NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO AVILA-ARIAS, No. 20-71340
Petitioner, Agency No. A073-991-100
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2021
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,** District Judge.
Partial Dissent and Partial Concurrence by Judge VANDYKE
Petitioner Guillermo Avila-Arias (“Avila-Arias”) petitions for review of the
Board of Immigration Appeals’ (“BIA” or “Board”) decision denying his
application for deferral of removal under the Convention Against Torture (“CAT”).
*
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.
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny it
in part, and remand for further proceedings.
When “the BIA agrees with the IJ decision and also adds its own reasoning,
we review the decision of the BIA and those parts of the IJ’s decision upon which
it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We
review factual findings for substantial evidence and “uphold the agency
determination unless the evidence compels a contrary conclusion.” Id. at 1028.
Where the BIA does not consider all the evidence before it, either by “misstating
the record [or] failing to mention highly probative or potentially dispositive
evidence,” its decision is legal error and cannot stand. Cole v. Holder, 659 F.3d
762, 772 (9th Cir. 2011); Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020).
1. Substantial evidence supports the BIA’s determination that Avila-Arias’s
past experiences do not rise to the level of torture. The BIA reviewed the record
evidence, incorporated the IJ’s analysis, and added its own reasoning that the
circumstances surrounding the death threats and attempted abduction Avila-Arias
suffered did not amount to the “extreme and prolonged cruel and inhuman
treatment” that define torture. See 8 C.F.R. § 1208.18(a). Avila-Arias does not
identify record evidence that “compels a contrary conclusion,” Duran-Rodriguez,
918 F.3d at 1028, nor does he demonstrate legal error in the BIA’s examination of
probative facts or interpretation of applicable law.
2
2. The BIA legally erred by misrepresenting record evidence and rejecting
probative expert testimony without explanation in its determination that Avila-
Arias could safely relocate within Mexico to avoid future harm.
Relevant considerations for a CAT claim include evidence of safe internal
relocation, evidence of mass violations of human rights in the country of removal,
and other pertinent country conditions. Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th
Cir. 2005) (quoting 8 C.F.R. § 1208.16(c)(3)). Avila-Arias presented expert
testimony from Dr. Alfonso Gonzales explaining why he could not relocate safely
within Mexico. Dr. Gonzales described why La Union cartel viewed Avila-Arias to
be a high priority target, that it is “highly likely” that the cartel would seek to
“capture him, hurt him, most likely torture him,” and that La Union holds immense
influence in national criminal networks, which enables it to act effectively on its
interests anywhere in the country.
The BIA, however, found that Avila-Arias could safely relocate within
Mexico by mischaracterizing and erroneously dismissing Dr. Gonzales’s expert
testimony. The BIA selectively referred to an out-of-context portion of Dr.
Gonzales’s testimony when it asserted that “he could not recall where [La Union’s]
cells were located,” to imply that Dr. Gonzales contradicted his opinion that La
Union could pursue its interests nationwide. The Board’s cherry-picking of that
sentence fragment ignores the remainder of that same sentence, where Dr.
3
Gonzales explains how the nature and method by which the cartel operates enables
it to violently act on its interests across the country. The Board also ignored several
pages of testimony in which Dr. Gonzales explained the motive for and mechanics
of how La Union pursues and tortures high priority targets like Avila-Arias
throughout Mexico.
Thus, the Board’s conclusion that Dr. Gonzales opined that “that La Union’s
purview was limited to a geographic area around Mexico City,” mischaracterizes
his testimony. We hold that the Board’s reliance on this mischaracterization to
dismiss Dr. Gonzales’s opinion that Avila-Arias could not safely relocate within
Mexico is legal error. See Cole, 659 F.3d at 772; Castillo, 980 F.3d at 1283 (“If the
Board rejects expert testimony, it must state in the record why the testimony was
insufficient to establish the probability of torture. Improperly rejected expert
testimony is a legal error and, thus, per se reversible”) (internal citation and
quotation marks omitted). We grant Avila-Arias’s petition for review on this
ground, and remand to the BIA for further proceedings.
PETITION FOR REVIEW GRANTED in part, DENIED in part, and
REMANDED. The parties shall bear their own costs on appeal.
4
FILED
Avila-Arias v. Garland, No. 20-71340 MAY 10 2021
MOLLY C. DWYER, CLERK
VANDYKE, Circuit Judge, dissenting in part and concurring in part. U.S. COURT OF APPEALS
I dissent from the majority’s conclusion that the BIA’s analysis of the expert
witness’s testimony was legally flawed. 1 While the majority accuses the BIA of
“misrepresenting record evidence” and “cherry-picking” in its analysis of Avila-
Arias’s CAT claim, it is the majority that stingily refuses to consider the BIA’s
rationale in its entirety and give it due deference. Properly evaluated, the BIA’s
rationale more than meets our highly deferential substantial evidence review—
especially for a CAT relief, which Congress intentionally designed to be especially
difficult to qualify for.
1. Substantial Evidence Supports the BIA’s Relocation Conclusion.
Substantial evidence, not legal error, is the proper lens through which we
should be reviewing the BIA’s decision. The majority attempts to construe the fact
that the BIA reviewed the expert’s testimony and found certain aspects of it more
persuasive than others as constituting legal error. It repeatedly claims the BIA
“ignored” the parts of the expert’s testimony that did not support the BIA’s
conclusion that Avila-Arias could safely relocate to avoid future torture. But in
making that conclusion, the BIA plainly acknowledged that the expert also “testified
1
I concur with Section 1 of the majority’s decision that substantial evidence supports
the BIA’s conclusion that Avila-Arias did not experience past torture.
1
that it is likely La Union would find [Avila-Arias] in Mexico” and specifically cited
the pages of the hearing transcript that the majority claims were ignored. This
distinguishes the BIA’s decision here from Cole v. Holder, where the BIA did not
“evidence[] in its opinion reasoned consideration of the potentially dispositive
testimony of Cole’s two experts.” 659 F.3d 762, 772 (9th Cir. 2011). The BIA in
this case evaluated all aspects of the expert’s opinion and simply noted that some of
the expert’s testimony could be construed as conflicting with other parts of the same
testimony. The Agency did what fact-finders routinely do: compared a witness’s
direct-examination testimony against his cross-examination testimony and
concluded that the latter reduced the persuasiveness of the former. This is hardly
irregular or constitutes “legal error,” but is rather a reasonable weighing of the facts
that is due deference under the substantial evidence standard applied to CAT
analyses. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam). 2
2
Nor did the BIA give the expert’s opinion less weight vis-à-vis other evidence, as
the BIA did in Castillo v. Barr, 980 F.3d 1278, 1283–84 (9th Cir. 2020). The BIA
here did not contrast the expert’s testimony with other record testimony and discount
or disregard all of his testimony, id. at 1284, but rather evaluated the entirety of the
expert’s written and verbal submissions and determined that some parts were more
convincing than others given the expert’s inability to provide any details on cross-
examination in support of some of his earlier highly generalized and non-specific
statements. The majority’s real beef is with the BIA’s weighing of the factual record,
and thus substantial evidence—not legal error—is the standard of review it should
be applying.
2
Substantial evidence supports the BIA’s conclusion that Avila-Arias could
safely relocate within Mexico to avoid future torture. The BIA’s main analysis on
this point focused on the fact that Avila-Arias successfully relocated in the past, and
the La Union cartel only found him when Avila-Arias “mistakenly provided his
address over the telephone.” The majority does not engage with this discussion, and
Avila-Arias’s opening brief merely argues, counterintuitively, that there was no
guarantee that Avila-Arias would not improvidently share his address again. But
the BIA adopted the IJ’s reasonable determination that it was more likely than not
that Avila-Arias “would not report himself to the local criminal element” upon
deportation. Because the BIA concluded it was “doubtful this criminal gang would
find” Avila-Arias without that happening, “[t]he evidence does not establish that any
step in this hypothetical chain of events is more likely than not to happen, let alone
that the entire chain will come together to result in the probability of torture.”
Medina-Rodriguez v. Barr, 979 F.3d 738, 751 (9th Cir. 2020) (quoting In re J-F-F-,
23 I. & N. Dec. 912, 917–18 (A.G. 2006)); compare Nuru v. Gonzales, 404 F.3d
1207, 1219–20 (9th Cir. 2005) (determining that petitioner’s evidence that his
captors have “continued to look for him and that, in his absence, it has engaged in
reprisals against his family” and evidence showing that the government actively
looked for deserters like petitioner supported a probability of torture).
3
The BIA bolstered this conclusion by noting that among the evidence
provided by Avila-Arias’s expert were indications that La Union limited its activities
to a particular geographic area in Mexico City. The expert affirmed “La Union … is
active in … Mexico City, particularly the Tepito neighborhood,” and when asked by
the IJ if La Union had “active cells anywhere else within the country of Mexico,”
the expert responded “that [he] can specifically say right now, nothing’s coming to
mind ….” The majority contends the BIA affirmatively mischaracterized other
portions of the expert’s testimony that explained how La Union can connect with
other criminal cells to find Avila-Arias. But, first, the record is clear that, contrary
to the majority’s reasoning, La Union didn’t find Avila-Arias in Tijuana because of
its connections to other cartels or because “Avila-Arias [was] a high priority target;”
it found him because he accidentally told them his address. The fact that Avila-
Arias’s expert vaguely testified that “the infrastructure is there for [La Union] to
seek retribution against their enemies throughout Mexico,” at most supports the
conclusion that if La Union knew where Avila-Arias was, it could reach him. But
that does not compel the conclusion that the cartel would have a greater than 50%
chance of finding him without him again telling them his location.
Second, the expert’s written testimony reveals that any discussion of La Union
operating outside Mexico City was more of an afterthought. After repeatedly noting
in the expert declaration that Avila-Arias would stand out in Mexico City and
4
Tijuana based on “his unique personal history,” the expert opined Avila-Arias would
be in danger from gangs “operating in Mexico City and anywhere in Mexico for the
matter,” (emphasis added), simply because “organized criminal groups … do try to
maintain presence in outside territories outside their usual neighborhood.” Such ipse
dixit hardly compels the conclusion that there are active La Union members
throughout Mexico, or that La Union could find someone anywhere in Mexico,
thereby creating a high likelihood that Avila-Arias will be sought, located, and
tortured upon his removal. Nor does it undermine the BIA’s conclusion that La
Union was not more than 50% likely to find Avila-Arias absent his own disclosure.
Avila-Arias’s counsel explored this lack of clarity at the hearing and asked
the expert whether a person fleeing La Union could avoid being attacked by moving
to another part of Mexico. The expert began by prevaricating that he thought that
“it is a matter of degree,” and although he did say “[i]t’s quite possible and probable
that … La Union would go after someone,” his initial conclusion was simply that
“these organizations are not necessarily limited to the territorial boundaries that their
names would suggest.” Only after Avila-Arias’s counsel continued to press him did
the expert make bolder claims about Avila-Arias’s likelihood of torture outside of
Mexico City, graduating from “quite possible” to “likely” and eventually to “highly
likely.” Ultimately, the expert’s opinion that Avila-Arias would face torture
vacillated from focusing specifically on a high risk within Mexico City to making
5
broad, vague claims about Avila-Arias’s risk outside of that area. 3 Taking the
opinion in its entirety, the BIA weighed the various statements from the expert
against each other and found the more specific information, relating to Avila-Arias’s
threat of torture in a particular area of Mexico, more likely than the expert’s general
and unsubstantiated claims about the threat of torture country-wide. 4
In light of the entire record, the BIA reasoned that although “other plausible
views of the evidence exist” that differed from the IJ’s conclusion, the BIA
3
While an IJ “may receive in evidence any oral or written statement that is material
and relevant to any issue in the case [from] … any other person during a[]
… hearing,” 8 C.F.R. § 1240.7(a), the IJ in this case “was not required to adopt
as true all of the facts on which [the expert] based his opinion, nor was the IJ
required to find that [the expert’s] unrebutted testimony made it more likely than not
that [petitioner] would be tortured upon returning to” his country of removal.
Aguilar-Ramos v. Holder, 594 F.3d 701, 706 n.7 (9th Cir. 2010). The majority here
accepts the expert’s ad-libbing on the certainty of Avila-Arias’s torture and his
increasingly unfounded claims about La Union’s reach, but neither “the IJ [or the
BIA] [were] … required to accede to [this] expert opinion[].” Acevedo Granados v.
Garland, 992 F.3d 755, 763 (9th Cir. 2021). And both the IJ and BIA considered
and reasonably rejected the expert’s conclusion that Avila-Arias was more likely
than not to be tortured upon removal to any part of Mexico. Under our substantial
evidence review, the entirety of the evidence—including the entirety of Avila-
Arias’s expert’s waffling and escalating testimony—does not compel a different
determination.
4
Moreover, the record documentation provided by Avila-Arias explains that La
Union “primarily operates … in the district of Cuauhtémoc” within Mexico City.
The expert’s testimony did not contradict this fact. The expert’s entire premise was
that La Union could connect with other cartels outside of Mexico City and use that
“infrastructure … to seek retribution.” Thus, the BIA did not “mischaracterize his
testimony” as the majority claims, when the BIA observed that “La Union’s purview
was limited to … [the] Mexico City” area.
6
determined it could not overturn a factual finding on that basis. See Rodriguez v.
Holder, 683 F.3d 1164, 1170–71 (9th Cir. 2012). Our court would do well to
emulate the BIA in this respect, as we too “are not free to look anew at the testimony
and then measure the soundness of the agency’s decision by what we would have
found. Nor does evidence compel the opposite conclusion just because it would also
support a different result.” Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir.
2009). Because the record evidence in this case is mixed, it does not compel the
conclusion that (a) Avila-Arias will share his new location with La Union or that
(b) La Union operates extensively across Mexico such that it could find Avila-Arias
without him again sharing his location.
2. This Case Demonstrates the Need to Faithfully Apply the CAT
Standard.
This case well illustrates why the CAT standard is, by design, so difficult to
surmount, and illuminates why it is particularly problematic when we, as judges,
inappropriately step beyond our deferential standard of review. CAT is the hardest
type of relief from removal to qualify for, and for good reason. When, as in this
case, an applicant is only eligible to apply for CAT deferral, the reason is often
because the applicant’s past dangerous and unsavory behavior bars him from any
other type of asylum—i.e., those types of relief that are easier to qualify for. Here,
Avila-Arias’s case focuses only on deferral of removal under CAT—with its
exceedingly high bar for relief—because he falls into that class of petitioners so
7
concerning that the government would otherwise remove them unless they are very
likely to be tortured or killed upon return to his country. By refusing to properly
apply the CAT standard and second-guessing the BIA, two unaccountable judges are
tilting our immigration system toward admitting demonstrably dangerous
candidates. While I guess my colleagues don’t expect this person to end up being
their neighbor, he could end up being some American’s neighbor, compliments of
our court.
What kind of neighbor will he be? In May 2001, Avila-Arias was convicted
of conspiracy to commit battery for fracturing a victim’s skull with a golf club. In
October 2001, he was convicted of conspiracy to commit grand larceny. And in
January 2013, he was convicted of strangling his then-partner, the mother of his
children. After being removed from this country “[b]etween five and eight times,”
Avila-Arias appeared before the IJ, who determined that the battery and
strangulation convictions constituted particularly serious crimes—making him
ineligible for withholding of removal and withholding of removal under CAT.
Avila-Arias does not challenge that conclusion before our court.
Because Avila-Arias consistently “attempt[ed] to downplay the extent of his
criminal history,” the IJ found him entirely dishonest because “the nature of [Avila-
Arias’s] testimony impact[ed] his credibility to such an extent that the court [found]
that his entire testimony [was] incredible.” The IJ denied all relief under CAT on
8
the ground that he could put no weight on Avila-Arias’s incredible testimony that he
had been a victim of threats or harm in Mexico. The IJ alternatively held that, even
if he had been credible, Avila-Arias did not demonstrate past torture or that he was
more likely than not to be tortured upon removal. The BIA affirmed the IJ on an
alternate ground, presenting our panel with those issues on appeal that the majority
addresses. But by misreading the BIA’s decision and lowering the standard for
protection under CAT, the majority incorrectly granted relief. Because substantial
evidence supports the BIA’s determination that Avila-Arias did not demonstrate he
was more likely than not to share his location with La Union in the future and
consequentially be tortured, and I would deny the petition in its entirety.
I respectfully dissent.
9