Walter Javier Alvarenga Romero v. U.S. Attorney General

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13187

____________________

WALTER JAVIER ALVARENGA ROMERO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A212-944-965

____________________

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2 Opinion of the Court 20-13187

Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.

PER CURIAM:

Walter Alvarenga Romero petitions for review of the Board

of Immigration Appeals’s dismissal of his appeal of the immigration

judge’s order denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture. He ar-

gues that the board erred by affirming the denial of his asylum and

withholding of removal claims because the evidence compels a

finding that, if he were removed to his home country of El Salva-

dor, he would be persecuted on account of his membership in his

particular social group—individuals who suffer from a mental ill-

ness and behave erratically. After a thorough review of the record

and with the benefit of oral argument, we grant Alvarenga’s peti-

tion as to his claims for asylum and withholding of removal and

remand for further proceedings, but we deny it as to his claim un-

der the Convention Against Torture.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

Alvarenga, a citizen of El Salvador, came to the United States

in 2007 when he was sixteen years old. In 2012, he began exhibiting

the symptoms of a mental illness. Alvarenga heard voices and ex-

perienced paranoia. His family called the police, who hospitalized

Alvarenga. He was later diagnosed with schizophrenia.

Following his diagnosis, Alvarenga’s symptoms re-emerged

whenever he refused to take his medication, and his family would

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20-13187 Opinion of the Court 3

have him hospitalized—often for weeks at a time. Alvarenga was

hospitalized four times between 2012 and 2017 because of his schiz-

ophrenia.

The Immigration Court Proceedings

In 2017, the Department of Homeland Security served Al-

varenga with a notice to appear before the Immigration Court. Al-

varenga conceded removability and the immigration judge sus-

tained the charge. Alvarenga then requested asylum, withholding

of removal, and relief under the Convention Against Torture. The

immigration judge denied Alvarenga relief and ordered him re-

moved to El Salvador.

Alvarenga appealed to the board, and the board remanded

the case to the immigration judge to determine whether Alvarenga

was competent, and, if necessary, to conduct a new hearing with

appropriate procedural safeguards. On remand, the immigration

judge determined that Alvarenga wasn’t competent to litigate his

own case and appointed counsel.

Alvarenga, now represented, then filed a second application

for asylum, withholding of removal, and relief under the Conven-

tion Against Torture. Alvarenga argued that he had a well-founded

fear of future persecution if he were removed to El Salvador on

account of his particular social group: individuals from El Salvador

who suffer from a mental illness and behave erratically. 1 He

1

Alvarenga also proposed several alternate social groups as a basis for relief:

“Individuals in El Salvador who suffer from schizophrenia; Schizophrenic

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4 Opinion of the Court 20-13187

contended that El Salvador had a “horrific record” in dealing with

people suffering from severe mental illness and stigmatized mental

illness. This stigma rose to the level of persecution, Alvarenga

maintained, because he would be harmed by government officials

(the police, the military, and the staff in El Salvador’s mental health

institutions), and by gangs that the government was “unable and

unwilling to control.” Alvarenga also argued that he was likely to

be “singled out” for persecution because he wouldn’t receive ade-

quate treatment for his schizophrenia, he would end up homeless

because he had no family in El Salvador, and he would exhibit er-

ratic behavior attributable to his mental illness, which in turn

would cause gang members to notice and persecute him.

Alvarenga submitted reports from the United Nations and

other organizations describing the poor state of El Salvador’s men-

tal health facilities, the overuse of institutionalization, and the soci-

etal stigma against individuals with mental illnesses. Alvarenga

also submitted an affidavit from Dr. Samuel Nickels, an expert on

social conditions in El Salvador, describing the state of El Salvador’s

mental health facilities, the poor treatment of individuals who

individuals in El Salvador; Individuals in El Salvador diagnosed with paranoid

schizophrenia; Individuals from El Salvador who suffer from paranoid schizo-

phrenia and display erratic behavior; Individuals from El Salvador who suffer

from severe mental disabilities; Individuals from El Salvador who suffer [from]

paranoid schizophrenia without family support, such as schizophrenia [sic];

[and] Schizophrenic individuals in El Salvador without family support.”

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suffer from mental illnesses, and the heightened risks they face

from gang members and the police.

The immigration judge held a hearing on Alvarenga’s appli-

cation. Alvarenga testified about his mental illness, his history of

hospitalizations, his lack of family support in El Salvador, and his

fear of returning.

Dr. Nickels also testified in support of Alvarenga’s applica-

tion. He explained that if Alvarenga were to be hospitalized in El

Salvador’s primary mental health institution, he would likely be

subjected to involuntary electroconvulsive therapy. 2 Dr. Nickels

explained that there were widespread instances of overcrowding

and medical neglect in the mental health institution: a common

sight included patients “behind bars,” wearing “no clothing,” or

just lying “on the cement floor in catatonic positions.”

Dr. Nickels explained that he believed Alvarenga would end

up homeless in El Salvador, which would make him particularly

susceptible to abuse by gang members and the police who would

interpret his erratic behavior as resistance or disrespect. Dr. Nick-

els testified that gang members were “known to get irritated with

these folks and just deal with them by stabbing or beating them

up,” and that “there is real physical abuse and, sometimes, death

and killings that result from the [mental] illnesses that these folks

2

Electroconvulsive therapy is a psychiatric treatment where a patient is anes-

thetized, fitted with an electric helmet, and then jolted with a pulse of electric-

ity running through the frontal lobe of the patient’s brain.

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6 Opinion of the Court 20-13187

have.” Dr. Nickels explained that although there are laws in El Sal-

vador prohibiting discrimination against the mentally ill, gang

members operate with impunity and the risk of violence was fur-

ther exacerbated by the ongoing gang wars.

When he was asked how people in El Salvador would know

that Alvarenga suffered from a mental illness, Dr. Nickels explained

that:

[T]hey may or may not know that the person has a

mental illness depending on whether they have any

education and understanding about what a mental ill-

ness is. What they will certainly be able to observe

and understand [is] that this person has bizarre behav-

iors . . . that would sort of stigmatize this person as

being loco, crazy or violent and so in that sense, they

would certainly be identifiable, what you and I would

call somebody with mental illness but people across

society might not use that term. They might just

simply say, “Yeah, he’s a crazy guy. Watch out for

him . . . .”

Dr. Nickels testified that this stigma put Alvarenga at a higher risk

of harm relative to someone who didn’t suffer from a mental ill-

ness.

The immigration judge again denied Alvarenga’s application

for asylum, withholding of removal, and relief under the Conven-

tion Against Torture. The immigration judge assumed that

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Alvarenga’s proposed particular social groups were cognizable, but

concluded that he was ineligible for asylum because Alvarenga

hadn’t demonstrated past persecution or a well-founded fear of fu-

ture persecution on account of a statutorily protected ground. 3

The immigration judge found that Alvarenga and Dr. Nickels were

credible but explained that even though Alvarenga subjectively be-

lieved he would be persecuted, he had failed to show there was a

“nexus” between any future persecution and his mental illness.

The immigration judge broke his “nexus” finding into three parts:

nexus as to El Salvador’s mental health system; nexus as to gang

members; and nexus as to the police.

As to persecution in El Salvador’s primary mental health in-

stitution, the immigration judge found that any harm to Alvarenga

would be “due to underfunding of mental health services and a lack

of trained professionals rather than a specific desire to harm those

with mental illnesses.” The immigration judge also found that Al-

varenga couldn’t show a “pattern or practice” of persecution by

mental health workers on account of his particular social group be-

cause any mistreatment by them would result from “an under-

funded system and lack of training.”

3

The immigration judge also determined that Alvarenga had not demon-

strated the harm he feared in El Salvador rose to the level of persecution. But

the board did not reach this issue and did not adopt the immigration judge’s

finding on this point. We therefore do not consider it. See Gonzalez v. U.S.

Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (“We do not consider issues that

were not reached by the [board].”).

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8 Opinion of the Court 20-13187

As to persecution by gang members and the police, the im-

migration judge found that Alvarenga had not shown they would

know he had a mental illness; rather, he “could be harmed or in-

carcerated due to a police officer’s lack of training regarding those

with mental illnesses or a gang member’s lack of education regard-

ing those with mental illnesses.” The immigration judge also

found there was no pattern or practice of persecution by gang

members or the police on account of his particular social group be-

cause there was no evidence that people with mental illnesses were

“systematically targeted by gangs or police officers on account of

their mental disability, or that there is a heightened level of impu-

nity for individuals who commit crimes against the disabled.” The

immigration judge instead found that “the evidence suggest[ed]

that” Alvarenga “would face harm arising from conditions of civil

strife and general criminal activity,” which was not on account of

his mental illness.

Because Alvarenga hadn’t shown a well-founded fear of fu-

ture persecution on account of a protected ground, the immigra-

tion judge concluded that he was also ineligible for withholding of

removal and relief under the Convention Against Torture.

The Board of Immigration Appeals’s Decision

Alvarenga appealed to the board, and the board dismissed

his appeal. The board said that the immigration judge didn’t clearly

err in finding that Alvarenga’s particular social group wouldn’t be

“a central reason” for his persecution. The board also broke down

the nexus finding into three parts—nexus as to El Salvador’s

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20-13187 Opinion of the Court 9

psychiatric hospitals, nexus as to gang members, and nexus as to

the police.

As to El Salvador’s psychiatric hospitals, the board said that

the immigration judge didn’t clearly err in finding that any harm

Alvarenga would face in a mental health institution would be be-

cause of underfunding and a lack of training, rather than a specific

desire to harm those with a mental illness. As to gangs, the board

said there was no nexus because Dr. Nickels testified that people in

El Salvador would likely only recognize a person as having a men-

tal illness if they had an individualized education regarding mental

illness. The board also said that although Dr. Nickels testified that

Alvarenga’s symptoms and erratic behavior would increase the

chances of gang members targeting him, this evidence suggested

that Alvarenga would face only harms arising from conditions of

general criminal activity. As to the police, the board said that the

immigration judge didn’t clearly err in finding that any harm by the

police would be on account of frustration with Alvarenga’s behav-

ior “rather than specifically on account of [his] mental illness.”

Finally, the board determined that the immigration judge

didn’t clearly err in finding that there was no pattern or practice of

persecution by mental health professionals, gangs, or the police

against Alvarenga’s particular social group because there were laws

on the books prohibiting discrimination against the mentally ill,

and the evidence did not show that those with a mental illness were

“systematically targeted.” The board determined that because Al-

varenga had not established that any future persecution would “be

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10 Opinion of the Court 20-13187

on account of a protected ground,” he had failed to establish his

eligibility for asylum.

The board then concluded that because Alvarenga had failed

to establish his eligibility for asylum, he was also ineligible for with-

holding of removal. And because any mistreatment by mental

health workers would be caused by insufficient resources and inad-

equate training, the board said that Alvarenga was ineligible for re-

lief under the Convention Against Torture.

II. STANDARD OF REVIEW

We review the board’s decision as the final judgment unless

the board expressly adopts the immigration judge’s decision. Gon-

zalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Where

the board agrees with the immigration judge’s reasoning, we re-

view the decisions of both the board and the immigration judge to

the extent they agree. Id.

“[W]e review” the board’s “conclusions of law de novo and

factual determinations under the substantial evidence test.” Id.

Under the substantial evidence test, we view the record in the light

most favorable to the board’s decision and draw all reasonable in-

ferences in the board’s favor. Adefemi v. Ashcroft, 386 F.3d 1022,

1027 (11th Cir. 2004) (en banc). We “must affirm the [board]’s de-

cision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (quotation

marks omitted). The board’s “findings of fact” may be “reversed

by this court only when the record compels a reversal; the mere

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20-13187 Opinion of the Court 11

fact that the record may support a contrary conclusion is not

enough to justify a reversal of the administrative findings.” Id.

“Whether a petitioner has established a sufficient nexus between

persecution and a statutorily protected ground is a question of fact

and therefore reviewed under the substantial evidence test.”

Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1373 (11th Cir. 2021).

III. DISCUSSION

Alvarenga argues that the board erred in affirming the im-

migration judge’s denial of his claims for asylum, withholding of

removal, and relief under the Convention Against Torture. We

address each of Alvarenga’s claims below.

Asylum and the Nexus Requirement

We focus on the narrow question of nexus—the sole basis

for the board’s affirmance of the immigration judge’s denial of Al-

varenga’s asylum claim. Alvarenga argues that Dr. Nickels’s testi-

mony compelled the conclusion that his mental illness would be

“one central reason” he would suffer persecution at the hands of

three different groups: gang members, the police, and mental

health professionals. We agree with Alvarenga as to the first group.

The evidence in this case—unrefuted by the government in any

way—was that gang members likely would intentionally target and

attack Alvarenga because of his mental illness and because they

would identify him as “crazy” or “loco.” This undisputed evidence

compels the conclusion that “one central reason” for his

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12 Opinion of the Court 20-13187

persecution by gang members if he returned to El Salvador would

be his particular social group.

An asylum claim requires the applicant to prove that: (1) he

was previously persecuted “on account of race, religion, national-

ity, membership in a particular social group, or political opinion,”

or (2) he has a “well-founded fear” of future persecution “on ac-

count of” a protected ground. 8 U.S.C. §§

1101(a)(42)(A), 1158(b)(1); 8 C.F.R. § 208.13(a), (b). Because Al-

varenga’s mental illness emerged after he came to the United

States, this is a “well-founded fear” case.

To be eligible for asylum, an applicant “must show a nexus

between the alleged persecution and a protected status—‘that race,

religion, nationality, membership in a particular social group, or

political opinion was or will be at least one central reason for per-

secuting the applicant.’” Murugan v. U.S. Att’y Gen., 10 F.4th 1185,

1195 (11th Cir. 2021) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)); see also

Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir.

2021) (explaining that the “causal element” of an asylum claim is

“known as the nexus requirement”).

We have said that a “reason is central if it is ‘essential’ to the

motivation of the persecutor.” Sanchez-Castro, 998 F.3d at 1286

(citation omitted). “In other words, the protected ground cannot

play a minor role” in the applicant’s “fears of future mistreatment.

That is, it cannot be incidental, tangential, superficial, or subordi-

nate to another reason for harm.” Id. (quotation omitted). Thus,

any “feared future persecution must be at least in significant part

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‘because of’ the protected ground.” Id. (quoting Rodriguez Mo-

rales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007)). An ap-

plicant can satisfy the nexus requirement “by presenting ‘specific,

detailed facts showing a good reason to fear that he . . . will be sin-

gled out for persecution on account of’ such [protected] ground.”

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009)

(quoting Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th

Cir. 2005)). 4

Here, because the board “considered only the nexus require-

ment, we review only whether substantial evidence supports its

finding that [Alvarenga] did not satisfy that requirement.” See

Sanchez-Castro, 998 F.3d at 1286. “We do not consider whether

[Alvarenga] . . . has a well-founded fear of future persecution,” or

whether his proposed particular social group was valid. See id. In

other words, the only thing we consider as to Alvarenga’s asylum

claim is the question of nexus.

The board and immigration judge found, for two reasons,

that Alvarenga failed to establish a nexus between future persecu-

tion by gangs and his particular social group. First, they said that

4

An applicant for asylum can also prove nexus “if he can establish a pattern or

practice of persecution of a group of which he is a member.” Mehmeti, 572

F.3d at 1200 (citing 8 C.F.R. § 208.13(b)(2)(iii)). Because we conclude that that

the record “compels” a finding that Alvarenga would be singled out for perse-

cution in El Salvador on account of his particular social group, see Adefemi,

386 F.3d at 1027, we do not address whether he established a pattern or prac-

tice of persecution targeting the group.

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14 Opinion of the Court 20-13187

people in El Salvador would “likely only recognize a person as hav-

ing a mental illness if [those people] had an individualized educa-

tion regarding mental illness.” And second, they said that the evi-

dence suggested Alvarenga would experience only “harm arising

from conditions of general criminal activity.”

As to the first finding, Alvarenga argues that Dr. Nickels’s

testimony established that gang members “would recognize [him]

as being ‘a crazy guy’” and would persecute him for that reason.

He contends that the board misconstrued Dr. Nickels’s testimony

that his potential persecutors “may not know that [a] person has a

mental illness,” because Dr. Nickels explained that his persecutors

would “certainly be able to observe and understand” mental illness,

regardless of whether they understood “mental illness” as a psychi-

atric concept. We agree. The record compels a finding that, even

if gang members would persecute Alvarenga because of his behav-

ior, any persecution would be “on account of” his particular social

group—people in El Salvador who suffer from mental illness and

exhibit erratic behavior.

Dr. Nickels’s affidavit and testimony, credited by the immi-

gration judge and relied on by the board, do not support the first

reason given by the board and the immigration judge—that gang

members would likely recognize a person as having a mental illness

only if they had an individualized education regarding mental ill-

ness. As Dr. Nickels explained, even if gang members lacked “any

education and understanding about what a mental illness is,” they

would readily recognize someone exhibiting symptoms of mental

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illness as “crazy.” While Alvarenga’s assailants might not use clin-

ical terms like “mental illness” to describe him, if a gang member

harmed Alvarenga because he was “crazy” or “loco,” that gang

member would persecute him “on account of” his mental illness.

Dr. Nickels’s report and testimony were the only evidence

in the record as to whether gang members would know that Al-

varenga was mentally ill. And the uncontested evidence, which the

parties relied on and which the immigration judge found credible,

was that they would. Dr. Nickels’s unrefuted testimony that gang

members would recognize Alvarenga as being a “crazy” person and

would persecute him because he was “crazy” compels a finding

that his particular social group would be “‘essential’ to the motiva-

tion of the persecutor.” See id. (citation omitted).

As to the second reason given by the board and the immi-

gration judge to find no nexus—that the evidence suggested Al-

varenga would experience only “harm arising from conditions of

general criminal activity”—the record again compels a contrary

finding. Dr. Nickels explained that although everyone in El Salva-

dor faces some risk from gangs, the risk would be different and

greater for Alvarenga. Dr. Nickels discussed “numerous stories”

from El Salvador describing stabbings, extortion, and other violent

interactions between gang members and the mentally ill. Dr. Nick-

els explained that “gang members sometimes force persons with

cognitive impairments to collect ‘rent’ money for the gangs or de-

liver threats” to businesses or individuals. He also explained that

“[i]t is common for mentally ill persons” to be “physically beaten”

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16 Opinion of the Court 20-13187

or even “killed” by gang members who are “either frustrated by the

bizarre behaviors of persons with mental illness, or who are trying

to prove their worth by attacking vulnerable persons, including

those with mental illnesses.” Dr. Nickels recounted how new gang

members in El Salvador deliberately kill “vulnerable persons” in

“gang initiation[s]” to “climb the ladder of prestige within the

gang.”

People with mental illnesses in El Salvador are “easy to sin-

gle out,” Dr. Nickels explained, because “their behavior and physi-

cal condition [are] easily identified with persons that others call

‘crazy.’” For this reason, Dr. Nickels said Alvarenga was “high[ly]”

likely to be “singled out” by gangs for persecution. He described

how Alvarenga’s “conditions and behaviors would put him at risk

of inappropriately crossing gang territorial lines and being ques-

tioned, abused, or killed.” That risk would be greater for Alvarenga

than the average Salvadoran subject to general criminal activity,

Dr. Nickels said, because he would likely become homeless due to

the absence of family support, and “[h]omeless persons [in El Sal-

vador] are particularly vulnerable to experiencing violence,” in-

cluding deliberate and intentional targeting at the hands of danger-

ous gang members.

There’s no dispute that crime affecting everyone in a coun-

try is insufficient to establish nexus because it is not on account of

a particular social group. See Sanchez-Castro, 998 F.3d at 1287–88

(explaining that the applicant failed to establish nexus because the

harm she feared was “not unique to her particular social group”

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and was “consistent with general criminal activity”). But the key

difference here is that Dr. Nickels’s affidavit and testimony are

compelling evidence—and the only evidence—that Alvarenga

would be targeted and victimized by gangs because of his mental

illness. Although everyone in El Salvador faces some risk from

gangs, the evidence presented by Alvarenga—unrebutted by the

government—shows that the risk faced by him is different and

greater than the risk faced by others. And the evidence shows that

gang members would deliberately target Alvarenga on account of

his particular social group because, as Dr. Nickels put it, he would

be “easy to single out” due to his severe mental illness.

We conclude that the evidence compels the finding that Al-

varenga would likely be “singled out” for persecution by gangs “on

account of” his particular social group. See Mehmeti, 572 F.3d at

1200 (explaining that proof showing a good reason to fear being

singled out for persecution because of a protected ground satisfies

nexus). In other words, Alvarenga “established a sufficient nexus

between [the] persecution” he feared “and a statutorily protected

ground.” See Jathursan, 17 F.4th at 1373. Because the board relied

solely on the absence of nexus to affirm the rejection of Alvarenga’s

asylum claim, we grant this part of his petition, vacate the board’s

denial of his asylum claim, and remand for further proceedings.

We reiterate that our holding today is a narrow one. We do

not address whether the harms Alvarenga feared amount to perse-

cution. We do not address whether his proposed particular social

group was a valid one. And we do not address whether Alvarenga

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18 Opinion of the Court 20-13187

established that any persecution would be “by government forces

or by non-government groups that the government cannot con-

trol.” Sama v. U.S. Att’y Gen., 887 F.3d 1225, 1231–32 (11th Cir.

2018) (citation and quotation marks omitted). We simply hold that

the board and immigration judge erred in finding that Alvarenga

failed to establish a nexus between his particular social group and

his feared future persecution by gangs in El Salvador. We leave it

to the board to resolve the other issues implicated by Alvarenga’s

asylum claim that are not resolved here.

Withholding of Removal

Alvarenga argues that the immigration judge abused its dis-

cretion by failing to analyze his withholding of removal claim. But

an applicant who fails to establish his eligibility for asylum neces-

sarily fails to establish that he is eligible for withholding of removal.

Mehmeti, 572 F.3d at 1200. Thus, where an immigration judge

finds that an applicant is not entitled to asylum, the immigration

judge is “not obligated to make specific findings with respect to

withholding of removal.” Amaya-Artunduaga v. U.S. Att’y Gen.,

463 F.3d 1247, 1249 n.3 (11th Cir. 2006).

Here, the board and immigration judge concluded that be-

cause Alvarenga was not eligible for asylum, he also was not enti-

tled to withholding of removal. Given that Alvarenga’s withhold-

ing of removal claim was based on the same facts as his asylum

claim, the board and immigration judge were not required to make

specific findings as to his withholding of removal claim. See id.

But, because the board determined that Alvarenga was ineligible

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20-13187 Opinion of the Court 19

for withholding of removal only because he was ineligible for asy-

lum, granting Alvarenga’s petition as to his asylum claim also re-

quires that we grant his petition as to his withholding of removal

claim. See Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239

(11th Cir. 2007) (explaining that because “the [immigration judge]

denied [the] application for withholding of removal based upon his

conclusion that she would not have established the less stringent

standard for asylum,” our decision vacating the denial of the asy-

lum claim also required vacating the denial of the withholding of

removal claim).

Convention Against Torture

Alvarenga argues that the board erred by rejecting his claim

for relief under the Convention Against Torture because any harm

he would suffer would not be inflicted with the specific intent to

torture him. He contends that, like the applicant in Jean-Pierre v.

U.S. Attorney General, 500 F.3d 1315 (11th Cir. 2007), he would be

subjected to torture in a mental health institution with the acqui-

escence of the government in El Salvador.

To qualify for relief under the Convention Against Torture,

an applicant must show that it is “more likely than not that he

would be tortured by or with the acquiescence of a public official

in his home country.” Gonzalez, 820 F.3d at 406; see 8 C.F.R.

§ 1208.16(c)(2). Torture is “any act by which severe pain or suffer-

ing, whether physical or mental, is intentionally inflicted on a per-

son” in order to “obtain[] from him or her or a third person infor-

mation or a confession, punish[] him or her for an act he or she or

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20 Opinion of the Court 20-13187

a third person has committed or is suspected of having committed,

intimidat[e] or coerc[e] him or her or a third person, or for any rea-

son based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

Because torture is “an extreme form of cruel and inhuman treat-

ment,” it doesn’t encompass “lesser forms of cruel, inhuman or de-

grading treatment or punishment.” Id. § 1208.18(a)(2). For an act

to be torture, it “must be specifically intended to inflict severe phys-

ical or mental pain or suffering.” Id. § 1208.18(a)(5).

Substantial evidence supports the board’s finding that any

harm that Alvarenga would suffer in a mental health institution

wouldn’t be inflicted on him with the specific intent to cause him

severe pain or suffering. Dr. Nickels testified that the mental health

institutions in El Salvador are woefully underfunded, and their staff

are poorly trained and unfamiliar with psychiatric “best practices.”

The deplorable conditions at the hospitals and outdated treatments

like electroconvulsive therapy wouldn’t be inflicted on Alvarenga

with the intent to harm him, but because of a lack of resources and

proper training. The record doesn’t compel a finding that the al-

leged harms Alvarenga would suffer in a mental health institution

amount to torture as defined under the Convention Against Tor-

ture. See id. (providing that an act “must be specifically intended

to inflict severe physical or mental pain or suffering” to be torture).

Alvarenga’s case is not like Jean-Pierre. There, we vacated

the board’s decision because it “failed to give reasoned considera-

tion to” the applicant’s Convention Against Torture claim. Jean-

Pierre, 500 F.3d at 1326. Here, conversely, the board gave reasoned

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20-13187 Opinion of the Court 21

consideration to Alvarenga’s claim under the Convention Against

Torture and, as we explained, substantial evidence supported the

board’s finding that any harm he would suffer in a Salvadoran psy-

chiatric hospital wouldn’t be inflicted on him with the specific in-

tent to cause him severe pain or suffering.

Moreover, as the board observed, there are laws in El Salva-

dor prohibiting discrimination against the mentally ill. While those

laws may not effectively prevent all of Alvarenga’s mistreatment,

we cannot say that this amounts to acquiescence by the govern-

ment in El Salvador to torture. See Reyes-Sanchez v. U.S. Att’y

Gen., 369 F.3d 1239, 1242–43 (11th Cir. 2004) (holding that a gov-

ernment that unsuccessfully attempts to apprehend those respon-

sible for torture does not “acquiesce” to torture). We therefore

deny Alvarenga’s petition as to this claim.

IV. CONCLUSION

Alvarenga’s petition for review is granted in part and denied

in part. We deny the petition as to Alvarenga’s claims for relief

under the Convention Against Torture. We grant the petition as

to Alvarenga’s claims for asylum and withholding of removal, va-

cate the decision of the board on these claims, and remand for fur-

ther proceedings consistent with this opinion.

PETITION GRANTED IN PART, DENIED IN PART,

AND REMANDED.