JOSE REY GUTIERREZ PENALOZA, AKA Noe E. Abrego v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE REY GUTIERREZ PENALOZA,
AKA Noe E. Abrego,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-72993
Agency No. A075-602-035
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2022
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Jose Rey Gutierrez Penaloza seeks review of a decision of the Board of
Immigration Appeals (BIA) dismissing his administrative appeal of an
Immigration Judge’s (IJ) order denying his application for deferral of removal
under the Convention Against Torture (CAT). We have jurisdiction under 8
FILED
FEB 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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U.S.C. § 1252. We deny the petition in part, dismiss it in part, grant it in part, and
remand in part to the agency for further proceedings.
The agency correctly held that, for purposes of CAT, government officials
must specifically intend to inflict severe pain or suffering for their acts to constitute
torture. See Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008); 8 C.F.R.
§ 1208.18(a)(1). Villegas forecloses Gutierrez’s argument that the requisite
showing of intent under CAT can be satisfied merely by demonstrating that an
alleged torturer intentionally engaged in conduct with knowledge to a practical
certainty that the action would cause severe pain or suffering. See 523 F.3d at
989.1 The BIA therefore applied the correct legal standard to assess the IJ’s
specific intent finding, and substantial evidence supports the agency’s finding that
abusive conditions— such as prolonged physical restraints and lobotomies—for
detainees and prisoners with mental health issues and for individuals detained in
mental health facilities are the result of neglect, a lack of options for controlling
1 We reject Gutierrez’s argument that the agency improperly relied on the
Mexican government’s alleged reform efforts, rather than focusing on the Mexican
health workers’ efforts (or lack thereof). CAT regulations instruct that: “all
evidence relevant to the possibility of future torture shall be considered, including
. . . [o]ther relevant information regarding conditions in the country of removal.” 8
C.F.R. § 1208.16(c)(3)(iv). We also reject Gutierrez’s argument that the IJ
assumed she could not infer intent from the record because this argument is
unsupported by the IJ’s decision and contradicted by Gutierrez’s argument that the
IJ improperly considered circumstantial evidence (i.e., country conditions).
2

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patients’ violent behavior, or insufficient training and resources, as opposed to a
specific intent to inflict severe pain or suffering.
We also reject Gutierrez’s argument that the BIA erred in applying clear
error review to the IJ’s specific intent finding because “[w]hether government
officials act with specific intent to inflict severe pain or suffering is a question of
fact that is subject to clear error review.” Guerra v. Barr, 974 F.3d 909, 913 (9th
Cir. 2020) (as amended).
The BIA did not err in declining to address Gutierrez’s claim that he would
more likely than not be subject to torture in a Mexican homeless shelter, because
Gutierrez waived that claim by failing to make a meaningful argument to the IJ
about the risk of torture he would face in a homeless shelter. See Honcharov v.
Barr, 924 F.3d 1293, 1296–97, 1296 n.2 (9th Cir. 2019) (per curiam).
The BIA erred in failing to address Gutierrez’s arguments that he would
more likely than not be subject to sexual abuse in a Mexican mental health
facility.2 Because we have held that rape and other forms of physical sexual abuse,
2 The BIA also erred in stating that “although the record establishes that
some individuals committed to mental health facilities have experienced abuse,
[Gutierrez] has not shown that such abuse is so common that it is more likely than
not that he will personally experience it,” because the IJ did not make a factual
finding as to the frequency of abuse in mental health facilities, and the BIA is not
authorized to engage in factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv)(A).
3

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such as sexual assault, may “rise[ ] to the level of torture for CAT purposes,”
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015), we remand to
the agency to address those claims in the first instance, see INS v. Orlando
Ventura, 537 U.S. 12, 16–17 (2002) (per curiam).3 To the extent Gutierrez
contends that he would more likely than not be subjected to sexual abuse in a
Mexican penal institution, we lack jurisdiction to consider this unexhausted
contention. See 8 U.S.C. § 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930–31
(9th Cir. 2004). In light of our remand, we do not reach the issue of whether the
BIA failed to consider the aggregate risk of torture that Gutierrez would suffer if
removed to Mexico.
DENIED IN PART, DISMISSED IN PART, GRANTED IN PART,
AND REMANDED IN PART.4
3 To the extent the IJ determined that Mexican health workers in public
psychiatric institutions act in an official capacity for the purposes of CAT, the BIA
erred in stating that Gutierrez “has not shown a sufficient likelihood that Mexican
health workers, with the acquiescence of a Government official, would have the
specific intent to torture him,” because Gutierrez need not demonstrate government
acquiescence if the torture was inflicted by “a public official or other person acting
in an official capacity.” Avendano-Hernandez, 800 F.3d at 1079–80 (quoting 8
C.F.R. § 1208.18(a)(1)).
4 The parties shall bear their own costs on appeal.
4

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