NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LORETO QUINTERO-MOLINA, AKA No. 15-71518
Loreto Quintero,
Agency No. A093-142-827
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2016
Pasadena, California
Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.
Loreto Quintero-Molina (“Molina”), a native and citizen of Mexico and
formerly a legal permanent resident of the United States, petitions for review of the
Board of Immigration Appeals’ (“BIA”) determination that he was ineligible for
deferral of removal under the Convention Against Torture (“CAT”). The BIA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
adopted and affirmed the Immigration Judge’s (“IJ”) decision to deny relief under
CAT. Reviewing de novo, we conclude that the BIA erred as matter of law in
failing to aggregate the potential sources of torture that Molina would face if
removed to Mexico. Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2012).
1. An applicant for relief under CAT must show a “greater than 50 percent
likelihood that he will be tortured” and that a public official will acquiesce in that
torture. Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013) (citing
8 C.F.R. § 1208.16(c)(2); Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011)).
2. Under CAT, torture is “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person. . . .”
8 C.F.R. § 1208.16(c)(2). “Acts constituting torture are varied, and include
beatings and killings.” Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir.
2008); see also 8 C.F.R. § 1208.18; Reyes v. Lynch, No. 14-70686, 2016 WL
6994243, at *13 (9th Cir. Nov. 30, 2016) (holding that killings constitute torture
for the purposes of CAT). Molina presented several reasons why he would likely
face torture if returned to Mexico, including threats that he and his family members
have received and killings perpetrated against his family members who live in
Mexico.
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3. In determining whether a person is likely to face torture, an IJ must
consider all evidence of torture in the aggregate. Cole v. Holder, 659 F.3d at 774.
The IJ should assess the petitioner’s “overall risk of being tortured” rather than
“treating each potential source of torture individually.” Id. Here, the BIA erred as
a matter of law when it adopted and affirmed the IJ’s decision, which separately
considered each reason Molina would face torture but failed to consider his risk of
torture in the aggregate. Because the BIA applied an erroneous legal standard, we
grant the petition and remand so that it may, in the first instance, apply the correct
legal standard. Lopez v. Ashcroft, 366 F.3d 799, 807 (9th Cir. 2004) (citing Zheng
v. Ashcroft, 332 F.3d 1186, 1197 (9th Cir.2003)).
4. In addition to showing a greater than 50 percent likelihood of torture, an
applicant for CAT must show that the government is likely to acquiesce in that
torture. Madrigal, 716 F.3d at 508. The IJ did not determine whether the Mexican
government would acquiesce in Molina’s torture. The BIA, however, concluded
that the IJ “properly determined that . . . the record is insufficient to show that the
Mexican Government would acquiesce in or turn a blind eye to torture.” Where, as
here, the basis for the BIA’s conclusion is unclear, a remand is required so that the
BIA may clarify the basis for its decision on this issue. Alphonsus v. Holder, 705
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F.3d 1031, 1044-45 (2013) (citing Delgado v. Holder, 648 F.3d 1095, 1108 (9th
Cir. 2011)).
Petition GRANTED and REMANDED.
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