NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISIDRO CARASSO-GONZALEZ, No. 17-70105
Petitioner, Agency No. A079-392-256
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 14, 2019
Pasadena, California
Vacated October 7, 2019
Resubmitted April 20, 2020
Before: CALLAHAN and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
***
Pursuant to Ninth Circuit General Order 3.2.h, Judge Hurwitz was
drawn by lot to replace our late colleague Judge Raymond T. Fisher. Judge
Hurwitz has reviewed the record and briefs in this case and listened to the oral
argument before the prior panel.
Isidro Carasso-Gonzalez, a native and citizen of Mexico, petitions for review
of a final removal order issued by the Board of Immigration Appeals (BIA),
denying his application for withholding of removal and protection under the
Convention Against Torture (CAT). As the parties are familiar with the facts and
procedural history, we do not recount them here. We deny in part and grant in part
Carasso-Gonzalez’s petition for review.
1. Carasso-Gonzalez argues he is eligible for withholding of removal
because (1) his proposed particular social group of “individuals with severe and
chronic mental illness in Mexico who exhibit erratic behavior” is cognizable, and
(2) it is more likely than not that his social group is “a reason” that his life or
freedom will be threatened in Mexico. As to the first argument, we conclude the
agency did not err in rejecting his proposed social group. Both the IJ and BIA
reasonably concluded that this proposed social group was insufficiently particular
because “the terms ‘severe’ and ‘chronic’ are general in nature without reference to
specific characteristics.” See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th
Cir. 2013) (en banc) (“The ‘particularity’ requirement . . . is relevant in
considering whether a group’s boundaries are so amorphous that, in practice, the
persecutor does not consider it a group.”).
To the extent that Carasso-Gonzalez now argues that he belongs to a
particular social group of “individuals in Mexico with severe and chronic mental
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illness who exhibit erratic behavior,” we find this argument unexhausted because
the additional modifier (“who exhibit erratic behavior”) substantively changes the
boundaries of the group proposed by Carasso-Gonzalez. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
Likewise, we also find that the BIA did not err by failing to apply the
standard under Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017).
Although the BIA’s decision summarily cited cases that relied on the “one central
reason” standard that this court rejected in Barajas-Romero, the agency’s denial of
Carasso-Gonzalez’s withholding claim did not turn on the difference between the
“one central reason” and “a reason” standards. Rather, the BIA denied the
withholding claim because it found that Carasso-Gonzalez failed to establish a
nexus to any protected ground, given that his proposed particular social group was
not cognizable. See also Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (per
curiam) (“Because the BIA adopted the IJ’s finding of no nexus between the harm
. . . and the alleged protected ground, neither the result nor the BIA’s basic
reasoning would change.”). Accordingly, we deny Carasso-Gonzalez’s petition for
review of his application for withholding of removal.
2. We grant Carasso-Gonzalez’s petition for review of the denial of his
CAT claim and remand for an adequate explanation by the BIA. An applicant for
CAT relief bears “[t]he burden . . . to establish that it is more likely than not that he
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or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). “When evaluating an application for CAT relief, the IJ and the
BIA should consider ‘all evidence relevant to the possibility of future torture,
including . . . [e]vidence of past torture inflicted upon the applicant.’” Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (alterations in original)
(quoting 8 C.F.R. § 1208.16(c)(3)). “[T]he existence of past torture ‘is ordinarily
the principal factor on which [the court relies].’” Edu v. Holder, 624 F.3d 1137,
1145 (9th Cir. 2010) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir.
2005)); see also Nuru, 404 F.3d at 1217 (“Past torture is the first factor we
consider in evaluating the likelihood of future torture because past conduct
frequently tells us much about how an individual or a government will behave in
the future.”). “[I]f an individual has been tortured and has escaped to another
country, it is likely that he will be tortured again if returned to the site of his prior
suffering, unless circumstances or conditions have changed significantly, not just
in general, but with respect to the particular individual.” Nuru, 404 F.3d at 1217–
18.
The BIA was unclear as to whether Carasso-Gonzalez established past
torture when it stated that “[t]he harm the applicant experienced was severe, and
contrary to the IJ’s determination, may rise to the level of torture.” To the extent
that the BIA found past torture, it did not appear to consider such past torture as a
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principal factor in its assessment of Carasso-Gonzalez’s likelihood of future
torture, or provide “an individualized analysis of how changed conditions” might
affect Carasso-Gonzalez’s CAT claim. Id. at 1218 n.6 (quoting Garrovillas v. INS,
156 F.3d 1010, 1017 (9th Cir. 1998)). Instead, the BIA simply concluded that
Carasso-Gonzalez failed to meet his burden. In doing so, we find that the BIA
failed to provide a reasoned explanation for its decision. See Delgado v. Holder,
648 F.3d 1095, 1107 (9th Cir. 2011) (en banc) (“[T]he BIA must provide a
‘reasoned explanation for its actions.’” (quoting Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005))). Accordingly, we remand for the BIA to consider
these issues in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam).
3. Finally, we deny Carasso-Gonzalez’s request for compensation of his pro
bono counsel based on the reasons discussed in our opinion in Perez v. Barr, No.
16-71918, __ F.3d ___ (9th Cir. 2020).
Petition for review GRANTED in part and DENIED in part.
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