FILED
NOT FOR PUBLICATION
JUL 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO SARMIENTO-HERNANDEZ, No. 20-71988
AKA Perdo Verdier,
Agency No. A206-784-435
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2021**
Seattle, Washington
Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Karen K. Caldwell, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
Rogelio Sarmiento-Hernandez, a native and citizen of Mexico, seeks review
of a decision of the Board of Immigration Appeals (BIA) affirming the decision of
an Immigration Judge (IJ) to deny his application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition for review in
part.
The BIA erred by failing to address Sarmiento’s argument that he was
eligible for asylum and withholding of removal because he has a well-founded fear
of persecution from private actors in Mexican mental institutions whom the
Mexican government was unable or unwilling to control. See Rahimzadeh v.
Holder, 613 F.3d 916, 920 (9th Cir. 2010). Because “IJs and the BIA are not free
to ignore arguments raised by a petitioner,” the agency must address this argument
on remand. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007)
(quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).
The BIA’s determination that Sarmiento did not establish a well-founded
fear of future persecution at the hands of the Mexican authorities is supported by
substantial evidence.
Substantial evidence also supports the agency’s determination that
Sarmiento is not eligible for CAT relief because he did not establish that it is more
2
likely than not that he will be tortured by or with the acquiescence of a public
official upon return to Mexico. See 8 C.F.R. § 1208.16(c)(2); Duran-Rodriguez v.
Barr, 918 F.3d 1025, 1029 (9th Cir. 2019). The country conditions reports do not
demonstrate that Sarmiento is personally at risk of future torture or that any
Mexican official had the specific intent to inflict suffering upon patients with
chronic mental health issues required to establish an entitlement to relief under
CAT. See Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014); Acevedo Granados
v. Garland, 992 F.3d 755, 765 (9th Cir. 2021). Sarmiento failed to point to any
other evidence in the record to support his claim. See Garcia v. Holder, 749 F.3d
785, 792 (9th Cir. 2014).
PETITION GRANTED IN PART, DENIED IN PART.1
1
Costs shall be taxed against the respondent.
3