NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDY CRISTINA CACEROS, No. 20-73024
Petitioner, Agency No. A078-022-637
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 14, 2022
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,** District Judge.
Sandy Caceros, a citizen of Guatemala, petitions for review of a decision of
the Board of Immigration Appeals (BIA) dismissing her appeal of an order of an
Immigration Judge (IJ) that denied her application for deferral of removal under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
and deny the petition.
1. We review the BIA’s decision for substantial evidence. Dhital v. Mukasey,
532 F.3d 1044, 1051 (9th Cir. 2008). Caceros must establish that the evidence
compels the conclusion she is “more likely than not to be tortured” in the country of
removal due to a particularized threat of torture, inflicted by one acting with
government approval or acquiescence, beyond that of which all citizens of the
country of removal are at risk. Id. at 1051–52 (citation omitted). When, as here,
“the BIA issues its own decision but relies in part on the [IJ]’s reasoning, we review
both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). “If the
[BIA] rejects expert testimony, it must state in the record why the testimony was
insufficient to establish the probability of torture.” Castillo v. Barr, 980 F.3d 1278,
1283 (9th Cir. 2020) (citation and quotation marks omitted).
Caceros arrived in the United States and suffered abuse as a child. She
identifies as a lesbian woman, has multiple visible tattoos, and suffers from lupus,
post-traumatic stress disorder, depression, and anxiety. Immigration officers
commenced removal proceedings against her as a noncitizen convicted of an
aggravated felony after Caceros was convicted of assault with a deadly weapon and
attempted home invasion robbery.
Caceros has not been harmed in Guatemala, so her claim hinges on country
conditions, which do not compel the conclusion that Caceros will more likely than
2 20-73024
not suffer torture in Guatemala. Her expert testified that because public health
facilities lack resources, Caceros should visit private healthcare facilities that would
not want “people who scare other . . . paying customers in their waiting room.” But
this does not reflect the specific intent to torture her by denying her medical care.
See Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008). Though the BIA
acknowledged evidence detailing widespread violence and lack of legal protections
for LGBT individuals, it also noted that LGBT support organizations exist in
Guatemala and that an openly gay woman was recently elected to Congress. And
while “the BIA must consider the risk of torture posed by conspicuous tattoos that
display affiliation with a gang,” it need not find that “any tattoos are enough to justify
[CAT] relief.” Andrade v. Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015). Caceros’s
tattoos are not gang related, and tattoos, gang-related or not, are not mentioned in
Caceros’s country conditions evidence.
The BIA’s statements that her expert witness’s testimony was speculative
adequately explain its decision not to adopt the expert’s conclusions about the
aggregate risk of torture. The BIA reasonably rejected the expert’s conclusions that
relied on a series of suppositions, such as that Caceros would be forced into sex work
based on her tattoos and gender despite having some college education and Spanish
language ability. To show that the BIA failed to adequately explain why it rejected
her expert’s conclusions, Caceros points to a USAID report not mentioned by the
3 20-73024
BIA, describing how girls are targeted by gangs in Guatemala as sex slaves. This
evidence does not compel the conclusion that public agents acquiesce in torturing
women. As the IJ pointed out, the evidence showed that the Guatemalan government
has made headway in combatting violence against women. Caceros does not
identify other evidence that the BIA overlooked or how it failed to give reasoned
consideration to expert testimony. “[W]e cannot overturn the agency’s decision
based on mere disagreement” where, as here, the BIA has considered all the evidence
and found, as a reasonable factfinder could have, that the evidence supported an
opinion contrary to expert opinion. Rodriguez-Jimenez v. Garland, 20 F.4th 434,
439 (9th Cir. 2021).
Caceros alleges that the agency failed to consider the aggregate risk of torture
from all sources. But stating that the IJ “must consider all evidence relevant to the
likelihood of future torture” is sufficient if there is no indication that the IJ failed to
give reasoned consideration to potentially dispositive evidence. Benedicto v.
Garland, 12 F.4th 1049, 1065 (9th Cir. 2021). Here, the BIA stated that the IJ
“properly considered the totality of the record evidence” and her “aggregate risk of
torture in Guatemala based on [her] gender, sexual orientation, visible tattoos,
mental health disorders, lupus, and status as having lived in the United States.” Even
if its decision analyzed the possibilities of torture separately, nothing compels the
conclusion that the BIA failed to consider Caceros’s circumstances cumulatively.
4 20-73024
See id.
2. The government initially submitted unpaginated documents to prove
Caceros’s removability, but several documents were uncertified or did not reference
a case number. After Caceros moved to terminate proceedings for this reason, the
government resubmitted the documents with a corrected certification form. Caceros
argues that the improperly certified documents failed to establish her removability
and should have been excluded. Even if the initial filings were problematic, the
defects were not prejudicial, the corrected filings are independently sufficient to
establish Caceros’s removability, and the errors were harmless. See Khudaverdyan
v. Holder, 778 F.3d 1101, 1107 n.3 (9th Cir. 2015).
PETITION DENIED.
5 20-73024