this question in his favor in Xochihua-Jaimes v.

Barr, 962 F.3d 1175 (9th Cir. 2020). But we are

unconvinced. Unlike G.C., who was abused entirely in the

United States, the past torture underlying the petitioner’s

CAT claim in Xochihua-Jaimes occurred in both Mexico and

8

Importantly, we do not understand our dissenting colleague to disagree

with this understanding of what 8 C.F.R. § 1208.18(a)(1) requires for

harm to rise to the level of “torture” for purposes of determining CAT

eligibility. The dissent does, however, argue that “significant past harm

is relevant to the likelihood of future torture when the perpetrator of that

harm is in the country of removal,” and thus the evidence of past harm

is “highly probative” and “cannot be so easily dismissed.”

It’s worth making two points about such reasoning. First, even if it is

true that the evidence of past harm is relevant—an issue which, as

explained below, we need not resolve here—it does not prove the agency

erred in concluding as a legal matter that G.C.’s father’s pattern of

harming him did not qualify as “past torture” and thus did not qualify for

the kind of privileged consideration it so often receives under this court’s

CAT precedents. See Nuru, 404 F.3d at 1218 (“[P]ast torture is

ordinarily the principal factor on which we rely when an applicant who

has previously been tortured seeks relief under [CAT].”).

And second, to the extent the dissent means to suggest that in this case

the agency altogether ignored the evidence of past harm—setting aside

whether such harm qualifies as “torture”—such a suggestion misreads

the IJ’s and the BIA’s decisions. The IJ recounted G.C.’s father’s sordid

history of abuse in detail, and later specifically noted the father’s past

death threats—many of which occurred during and formed a part of the

childhood history of abuse—as part of its fear-of-future-torture analysis.

Thus, just as the dissent correctly concludes “it is clear that the BIA was

aware of and considered evidence that G.C. suffered from several mental

health conditions,” there is likewise no reason to believe the agency

altogether failed to consider G.C.’s father’s past harmful behavior

toward him.

24 G. C. V. GARLAND

the United States. Id. at 1178–79. Thus, when we held “it

[wa]s likely she [would] be tortured again if returned to the

site of her prior suffering,” we obviously meant Mexico,

where some of the torture had already occurred. Id. at 1188

(emphasis added) (cleaned up). Because Xochihua-Jaimes

did not involve a petitioner whose abuse had occurred

exclusively outside of the country of removal, it does not

resolve the issue in G.C.’s favor. 9

We thus conclude the agency did not err by excluding

evidence of G.C.’s childhood history of abuse in the United

States from its analysis of the likelihood that G.C. will face

future torture after his removal to Mexico.

B. Substantial evidence supports the agency’s fact-

finding regarding the likelihood of future torture.

Finally, G.C. argues that the agency erred by discounting

evidence demonstrating that (1) G.C.’s father had a

continuing interest in him and (2) public officials in Mexico

will acquiesce in his torture. 10 Ultimately, these arguments

9

The dissent notes that the Xochihua-Jaimes court considered evidence

of past harm in Arizona and North Carolina as part of its fear-of-future-

harm analysis. That is true, but again, Xochihua-Jaimes was different

because there, the abuse that occurred in the United States was part of a

cross-border course of abuse that occurred in both Mexico and the United

States. And as already explained, there is no reason to believe here that

the BIA altogether disregarded G.C.’s father’s harmful behavior in the

United States. Instead, it simply (and correctly) concluded that such

behavior did not rise to the regulatory definition of past torture.

10

G.C. also challenges the BIA’s failure to consider the evidence G.C.

presented suggesting that he would be targeted by Mexican law

enforcement on account of his tattoos and history of gang membership.

But as noted above, G.C. waived that by failing to argue it before the

BIA. Therefore, we consider only the exhausted aspect of G.C.’s CAT

G.C. V. GARLAND 25

fail because substantial evidence supports the IJ’s

conclusion that there is not a greater than fifty percent

likelihood that G.C.’s father would kill or otherwise torture

him if he were removed to Mexico.

The IJ and the BIA relied on three facts in the record,

namely (1) the passage of time, (2) past unfulfilled death

threats, and (3) the lack of clarity regarding G.C.’s father’s

motives, concluding those facts “cast doubt upon the

likelihood that he would actually follow through with killing

or torturing [G.C.] now.” The BIA affirmed this finding, and

in our view, “[t]he record compels no different conclusion.”

Rodriguez-Zuniga, 69 F.4th at 1022.

In his opening brief, G.C. criticizes the IJ’s reliance on

the fact that past death threats went unfulfilled, arguing that

G.C.’s father “was physically incapable of acting on his

threats” “for the past fifteen years” because “he was either

in prison or deported to Mexico” during that time. G.C.

provides no evidence for the argument that his father was

never capable of following through on his death threats at

any time after making them, and given that G.C.’s father

threatened to kill him early in his childhood, it seems highly

improbable that his father had absolutely no opportunity to

act upon his threats—especially given the litany of other

abuses that G.C. testified his father was able to perpetrate.

Next, G.C. argues that the IJ’s reliance on his father’s

statement that he “wanted to help” him was misplaced

because his mother expressed that she did not believe G.C.’s

father’s offer of assistance was genuine. But even though

the agency deemed his mother’s testimony credible, her

claim, which is premised on the possibility of future torture perpetrated

by his father, not by government actors.

26 G. C. V. GARLAND

speculation as to his father’s motives is exactly that—

speculation—and while that speculation might reduce the

probative value of G.C.’s father’s statement, it does not

entirely negate the extent to which his father’s seeming

change in posture might inform his present motives. Put

another way, a reasonable adjudicator could continue to put

some evidentiary weight on G.C.’s father’s offer of

assistance notwithstanding his mother’s speculation as to its

authenticity and the other evidence in the record that weighs

against crediting the father’s statement. 11

Taken together, these facts cast sufficient doubt on

G.C.’s father’s present motives toward G.C. for us to

conclude that the record does not compel a conclusion

contrary to the BIA’s that it is not more likely than not that

G.C.’s father will seek to torture him upon his return to

Mexico.

In resisting that conclusion, the dissent relies at length on

other facts in the record, including (1) G.C.’s childhood

history of abuse, (2) his father’s continued involvement with

gangs, and (3) most importantly, a litany of dire predictions

from G.C.’s mother, brother, and former girlfriend about the

potential violence G.C. may face at his father’s hand. But

while such evidence could support the conclusion that it is

more likely than not that G.C.’s father would torture him

upon his return to Mexico, that is not the conclusion the BIA

reached, and the dissent’s privileging of such evidence

reveals the extent to which it misunderstands our task when

reviewing the agency’s decision for substantial evidence.

11

The dissent is thus clearly incorrect in insisting that “there is no

reliable evidence in the record contradicting the testimony that G.C.’s

father wants to kill G.C. and has recently threatened and targeted his

family.”

G.C. V. GARLAND 27

Our job “[u]nder that extremely deferential standard of

review” is not to “independently weigh the evidence and

reverse the agency” whenever we feel a different result is

more in line with the greater weight of the evidence. Kalulu

v. Garland, 94 F.4th 1095, 1099 (9th Cir. 2024); see also

Don v. Gonzales, 476 F.3d 738, 743 (9th Cir. 2007) (“The

approach taken in the dissenting opinion amounts to an

impermissible re-weighing of the evidence.”).

Our approach in Kalulu is instructive. There, the agency

“based its adverse credibility determination on … twelve

inconsistency and implausibility findings and

… [petitioner’s] demeanor during her hearing.” Id. at

1110. 12 Notwithstanding the fact that there was some

indication that at least some of the twelve inconsistency

findings were not reliable, our court rejected the petitioner’s

and a dissenter’s suggestions that “those inconsistencies and

her demeanor” should be “counterbalanced by other

consistencies in her testimony.” Id. at 1104. Instead, we

concluded that “at least four independent and supported

factual findings … together constitute[d] more than

substantial evidence supporting the agency’s credibility

determination,” notwithstanding other, credible testimony

that might have supported the agency reaching some other

conclusion. Id. at 1109. Like in Kalulu, where the mere

presence of some credible testimony did not undermine the

substantial evidence supporting an adverse credibility

12

While this case does not involve an adverse credibility determination,

it does involve other disputed factfinding, and this court reviews adverse

credibility determinations like any other factual finding. Chebchoub v.

INS, 257 F.3d 1038, 1042 (9th Cir. 2001) (“[W]e review the [BIA]’s

factual determinations—including its credibility findings … for

substantial evidence.),� superseded on other grounds by statute as stated

in Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010).

28 G. C. V. GARLAND

finding, here the presence of some evidence suggesting that

G.C.’s father may intend to torture him upon his return to

Mexico does not undermine the substantial evidence

supporting the agency’s contrary conclusion.

The dissent magnifies its misapplication of substantial

evidence review by engaging in the kind of reasoning that

once motivated this court to craft another of its misbegotten

and now-thoroughly rejected immigration rules: the

“deemed-true-or-credible rule.” Garland v. Ming Dai, 593

U.S. 357, 365 (2021). Under that rule, this court concluded

it “must assume that the alien’s factual contentions are true”

“in the absence of an explicit adverse credibility finding by

the agency.” Id. at 364 (alterations omitted) (quoting

Kataria v. INS, 232 F.3d 1107, 1114 (2000)). The dissent’s

reasoning here, which (1) repeatedly relies on the agency’s

conclusion that G.C.’s mother, brother, and expert witness

testified credibly and (2) wholly credits even the most

speculative aspects of their testimony, bears the indelible

mark of the now-defunct “deemed-true-or-credible rule.”

Essentially, the dissent reasons that because (1) the

witnesses testified credibly and (2) some aspects of their

testimony, if credited, would support G.C.’s claim for CAT

relief, the agency erred by failing to reach a conclusion

consistent with the testimony of such witnesses.

Take, for example, the dissent’s treatment of G.C.’s

brother’s testimony that he “wouldn’t last a week” in Mexico

or his mother’s testimony that she “d[id]n’t believe [his

father]” when “he said he wanted to help [G.C.]” “because

he told [her] on several occasions[] that he was going to kill

[G.C. and his siblings].” Regarding each of these

statements, the dissent’s approach would essentially force

the BIA to deem true the matter asserted—the speculation as

to how long G.C. would last after returning to Mexico or as

G.C. V. GARLAND 29

to his father’s motives—from the simple fact that the IJ

considered their testimony credible. But as the Supreme

Court explained in Ming Dai, that logical leap is

unwarranted. “It’s not always the case that credibility equals

factual accuracy, nor does it guarantee a legal victory.”

Ming Dai, 593 U.S. at 372.

The dissent attempts to distinguish its suggested

approach from the deemed-true-or-credible rule by noting

that here, the IJ expressly found that G.C. and his supporting

witnesses had testified credibility. But the dissent’s

approach is nonetheless premised on the same wrong logic

that animated our former rule. Like the deemed-true-or-

credible rule, the dissent wrongly conflates the testimony’s

credibility with its persuasiveness and advocates for a

standard more akin to the one we employ when reviewing

the allegations in a complaint on appeal that was dismissed

at the motion to dismiss stage. Such a standard “has no

proper place” here, where our review is supposed to be

exceedingly deferential towards the agency, not the

petitioner and his witnesses. Ming Dai, 593 U.S. at 365.

Nor do other, related provisions of the INA offer any

support for the dissent’s approach. As the statute elsewhere

describes an asylum petitioner’s evidentiary burden, “[t]he

testimony of the applicant may be sufficient to sustain the

applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the applicant’s

testimony is credible, is persuasive, and refers to facts

sufficient to demonstrate that the applicant is a refugee.” 8

U.S.C. § 1158(b)(1)(B)(ii) (emphases added). This

provision distinguishes between credibility and

persuasiveness and sends a clear message that credible

testimony may, but oftentimes may not, satisfy a petitioner’s

burden of proof. To put it another way, under the INA,

30 G. C. V. GARLAND

credible testimony does not suffice unless the IJ also finds

the testimony persuasive. See id.

It should thus come as no surprise that the Supreme

Court considered and rejected the exact kind of reasoning the

dissent now engages in by unanimously rejecting our

erroneous “deemed-true-or-credible” rule in Ming Dai.

Such a rule dramatically narrows the agency’s supposedly

wide factfinding discretion and presents it with a sort of

Hobson’s choice: either find the petitioner explicitly

noncredible and reject 100% of his testimony, or our court

would assume the agency accepted 100% of the petitioner’s

testimony as 100% true and persuasive. But Ming Dai

rejected this false dichotomy and made clear when “[f]aced

with conflicting evidence, it seems likely that a reasonable

adjudicator could find the unfavorable account more

persuasive than the favorable version,” and as here, rule

against the petitioner accordingly. Id.

Try as it might to avoid the comparison, the dissent’s

approach to the evidence in this record (both speculative and

otherwise) is ultimately objectionable for the same reason

that our old “deemed-true-or-credible rule” was: “Rather

than ask whether the agency’s finding qualifies as one of

potentially many reasonable possibilities, it gives conclusive

weight to any piece of testimony that cuts against the

agency’s finding.” Id. at 368. Such an approach is error

because it “mistakenly flips th[e] [extremely deferential

substantial evidence] standard on its head.” Id. Instead of,

as the dissent does here, searching the record for other

evidence that could reasonably support a conclusion other

than the one the agency reached, the “only question for

judges reviewing the BIA’s factual determinations is

whether any reasonable adjudicator could have found as the

G.C. V. GARLAND 31

agency did.” Id. (first emphasis in original, second emphasis

added).

***

The dissent is correct that there is evidence in the record

that could have supported the conclusion that G.C.’s father

still meant to harm him, had the agency made such a finding.

Both the dissent and G.C. seize on such evidence at length,

and each spills much ink recounting all the record evidence

that favors G.C. Such arguments do not guarantee G.C.

victory, however, as they serve only to demonstrate how the

agency could have potentially marshalled the evidence

differently to afford CAT relief to G.C. But that is not the

conclusion reached by the BIA, and as explained above, the

record does not compel a conclusion contrary to the one the

agency actually reached. See Rodriguez-Zuniga, 69 F.4th at

1016. The agency’s conclusion that there is not a greater-

than-50% likelihood that G.C.’s father will torture him upon

his return to Mexico is supported by substantial evidence,

and G.C.’s CAT claim thus fails under our well-established

standard of review applied properly. 13

V. Conclusion

While G.C. regrettably suffered serious abuses at his

father’s hand during his childhood, the agency did not err by

13

Because substantial evidence supports the agency’s conclusion

regarding the likelihood of future torture, we need not (1) address

whether substantial evidence also supports its conclusion that the

Mexican government would not acquiesce in such torture or (2) respond

to the dissent’s lengthy recounting of evidence suggesting the BIA could

have—but as discussed above, was not necessarily compelled to—

reached the opposite conclusion. Because failure at either step is fatal to

G.C.’s CAT claim, we need not proceed any further than G.C.’s failure

at the likelihood-of-future-torture prong of the analysis.

32 G. C. V. GARLAND

denying his claims for withholding and CAT relief. It did

not abuse its discretion by concluding that G.C.’s mental

illnesses and history of abuse did not mitigate his assault

conviction, nor did it devise and apply a new, overly

restrictive legal standard to the evidence of G.C.’s mental

illnesses. Moreover, because the definition of “torture” in

the CAT regulations expressly encompasses consent or

acquiescence by the government of the country of removal,

the agency did not err by excluding the past abuses G.C.

suffered in the United States from an analysis of past torture.

Finally, because a reasonable adjudicator could have

concluded based on (1) the passage of time, (2) the past

unfulfilled death threats, and (3) the conflicting evidence of

motive that G.C.’s father’s disposition toward him had

changed, we conclude that a “reasonable adjudicator would

[not] be compelled to” reach a conclusion “to the contrary”

of that reached by the agency in this case. Rodriguez-

Zuniga, 69 F.4th at 1016. We therefore deny G.C.’s petition

for review of his withholding and CAT claims.

PETITION DENIED.

G.C. V. GARLAND 33

SANCHEZ, Circuit Judge, concurring in part and dissenting

in part:

I concur with the majority that the Board of Immigration

Appeals (“BIA” or the “agency”) did not abuse its discretion

in concluding that G.C.’s assault conviction was a

particularly serious crime. Reading the record as a whole, it

is clear that the BIA was aware of and considered evidence

that G.C. suffered from several mental health conditions at

the time of the assault, but the agency concluded that the

evidence did not sufficiently mitigate its dangerousness

determination. See Gomez-Sanchez v. Sessions, 892 F.3d

985, 991 (9th Cir. 2018) (holding that “danger to the

community” is the “essential key” to a particularly serious

crime determination (citation omitted)). G.C. is therefore

statutorily barred from withholding of removal. See 8

U.S.C. § 1231(b)(3)(B)(ii).

I write separately because I would find that G.C. is

entitled to protection under the Convention Against Torture

(“CAT”). Contrary to the majority’s portrayal of the record,

the evidence is not “mixed” concerning the likelihood that

G.C. will be tortured if removed to Mexico. G.C.’s father is

a member of the notorious Los Zetas cartel—one of the

largest criminal syndicates in Mexico—and a violent drug

dealer who beat, burned, sexually assaulted, and threatened

G.C. with death throughout G.C.’s childhood. Testimony

from G.C.’s brother and mother, found credible by the

Immigration Judge (“IJ”), details several recent death threats

and acts of violence by G.C.’s father directed at G.C. and his

family. G.C also provided extensive country conditions

evidence and uncontroverted expert testimony establishing

that Mexican officials acquiesce to acts of violence by Los

Zetas cartel. The uncontroverted evidence of a

34 G. C. V. GARLAND

particularized risk of harm and extensive country conditions

and expert evidence compels the conclusion that G.C. is

likely to be targeted and tortured by his father upon his

removal to Mexico. We have granted several petitions for

CAT relief in situations like these involving targeted

violence by the Zetas cartel in Mexico. We should do the

same here. I respectfully dissent from the Court’s denial of

CAT relief.

I.

A person ineligible for withholding of removal remains

statutorily eligible to seek deferral of removal under Article

III of CAT. 8 C.F.R. § 1208.17(a). G.C. must prove that

upon his return to Mexico he “is more likely than not to be

tortured,” id., either “by, or at the instigation of, or with the

consent or acquiescence of a public official . . . or other

person acting in an official capacity,” id. § 1208.18(a)(1);

see also Avendano-Hernandez v. Lynch, 800 F.3d 1072,

1079 (9th Cir. 2015).

G.C. was born in Mexico in 1995 and came to the United

States at the age of one. In and out of prison during G.C.’s

childhood, G.C.’s father physically, emotionally, and

sexually abused G.C. and his siblings. G.C.’s father was

particularly abusive toward G.C. For more than a decade,

G.C.’s father burned him with cigarettes, beat him with

cables, groped his genitals, mocked his learning and speech

disabilities, forced him to use drugs and to steal, threatened

to kill him, and regularly showered him with insults,

including calling him “faggot” and “bitch.” The abuse ended

only when G.C. turned twelve and his father was arrested on

drug-trafficking offenses and later deported to Mexico.

The majority concludes that the “agency did not err by

excluding evidence of G.C.’s childhood history of abuse in

G.C. V. GARLAND 35

the United States from its analysis of the likelihood that G.C.

will face future torture after his removal to Mexico,”

reasoning that the harm does not qualify as “past torture”

under the CAT regulations. But this evidence cannot be so

easily dismissed. Even if the term “torture,” as defined in

8 C.F.R. § 1208.18(a)(1), contemplates that an act must

occur “with the consent or acquiescence of” a person acting

in an official capacity in the country of removal, significant

past harm is relevant to the likelihood of future torture when

the perpetrator of that harm is in the country of removal. The

CAT regulations provide that we must consider “all evidence

relevant to the possibility of future torture . . . , including,

but not limited to” evidence of “past torture.” See id.

§ 1208.16(c)(3) (emphases added). Evidence of significant

prior harm at the hands of a person now in the country of

removal informs the ultimate inquiry “whether it is more

likely than not that an applicant would be tortured in the

proposed country of removal.” Id. 1

We addressed a similar situation in Xochihua-Jaimes v.

Barr, 962 F.3d 1175 (9th Cir. 2020), where we granted

petitioner’s request for CAT deferral because the petitioner

would be removed to Mexico where her past abusers and

their relatives were living. Id. at 1188. The petitioner had

an abusive relationship with a man connected to Los Zetas,

and his nephew had attempted to sexually assault her in

North Carolina. Id. at 1179. The Department of Homeland

1

Rather than engage with the proper standard under CAT for evaluating

evidence of future torture, see 8 C.F.R. § 1208.16, the majority cites 8

U.S.C. § 1158, a provision that concerns whether “the applicant is a

refugee” in the asylum claim. Our review under the applicable CAT

regulations requires us to consider G.C.’s evidence of the substantial

likelihood of future torture and compels a result contrary to the one

reached by the BIA and the majority.

36 G. C. V. GARLAND

Security later deported the nephew to Mexico, and the

petitioner sought CAT deferral based on her belief that her

ex-partner’s “Zetas relatives in Mexico would torture and

murder” her and her child if removed to Mexico. Id. at 1180.

In assessing the likelihood of future torture, we evaluated

evidence of the rapes, beating, and death threat the petitioner

had experienced in Mexico. Id. at 1188. But we also

considered evidence of harm that occurred in the United

States, such as death threats the petitioner received from her

ex-partner’s Zeta relatives in Arizona and the attempted

sexual assault in North Carolina. See id. Similarly here, the

almost-daily beatings, sexual assaults, and frequent death

threats G.C. experienced from his father for more than a

decade of his childhood demonstrate a likelihood that G.C.

will be targeted for future violence in Mexico where his

father resides. See id. And as discussed below, the

likelihood that G.C will be murdered or tortured in Mexico

is greatly magnified by his father’s membership in Los

Zetas, a criminal organization with vast reach and influence

throughout Mexico. Like the BIA below, the majority errs

by excluding this highly probative evidence of past harm.

In addition, the agency’s factual findings concerning the

likelihood of future torture lack any evidentiary basis in the

record. As the majority notes, the agency concluded that

(1) the passage of time, (2) past unfulfilled death threats, and

(3) the lack of clarity regarding G.C.’s father’s motives “cast

doubt upon the likelihood that he would actually follow

through with killing or torturing [G.C.] now.”

The evidence compels a contrary conclusion. G.C.’s

father remains a member of Los Zetas cartel in Mexico and

continues to make death threats against G.C. to this day,

negating that the “passage of time” has had any material

effect on the intent of G.C.’s father to kill G.C. G.C.’s

G.C. V. GARLAND 37

brother submitted a declaration stating that in 2019, during

the pendency of G.C.’s immigration proceedings, he spoke

to their father who “said that he would kill [G.C.] if he is

deported to Mexico.” His brother added that he knows if

G.C. is deported, “he wouldn’t last a week.” G.C.’s mother

testified that when G.C.’s father spoke to their eldest son,

“Supposedly, he said he wanted to help [G.C.],” but she

“d[id]n’t believe him” “because he told [her] on several

occasions, that he was going to kill [G.C. and his siblings].”

G.C.’s former girlfriend also submitted a declaration that

G.C.’s father “has threatened to kill [G.C.] or any of his

siblings if they get deported.” She wrote that if G.C. “or any

of his other siblings fall onto the other side of the border,

they will get a bullet in their head.”

Like the agency, the majority erroneously relies on the

fact that G.C. remains alive to discount his father’s “past

unfulfilled death threats.” Death, however, is not a

requirement for obtaining CAT relief. We would never

review a CAT claim where a petitioner has shown “fulfilled

death threats” because the petitioner would already be dead.

G.C.’s father was physically incapable of acting on his

threats for the past fifteen years because he was either

imprisoned or deported to Mexico. The majority counters

that, when G.C. was a child, his father surely had the

capability and opportunity to kill him but did not do so. But

the extreme pain and suffering G.C. suffered as a child, when

his father did have access to him, exemplifies the likelihood

of future torture that we can prevent through granting CAT

relief.

Finally, the record is unequivocal as to G.C.’s father’s

willingness and ability to follow through on his threats. The

last time G.C’s parents were together, his father beat and

threatened to kill his mother, attempting to “stab [her in the

38 G. C. V. GARLAND

eye] with a knife.” G.C.’s father also hired two young

women in Mexico and sent them to Guadalajara to “beat . . .

up” G.C.’s maternal grandmother—G.C.’s only close

relative still living in Mexico. The attackers relayed the

message that G.C.’s father had “sent them [and] that he paid

them money to go and beat her” to “retaliate against” G.C.’s

mother.

That G.C.’s father may be motivated by many different

reasons to target G.C. only bolsters G.C.’s CAT claim.

G.C.’s brother stated that his father wants to kill G.C.

because he “hates” him and has always viewed him as

“stupid” and “slow.” G.C.’s former girlfriend stated that his

father wants to kill G.C. because he “thinks someone from

his family called the police on him.” G.C.’s mother testified

that his father would “seek vengeance” against G.C. “to

retaliate” against her for not getting back together with his

father. These multiple motives, rather than creating a

“mixed record,” underscore a clear desire by G.C.’s father to

target G.C. for violence or death. 2

II.

G.C. has also demonstrated through extensive country

conditions evidence and uncontroverted expert testimony

2

The majority spills considerable ink responding to a phantom argument

about the “deemed-true-or-credible rule.” That since-rejected rule

posited that “‘[i]n the absence of an explicit adverse credibility finding

[by the agency], we must assume that [the alien’s] factual contentions

are true’ or at least credible.” Garland v. Ming Dai, 593 U.S. 357, 364

(2021) (citations omitted). That rule has no application here because the

agency expressly found G.C., his mother, and his expert witness to be

credible. What the majority characterizes as my “reweighing evidence”

ignores that there is no reliable evidence in the record contradicting the

testimony that G.C.’s father wants to kill G.C. and has recently

threatened and targeted the family.

G.C. V. GARLAND 39

that Mexican public officials are likely to acquiescence to

future violence and torture by Los Zetas. “Public officials

acquiesce in torture if they: (1) have awareness of the

activity (or consciously close their eyes to the fact it is going

on); and (2) breach their legal responsibility to intervene to

prevent the activity because they are unable or unwilling to

oppose it.” Barajas-Romero v. Lynch, 846 F.3d 351, 363

(9th Cir. 2017) (citation and quotation marks omitted). Over

a decade ago, we held in another case involving torture by

Los Zetas in Mexico that “[m]any police officers are

‘involved in kidnapping, extortion, or providing protection

for, or acting directly on behalf of, organized crime and drug

traffickers.’” Madrigal v. Holder, 716 F.3d 499, 507 (9th

Cir. 2013) (quoting U.S. Dep’t of State, 2008 Human Rights

Report: Mexico (2009)). We affirmed these conditions in

2020, noting that “extensive country conditions evidence

indicat[es] the prevalence of acquiescence by public officials

in the torture committed by Los Zetas generally . . . .”

Xochihua-Jaimes, 962 F.3d at 1185.

The record in G.C.’s case demonstrates that these

country conditions have not changed since our holding in

Xochihua-Jaimes and Mexican public officials continue to

acquiesce to Los Zetas’ violent acts. A 2018 State

Department Human Rights Report reiterated the findings

that some Mexican police officers at state and local levels

are “involved in kidnapping, extortion, and providing

protection for, or acting directly on behalf of, organized

crime and drug traffickers.” G.C.’s expert witness, Dr.

Robert Kirkland, testified that criminal-history information

sharing between the United States and Mexico “basically

warns the Mexican government of people [who] are

returning that . . . have this kind of record and [of] former

gang members, drug traffickers, et cetera.” Cartels such as

40 G. C. V. GARLAND

Los Zetas have “informants within the police, within the

security apparatus in Mexico and can access this data.”

Because G.C. has a criminal record and past gang

involvement, Mexican government officials will “be aware

of” G.C.’s deportation to Mexico, and Los Zetas—to include

G.C.’s father—will have access to this information. The IJ

found Dr. Kirkland’s testimony to be credible.

Relocation within Mexico will not mitigate the risk

posed by Los Zetas and G.C.’s father, who resides in the

vicinity of Tijuana. The record states that “[t]he Mexican

Defense Department [has] recognized [Los Zetas

paramilitary men] as ‘the most formidable death squad to

have worked for organized crime in Mexican history.’”

“[E]xtensive record evidence shows that Los Zetas operate

in many parts of Mexico, including states far away from

Veracruz and surrounding areas.” Xochihua-Jaimes, 962

F.3d at 1187 (internal quotation marks omitted). As in

Xochihua-Jaimes, the record here depicts “torture,

kidnappings, and murders by Los Zetas in numerous states

throughout Mexico.” Id.

The majority acknowledges that Los Zetas has “a strong

presence in about 17 Mexican states—or half the country,”

but as we recognized in Xochihua-Jaimes, “[n]either the IJ

nor the BIA cited any evidence that there are states in

Mexico where Los Zetas are unable to operate.” Id.

(emphasis added). As Dr. Kirkland testified, Los Zetas

“certainly can leverage . . . their informants within the

Mexican security apparatus to be able to find out where

[G.C.] lives in Mexico.” He further testified that it will be

“difficult [for G.C.] to hide” or “go to anyplace in Mexico

and not have . . . the cartels know where [he] live[s].” As a

member of Los Zetas cartel, G.C.’s father can locate and

target G.C. for violence anywhere in Mexico with the

G.C. V. GARLAND 41

cooperation or acquiescence of Mexican public officials.

Removing G.C. to Mexico collocates him with his abuser, a

man who possesses the intent, the capability, and now a

newfound opportunity to torture and kill G.C.

***

For the foregoing reasons, I would grant the petition and

remand for the agency to grant deferral of removal pursuant

to CAT because the record compels the conclusion that

Petitioner will more likely than not be tortured if removed to

Mexico. Xochihua-Jaimes, 962 F.3d at 1188; see also Haile

v. Holder, 658 F.3d 1122, 1133 (9th Cir. 2011) (“Because

the evidence [petitioner] presents compels but one

conclusion and is unrebutted, there is no reason to remand in

this case—we hold that [petitioner] is entitled to deferral of

removal under the CAT.”).