FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL URIBE No. 21-1244
ANDRADE,
Agency No.
A200-739-003
Petitioner,
v. OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 20, 2023
Phoenix, Arizona
Filed March 1, 2024
Before: Sandra S. Ikuta, Bridget S. Bade, and Daniel A.
Bress, Circuit Judges.
Opinion by Judge Bress
2 URIBE V. GARLAND
SUMMARY*
Immigration
The panel denied Miguel Angel Uribe Andrade’s
petition for review of the Board of Immigration Appeals’
dismissal of an appeal of the denial of asylum and related
relief, concluding that the Board did not commit legal error
in finding that Uribe’s proposed social group lacked
particularity, and that substantial evidence supported the
denial of CAT relief.
Although Uribe was removable based on a criminal
offense covered by 8 U.S.C. § 1252(a)(2)(C), the panel
concluded that this provision did not deprive it of
jurisdiction to review Uribe’s asylum and withholding
claims, because Uribe did not challenge the factual findings
underlying the agency’s rejection of his proposed social
group, and pursuant to 8 U.S.C. § 1252(a)(2)(D), the court
retained jurisdiction to review Uribe’s legal arguments
concerning that determination.
The panel concluded that the Board did not err in
determining that Uribe’s proposed social group, “Mexicans
with mental health disorders characterized by psychotic
features who exhibit erratic behavior,” was not cognizable
because it lacked particularity. The panel noted that Uribe
did not challenge the agency’s factual finding that the term
“erratic behavior” was not defined in the record and was not
used by Uribe’s treatment providers in describing his
conditions or symptoms. Additionally, nothing inherent in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
URIBE V. GARLAND 3
the phrase “erratic behavior” required the Board to treat it as
a self-defining term, much less to supply a lay definition.
The Board could therefore conclude that “erratic behavior”
did not provide firm enough indication of who might be in
the proposed group given that the phrase may cover a range
of conduct that varies in frequency, duration, and character.
The panel held that substantial evidence supported the
Board’s denial of CAT protection. As to Uribe’s first
theory—that he will be tortured in a Mexican mental health
facility—the panel concluded that the record did not compel
the conclusion that Uribe will be unable to obtain his
medication or other treatment in Mexico. Thus, the Board
reasonably concluded that Uribe was not more likely than
not to be committed to a mental health institution.
Substantial evidence also supported the Board’s
determination that, even if Uribe were committed to a mental
health institution, he would not likely be tortured because the
poor conditions in Mexico’s mental health facilities are not
created with the requisite specific intent to inflict suffering.
As to Uribe’s fear of being tortured on account of his former
gang membership and tattoos, the panel concluded that
evidence of widespread cartel violence in Mexico did not
show that Uribe’s past or perceived gang affiliation would
make him particularly vulnerable to such violence. Nor did
the record compel the conclusion that Mexican officials
would acquiesce to Uribe’s torture.
4 URIBE V. GARLAND
COUNSEL
Kristin Macleod-Ball (argued) and Trina A. Realmuto,
National Immigration Litigation Alliance, Brookline,
Massachusetts, for Petitioner.
Jaclyn G. Hagner (argued) and Allison Frayer, Trial
Attorneys; Sarah A. Byrd, Senior Litigation Counsel;
Jennifer Levings, Assistant Director; Brian M. Boynton,
Principal Deputy Assistant Attorney General; United States
Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C.; for Respondent.
OPINION
BRESS, Circuit Judge:
This is a petition for review of a Board of Immigration
Appeals (BIA) decision dismissing an appeal of an
Immigration Judge (IJ) order denying the petitioner’s
applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
We hold that the BIA did not commit legal error in finding
that the petitioner’s proposed social group—“Mexicans with
mental health disorders characterized by psychotic features
who exhibit erratic behavior”—lacked particularity, and so
could not be a basis for granting asylum or withholding of
removal. We also hold that substantial evidence supports the
denial of CAT relief. We therefore deny the petition for
review.
URIBE V. GARLAND 5
I
Petitioner Miguel Angel Uribe Andrade (Uribe) is a
native and citizen of Mexico who entered the United States
with family members in 1999, at the age of nine. In 2005,
the government placed Uribe and his mother in deferred
action status, meaning it chose to give their cases lower
priority for removal. As an adolescent growing up in
California, Uribe joined the “Southsider” gang and began
using drugs. He had behavioral problems and spent time in
juvenile detention for robbery and skipping class. After he
was released, he remained affiliated with the gang until he
moved to Oregon in 2009.
Shortly after moving to Oregon, Uribe, then age
nineteen, was convicted of felony assault and other offenses
following a fight with his girlfriend. Uribe served nine
months in prison before he was transferred to immigration
detention and placed in removal proceedings. In April 2012,
he was granted lawful permanent resident status and was
released.
From 2013 to 2020, Uribe was convicted of various
offenses in Oregon, including methamphetamine possession.
In August 2020, the Department of Homeland Security
(DHS) served Uribe with a Notice to Appear, charging him
with removability under 8 U.S.C. § 1227(a)(2)(B)(i) as an
alien convicted of an offense related to a controlled
substance. In support of this charge, DHS cited Uribe’s
Oregon methamphetamine convictions.
At a hearing held pursuant to Franco-Gonzalez v.
Holder, 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014), the IJ
determined that Uribe was not competent to represent
himself and appointed counsel for him in the immigration
proceedings. Through counsel, Uribe conceded
6 URIBE V. GARLAND
removability and, as relevant here, applied for asylum,
withholding of removal, and CAT protection.
Uribe’s asylum and withholding of removal claims were
premised on his fear of persecution in Mexico as a member
of a proposed particular social group, “Mexicans with
mental health disorders characterized by psychotic features
who exhibit erratic behavior.”1 In support of these claims,
Uribe submitted a report by a mental health evaluator, Dr.
Kathryn Lanthorn-Cardenas, who diagnosed Uribe with
“Major Depression, Moderate, with Psychotic Features,” in
addition to stimulant and opiate use disorders in sustained
remission in a controlled environment. Dr. Lanthorn-
Cardenas described Uribe’s prognosis as “cautiously
optimistic” with “appropriate treatment” but “poor” without
“appropriate mental health and substance use treatment.”
Before the IJ, Uribe testified about his mental health
history. He described first experiencing depression, anxiety,
and psychotic hallucinations as a teenager. He testified that
his drug use at the time “mentally broke [him] down,”
causing him to “hear voices, and see things that weren’t
there.” Although Uribe initially attributed his symptoms in
part to his drug use, his symptoms persisted after he became
sober in 2019. Uribe received limited treatment for these
symptoms and had never been institutionalized in a
psychiatric hospital. Uribe received mental health treatment,
including medication and counseling, while incarcerated.
He continued to receive treatment while in immigration
detention.
1
Before the agency, Uribe also raised an alternative proposed social
group, “Mexicans with disabilities.” He abandoned this alternative on
appeal.
URIBE V. GARLAND 7
Relying on this medical history, Uribe sought asylum
and withholding of removal on the theory that he would be
at risk of persecution because he would be unable to obtain
in Mexico the “intensive mental health and substance abuse
treatment” that he believes he requires. Without this
treatment, Uribe feared he would “fall back into using drugs”
and that his behavior would be “impaired, making him
noticeable to others.” These circumstances, he argued, made
it likely that he would be involuntarily institutionalized in
Mexico, where he would face “appalling, abusive
conditions.”
Uribe’s CAT application was premised on his fear of
torture by health care providers in Mexico’s state-run
institutions, and by cartel members or Mexican officials
based on his previous gang affiliation. As to the first theory,
Uribe testified that he did not know where he would seek
addiction and mental health treatment in Mexico and that
abstaining from treatment would cause him to return to using
drugs. He testified that he had an uncle and a grandmother
still living in Mexico, but that he could not remain sober if
he lived with them because his uncle “uses drugs and is part
of the cartel.” Uribe’s counsel pointed to Uribe’s historically
“poor prognosis without treatment” and lack of familial
support in Mexico (most of his family members are U.S.
citizens or lawful permanent residents) as evidence that he
would likely be arrested and involuntarily hospitalized if
returned to Mexico. As to the second basis for CAT
protection, Uribe testified that he would be targeted in
Mexico because his tattoos, including one on his face,
identified him as a member of the Southsider gang.
The IJ denied relief. Uribe’s asylum and withholding
claims failed because his proposed social group—
“Mexicans with mental health disorders characterized by
8 URIBE V. GARLAND
psychotic features who exhibit erratic behavior”—was not
legally cognizable. The first problem, the IJ explained, was
that Uribe had not established that Mexican society
perceived his proposed group as “socially distinct.” The IJ
also found the group “insufficiently particular” because the
terms “psychotic features,” “exhibit,” and “erratic behavior”
were “broad and ambiguous, particularly where those terms
are not defined by the evidence in the record.”
The IJ also denied Uribe’s application for CAT
protection because Uribe had not shown it was “more likely
than not” that he would be tortured if removed to Mexico.
The IJ recognized that Uribe’s “mental health condition may
decline if he is returned to Mexico” and that some Mexican
mental health institutions had “extremely poor” conditions.
But the IJ rejected Uribe’s argument about the possibility of
torture in such a facility because Uribe had not established
that he would be institutionalized or that the Mexican
government created the poor conditions to torture
individuals with mental illness. Instead, evidence suggested
that existing deficiencies stemmed from budget constraints
rather than a specific intent to torture. The IJ also rejected
Uribe’s argument that he would be tortured by cartel
members or Mexican officials based on his gang-related
tattoos because Uribe “ha[d] not received any particularized
threat from any criminal organization in Mexico, and the
evidence [did] not establish that the Mexican government
would acquiesce to [Uribe’s] mistreatment . . . .”
The BIA dismissed Uribe’s appeal. It affirmed the IJ’s
denial of asylum and withholding of removal because, even
assuming that Uribe’s proposed social group was socially
distinct in Mexico, it was not defined with sufficient
particularity. Noting that “erratic behavior” was “not
defined in the record, clinically or otherwise” and “was not
URIBE V. GARLAND 9
used by [Uribe’s] treatment providers in describing [Uribe’s]
conditions or symptoms,” the BIA reasoned that there was
“no discernible basis for readily identifying members of
[the] proposed group.”
The BIA also affirmed the denial of CAT protection.
Because the record did not indicate that Uribe would lack
access to his prescribed medication in Mexico, Uribe failed
to show that he would more likely than not be unmedicated
and involuntarily hospitalized. The BIA also found that the
evidence plausibly established that the poor conditions in
Mexico’s mental health facilities “were the result of limited
financial resources, rather than a specific intent to torture.”
As to Uribe’s argument that he would be tortured by cartel
members or government officials due to his past gang
affiliation, the BIA agreed with the IJ that Uribe had not
presented evidence of any particularized threat as to him.
Uribe timely petitioned for review. We have jurisdiction
under 8 U.S.C. § 1252.
II
We begin with Uribe’s claims for asylum and
withholding of removal.
A
Uribe concedes that he is removable for his past drug
crimes under 8 U.S.C. § 1227(a)(2)(B)(i). Although 8
U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction “to review
any final order of removal against an alien who is removable
by reason of having committed a [covered] criminal
offense,” and Uribe’s methamphetamine convictions so
qualify, see id. §§ 1227(a)(2)(B)(i), 1252(a)(2)(C), we retain
jurisdiction to review “constitutional claims or questions of
law.” Id. § 1252(a)(2)(D). Uribe disclaims any factual
10 URIBE V. GARLAND
challenges to the BIA’s decision, and we agree that his
arguments present questions of law. See Diaz-Reynoso v.
Barr, 968 F.3d 1070, 1076 (9th Cir. 2020) (explaining that
whether a “particular social group is cognizable is a question
of law”). We therefore consider whether the BIA legally
erred in denying Uribe asylum and withholding of removal,
reviewing questions of law de novo. Hernandez-Mancilla v.
Holder, 633 F.3d 1182, 1184 (9th Cir. 2011).
To be eligible for asylum, an alien must demonstrate that
he is a “refugee,” 8 U.S.C. § 1158(b)(1)(B)(i), defined as
“any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return
to . . . that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion . . . .” Id. § 1101(a)(42)(A). The asylum applicant
must show that he faces a “likelihood of ‘persecution or a
well-founded fear of persecution’” on account of one of
these five enumerated bases. Sharma v. Garland, 9 F.4th
1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.
§ 1101(a)(42)(A)); see also 8 U.S.C. § 1158(b)(1)(B)(i). To
establish eligibility for withholding of removal, an alien
must show “that it is more likely than not” that he will be
persecuted on these grounds. Barajas-Romero v. Lynch, 846
F.3d 351, 357, 360 (9th Cir. 2017); see also 8 U.S.C.
§ 1231(b)(3)(A).
Uribe claims that he is eligible for asylum because he has
a “well-founded fear of persecution” on account of his
“membership in a particular social group.” 8 U.S.C.
§ 1101(a)(42)(A). His argument in support of withholding
of removal is the same. The statute does not define the
phrase “membership in a particular social group,” but we
have adhered to the BIA’s determination that an applicant
URIBE V. GARLAND 11
“must establish that the group is: ‘(1) composed of members
who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society
in question.’” Diaz-Reynoso, 968 F.3d at 1077 (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.
2014)); see also Villegas Sanchez v. Garland, 990 F.3d
1173, 1180 (9th Cir. 2021); Akosung v. Barr, 970 F.3d 1095,
1103 (9th Cir. 2020). Uribe bears the burden of proving
these elements. See Nguyen v. Barr, 983 F.3d 1099, 1104
(9th Cir. 2020).
Here we consider whether Uribe’s proposed social group
satisfies the second requirement, particularity. Particularity
requires that a proposed social group “be ‘discrete’ and have
‘definable boundaries.’” Acevedo Granados v. Garland,
992 F.3d 755, 762 (9th Cir. 2021) (quoting Matter of M-E-
V-G-, 26 I. & N. Dec. at 239). And the group may not be
“amorphous, overbroad, diffuse, or subjective.” Matter of
M-E-V-G-, 26 I. & N. Dec. at 239. The ultimate question
when assessing particularity is whether the proposed social
group is defined by “characteristics that ‘provide a clear
benchmark for determining who falls within the group.’”
Nguyen, 983 F.3d at 1103 (quoting Matter of W-G-R-, 26 I.
& N. Dec. 208, 214 (B.I.A. 2014)).
B
In his petition for review, Uribe claims membership in
the proposed particular social group, “Mexicans with mental
health disorders characterized by psychotic features who
exhibit erratic behavior.” The BIA found that this group was
insufficiently particular because it is “amorphous and
subjective,” specifically because of the reference to “erratic
behavior.” Although Uribe argued that inclusion of the
phrase “erratic behavior” narrows the proposed group, the
12 URIBE V. GARLAND
BIA explained that “the term ‘erratic behavior’ is not defined
in the record, clinically, or otherwise, and . . . was not used
by [Uribe’s] treatment providers in describing [Uribe’s]
conditions or symptoms.” Citing the lack of any record-
based definition, the BIA affirmed the IJ’s conclusion that
the proposed social group lacked particularity because “there
is no discernible basis for readily identifying members of
this proposed group.”
Uribe, as we have noted, does not challenge the factual
findings underlying the IJ and BIA’s rejection of his
proposed particular social group, namely, that the term
“erratic behavior” was not defined in the record and was not
used by Uribe’s treatment providers in describing his
conditions or symptoms. As a general matter, the BIA may
conclude that a proposed social group is insufficiently
particular when the group definition involves terminology
that is undefined or unexplained in the record, particularly
terminology that purports to be medical in nature, as here.
Cf. Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)
(describing the particularity inquiry as “a case-by-case
determination”); Diaz-Reynoso, 968 F.3d at 1088 (similar).
In this case, nothing inherent in the phrase “erratic
behavior” required the BIA to treat it as a self-defining term,
much less to supply a lay definition. See Nguyen, 983 F.3d
at 1103 (holding that the BIA did not err in concluding that
“known drug users” lacked particularity when the petitioner
“d[id] not provide any evidence” to demarcate the group’s
boundaries within the relevant society). The BIA could
therefore conclude that “erratic behavior” did not provide
firm enough indication of who might be in the proposed
group given that the phrase may cover a range of conduct
that varies in frequency, duration, and character. See id.
(explaining that drug “user” was insufficiently particular
URIBE V. GARLAND 13
because it “could vary broadly based on the amount and
frequency of an individual’s drug use” and “could
encompass first-time users, occasional users, habitual users,
or rehabilitated individuals”). Indeed, Uribe acknowledges
in his opening brief that his proposed group “included a
modifier that does not necessarily have an established
medical definition.” In our experience, petitioners
sometimes include additional attributes in their proposed
social groups as a basis for establishing the social distinction
of their group. But when petitioners do so, the BIA may
fairly conclude that the group lacks particularity in the
absence of evidence that gives sufficient meaning to the
terms describing the additional attributes.
Uribe nonetheless argues that the BIA committed legal
error because, in his view, the BIA’s rejection of his
proposed particular social group conflicts with Acevedo
Granados v. Garland, 992 F.3d 755 (9th Cir. 2021), a
precedent that the BIA here recognized and cited in its
decision. In Acevedo Granados, the agency rejected the
proposed group of “El Salvadoran men with intellectual
disabilities who exhibit erratic behavior” because the
“imprecise contours of the terms ‘intellectual disability’ and
‘erratic behavior’ render[ed] the proposed group
‘amorphous, overbroad, diffuse, and subjective.’” Id. at
761–62 (brackets and citation omitted). We granted the
petition for review and remanded for further proceedings.
Id. at 758.
Although “erratic behavior” was included in the
proposed social group in Acevedo Granados, we did not
address the import of that term. Rather, the problem we
identified was that “[t]he BIA and IJ treated the term
‘intellectual disability’ as if it were applied by a layperson.”
Id. Psychologists had in fact “diagnosed [the petitioner] with
14 URIBE V. GARLAND
an Intellectual Disability, as defined in the Diagnostic and
Statistical Manual of Medical Disorders (‘DSM-5’).” Id. at
759–60. But instead of hewing to the diagnosis in the record
and the clinical definitions associated with it, the BIA
“assumed that a determination of mental illness was a
subjective one, to be carried out by a judge.” Id. at 762. The
IJ even went so far as to conclude that the petitioner did not
suffer from mental illness based on the IJ’s lay perception of
the petitioner’s seemingly normal behavior in court. Id.
This was erroneous, we held, because “[t]he record in
th[at] case contained evaluations conducted by recognized
psychologists, retained by the government, who reported
their findings in professional terms.” Id. at 762–63. We
acknowledged that “the term ‘intellectual disability’ can be
used, especially by laypersons, in a way that lacks
precision.” Id. at 762. But because the petitioner “was
diagnosed with ‘intellectual disability’ as that term is used
within the psychological profession,” id., the agency could
not “disregard . . . the evidence in the record” in favor of its
own subjective determinations that the term lacked
particularity. Id. at 763; see also id. at 762 (“[T]he
particularity standard does not expect that immigration
judges make independent diagnoses based on their
observations in the courtroom.”).
Far from demonstrating legal error in the agency
decision we consider here, Acevedo Granados if anything
underscores that the IJ and BIA acted appropriately in
finding that Uribe had not met the particularity requirement.
The agency here did not ignore clinical evidence and
diagnoses in favor of a lay judgment. Instead, the problem
was a lack of supporting evidence in the first place: the term
“erratic behavior” was “not defined in the record, clinically
or otherwise,” and “was not used by [Uribe’s] treatment
URIBE V. GARLAND 15
providers in describing [Uribe’s] conditions or symptoms.”
This case is therefore unlike Acevedo Granados, where there
was both a clinical definition and a documented diagnosis of
“intellectual disability,” which the agency disregarded in
favor of a lay judgment, and where we did not consider the
meaning of the phrase “erratic behavior.” 992 F.3d at 762–
63. Acevedo Granados confirms that absent appropriate
record-based evidence, terms associated with mental health
can otherwise “lack[] precision.” Id. at 762. That is the
problem the BIA permissibly identified here.
Uribe points out that the proposed group in Acevedo
Granados was defined similarly to his own, as “El
Salvadoran men with intellectual disabilities who exhibit
erratic behavior.” Id. at 760 (emphasis added). From this
he argues that Acevedo Granados already held that a
proposed group that incorporates the phrase “erratic
behavior” is cognizable as a matter of law. That is not
correct.
As we noted above, Acevedo Granados did not address
the import of the phrase “erratic behavior.” It thus cannot be
read to sign off on the particularity of all proposed social
groups containing that phrase, much less without regard to
the record before the agency. See, e.g., United States v.
Corrales-Vazquez, 931 F.3d 944, 954 (9th Cir. 2019)
(“Cases are not precedential for propositions not considered,
or for questions which merely lurk in the record.” (citations,
alterations, and quotation marks omitted)). And, more
broadly, contrary to Uribe’s position, Acevedo Granados did
not hold that the proposed group there was, in fact, legally
cognizable. We instead held that “the agency misunderstood
[the petitioner’s] proposed social group,” and that record
evidence that the agency ignored “may satisfy” the
requirements for a particular social group. 992 F.3d at 758
16 URIBE V. GARLAND
(emphasis added). In remanding “for further fact-finding on
an open record,” id. at 765, we did not hold that proposed
social groups involving “erratic behavior” (or any specific
terms) necessarily meet all the legal requirements for a
particular social group. Nor could such a holding be
reconciled with Acevedo Granados’s emphasis on the
central relevance of clinically based record evidence for
defining medical and psychological terms. See id. at 762–
63.
In arguing that the BIA committed legal error, Uribe next
invokes the Fourth Circuit’s decision in Temu v. Holder, 740
F.3d 887 (4th Cir. 2014). But Temu is distinguishable. In
Temu, the court in a divided decision held that the BIA erred
in finding insufficiently particular the proposed group of
Tanzanian “individuals with bipolar disorder who exhibit
erratic behavior.” Id. at 891. Although the court in Temu
“doubt[ed] that ‘individuals who exhibit erratic behavior’
would qualify as a particular social group,” “[u]nlike ‘erratic
behavior,’ the term bipolar disorder has well-defined,
identifiable characteristics.” Id. at 895 (citing clinical
sources). In the Fourth Circuit’s view, the proposed social
group was cognizable when considered “as a whole.” Id. at
894; see also id. at 895 (“Thus, erratic behavior has unclear
boundaries that the other component of Mr. Temu’s group
supplies. In turn, bipolar disorder covers a broad spectrum
of behavior that is sharply limited by the requirement of
erratic behavior.”).
The Fourth Circuit’s analysis in Temu is inapplicable
here for several reasons. Uribe’s proposed group does not
use the term “bipolar disorder,” but the broader phrase
“mental health disorders characterized by psychotic
features.” And in Temu, there was record evidence,
including expert testimony, that “visibly erratic behavior” is
URIBE V. GARLAND 17
seen as a manifestation of demonic possession in Tanzania;
as the Fourth Circuit noted, “Tanzanians even have a label
for the group . . . .” Id. at 890. There is no equivalent record
evidence here. Finally, to the extent that Temu relied on a
lay understanding of “erratic behavior” in connection with
mental illness, that would appear contrary to our observation
in Acevedo Granados that mental health terms “can be used,
especially by laypersons, in a way that lacks precision.” 992
F.3d at 762; see also Temu, 740 F.3d at 901 (Agee, J.,
dissenting) (explaining that “‘erratic behavior’ is inherently
subjective and amorphous”). Although Temu indicated that
under the specific circumstances in Tanzania the phrase
“erratic behavior” limited “bipolar disorder” and made that
term more particular, id. at 895–96, there is no basis here for
concluding that the phrase “erratic behavior” limits the
broader phrase in our case, “mental health disorders
characterized by psychotic features.” Furthermore, as we
explained above, nothing about the term “erratic behavior”
required the BIA to accord it any particular definition absent
clarifying record evidence.
Nor did the BIA commit legal error in considering
Uribe’s proposed social group “piecemeal,” as Uribe
contends. The BIA did not hold that the reference to persons
“who exhibit erratic behavior,” standing alone, had to meet
the requirements of a particular social group. And the BIA
did not conceive of “erratic behavior” as an isolated concept
disconnected from mental illness. Instead, the BIA
evaluated Uribe’s proposed group as a whole when it
discussed “erratic behavior,” as that phrase was integral to
the group as Uribe conceived it. See Diaz-Reynoso, 968 F.3d
at 1084 (“We agree that courts cannot rewrite proposed
social groups . . . .”). Uribe does not argue his proposed
group is cognizable without reference to “erratic behavior.”
18 URIBE V. GARLAND
Although Uribe appears to have intended for “erratic
behavior” to provide a limiting principle, that does not mean
the BIA was required to conclude that the group definition
in toto “provide[d] a clear benchmark for determining who
falls within the group . . . .” Nguyen, 983 F.3d at 1103
(quotation marks and citation omitted). A component of a
proposed social group can narrow the group while at the
same time failing to provide clear boundaries for
ascertaining who is a member of the group. That was the
case here based on the BIA’s unchallenged finding that “the
term ‘erratic behavior’ is not defined in the record, clinically,
or otherwise, and . . . was not used by [Uribe’s] treatment
providers in describing [Uribe’s] conditions or symptoms.”
For these reasons, we discern no legal error in the BIA’s
denial of asylum and withholding of removal.
III
We next consider Uribe’s CAT claim. “The Convention
Against Torture provides mandatory relief for any
immigrant who can demonstrate that ‘it is more likely than
not that he or she would be tortured if removed to the
proposed country of removal.’” Gutierrez-Alm v. Garland,
62 F.4th 1186, 1200–01 (9th Cir. 2023) (quoting Hamoui v.
Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004)); see also 8
C.F.R. § 1208.16(c)(2). “To constitute torture, an act must
inflict ‘severe pain or suffering,’ and it must be undertaken
‘at the instigation of, or with the consent or acquiescence of,
a public official.’” Hernandez v. Garland, 52 F.4th 757, 769
(9th Cir. 2022) (quoting 8 C.F.R. § 1208.18(a)(1)).
We have jurisdiction to review the agency’s factual
findings underlying the denial of CAT relief, as well as its
legal conclusions. See Nasrallah v. Barr, 140 S. Ct. 1683,
1693 (2020). We review the agency’s factual findings for
URIBE V. GARLAND 19
substantial evidence. Gutierrez-Alm, 62 F.4th at 1201
(citing Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005)). This standard requires Uribe to show that the record
compels the conclusion that the agency’s decision was
incorrect. See Sharma, 9 F.4th at 1060. We review legal
questions de novo. Zheng v. Ashcroft, 332 F.3d 1186, 1193
(9th Cir. 2003). Here, Uribe has not experienced past torture
in Mexico. And the BIA determined that Uribe failed to
establish a likelihood of torture in Mexico, whether in a
mental health facility or on account of his gang affiliation
and tattoos. We hold that substantial evidence supports this
decision, which is also free of legal error.
Uribe’s first theory—that he will be tortured in a
Mexican mental health facility—relies on the premise that
he will not be able to obtain necessary mental health
treatment in Mexico, and that without this treatment he will
be involuntarily committed in a facility where he will then
be tortured. Because the allegations of torture rest on a
hypothetical chain of events, “CAT relief cannot be granted
unless each link in the chain is ‘more likely than not to
happen.’” Velasquez-Samayoa v. Garland, 49 F.4th 1149,
1154 (9th Cir. 2022) (quoting Matter of J-F-F-, 23 I. & N.
Dec. 912, 917–18 (A.G. 2006)); see also Medina-
Rodriguez v. Barr, 979 F.3d 738, 751 (9th Cir. 2020).
Uribe’s claim fails at the first link because he has not
shown it is more likely than not that he would be
institutionalized based on his inability to obtain treatment in
the country of removal. That is, the record does not compel
the conclusion that Uribe will be unable to obtain his
medication or other treatment in Mexico. Uribe’s argument
that he will be unable to afford treatment in Mexico is also
unavailing because it rests on a conclusory assertion that he
cannot maintain employment without his family’s support.
20 URIBE V. GARLAND
On this record, and considering that Uribe has never
previously been institutionalized, the agency reasonably
concluded that Uribe was not more likely than not to be
committed to a mental health institution in Mexico.
Uribe argues that the BIA committed legal error by
applying an inappropriately high standard when assessing
whether he showed a likelihood of institutional commitment.
We disagree. In context, when stating that “one cannot know
from the evidence whether [Uribe] will have access to
medication [in Mexico],” the BIA was explaining Uribe’s
failure to show error in the IJ’s factual findings and why
Uribe’s theory rested on speculation. Indeed, the BIA
articulated the “more likely than not” standard in the second
part of the same sentence.
Substantial evidence also supports the agency’s
determination that, even if Uribe were committed to a mental
health institution, he would not likely be tortured because the
poor conditions in Mexico’s mental health facilities are not
created with the requisite specific intent. For an act to
constitute torture within the meaning of the CAT, it must be
“specifically intended to inflict severe physical or mental
pain or suffering.” Acevedo Granados, 992 F.3d at 765
(quoting 8 C.F.R. § 1208.18(a)(5)). Uribe produced
evidence documenting poor conditions in Mexican mental
health institutions. But, as the BIA explained, the record
also supports a plausible inference that budgetary
constraints, not an intent to torture those with psychiatric
disabilities, are to blame. As we have explained in
confronting similar claims about the risk of torture in
Mexican mental health institutions, “evidence that
conditions were squalid did not prove that any Mexican
official had the specific intent to inflict suffering,” as
URIBE V. GARLAND 21
required for CAT relief. Id.; see also Villegas v. Mukasey,
523 F.3d 984, 989 (9th Cir. 2008).
Uribe’s claim that he will be tortured on account of his
former gang membership and tattoos similarly fails.
Although Uribe proffers evidence of widespread cartel
violence in Mexico, he has not shown that his past or
perceived gang affiliation will make him particularly
vulnerable to such violence. See Dhital v. Mukasey, 532
F.3d 1044, 1051 (9th Cir. 2008) (per curiam) (“[T]he
petitioner must demonstrate that he would be subject to a
‘particularized threat of torture . . . .’” (quoting Lanza v.
Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004))); see also
Medina-Rodriguez, 979 F.3d at 750 (holding that the record
did not compel the conclusion that the petitioner’s “tattoos
make it more likely than not he will be tortured at the hands
of a drug cartel with either the direct involvement or
acquiescence of the Mexican government”). Nor does the
record compel the conclusion that Mexican officials would
acquiesce to Uribe’s torture. See Hernandez, 52 F.4th at 769
(quoting 8 C.F.R. § 1208.18(a)(1)). The agency therefore
reasonably concluded that Uribe’s claim of torture was
speculative.
Finally, the BIA did not err by failing to consider the
aggregate risk of torture. See Velasquez-Samayoa, 49 F.4th
at 1154 (“[I]n assessing a CAT claim from an applicant who
has posited multiple theories for why he might be tortured,
the relevant inquiry is whether the total probability that the
applicant will be tortured—considering all potential sources
of and reasons for torture—exceeds 50 percent.”). Uribe
acknowledges that the IJ explicitly considered the risks of
torture “in aggregate.” Though the BIA did not specifically
acknowledge that it was considering the aggregate risk, it
agreed with the IJ’s findings and cited the pages of the IJ
22 URIBE V. GARLAND
decision in which the IJ undertook the “aggregate” analysis.
This is sufficient. See Hernandez, 52 F.4th at 772
(“Although the Board did not specifically address the
combined probability of torture from different sources, its
discussion of the CAT claim contained nothing to suggest
that the Board had not adopted that aspect of the immigration
judge’s reasoning.”). Considering the risks of torture in the
aggregate, Uribe has not shown that the record compels a
finding that he is likely to be tortured if returned to Mexico.
PETITION DENIED.