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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10279
Non-Argument Calendar
____________________
ABRAHAM BERNEZ-IBARRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-349-604
____________________
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2 Opinion of the Court 21-10279
Before ROSENBAUM, GRANT, and EDMONDSON, Circuit Judges.
PER CURIAM:
Abraham Bernez-Ibarra (“Petitioner”), a native and citizen
of Mexico, petitions for review of a final order by the Board of Im-
migration Appeals (“BIA”). The BIA affirmed the Immigration
Judge’s (“IJ’s”) denial of Petitioner’s applications for withholding of
removal under the Immigration and Nationality Act (“INA”) and
for relief under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment (“CAT”). No reversible error has been shown; we deny the
petition.
I. Background
Petitioner entered the United States as an infant in 1989. In
2019, the Department of Homeland Security charged Petitioner as
removable. Petitioner filed an application for withholding of re-
moval and for protection under CAT. 1
1 Petitioner also applied for asylum but later conceded that he was ineligible.
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In pertinent part, Petitioner said he feared he would be tar-
geted for torture upon his return to Mexico based on (1) his schiz-
ophrenia and history of mental illness and (2) his former gang affil-
iation and visible gang-related tattoos. 2 About mental illness, Pe-
titioner asserted that patients in mental-health facilities in Mexico
are subjected to poor conditions and to abuse rising to the level of
torture. Petitioner said the Mexican government allows the poor
conditions and abuse to persist and, thus, is complicit in the torture
of people with mental illnesses. Petitioner also asserted that his
gang tattoos made him readily identifiable as a person affiliated
with a United States gang: characteristics that would make him vul-
nerable to being kidnapped and tortured by Mexican gang mem-
bers and by the Mexican police.
The IJ denied Petitioner’s application for relief. The IJ deter-
mined that Petitioner’s prior California conviction for first-degree
residential robbery constituted a “particularly serious crime”
within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ thus con-
cluded that Petitioner was ineligible for withholding of removal
under the INA and under CAT.
2 Petitioner -- a former member of a gang known as the Fresno Bulldogs -- has
these tattoos: (1) a big dog paw on his chest; (2) a “C” on his right shoulder
and on the middle of his chest; (3) two small dog paws on his left leg; (4) two
small dog paws on his neck; (5) an “E” on his right shin; (6) an “S” on his left
shin; (7) a “BD” on his right calf; (8) a little “BDS” on his right hand; and (9) an
“ES” on his left hand.
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The IJ next determined whether Petitioner was eligible for
deferral of removal under CAT. In addressing Petitioner’s claim
that he would be targeted because of his mental-health issues, the
IJ noted that Petitioner’s case was similar to the circumstances pre-
sented in the BIA’s decision in Matter of J-R-G-P-, 27 I. & N. Dec.
482 (BIA 2018). In that case, the applicant asserted that his mental-
health issues made it more-likely-than-not that he would be impris-
oned or committed to a mental-health facility if returned to Mex-
ico: facilities in which he would be tortured by law enforcement
officials or mental-health workers. 27 I. & N. Dec. at 483. There,
in denying CAT relief, the BIA determined that the substandard
conditions in Mexico’s mental-health facilities, pretrial detention
centers, and prisons were the result of neglect, a lack of resources,
and of insufficient training and education -- not a specific intent “to
inflict severe physical or mental pain or suffering.” Id. at 486-87.
Here, the IJ acknowledged Petitioner’s schizophrenia diag-
nosis and history of mental-health issues. The IJ also observed,
however, that Petitioner -- who was unmedicated during his 2020
individual merits hearing -- had exhibited no “evident mental
health issues” while in court. The IJ noted that Petitioner had last
been hospitalized involuntarily in 2016 and that Petitioner was no
longer addicted to methamphetamine. In the light of this evidence,
the IJ found an insufficient likelihood that Petitioner’s mental
health would attract the notice of the Mexican authorities or that
Petitioner would be arrested, imprisoned, or committed involun-
tarily to a mental-health facility in Mexico.
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The IJ then discussed the country condition reports describ-
ing the poor conditions and prevalence of abuse within Mexico’s
mental-health facilities. The IJ determined, however (as the BIA
did in Matter of J-R-G-P-), that the poor conditions at these facilities
were “the result of neglect, a lack of resources, or insufficient train-
ing and education, not due to a specific intent to inflict severe pain
or suffering.” The IJ thus found insufficient evidence establishing
that the Mexican government had the specific intent to torture its
mentally ill citizens.
The IJ next considered Petitioner’s asserted fear about being
tortured based on his prior gang membership and his visible gang
tattoos. The IJ expressed concern about the gang violence in Mex-
ico. Nevertheless, the IJ determined that “broad characterizations”
about the country conditions in Mexico were insufficient to
demonstrate that Petitioner personally would be tortured. The IJ
found it “speculative” that Mexican authorities or gangs would
identify Petitioner’s gang tattoos: tattoos specific to a local gang in
Fresno, California with no ties to Mexico. The IJ also found it
“speculative” that the Mexican authorities or gangs would seek to
harm Petitioner based upon his past involvement in a U.S.-based
gang with no Mexican affiliation or rivalry. Finally, the IJ found
“wholly unsupported by the evidence” Petitioner’s assertion about
the Mexican government’s involvement in, or acquiescence to,
such gang violence. The IJ concluded that Petitioner had failed to
show that it was more-likely-than-not that he would be tortured
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upon his return to Mexico and, thus, denied Petitioner deferral of
removal under CAT.
The BIA adopted and affirmed the IJ’s decision.
II. Discussion
We review only the decision of the BIA, except to the extent
that the BIA adopts expressly the IJ’s decision. See Gonzalez v. U.S.
Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Because the BIA
adopted expressly the IJ’s decision in this case, we review both de-
cisions. See id.
We review de novo legal questions. See Lukaj v. U.S. Att’y
Gen., 953 F.3d 1305, 1311 (11th Cir. 2020). We review administra-
tive fact findings under the “highly deferential substantial evidence
test” whereby we “must affirm the BIA’s decision if it is ‘supported
by reasonable, substantial, and probative evidence on the record
considered as a whole.’” See Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). We “view the record evidence
in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. at 1027. To
reverse a fact finding, we must conclude “that the record not only
supports reversal, but compels it.” See Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003).
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A. Withholding of Removal
On appeal, Petitioner challenges the BIA’s and the IJ’s deter-
mination that his California conviction for first-degree residential
robbery -- in violation of California Penal Code § 211 -- qualified as
a “particularly serious crime” under the INA.
A non-citizen is ineligible for withholding of removal if the
Attorney General decides that the non-citizen has been convicted
of a “particularly serious crime.” See 8 U.S.C. § 1231(b)(3)(B)(ii).
By statute, an aggravated felony for which a non-citizen has been
sentenced to at least five years “shall” be considered a “particularly
serious crime.” Id. § 1231(b)(3)(B). Here, Petitioner’s California
residential-robbery conviction resulted in a sentence of three years’
imprisonment and, thus, is no per se “particularly serious crime.”
Notwithstanding the length of the sentence imposed, however,
“the Attorney General retains discretion to determine on a case-by-
case basis whether the offense constitutes a particularly serious
crime.” Id. § 1231(b)(3)(B); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,
1143 (11th Cir. 2010).
In determining whether an offense qualifies as a “particu-
larly serious crime,” the IJ may rely on the statutory elements of
the offense as well as on additional evidence about the nature of
the conviction, the circumstances and facts underlying the convic-
tion, and on the type of sentence imposed. See In re N-A-M-, 24 I.
& N. Dec. 336, 342 (BIA 2007). If “the elements of the offense are
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examined and found to potentially bring the offense within the am-
bit of a particularly serious crime, all reliable information may be
considered in making a particularly serious crime determination,
including the conviction records and sentencing information.” Id.
On other hand, if the elements of the offense would not bring the
crime potentially into the particularly-serious-crime category, “the
individual facts and circumstances of the offense are of no conse-
quence.” Id.
The BIA and the IJ committed no error in determining that
Petitioner’s state residential-robbery conviction constituted a “par-
ticularly serious crime.” Under California law, residential robbery
means “the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.” Cal. Penal Code §
211. Based on these statutory elements, the BIA and the IJ con-
cluded reasonably that Petitioner’s residential-robbery offense con-
stituted a crime against a person: the kind of crime the BIA has said
is “more likely to be categorized as particularly serious.” See In re
N-A-M-, 24 I. & N. Dec. at 343. Having concluded that the ele-
ments of Petitioner’s offense brought the offense “within the ambit
of a particularly serious crime,” the BIA and the IJ were entitled to
consider the circumstances and facts underlying Petitioner’s of-
fense -- including Petitioner’s use of a knife during the commission
of the offense -- in making a determination about seriousness. See
id. at 342; Lapaix, 605 F.3d at 1143.
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Given the record in this case, the BIA and the IJ committed
no error in determining that Petitioner’s California residential-rob-
bery offense constituted a “particularly serious crime” that ren-
dered Petitioner ineligible for withholding of removal under both
the INA and under CAT.
B. Deferral of Removal Under CAT
A non-citizen convicted of a particularly serious crime (and
thus ineligible for withholding of removal under CAT) may still be
eligible for deferral of removal under CAT. See 8 C.F.R. §
1208.17(a). To establish eligibility for CAT relief, an applicant must
show “that it is more likely than not that he or she would be tor-
tured if removed to the proposed country of removal.” See 8
C.R.F. § 1208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d
1239, 1242 (11th Cir. 2004). The applicant must also show that the
torture would be “inflicted by or at the instigation of, or with the
consent or acquiescence of, a public official acting in an official ca-
pacity or other person acting in an official capacity.” 8 C.F.R. §
1208.18(a)(1). “Acquiescence requires that the public official, prior
to the activity constituting torture, have awareness of such activity
and thereafter breach his or her legal responsibility to intervene to
prevent such activity.” Reyes-Sanchez, 369 F.3d at 1242 (quota-
tions omitted). “[T]o constitute torture, an act must be specifically
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intended to inflict severe physical or mental pain or suffering.” 8
C.F.R. § 1208.18(a)(5).
Substantial evidence supports the BIA’s and the IJ’s determi-
nation that Petitioner failed to show that he more-likely-than-not
would be tortured by, or with the acquiescence of, the Mexican
government.
1. Mental Health
About Petitioner’s mental health, the record supports the
BIA’s and the IJ’s determination that Petitioner had shown an in-
sufficient likelihood that he would be arrested, imprisoned, or in-
voluntarily committed or otherwise come to the attention of Mex-
ican authorities based on his mental-health issues. Contrary to Pe-
titioner’s argument on appeal, the IJ considered expressly Peti-
tioner’s schizophrenia diagnosis, Petitioner’s history of mental-
health issues, and Petitioner’s mental- health records. About Peti-
tioner’s current mental-health status, the IJ noted that, even with-
out medication, Petitioner exhibited no obvious mental-health is-
sues while in court. In addition, Petitioner’s last involuntary hos-
pitalization was four years earlier, and Petitioner was no longer ad-
dicted to methamphetamine: a factor Petitioner speculated might
have contributed to his mental-health issues.
On appeal, Petitioner asserts that the BIA and the IJ failed to
consider adequately Petitioner’s complete mental-health history,
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including Petitioner’s attempted suicide in 2017, substance-abuse
issues in 2018, and Petitioner’s “mental breakdown” in 2019. We
have stressed that, although the IJ and the BIA must consider all
evidence submitted by a petitioner, the IJ and the BIA -- in render-
ing a decision -- “need not address specifically each claim the peti-
tioner made or each piece of evidence the petitioner presented.”
See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir.
2015). Nor do these examples of Petitioner’s past mental-health
issues compel the conclusion that Petitioner’s current mental-
health status would more-likely-than-not cause him to be arrested
or committed involuntarily in Mexico.
The record also supports the BIA’s and the IJ’s determina-
tion that insufficient evidence exists establishing that the substand-
ard conditions in Mexico’s mental-health facilities are the product
of a specific intent by the government to torture persons with men-
tal illness. The BIA has said that substandard conditions caused by
mere negligence or a lack of resources do not constitute “torture”
for purposes of CAT. See Matter of J-R-G-P-, 27 I. & N. Dec. at 484;
Matter of J-E-, 23 I. & N. Dec. 291, 299, 301 (BIA 2002). Thus, CAT
relief may be denied properly when the evidence “plausibly estab-
lishes that abusive or squalid conditions in pretrial detention facili-
ties, prisons, or mental health institutions in the country of removal
are the result of neglect, a lack of resources, or insufficient training
and education, rather than a specific intent to cause severe pain and
suffering.” See Matter of J-R-G-P-, 27 I. & N. Dec. at 485-86.
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Here, the record includes documents attributing the sub-
standard conditions in Mexico’s mental-health facilities to factors
such as negligence, the absence of community-based support, a
lack of other rehabilitation options, and an outdated understanding
of best practices. The record also evidences that the Mexican gov-
ernment has proposed legislation purported to increase access to
mental-health care and to improve mental-health services. Mexi-
can law also prohibits discrimination against persons with mental
disabilities. This evidence of the Mexican government’s attempts
to improve its mental-health care system -- even if not yet effective
-- supports the BIA’s and the IJ’s finding that the Mexican govern-
ment has not created or maintained substandard conditions in its
mental-health facilities for the specific purpose of torturing patients
with mental illnesses. 3
3 On appeal, Petitioner contends that to demonstrate a specific intent on the
part of the Mexican government to torture the mentally ill is unnecessary. Pe-
titioner contends that the BIA and the IJ erred in failing to consider, instead,
the intent of the private mental-health care workers: private actors who Peti-
tioner says torture patients with the acquiescence of the Mexican government.
Petitioner never presented adequately this argument before the IJ or the BIA.
We will not address an argument raised for the first time on appeal. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006)
(“We lack jurisdiction to consider a claim raised in a petition for review unless
the petitioner has exhausted his administrative remedies with respect
thereto.”).
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2. Gang Membership & Gang Tattoos
Substantial evidence also supports the BIA’s and the IJ’s find-
ing that Petitioner failed to demonstrate a sufficient likelihood that
he would be tortured by, or with the acquiescence of, the Mexican
government -- torture based on his prior gang membership and his
visible gang tattoos.
On appeal, Petitioner contends that the BIA and the IJ failed
to consider adequately the testimony of Petitioner’s expert witness
(Dr. Slack) about the likelihood that Petitioner’s personal circum-
stances would make him a target for torture by Mexican gang
members. Among other things, Dr. Slack testified about the “par-
anoia” and “vigilance” Mexican gangs often exercise in monitoring
“new arrivals” and in identifying potential rival gang members. Dr.
Slack also opined that Petitioner’s visible tattoos and non-native
Spanish would be factors that would attract attention and would
put Petitioner at risk of harm.
The IJ acknowledged Petitioner’s evidence -- including Dr.
Slack’s testimony -- that Petitioner was “at some risk of harm from
gangs and criminals.” But the IJ found Dr. Slack’s “general asser-
tions” based on “broad characterizations of the current country
conditions” insufficient to demonstrate that Petitioner personally
would more-likely-than-not be tortured. After considering Dr.
Slack’s testimony, the IJ found it “speculative” that the Mexican
gangs would recognize Petitioner’s tattoos as gang-related and
found it “speculative” that Petitioner would be harmed based on
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his prior membership in a non-rival gang with no Mexican affilia-
tion.
That Petitioner disagrees with the weight given to Dr.
Slack’s testimony -- by itself -- demonstrates no error. See Lin-
geswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1292 (11th Cir. 2020)
(explaining that “[a]lthough IJs are obligated to consider an appli-
cant’s documentary evidence, they are under no obligation to
credit it or assign it decisive weight.” (quotations and alteration
omitted)). Moreover, Petitioner has identified no evidence that
would compel the conclusion that the feared gang violence would
be committed with the consent or acquiescence of the Mexican
government.
In these kinds of cases, the standards for review are particu-
larly important. The IJ’s and the BIA’s decision that Petitioner was
unentitled to withholding or removal or to CAT relief is supported
by reasonable, substantial, and probative evidence. Nothing on
this record compels us to reverse that decision.
PETITION DENIED.