Ornelas-Chavez v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO ORNELAS-CHAVEZ, 

Petitioner, No. 04-72798

v.

 Agency No.

A96-106-917

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 7, 2005—Portland, Oregon

Filed August 21, 2006

Before: James R. Browning, Dorothy W. Nelson, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Browning;

Dissent by Judge O’Scannlain

9961

9964 ORNELAS-CHAVEZ v. GONZALES

COUNSEL

Elizabeth B. Wydra, Washington, DC, for the petitioner.

Carol Federighi, U.S. Department of Justice, Washington,

DC, for the respondent.

ORNELAS-CHAVEZ v. GONZALES 9965

OPINION

BROWNING, Senior Circuit Judge:

Francisco Ornelas-Chavez timely petitions this court for

review of a Board of Immigration Appeals (“BIA”) final

order affirming the Immigration Judge’s (“IJ”) denial of his

application for withholding of removal under the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), 8 U.S.C. § 1231(b)(3), and the United

Nations Convention Against Torture (“CAT”).1 He also

appeals the BIA’s denial of his due process challenge to the

proceedings before the IJ. Ornelas-Chavez claims (1) the BIA

erroneously required that he must have reported third-party

persecution to government authorities to qualify for withhold-

ing of removal under section 1231(b)(3); (2) the BIA erred in

denying protection under CAT by affirming the IJ’s decision

requiring that the alleged torture occur within the control or

custody of a state actor who “sanctioned” it; and (3) the IJ’s

stereotyping of the way gay men dress and behave prevented

him from receiving a fair hearing in violation of his due pro-

cess rights.

We have jurisdiction under 8 U.S.C. § 1252(a). We con-

clude the BIA applied the wrong legal standards to Ornelas-

Chavez’s claims for withholding of removal under IIRIRA

and CAT; therefore, we grant his petition with respect to

those claims. Because we remand to the BIA for application

of the correct standards, we do not reach his due process

claim.

1

Article 3 of CAT, implemented by the Foreign Affairs Reform and

Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, Div. G, 112 Stat.

2681, 2681-761 (Oct. 21, 1998), provides that a signatory nation will not

“expel, return[,] or extradite” an alien to another country “where there are

substantial grounds for believing that he would be in danger of being sub-

jected to torture.” See Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir.

2000).

9966 ORNELAS-CHAVEZ v. GONZALES

I.

Ornelas-Chavez is a Mexican national who came to the

United States illegally in 1998 to escape a lifetime of abuse

suffered on account of his female sexual identity.2

Ornelas-Chavez suffered a great deal of abuse in his youth

because of his homosexuality and female sexual identity. As

a young boy, his mother beat him for dressing in her clothes.

On several occasions, his father became so enraged at discov-

ering evidence of his homosexuality that he beat Ornelas-

Chavez savagely enough to leave noticeable injuries. Once,

his father conspired with a friend to humiliate Ornelas-Chavez

by permitting the friend to rape the boy after drugging him.

When Ornelas-Chavez was six, two cousins raped him after

seeing him dressed in women’s clothes and playing with

dolls. The cousins repeated this abuse until Ornelas-Chavez

was twelve years old. A worker on his grandfather’s hacienda

who witnessed the cousins’ abuse also raped him several

times between the ages of seven and nine. Ultimately,

Ornelas-Chavez fled his parents’ home and lived in hiding

from most of his family.

From his childhood through his adulthood in Mexico,

Ornelas-Chavez’s dealings with government officials and

employees was marked by either animus toward his female

sexual identity or tacit acceptance of the abuse he received

because of it. After he reported to his second-grade teacher

that his mother beat him for putting on her clothes, the teacher

told him only “fags” dressed up in women’s clothes. When he

told the teacher that he had performed sexual intercourse with

older men, she told him he “shouldn’t do that because only

homosexuals did that.” The teacher never reported the sexual

2

Because the IJ found Ornelas-Chavez’s testimony credible and the BIA

did not make a contrary finding, we accept the facts given by Ornelas-

Chavez and all reasonable inferences to be drawn from them as true. See

Zheng v. Ashcroft, 332 F.3d 1186, 1189 n.4 (9th Cir. 2003).

ORNELAS-CHAVEZ v. GONZALES 9967

abuse to the proper authorities. When Ornelas-Chavez was

sixteen, his father arranged to have the local police chief

arrest and detain him for six hours to “teach [him] to behave.”

(The father was apparently on close terms with the local

police, even renting a home to some of the officers.) Upon

releasing Ornelas-Chavez, the police chief threatened to

detain him longer if he found out again he was sexually

involved with men. In 1989 Ornelas-Chavez took a job as a

correctional officer at a state-run prison in Uruapan. Co-

workers there repeatedly threatened and beat him, telling him

that homosexuals discredited the work. Three times Ornelas-

Chavez complained to his supervisor who, instead of disci-

plining the co-workers, encouraged him to quit, saying the job

was “for men and not for homosexuals.” Ornelas-Chavez did

quit but, two years later, returned because he thought condi-

tions had improved. Soon after returning, however, four or

five of his co-workers tried to smother him with a pillow,

boasting they were “finally going to get rid of another homo.”

When he reported this incident to his new supervisor, the man

offered Ornelas-Chavez the choice of changing his shift or

quitting but, again, took no action against the co-workers.

Finally, while Ornelas-Chavez was living in Uruapan, the

police killed two of his acquaintances who were homosexuals.

The men were found stabbed to death with sticks inserted in

their rectums.

In 1993, Ornelas-Chavez went to live with a sympathetic

aunt in Mexicali. Though occasionally taunted in the streets,

Ornelas-Chavez was able to live there relatively free of trou-

ble for five years because he only went to work, otherwise

staying inside his aunt’s house. Then, in 1998, his father, who

had discovered his whereabouts, came to Mexicali and beat

him severely, breaking his nose with a bottle. Soon after,

Ornelas-Chavez left Mexico for the United States.

In July 2003, United States Immigration and Customs

Enforcement began removal proceedings against him.

Ornelas-Chavez then filed an application for asylum and with-

9968 ORNELAS-CHAVEZ v. GONZALES

holding of removal on the basis of a well-founded fear of per-

secution and torture on account of his female sexual identity.

At his removal hearing, the IJ held that Ornelas-Chavez

was ineligible for asylum because he failed to show excep-

tional circumstances for filing his application later than one

year after entering the United States. The IJ also found

Ornelas-Chavez failed to establish eligibility for withholding

of removal under IIRIRA and that he “provided no evidence

of past torture or any mental or physical intentionally inflicted

severe pain or suffering that is sanctioned by a public official

or by a State Actor.” Accordingly, the IJ denied the petition

for withholding of removal.

Ornelas-Chavez appealed the IJ’s withholding of removal

decisions to the BIA. He also claimed that the IJ’s hostile

comments and stereotypes about the way a gay man should

appear and sound prevented him from receiving a fair hearing.

In affirming the IJ’s section 1231(b)(3) decision, the BIA

found that Ornelas-Chavez

suffered one incident of harm, a detention of several

hours apparently at [the] request of his father, at the

hands of government agents. This single incident

does not rise to the level of persecution. All of the

other harm suffered by the respondent occurred at

the hands of private citizens. The respondent did not

report any of these incidents to government authori-

ties.

The BIA also found that some of Ornelas-Chavez’s extensive

documentation on the conditions of gay men in Mexico

described only general police abuse, not necessarily against

gay people, and some described only “individual incidents

that do not reflect a pattern in any particular police force.” It

further found that some of the documentation actually

reflected “improvements in the situation of gay people in

Mexico.” The BIA concluded:

ORNELAS-CHAVEZ v. GONZALES 9969

[W]here the respondent never reported his incidents

of harm to government authorities, and where the

background evidence in the record is inconclusive,

the Immigration Judge properly found that the

respondent did not prove that the Mexican govern-

ment is unwilling or unable to control those who

harmed or may harm him.

As to Ornelas-Chavez’s CAT claim, the BIA affirmed the IJ’s

decision in a one-sentence ruling. Finally, the BIA held that

Ornelas-Chavez did not establish a due process violation. This

timely petition for review followed.

II.

We review the BIA’s construction and application of the

law de novo, subject to established principles of deference.

See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.

2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999)).

We review the BIA’s determination that Ornelas-Chavez

did not establish eligibility for withholding of removal for

substantial evidence. Andrasian v. INS, 180 F.3d 1033, 1040

(9th Cir. 1999). We also review for substantial evidence “the

factual findings underlying the BIA’s determination that

[Ornelas-Chavez] was not eligible for relief under the Con-

vention Against Torture.” Zheng, 332 F.3d at 1193. The “sub-

stantial evidence” standard requires us to uphold the BIA’s

determination if supported by “reasonable, substantial, and

probative evidence on the record.” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (quotation marks omitted). However,

our review is “confined to the BIA’s decision and the bases

upon which the BIA relied.” Navas v. INS, 217 F.3d 646, 658

n.16 (9th Cir. 2000) (quoting Martinez-Zelaya v. INS, 841

F.2d 294, 296 (9th Cir. 1988)) (quotation marks omitted).

9970 ORNELAS-CHAVEZ v. GONZALES

III.

A.

Ornelas-Chavez claims the BIA applied the wrong legal

standard in determining that he was not eligible for withhold-

ing of removal based upon the alleged persecution he suffered

in Mexico at the hands of private persons. We agree.

[1] Under IIRIRA, Ornelas-Chavez may not be removed to

Mexico if his “life or freedom would be threatened . . .

because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A). Ornelas-Chavez is entitled to the presump-

tion that such a threat exists if he can show he suffered past

persecution on account of his membership in a protected

social group.3 See 8 C.F.R. § 208.16(b)(1)(I); Baballah v.

Ashcroft, 367 F.3d 1067, 1079 (9th Cir. 2004). “Persecution

may be inflicted either by the government or by persons or

organizations which the government is unable or unwilling to

control.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)

(quotation marks omitted). Ornelas-Chavez can meet his bur-

den either by offering credible and persuasive testimony, 8

C.F.R. § 208.16(b) (“The testimony of the applicant, if credi-

ble, may be sufficient to sustain the burden of proof without

corroboration.”), or by producing specific documentary evi-

dence to support his claim, see Al-Harbi v. INS, 242 F.3d 882,

891 (9th Cir. 2001) (holding that “documentary evidence per-

taining to the asylum applicant himself and to the events in

which he was involved . . . can independently establish facts

essential to . . . an asylum claim”).

In concluding that Ornelas-Chavez did not establish he was

3

Whether Ornelas-Chavez belongs to a protected social group is not at

issue in this appeal. See generally Hernandez-Montiel v. INS, 225 F.3d

1084, 1094 (9th Cir. 2000) (recognizing as a distinct social group “gay

men with female sexual identities in Mexico”).

ORNELAS-CHAVEZ v. GONZALES 9971

persecuted in the past by private parties the Mexican govern-

ment was unable or unwilling to control, the BIA cited only

two pieces of evidence: background country conditions and

Ornelas-Chavez’s failure to report the incidents to the authori-

ties.

[2] Evidence of background country conditions alone can-

not establish that specific acts of persecution did or did not

occur. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th

Cir. 1999). Its proper use is “to provide information about the

context in which the alleged persecution took place, in order

that the factfinder may intelligently evaluate the petitioner’s

credibility.” Id. Thus, the BIA’s decision could not properly

rest on this evidence unless it specifically held that some or

all of Ornelas-Chavez’s testimony was not credible in light of

the background conditions. But the BIA did not do so.

Because it made no adverse credibility finding, it was there-

fore required to accept Ornelas-Chavez’s testimony, and all

reasonable inferences to be drawn from it, as true. See Zheng,

332 F.3d at 1189 n.4.

Ornelas-Chavez offered testimonial evidence both at the

hearing and in his declaration supporting his asylum applica-

tion, which described his alleged persecution and, more

importantly, the indifference and danger that characterized his

dealings with government officials. While only a very small

boy, his teacher chastised him for suffering sexual abuse. At

his father’s bidding, his hometown police jailed him and

threatened to do so again if he continued dating men. His

supervisors at the Uruapan state prison refused to keep co-

workers from harassing him for being homosexual. Even in

Guadalajara, where Ornelas-Chavez for a short time per-

formed in transvestite shows, he had “to go out in the street

without any makeup . . . so [he was] not attack[ed] by the

police.” ER at 78. Indeed, when asked directly why he did not

report his alleged persecution to the police, Ornelas-Chavez

answered, “Because the same police mistreated you and har-

rasse[d] you. Even two of my friends were assassinated.” ER

9972 ORNELAS-CHAVEZ v. GONZALES

at 54. The latter statement refers to the Uruapan police’s bru-

tal maiming and murder of two of Ornelas-Chavez’s homo-

sexual friends. Although the BIA was required to accept all

this testimony regarding Ornelas-Chavez’s experience with

government authorities as true, its decision mentions only that

“the respondent never reported his incidents of harm to gov-

ernment authorities.”

We must therefore conclude that the only credible testimo-

nial evidence the BIA considered in determining that the

Mexican government was unwilling or unable to control

Ornelas-Chavez’s alleged persecutors was the fact that

Ornelas-Chavez did not report the incidents of abuse he suf-

fered to the police. Such treatment of the evidence was tanta-

mount to making the reporting of private persecution a sine

qua non for the success of Ornelas-Chavez’s withholding of

removal claim.

[3] Neither IIRIRA nor the regulations implementing it

require that an alien seeking withholding of removal based on

third-party persecution must have reported that persecution to

the authorities. In fact, any such requirement would contradict

the BIA’s own precedent. See, e.g., In re S- A-, 22 I. & N.

Dec. 1328, 1335 (BIA 2000) (holding that an applicant who

convincingly demonstrated that she “could not rely on the

authorities to protect her” from her father’s abuse and that, by

turning to governmental authorities for help, “her circum-

stances may well have worsened,” was not required to report

private persecution to government authorities to qualify for

asylum).

[4] Moreover, a reporting requirement conflicts with the

way this court has implicitly handled a petitioner’s evidence

of governmental unwillingness or inability to control private

persecution. It is true that “where non-governmental actors

are responsible for persecution . . . we consider whether an

applicant reported the incidents to police.” Baballah, 367 F.3d

at 1078. We do so “because in such cases a report . . . may

ORNELAS-CHAVEZ v. GONZALES 9973

show governmental inability to control the actors.” Id. But we

have never held, as the BIA essentially did here, that reporting

private persecution is a prerequisite for relief. Indeed, in

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004), a case

similar to this one, we stated that the imposition of a reporting

requirement “would indeed be troubling,” especially in light

of precedent documenting police abuse of men with female

sexual identities in Latin America and record evidence that

victims of rape generally under-report such crimes. Id. at 789

n.3. However, we declined there to decide whether imposing

a per se reporting requirement under section 1231(b)(3) was

improper because we granted the petition on other grounds.

See id. at 789. In contrast, in Castro-Perez v. Gonzales, 409

F.3d 1069 (9th Cir. 2005), we denied the petition of a young

Honduran woman who was raped twice by her boyfriend

because she had not carried her burden of showing the gov-

ernment was unable or unwilling to control her boyfriend’s

abusive conduct. Id. at 1070-72. But we reached this conclu-

sion both because she failed to report the rapes to government

authorities and because her reasons for not reporting them—

she believed “the police would not investigate a date rape, and

. . . she was afraid of how her father would react”—did not

compel our finding that “the Honduran government must bear

some responsibility for Castro-Perez’s rapes.” Id. In other

words, we denied her petition only after considering whether

she had provided sufficient evidence to justify not reporting

her alleged persecution to the authorities. Accord Boer-

Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005)

(considering, where petitioner claimed fear kept him from

reporting private persecution to the police, whether that fear

was reasonable under the circumstances).

[5] We now make explicit what was implicit in these earlier

cases: an applicant who seeks to establish eligibility for with-

holding of removal under section 1231(b)(3) on the basis of

past persecution at the hands of private parties the govern-

ment is unwilling or unable to control need not have reported

that persecution to the authorities if he can convincingly

9974 ORNELAS-CHAVEZ v. GONZALES

establish that doing so would have been futile or have sub-

jected him to further abuse.

Ornelas-Chavez argues that, when reviewed under the cor-

rect legal standard, the evidence in the record supports a find-

ing that he is entitled to withholding of removal under section

1231(b)(3). But where the BIA applies the wrong legal stan-

dard to an applicant’s claim, the appropriate relief from this

court is remand for reconsideration under the correct standard,

not independent review of the evidence. See INS v. Orlando

Ventura, 537 U.S. 12, 16-17 (2002); Azanor v. Ashcroft, 364

F.3d 1013, 1020-21 (9th Cir. 2004).

[6] Because the BIA improperly applied a reporting

requirement in its analysis of Ornelas-Chavez’s section

1231(b)(3) claim, we grant his petition on this claim and

remand to the BIA for reconsideration of the evidence under

the correct standard.

B.

The BIA rendered its CAT decision in a single sentence,

saying simply that it “agree[d] with the Immigration Judge

that the respondent did not prove that, if removed to Mexico,

he more likely than not will suffer torture as specifically

defined by regulation.” “[T]his court has required the Board

to ‘state its reasons and show proper consideration of all fac-

tors when weighing equities and denying relief.’ ” Hassan v.

INS, 927 F.2d 465, 467 (9th Cir. 1991) (quoting Mattis v. INS,

774 F.2d 965, 968 (9th Cir. 1985)). Where, as here, the BIA

does not expressly state whether it conducted de novo review

and the lack of analysis in its order suggests it gave signifi-

cant weight to the IJ’s decision, we will review the IJ’s deci-

sion “as a guide to what lay behind the BIA’s conclusion.”

Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000) (citing

Avetova-Elisseva v. INS, 213 F.3d 1192, 1196-97 (9th Cir.

2000) and Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.

1995)). But the BIA may not discharge the burden of support-

ORNELAS-CHAVEZ v. GONZALES 9975

ing its decision with a proper consideration of all factors by

adopting an IJ’s decision that is deficient. See Tukhowinich v.

INS, 64 F.3d 460, 465 (9th Cir. 1995).

The IJ concluded that Ornelas-Chavez did not meet his bur-

den of proof under CAT because the evidence did not estab-

lish that the government “sanctioned” his torture. This

decision is deficient, requiring us to remand, because the IJ

applied the wrong legal standard.

[7] To qualify for protection under CAT, Ornelas-Chavez

must establish that he suffered torture, i.e., severe pain or suf-

fering intentionally inflicted for discriminatory purposes “by

or at the instigation of or with the consent or acquiescence of

a public official or other person acting in an official capacity.”

See 8 C.F.R. § 208.18(a)(1). “Acquiescence of a public offi-

cial requires that the public official, prior to the activity con-

stituting torture, have awareness of such activity and

thereafter breach his or her legal responsibility to intervene to

prevent such activity.” 8 C.F.R. § 208.18(a)(7). In Zheng we

reversed a BIA decision interpreting the regulations imple-

menting CAT to require that public officials be “willfully

accepting of” torture. See Zheng, 332 F.3d at 1194. We held

they require only that government officials “turn a blind eye”

to the torture. Id. at 1196 (“The correct inquiry . . . is whether

a respondent can show that public officials demonstrate ‘will-

ful blindness’ to the torture of their citizens by third parties,

or . . . would turn a blind eye to torture.” (citations and quota-

tion marks omitted)). Because “sanction”4 connotes greater

volition and approbation than “acquiescence,”5 “awareness,”6

“willful blindness,”7 and even “willful acceptance,” the IJ

4

BLACK’S LAW DICTIONARY 1369 (8th Ed. 2004) (“To approve, authorize,

or support”).

5

Id. at 25 (“[T]acit or passive acceptance; implied consent to an act”).

6

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 81 (10th Ed. 1998)

(“[R]ealization, perception, or knowledge” and “vigilance in observing or

alertness in drawing inferences from what one experiences”).

7

BLACK’S LAW DICTIONARY 1630 (“Deliberate avoidance of knowledge

of a crime, esp[ecially] by failing to make a reasonable inquiry about sus-

pected wrongdoing despite being aware that it is highly probable.”).

9976 ORNELAS-CHAVEZ v. GONZALES

used a higher legal standard to assess Ornelas-Chavez’s CAT

claim than is permitted under the law.

The government claims the IJ’s “misstatement” of the law

was harmless because “none of the mistreatment of which

[Ornelas-Chavez] complains occurred by or at the instigation

of or with the consent or acquiescence of a public official

‘who ha[d] custody or physical control’ of him.” The govern-

ment relies on In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en

banc), for the proposition that 8 C.F.R. § 208.18(a)(1)

requires an applicant to have been in the custody or control

of a public official at the time of his torture. But we clearly

rejected that interpretation of the regulation in Azanor. See

364 F.3d at 1020. Therefore, we reject the government’s

harmless error claim.

[8] The dissent argues that the IJ’s “errant word choice”

amounts to harmless error since a closer inspection of the IJ’s

actual “mode of analysis” reveals that she did not review the

evidence under a different standard than the regulations dic-

tate. Dissenting Op. at 9990. The dissent bases this argument

on the IJ’s finding that Ornelas-Chavez “presented no evi-

dence that the authorities refused to protect him or that the

authorities did not protect him, since he never reported any of

these incidents to authorities.” But the dissent’s argument is

unpersuasive because the standard implicit in this finding is

also higher than that dictated by CAT.8 As indicated above,

the implementing regulations require an applicant to prove

that, before the alleged torture occurred, a public official had

“awareness of such activity and thereafter breach[ed] his or

her legal responsibility to intervene to prevent such activity.”

8

We also note that the IJ’s finding, which simply ignores Ornelas-

Chavez’s testimony, is unsupported by substantial evidence. Ornelas-

Chavez said at his hearing both that he told his second-grade teacher he

had sexual intercourse with a man and that he repeatedly told his supervi-

sor at the state prison that co-workers harassed and beat him because he

was gay. Thus, the record shows, in direct contradiction to the IJ’s finding

of fact, that Ornelas-Chavez did report his alleged torture.

ORNELAS-CHAVEZ v. GONZALES 9977

8 C.F.R. § 208.18(a)(7). With logic similar to that underpin-

ning the BIA’s section 1231(b)(3) decision, the IJ’s decision

rests on the unwarranted premise that the only way a public

official can have such awareness, and thus that the duty to

intervene can arise, is if the applicant reports the alleged tor-

ture to him. But, as with section 1231(b)(3), we have never

required that an applicant report his alleged torture to public

officials to qualify for relief under CAT. Indeed, in Zheng we

specifically held that CAT does not even require that a public

official have “actual knowledge” of the alleged torture. See

Zheng, 332 F.3d at 1196. It is enough that public officials

could have inferred the alleged torture was taking place,

remained willfully blind to it, or simply stood by because of

their inability or unwillingness to oppose it. See id. at 1195

n.8. By assuming in its analysis of Ornelas-Chavez’s CAT

claim that public officials must be informed of alleged torture

by the victim, the IJ imposed a higher burden of proof than

is permitted under CAT, and consequently her resulting deci-

sion was improper.

Like the dissent, we have our doubts about whether the

record evidence supports a claim for relief under CAT. But it

is not our job to make that determination. Our job is to ensure

that the IJ employed the proper legal standards in reaching her

decision and that her conclusions are supported by substantial

evidence. In performing this task, we are limited to “grant[-

ing] or deny[ing] the petition for review based on the [IJ’s]

reasoning rather than our independent analysis of the record.”

Azanor, 364 F.3d at 1021. With this restriction in mind, we

note what the IJ did not find. First, she did not specifically

find that the rapes or beatings Ornelas-Chavez suffered in his

youth failed to satisfy the high standard for torture as defined

in 8 C.F.R. § 208.18(a)(1). Second, the IJ did not specifically

find that those rapes and beatings, though they occurred when

Ornelas-Chavez was still a boy, failed to provide sufficient

support for the likelihood that he would be tortured if returned

to Mexico. Third, she did not find that either Ornelas-

Chavez’s teacher or his supervisor at the prison had not been

9978 ORNELAS-CHAVEZ v. GONZALES

informed of the alleged torture “prior to” its occurrence, as

required by 8 C.F.R. § 208.18(a)(7), such that she or he could

not have breached the “legal responsibility to intervene to pre-

vent such activity.” Fourth, she did not find that either the

teacher or the prison supervisor was not a “public official” to

whom this duty to intervene applied. The IJ did not make any

of these specific findings. Therefore, we cannot affirm the IJ’s

decision on any of these specific grounds, even if we believe

substantial evidence in the record supports them. See Navas,

217 F.3d at 658 n.16 (“[T]his court cannot affirm the BIA on

a ground upon which it did not rely.”). Instead, the IJ con-

cluded simply that Ornelas-Chavez failed to show that the

authorities “sanctioned” his alleged torture because he did not

report it. As discussed above, this conclusion, besides being

unsupported by substantial evidence in the record, misrepre-

sents the relevant legal standard.

[9] Because the IJ’s decision is fatally flawed, we must

reverse the BIA’s decision and remand. See Tukhowinich, 64

F.3d at 465. Again, whether the record establishes that

Ornelas-Chavez is eligible for withholding of removal under

CAT should be determined under the correct legal standard on

remand, not by our own independent review of the evidence.

See Azanor, 364 F.3d at 1020-21.

IV.

We hold that the BIA applied impermissibly strict stan-

dards to both Ornelas-Chavez’s section 1231(b)(3) claim and

his CAT claim. Accordingly, we grant Ornelas-Chavez’s peti-

tion for review and remand the case to the BIA for further

proceedings consistent with this opinion.

PETITION GRANTED IN PART, REMANDED.

ORNELAS-CHAVEZ v. GONZALES 9979

O’SCANNLAIN, Circuit Judge, dissenting:

In this case our modest task is to decide whether the Board

of Immigration Appeals’ (“BIA”) decision to deny Petitioner

Ornelas-Chavez’s claims was free of legal error and supported

by substantial evidence. Because neither sympathy for the

petitioner nor distrust of the BIA or the Immigration Judge

(“IJ”) should compromise a careful assessment of the admin-

istrative decisions and record evidence, I respectfully dissent.

I

First, the court holds that the BIA applied the wrong legal

standard to Ornelas-Chavez’s claim to withholding of

removal under 8 U.S.C. § 1231(b)(3) because it imposed a

strict “reporting requirement” to establish government perse-

cution. Maj. Op. at 9970-74. With respect, it did no such

thing.

A

Any fair reading of the BIA’s decision demonstrates that it

applied the proper legal standard. In relevant part, the BIA

stated:

The respondent suffered an incident of harm, a

detention of several hours apparently at this [sic]

request of his father, at the hands of government

agents. This single incident does not rise to the level

of persecution. All of the other harm suffered by the

respondent occurred at the hands of private citizens.

The respondent did not report any of these incidents

to government authorities.

. . . Accordingly, where the respondent never

reported his incidents of harm to government author-

ities, and where the background evidence in the

record is inconclusive, the Immigration Judge prop-

9980 ORNELAS-CHAVEZ v. GONZALES

erly found that the respondent did not prove that the

Mexican government is unwilling or unable to con-

trol those who harmed or may harm him.

(Emphasis added.) The majority, adopting Ornelas-Chavez’s

argument wholesale, seems to fixate on the last sentence of

the first quoted paragraph: “The respondent did not report any

of these incidents to government authorities.” Indeed, with

only a passing nod to the sentence’s context, the majority dis-

torts entirely the BIA’s reasoning.

The BIA did not apply nor did it adopt a strict “reporting

requirement.” True, it observed that there was no evidence

that Ornelas-Chavez reported the alleged incidents. However,

as the majority concedes, it then considered this dearth of evi-

dence in combination with the background country conditions

evidence, which failed to demonstrate a pattern of indiffer-

ence by the government. The BIA concluded, in light of these

categories of evidence, that the IJ could appropriately find

“that the respondent did not prove that the Mexican govern-

ment is unwilling or unable to control those who harmed or

may harm him.”

Under our circuit’s case law, this is an entirely proper mode

of analysis. The persecution of which Ornelas-Chavez com-

plains must be shown to have been perpetrated by the govern-

ment, or else Ornelas-Chavez must show that the government

“is unwilling or unable to control those elements of its society

responsible for targeting a particular class of individuals.”

Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000)

(citation and internal quotation marks omitted). Accordingly,

whether the petitioner has reported the incidents to the author-

ities is clearly relevant to, even if not dispositive of, the ulti-

mate question of whether the government was “unwilling or

unable to control” the persecutors. See, e.g., Baballah v. Ash-

croft, 367 F.3d 1067, 1078 (9th Cir. 2004) (citations omitted).

In this light, it is clear that the BIA’s consideration of gen-

eral country conditions stood to confirm its conclusion that

ORNELAS-CHAVEZ v. GONZALES 9981

Ornelas-Chavez did not meet his burden. That the BIA con-

sidered such background evidence itself conclusively demon-

strates that the inquiry was not terminated by any rigid

reporting requirement. Ultimately, I think it clear that the BIA

asked and answered the right question: whether Ornelas-

Chavez’s alleged persecutors were parties whom the Mexican

authorities were unwilling or unable to control. The BIA was

correct to treat Ornelas-Chavez’s failure to report the alleged

persecution as relevant to that question.

In arriving at its errant conclusion, the majority observes

that the BIA “cited only two pieces of evidence,” and since

one of them was inconclusive, it must have been improper

that the other—the alleged “reporting requirement”—was “a

sine qua non for the success of Ornelas-Chavez’s withholding

of removal claim.” Maj. Op. at 9971, 9972. But where, I won-

der, is the flaw in the BIA’s analysis?

Presumably Ornelas-Chavez had two options: to prove that

the government was unwilling or unable to control such per-

secution generally, or to prove that it was unwilling or unable

to control his persecutors specifically. See, e.g., Castro-Perez

v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (considering

country reports to determine whether the Honduran govern-

ment was willing or able to control rape generally, and con-

sidering the petitioner’s specific situation). Since Ornelas-

Chavez failed to do the former, to meet his burden it was nec-

essary that he have done the latter. And because there is little

other evidence in the record to suggest the government’s dis-

position towards Ornelas-Chavez’s particular troubles, the

BIA properly deemed rather important in this case—“a sine

qua non,” even!—that Ornelas-Chavez failed to report the

alleged abuse to government authorities.1 So, the majority

1

There is no evidence that the authorities had (or should have had)

knowledge of the rapes or beatings. Ornelas-Chavez presented evidence

that government officials witnessed a couple incidents of harassment, but

no incidents of persecution or torture.

9982 ORNELAS-CHAVEZ v. GONZALES

concedes that reporting vel non may be relevant, see Maj. Op.

at 9972-73; yet it grants the petition because in this particular

case the failure to report is too relevant.

The BIA did not, as the majority seems to suggest, improp-

erly consider background country conditions as “establish[-

ing] that specific acts of persecution occurred or did not

occur.” Maj. Op. at 9971. Although the BIA, having made no

adverse credibility determination, was required to accept

Ornelas-Chavez’s testimony as factually true, it was not

required to adopt his preferred legal conclusion: that the

authorities would not have acted to curb the persecution he

alleges took place. The background evidence in the record

was obviously relevant to the merits of that issue, and the BIA

was entitled, if not obligated, to consider it. See Castro-Perez,

409 F.3d at 1072; Avetova-Elisseva, 213 F.3d at 1198-99;

Andriasian v. INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999).2

The testimony provided by Ornelas-Chavez, while also rele-

vant, was evidence of an anecdotal, subjective variety and

thus not particularly probative. Indeed, the background evi-

dence substantially negates Ornelas-Chavez’s perception. See

infra section I.B.1.

Our standard of review in immigration cases is well-

established: we must affirm the BIA if the record contains

substantial evidence for its decision; we cannot justify grant-

ing the petition for review merely by pointing to other record

evidence which, in our own view, supports the alien’s claim.

See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).

The majority cannot say that Ornelas-Chavez’s testimony

compels a rational fact finder to conclude that the government

was unwilling or unable to control his alleged persecutors.

Thus, the majority opts for another, more innovative

approach: it holds that the BIA applied the wrong legal

2

The majority’s attempt to limit the use of background country condi-

tions evidence to credibility determinations, see Maj. Op. at 9971, is

entirely without authority.

ORNELAS-CHAVEZ v. GONZALES 9983

standard—simply because there exists supportive evidence

that the BIA failed explicitly to discuss. See Maj. Op. at 9971-

72. But Ornelas-Chavez’s testimony was not somehow legally

distinct from the balance of the record; it was merely addi-

tional evidence on the same “unwilling or unable to control”

question. Accordingly, the majority’s holding seems little

more than a willful circumvention of the Supreme Court’s

prescribed standard of review.

In short, the majority goes to great lengths to divine in the

BIA’s analysis some kind of per se rule, which it can then

merrily reject. As I have sought to demonstrate, such “report-

ing requirement” is of the majority’s own imagining. Surely

one may infer much from the typically brief text of an admin-

istrative decision—especially when one is all too eager to

conjure a meaning that will justify granting the petition for

review. Cf. Kumar v. Gonzales, 435 F.3d 1019, 1037 (9th Cir.

2006) (Kozinski, J., dissenting) (“[T]he majority picks apart

the [BIA’s] findings piece by piece, scrutinizing [its] every

sentence as if it is completely unconnected to the rest of the

opinion.”). Such creative invention, however, is not appropri-

ate to our role in reviewing the lawful adjudication of an

administrative body.

B

Had the majority given the BIA’s decision a fair reading,

it could not then hold that Ornelas-Chavez met his burden of

showing that the evidence would compel any reasonable fact

finder to conclude that he was more likely than not to suffer

persecution upon his return to Mexico. Singh v. INS, 134 F.3d

962, 966 (9th Cir. 1998).

1

There is no evidence of past persecution, as defined by the

regulations, in this case. The Mexican government was not

involved in any persecution of Ornelas-Chavez; the single,

9984 ORNELAS-CHAVEZ v. GONZALES

six-hour detention by a reluctant local police chief, at the

request of Ornelas-Chavez’s father, does not rise to that level.

See, e.g., Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995).

Critically, the evidence also falls short of compelling a

finding that any past private “persecution” at issue was perpe-

trated by parties whom the government was unwilling or

unable to control. Ornelas-Chavez has not “convincingly

established”—or proven by any standard—that his resort to

government authorities would have been futile. Cf. Korablina

v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998). As the BIA

found, the relevant background evidence is, at best, inconclu-

sive. Ornelas-Chavez relies on little more than a bare assump-

tion that the police would have done nothing had he reported

the abuse—a showing that we have previously deemed insuf-

ficient. See Castro-Perez, 409 F.3d at 1072.

The administrative record provides little support for

Ornelas-Chavez’s claim of past persecution. The evidence

regarding general country conditions, while perhaps revealing

societal disfavor of homosexuals, does not demonstrate that

the authorities would have been inattentive to the primary

incidents of persecution alleged here: the rape and physical

abuse of a young child. Even if the majority were willing to

overlook the relevance of Ornelas-Chavez’s age—allowing

him to gild his allegations in the armor of sexual orientation

and gender identity—there is no evidence in the record that

the Mexican authorities would have viewed the incidents in

similar terms and thus permitted the abuse.

Even assuming that a few individual police officers were

beholden to Ornelas-Chavez’s father because they rented a

house on his land, Ornelas-Chavez makes no allegation that

this potential bias somehow seeped into all (or even most)

persons holding Mexican authority. It is true that Ornelas-

Chavez’s teacher failed to take any action in response to his

allegations of sexual contact. But at best, this testimony estab-

lishes one teacher’s ineptitude; it does not compel a finding

ORNELAS-CHAVEZ v. GONZALES 9985

that the Mexican authorities generally would have been indif-

ferent to the rape of a young child.3 Lastly, I note that when,

at the prison at which he worked, Ornelas-Chavez informed

his supervisor of the abuse by his coworkers, the supervisor

exhibited a willingness to control the alleged conduct by

offering to adjust Ornelas-Chavez’s shift so that he could

avoid his would-be persecutors. Ornelas-Chavez cannot prove

that this measure would have been inadequate because he

chose to resign his employment. That the supervisor “took no

action against the co-workers,” Maj. Op. at 9967, is of little

relevance.

The various items of evidence Ornelas-Chavez put forth

fail to support his claim because his subjective perceptions of

government officials are not relevant—much less dispositive.

The critical inquiry as to government responsiveness is objec-

tive, and we have always considered the “unwilling or unable

to control” requirement in that context. See, e.g., Malty v.

3

Quite the contrary, the administrative record includes a U.S. Depart-

ment of State country report, dated March 31, 2003, which documents

extensive efforts by the Mexican government to promote the well-being of

the country’s children. The government has in place the National Institute

for the Integral Development of the Family, which fields complaints of

abuse against children. A 2000 law provides for imprisonment of up to ten

years for the sexual corruption of a minor under 16 years of age; parents

convicted of such crimes are stripped of custody over their children.

Accomplices to sexual abuse face similar prison terms. In 2000, the Mexi-

can Congress also passed a constitutional amendment “to protect the rights

of children and teenagers and ensure respect for their dignity.” Moreover,

the Protection of the Rights of Children and Adolescents Law “provides

for the right to life, nondiscrimination, healthy living conditions, protec-

tion against threat to liberty and physical abuse, a healthy family life,

health services, equal treatment for persons with disabilities, education,

pursuit of happiness, and freedom of thought and expression.” Penalties

for violation include fines and imprisonment.

The same State Department country report also documents ongoing

dangers faced by Mexico’s youth, but the record evidence falls far short

of compelling the conclusion that the government is “unwilling or unable

to control” persecution of the type primarily alleged here.

9986 ORNELAS-CHAVEZ v. GONZALES

Ashcroft, 381 F.3d 942, 948 (9th Cir. 2004). Ornelas-

Chavez’s personal belief that the relevant Mexican authorities

would have been unwilling to shield him from persecution is

grossly insufficient.

In sum, while I do not discount nor make light of the harms

Ornelas-Chavez has apparently suffered, I must also conclude

that the evidence does not compel a finding—as it must do

under our limited standard of review—that the harms were

occasioned by persons whom the government was unwilling

or unable to control.

2

Having failed to produce compelling evidence of past per-

secution by actors whom the government was unwilling or

unable to control, Ornelas-Chavez would not be entitled to a

presumption of future persecution. See 8 C.F.R.

§ 1208.13(b)(1). His claim to withholding of removal would

then fail if he also falls short of independently establishing a

clear probability of future persecution. See Lim v. INS, 224

F.3d 929, 938 (9th Cir. 2000).

a

On this record, there simply is insufficient showing that

homosexuals are currently subject to official persecution in

Mexico. The U.S. Department of State’s June 1997 country

report documented “no evidence of systematic official perse-

cution of homosexuals,” and Ornelas-Chavez’s other evidence

was not to the contrary. A report from a private group, dated

May 2000, stated that “repression by . . . authorities is now

the exception, not the rule,” and noted that societal attitudes

are trending towards tolerance.

The record evidence further demonstrates extensive legal,

political, and cultural advances by homosexuals in Mexico,

including the enactment of legislation prohibiting discrimina-

ORNELAS-CHAVEZ v. GONZALES 9987

tion on the basis of sexual orientation, wide acceptance of

participation by homosexuals in two of the three major politi-

cal parties, and the election of openly homosexual govern-

ment representatives. To the extent private persecution

occurs, the record suggests that the government’s response

has changed. One news report in the record, for example,

notes that the Mexico City police “have set up a unit special-

izing in dealing with homophobic crimes, and are to get sensi-

tivity training.”

b

Nor was the evidence so compelling that any rational fact

finder must conclude that Ornelas-Chavez, individually,

would more likely than not be subject to persecution by actors

whom the government was unwilling or unable to control. 8

C.F.R. § 1208.16(b)(1)-(2); see Sael v. Ashcroft, 386 F.3d

922, 925 (9th Cir. 2004); Hoxha v. Ashcroft, 319 F.3d 1179,

1185 (9th Cir. 2003). While the record reveals societal disfa-

vor of homosexuality generally, it exposes few incidents of

actual persecution. These general country conditions do not

compel reversal of the BIA. More directly, there is simply no

evidence that Ornelas-Chavez is likely to be singled out by

the government or by private forces whom the government is

unwilling or unable to control.4

Read as a whole, the record is not such that a reasonable

fact finder must conclude that Ornelas-Chavez is more likely

4

It is true that Ornelas-Chavez’s father may be the lone exception. But

the record discloses no evidence that his father is seeking him out for the

purpose of persecution such that it is likely to happen again. Cf., e.g.,

Mendoza-Perez v. INS, 902 F.2d 760, 762 (9th Cir. 1990). Since Ornelas-

Chavez reached adulthood, he has had only one run-in with his father.

This incident, a 1998 altercation, was an isolated occurrence; it took place

when the two encountered each other by chance at the home of Ornelas-

Chavez’s aunt. Ornelas-Chavez himself acknowledged living in Mexico

without incident for many years prior. As such, the incident does not com-

pel a conclusion contrary to the one reached by the BIA.

9988 ORNELAS-CHAVEZ v. GONZALES

than not to be persecuted in the future if he is returned to Mexico.5

I would affirm the BIA’s decision because it is supported by

substantial evidence.

II

I must also dissent from the majority’s holding that the BIA

applied an incorrect legal standard as to the level of govern-

ment involvement required for relief under the Convention

Against Torture (“CAT”). Maj. Op. at 9974-78. Again, the

majority’s reading of the relevant administrative decision is

partisan and inaccurate. Further, there is absolutely no evi-

dence of torture of homosexuals by the Mexican government

(or by private parties with the government’s consent or acqui-

escence) in this record. Random incidents of private violence

simply cannot support the notion that official torture of homo-

sexuals is systematic or even common. As such, the IJ’s deci-

sion on the CAT claim is supported by substantial evidence.

A

The applicable regulations define “torture” as “severe pain

or suffering, whether physical or mental” when intentionally

inflicted “with the consent or acquiescence of a public official

or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1) (emphasis added). In this case, the IJ found

5

The showing made by Ornelas-Chavez is not nearly as compelling as

those we have considered previously. In Boer-Sedano v. Gonzales, 418

F.3d 1082 (9th Cir. 2005), the petitioner presented evidence that he had

been raped repeatedly by a police officer. Id. at 1086. In Hernandez-

Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the petitioner was raped

twice by police officers. Id. at 1088. In the latter case, the petitioner pre-

sented expert testimony and documentation showing that the government

would not protect a particular subclass: gay men with female sexual iden-

tities. Id. at 1094. Of course, the Hernandez-Montiel case is six years old

—and much of the record evidence it cited is far older. The important

point, in any case, is that Ornelas-Chavez has not made a remotely similar

showing.

ORNELAS-CHAVEZ v. GONZALES 9989

that Ornelas-Chavez had “provided no evidence of past tor-

ture or any mental or physical intentionally inflicted severe

pain or suffering that is sanctioned by a public official.”

(Emphasis added.) The majority seizes upon the word “sanc-

tioned” to assert an erroneous application by the IJ of a legal

standard “higher” than that prescribed in the regulations. Maj.

Op. at 9975.

While the IJ may have employed imprecise diction in that

passage, the majority is again too keen to find fault in the

agency decision we now review. Earlier in its order, the IJ

explained, in part, that “[t]he Respondent presented no evi-

dence that the authorities refused to protect him or that the

authorities did not protect him, since he never reported any of

these incidents to the authorities.” Id. at 9976. This phraseol-

ogy indicates that the IJ considered whether the authorities

were aware of the alleged abuses such that they could possi-

bly “consent or acquiesce.” Thus, the IJ necessarily found that

Ornelas-Chavez’s evidence fell short of even the proper “con-

sent or acquiescence” standard. Although the word “sanc-

tioned” arguably suggests affirmative approval by the

government, there is no indication in the opinion that the IJ

actually reviewed the evidence for conduct beyond the gov-

ernment’s “tacit or passive acceptance” or “implied consent to

an act.” I also find it significant that the IJ’s errant word

choice was simply part of its summary declaration at the end

of the opinion, not in any way enmeshed in the actual analysis

of the facts.

There was not, as the majority suggests, implicit in the IJ’s

finding a standard “also higher than that dictated by CAT.”

Maj. Op. at 9976. In so asserting, the majority again lays bare

the analytical flaw that infects its entire opinion: it posits that

“the IJ’s decision rests on the unwarranted premise that the

only way a public official can have such awareness . . . is if

the applicant reports the alleged torture to him.” Id. at 9977.

Reporting is not the only way a public official can have such

awareness, but in this case there was absolutely no suggestion

9990 ORNELAS-CHAVEZ v. GONZALES

of an alternative. No government agent witnessed the alleged

torture; there was no suggestion that someone else may have

told the government about it; and there was insufficient evi-

dence that the government is willfully blind to such torture

generally. The IJ’s statement, read in context, was clearly an

assessment of the facts of this particular case. It was not an

erroneous, general statement of law upon which we could

grant the petition for review.

In sum, a fair reading of the decision leads to the conclu-

sion that the word “sanctioned” was inconsequential to the

analysis and ultimately harmless.6 Yet the majority excitedly

reverses the IJ on the CAT claim as if one errant word choice,

bereft of context and contained in a summary sentence, con-

stituted the smoking gun for which it was searching. See

Kumar, 435 F.3d at 1035 (Kozinski, J., dissenting) (“This is

the nub of the IJ’s reasoning, which the majority ignores, pre-

ferring to nitpick the IJ’s isolated statements.”). Rather than

condemn the IJ solely on the authority of Black’s Law

Dictionary and Merriam-Webster’s Collegiate, I would look

to the mode of analysis it actually employed. The IJ applied

the correct standard and committed no error of any conse-

quence to this case.

6

The majority rejects the harmlessness of the misstatement on the basis

of the government’s argument, under an invalidated BIA decision, that

Ornelas-Chavez must have been in the “custody or physical control” of a

public official. Maj. Op. at 9976. But the IJ never asserted that Ornelas-

Chavez must have been in the custody of a public official; rather, it

applied the correct legal standard—that he must have been in the custody

or physical control “of a perpetrator.” See Azanor v. Ashcroft, 364 F.3d

1013, 1019 (9th Cir. 2004) (citing 8 C.F.R. § 208.18(a)(6)). The majority,

it seems, has seized on the government’s curious argument in order to

engage in a bit of misdirection. Obviously the government’s litigation

position has nothing to do with the IJ’s analysis, which, I would have

thought, was the actual subject of our review.

ORNELAS-CHAVEZ v. GONZALES 9991

B

Because, in my view, the IJ did not apply an erroneous

standard to his CAT claim, the final step in our review is to

consider whether the record evidence is so compelling that

any rational finder of fact would conclude that Ornelas-

Chavez more likely than not would be tortured, with the con-

sent or acquiescence of the government, upon his return to

Mexico. Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir.

2005). Clearly, the record evidence does not even come close

to meeting this stringent standard.

1

The majority seeks to curtail such inquiry by suggesting

that “the IJ concluded simply that Ornelas-Chavez failed to

show that the authorities ‘sanctioned’ his alleged torture

because he did not report it,” and that we therefore cannot

affirm the IJ’s decision on any other ground even if supported

by substantial evidence. Maj. Op. at 9977-78.

But the IJ’s decision was not so cabined. She found no past

torture because, in part, Ornelas-Chavez did not report any

abuse. But the majority ignores at least four paragraphs in

which the IJ discussed the facts that she felt undermined

Ornelas-Chavez’s claims of future harm. She considered “[Pe-

titioner’s] testimony and evidence offered by the [Petitioner],”

and concluded that Ornelas-Chavez had “not shown that he is

more likely than not to be tortured if he were to be removed

to Mexico.” Given that conclusion, the IJ necessarily found

many of the facts the majority claims it did not find.7

7

First, the IJ did indeed find that the rapes and beating Ornelas-Chavez

suffered in his youth did not qualify as “torture,” because no government

actor was aware of such abuses before they occurred. Second, the IJ found

that Ornelas-Chavez had failed to prove the likelihood that he would be

tortured if returned to Mexico. Third, the IJ’s finding that Ornelas-Chavez

did not report any abuses to the government necessarily means that she

found he did not inform anyone of torture “prior to” its occurrence.

9992 ORNELAS-CHAVEZ v. GONZALES

As such, we should consider any record evidence that sup-

ports the IJ’s finding that Ornelas-Chavez failed to meet his

burden of showing a likelihood of torture upon his return to

Mexico. See Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.

1987) (“The substantial evidence test is essentially a case-by-

case analysis requiring review of the whole record.”).8

2

As already noted, the regulations define torture for CAT

purposes as severe pain or suffering “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.” 8

C.F.R. § 208.18(a)(1) (emphasis added). In turn,

“[a]cquiescence of a public official requires that the public

official, prior to the activity constituting torture, have aware-

ness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” Id.

§ 208.18(a)(7) (emphasis added); see Kamalthas v. INS, 251

F.3d 1279, 1282 (9th Cir. 2001). In short, the “consent or

acquiescence” requirement means that the government must

be aware of the allegedly tortuous conduct, or at least will-

fully blind to it. Zheng v. Ashcroft, 332 F.3d 1186, 1188-89

(9th Cir. 2003) (citation omitted).

Past torture does not create a presumption of entitlement to

CAT relief, although it is relevant to the ultimate inquiry:

whether “it is more likely than not that [the petitioner] would

be tortured if removed to the proposed country of removal.”

8 C.F.R. § 208.16(c)(2); see Mohammed v. Gonzales, 400

F.3d 785, 802 (9th Cir. 2005) (citing 8 C.F.R.

8

The cases cited by the majority say only that we will not apply in the

first instance the correct legal standard where the agency applied an erro-

neous standard, see Azanor v. Ashcroft, 364 F.3d 1013, 1020-21 (9th Cir.

2004), and that we will not decide a case on an entirely separate ground

which the agency did not consider, see Navas v. INS, 217 F.3d 646, 658

n.16 (9th Cir. 2000). Those cases are not applicable here.

ORNELAS-CHAVEZ v. GONZALES 9993

§ 1208.16(c)(3)). There is no evidence on this record that the

Mexican authorities were aware of or willfully blind to the

past abuses perpetrated by Ornelas-Chavez’s father, cousins,

or others.9 By his own admission, Ornelas-Chavez never told

anyone about the rapes he endured as a child. The lone excep-

tion was his confession to a school teacher that he had been

sexually abused. However, the teacher was not informed of

the alleged torture “prior to” its occurrence such that she

could breach a legal duty to prevent it. See 8 C.F.R.

§ 208.18(a)(7).10 The allegation of an attempt by Ornelas-

Chavez’s co-workers to smother him with a pillow—which,

if anything, constitutes only attempted torture—suffers from

the same flaw: the supervisor was not aware of the incident

until after its occurrence. Moreover, as suggested above, the

record does not compellingly demonstrate that the authorities

were willfully blind to such conduct. As such, I must con-

clude that on this record there is no evidence of past torture,

as defined by the regulations, to be considered under Ornelas-

Chavez’s CAT claim.

9

For purposes of this discussion, I assume that the rapes and beatings

Ornelas-Chavez suffered at the hands of his cousins and father, respec-

tively, constitute torture. See Al-Saher v. INS, 268 F.3d 1143, 1147 (9th

Cir. 2001) (sustained beatings), amended by 355 F.3d 1140 (9th Cir.

2004); cf. Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir. 1996) (“The

effects of rape appear to resemble the effects of torture.”). I know of no

other allegations of past conduct that would qualify under the regulatory

definition.

As to the prior knowledge of a public official, it is true that the police

detained Ornelas-Chavez for six hours when he was 16 years old. But this

action was in no way connected to an incident of torture.

10

For this reason, the majority is clearly incorrect to suggest that the IJ’s

finding was unsupported by substantial evidence. Ornelas-Chavez told his

teacher that he “had had sex with a male.” But he further explained in a

written declaration that he did not tell his teacher exactly what happened

—the alleged rape—because his cousins had threatened him. At the hear-

ing, Ornelas-Chavez was asked repeatedly whether he ever told anyone

about the alleged rapes and other instances of abuse, and each time he

answered “no” without qualification.

9994 ORNELAS-CHAVEZ v. GONZALES

As to the ultimate question, the likelihood that Ornelas-

Chavez will be tortured in the future if removed to Mexico,

the evidence utterly falls short. It is first worth noting that the

sexual abuse took place during Ornelas-Chavez’s youth, spe-

cifically between the ages of six and twelve. Circumstances

have so fundamentally changed—he is now an adult—that

Ornelas-Chavez is rather unlikely to be subjected to future

injury in the form of rape. As noted, the same conclusion

applies to the beatings to which Ornelas-Chavez was sub-

jected by his father. And as to the attempted assault by

Ornelas-Chavez’s co-workers at the state prison, there is sim-

ply no indication that these would-be torturers have singled

out Ornelas-Chavez such that he would again be a target.

The evidence of general country conditions as it pertains to

Mexican homosexuals does not paint a picture so dire as to

compel reversal of the BIA decision. See 8 C.F.R.

§ 1208.16(c)(3)(iii)-(iv). Quite the contrary, the record con-

tains numerous references to an ever-improving situation.

And although there have been some homosexuality-related

murders documented over five years, there are, according to

this record, as many as 12,600,000 Mexicans of homosexual

orientation.11 Thus, it is impossible to conclude that “more

likely than not” Ornelas-Chavez would suffer this fate.

Harassment and arbitrary detentions by police officers, to the

extent they occur, do not constitute torture. More generally,

the evidence does not rise to the level that has compelled us

to grant a petition for review in prior cases. There is no record

evidence alleging that “torture [is] routinely administered” to

11

Record evidence included an estimate that between eight and twelve

percent of the Mexican population of 105 million persons is homosexual

in orientation. See U.S. Department of State Homepage, Background

Note: Mexico, at http://www.state.gov/r/pa/ei/bgn/35749.htm (last visited

June 28, 2006) (providing statistics as to total population).

The record, of course, also includes an observation that the number of

homosexuality-related homicides (1) mirrors the homicide rate for the

Mexican population generally, and (2) has been in sharp decline since the

early 1990s.

ORNELAS-CHAVEZ v. GONZALES 9995

any group in Mexico, see Al-Saher, 268 F.3d at 1147; nor is

there evidence that torture is “an institution,” or otherwise so

pervasive against homosexuals that we must conclude more

likely than not Ornelas-Chavez would fall prey to it, see Khup

v. Ashcroft, 376 F.3d 898, 907 (9th Cir. 2004).

I would affirm the determination that Ornelas-Chavez

failed to meet his burden of showing that he was more likely

than not to be tortured, as specifically defined by the regula-

tions, if returned to Mexico.

III

For all of the foregoing reasons, I respectfully dissent.