NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENZO CORTEZ-ORTEGA, AKA, No. 13-71217
Lorenzo Cortez,
Agency No. A092-691-062
Petitioner,
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
Appeal from an Order of the
Board of Immigration Appeals
Submitted December 13, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Petitioner Lorenzo Cortez-Ortega challenges the BIA’s dismissal of
Petitioner’s appeal of an Immigration Judge’s denial of Petitioner’s application for
deferral of removal under the Convention Against Torture (“CAT”). Petitioner
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
asserts that the IJ and the BIA (1) applied an incorrect legal standard to determine
whether it was more likely than not that Petitioner would suffer torture with the
Mexican government’s consent or acquiescence, and (2) drew conclusions that
were unsupported by substantial evidence. Because we agree with Petitioner’s
former argument, we do not reach the latter.
To establish entitlement to deferral of removal under CAT, a party must
show that he will more likely than not be subjected to an “act by which severe pain
or suffering, whether physical or mental, is intentionally 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. §§ 1208.16(c)(2), 1208.18(a)(1).
The acquiescence analysis requires consideration of whether the “[foreign]
government is not just willing but also able to control [the perpetrator], at least
insofar as it would affect [Petitioner].” Madrigal v. Holder, 716 F.3d 499, 509 (9th
Cir. 2013) (emphasis added).
The IJ applied an incorrect legal standard when it held that the Mexican
government’s inability to prevent torture does not qualify as “acquiescence” under
the meaning of CAT. See id. The BIA adopted the IJ’s findings and conclusions
in their entirety. The BIA’s order did cite to the correct standard for CAT relief;
nevertheless, the BIA’s order failed to render the IJ’s legal error harmless for the
following reasons.
2
First, the BIA adopted the IJ’s decision in its entirety, without
acknowledging the legal error or providing any reasoning regarding why the
decision was correct under the applicable legal framework. See, e.g., Reyes-Reyes
v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (remanding where the BIA adopted
the IJ’s opinion applying an erroneous legal standard and failed to provide
alternative reasoning for affirming the IJ). Additionally, the BIA’s order notes
only the Mexican government’s willingness to control corruption and violence, as
opposed to its ability to do so—in other words, the BIA appears to have
functionally applied the same erroneous standard as the IJ. Its consideration of the
Mexican government’s willingness to combat torture does not necessarily bear on
that government’s ability to do so; on the contrary, “inability” suggests failed
efforts. See Madrigal, 716 F.3d at 506 (remanding for consideration of Petitioner’s
asylum request where the BIA considered “only the Mexican government’s
willingness to control Los Zetas, not its ability to do so” (emphasis in original)).
Accordingly, we remand for consideration of Petitioner’s petition under the
appropriate legal standard, and therefore do not address Petitioner’s additional
arguments.
GRANTED and REMANDED.
3
FILED
Cortez-Ortega v. Lynch, No. 13-71217
DEC 15 2016
O’SCANNLAIN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Precedent “does not require that [this Court] convert judicial review of
agency action into a ping-pong game.” NLRB v. Wyman-Gordon Co., 394 U.S.
759, 766 n.6 (1969). Remand in this case is not required because it “would be an
idle and useless formality.” Id. Petitioner’s argument for relief turns on the
existence of endemic corruption such that Mexican officials could not or would not
protect him, but the record indicates no such corruption on the part of the police
who have interacted with Petitioner’s family (and affirmatively suggests that they
acted in accordance with the law). The BIA’s error is harmless because “nothing
in the record could support a finding” that Petitioner qualifies for deferral of
removal under CAT. Khudaverdyan v. Holder, 778 F.3d 1101, 1107 n.3 (9th Cir.
2015) (citing Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d 420 (3d Cir. 2011)
(holding that BIA error is harmless when it is highly probable that error did not
affect case’s outcome)).
I respectfully dissent.