Ornelas-Chavez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO ORNELAS-CHAVEZ, 
Petitioner, No. 04-72798
v.
 Agency No.
A96-106-917
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2005—Portland, Oregon
Filed August 21, 2006
Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge Browning;
Dissent by Judge O’Scannlain
9961
9964 ORNELAS-CHAVEZ v. GONZALES
COUNSEL
Elizabeth B. Wydra, Washington, DC, for the petitioner.
Carol Federighi, U.S. Department of Justice, Washington,
DC, for the respondent.
ORNELAS-CHAVEZ v. GONZALES 9965
OPINION
BROWNING, Senior Circuit Judge:
Francisco Ornelas-Chavez timely petitions this court for
review of a Board of Immigration Appeals (“BIA”) final
order affirming the Immigration Judge’s (“IJ”) denial of his
application for withholding of removal under the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), 8 U.S.C. § 1231(b)(3), and the United
Nations Convention Against Torture (“CAT”).1 He also
appeals the BIA’s denial of his due process challenge to the
proceedings before the IJ. Ornelas-Chavez claims (1) the BIA
erroneously required that he must have reported third-party
persecution to government authorities to qualify for withhold-
ing of removal under section 1231(b)(3); (2) the BIA erred in
denying protection under CAT by affirming the IJ’s decision
requiring that the alleged torture occur within the control or
custody of a state actor who “sanctioned” it; and (3) the IJ’s
stereotyping of the way gay men dress and behave prevented
him from receiving a fair hearing in violation of his due pro-
cess rights.
We have jurisdiction under 8 U.S.C. § 1252(a). We con-
clude the BIA applied the wrong legal standards to Ornelas-
Chavez’s claims for withholding of removal under IIRIRA
and CAT; therefore, we grant his petition with respect to
those claims. Because we remand to the BIA for application
of the correct standards, we do not reach his due process
claim.
1
Article 3 of CAT, implemented by the Foreign Affairs Reform and
Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, Div. G, 112 Stat.
2681, 2681-761 (Oct. 21, 1998), provides that a signatory nation will not
“expel, return[,] or extradite” an alien to another country “where there are
substantial grounds for believing that he would be in danger of being sub-
jected to torture.” See Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir.
2000).
9966 ORNELAS-CHAVEZ v. GONZALES
I.
Ornelas-Chavez is a Mexican national who came to the
United States illegally in 1998 to escape a lifetime of abuse
suffered on account of his female sexual identity.2
Ornelas-Chavez suffered a great deal of abuse in his youth
because of his homosexuality and female sexual identity. As
a young boy, his mother beat him for dressing in her clothes.
On several occasions, his father became so enraged at discov-
ering evidence of his homosexuality that he beat Ornelas-
Chavez savagely enough to leave noticeable injuries. Once,
his father conspired with a friend to humiliate Ornelas-Chavez
by permitting the friend to rape the boy after drugging him.
When Ornelas-Chavez was six, two cousins raped him after
seeing him dressed in women’s clothes and playing with
dolls. The cousins repeated this abuse until Ornelas-Chavez
was twelve years old. A worker on his grandfather’s hacienda
who witnessed the cousins’ abuse also raped him several
times between the ages of seven and nine. Ultimately,
Ornelas-Chavez fled his parents’ home and lived in hiding
from most of his family.
From his childhood through his adulthood in Mexico,
Ornelas-Chavez’s dealings with government officials and
employees was marked by either animus toward his female
sexual identity or tacit acceptance of the abuse he received
because of it. After he reported to his second-grade teacher
that his mother beat him for putting on her clothes, the teacher
told him only “fags” dressed up in women’s clothes. When he
told the teacher that he had performed sexual intercourse with
older men, she told him he “shouldn’t do that because only
homosexuals did that.” The teacher never reported the sexual
2
Because the IJ found Ornelas-Chavez’s testimony credible and the BIA
did not make a contrary finding, we accept the facts given by Ornelas-
Chavez and all reasonable inferences to be drawn from them as true. See
Zheng v. Ashcroft, 332 F.3d 1186, 1189 n.4 (9th Cir. 2003).
ORNELAS-CHAVEZ v. GONZALES 9967
abuse to the proper authorities. When Ornelas-Chavez was
sixteen, his father arranged to have the local police chief
arrest and detain him for six hours to “teach [him] to behave.”
(The father was apparently on close terms with the local
police, even renting a home to some of the officers.) Upon
releasing Ornelas-Chavez, the police chief threatened to
detain him longer if he found out again he was sexually
involved with men. In 1989 Ornelas-Chavez took a job as a
correctional officer at a state-run prison in Uruapan. Co-
workers there repeatedly threatened and beat him, telling him
that homosexuals discredited the work. Three times Ornelas-
Chavez complained to his supervisor who, instead of disci-
plining the co-workers, encouraged him to quit, saying the job
was “for men and not for homosexuals.” Ornelas-Chavez did
quit but, two years later, returned because he thought condi-
tions had improved. Soon after returning, however, four or
five of his co-workers tried to smother him with a pillow,
boasting they were “finally going to get rid of another homo.”
When he reported this incident to his new supervisor, the man
offered Ornelas-Chavez the choice of changing his shift or
quitting but, again, took no action against the co-workers.
Finally, while Ornelas-Chavez was living in Uruapan, the
police killed two of his acquaintances who were homosexuals.
The men were found stabbed to death with sticks inserted in
their rectums.
In 1993, Ornelas-Chavez went to live with a sympathetic
aunt in Mexicali. Though occasionally taunted in the streets,
Ornelas-Chavez was able to live there relatively free of trou-
ble for five years because he only went to work, otherwise
staying inside his aunt’s house. Then, in 1998, his father, who
had discovered his whereabouts, came to Mexicali and beat
him severely, breaking his nose with a bottle. Soon after,
Ornelas-Chavez left Mexico for the United States.
In July 2003, United States Immigration and Customs
Enforcement began removal proceedings against him.
Ornelas-Chavez then filed an application for asylum and with-
9968 ORNELAS-CHAVEZ v. GONZALES
holding of removal on the basis of a well-founded fear of per-
secution and torture on account of his female sexual identity.
At his removal hearing, the IJ held that Ornelas-Chavez
was ineligible for asylum because he failed to show excep-
tional circumstances for filing his application later than one
year after entering the United States. The IJ also found
Ornelas-Chavez failed to establish eligibility for withholding
of removal under IIRIRA and that he “provided no evidence
of past torture or any mental or physical intentionally inflicted
severe pain or suffering that is sanctioned by a public official
or by a State Actor.” Accordingly, the IJ denied the petition
for withholding of removal.
Ornelas-Chavez appealed the IJ’s withholding of removal
decisions to the BIA. He also claimed that the IJ’s hostile
comments and stereotypes about the way a gay man should
appear and sound prevented him from receiving a fair hearing.
In affirming the IJ’s section 1231(b)(3) decision, the BIA
found that Ornelas-Chavez
suffered one incident of harm, a detention of several
hours apparently at [the] request of his father, at the
hands of government agents. This single incident
does not rise to the level of persecution. All of the
other harm suffered by the respondent occurred at
the hands of private citizens. The respondent did not
report any of these incidents to government authori-
ties.
The BIA also found that some of Ornelas-Chavez’s extensive
documentation on the conditions of gay men in Mexico
described only general police abuse, not necessarily against
gay people, and some described only “individual incidents
that do not reflect a pattern in any particular police force.” It
further found that some of the documentation actually
reflected “improvements in the situation of gay people in
Mexico.” The BIA concluded:
ORNELAS-CHAVEZ v. GONZALES 9969
[W]here the respondent never reported his incidents
of harm to government authorities, and where the
background evidence in the record is inconclusive,
the Immigration Judge properly found that the
respondent did not prove that the Mexican govern-
ment is unwilling or unable to control those who
harmed or may harm him.
As to Ornelas-Chavez’s CAT claim, the BIA affirmed the IJ’s
decision in a one-sentence ruling. Finally, the BIA held that
Ornelas-Chavez did not establish a due process violation. This
timely petition for review followed.
II.
We review the BIA’s construction and application of the
law de novo, subject to established principles of deference.
See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.
2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999)).
We review the BIA’s determination that Ornelas-Chavez
did not establish eligibility for withholding of removal for
substantial evidence. Andrasian v. INS, 180 F.3d 1033, 1040
(9th Cir. 1999). We also review for substantial evidence “the
factual findings underlying the BIA’s determination that
[Ornelas-Chavez] was not eligible for relief under the Con-
vention Against Torture.” Zheng, 332 F.3d at 1193. The “sub-
stantial evidence” standard requires us to uphold the BIA’s
determination if supported by “reasonable, substantial, and
probative evidence on the record.” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (quotation marks omitted). However,
our review is “confined to the BIA’s decision and the bases
upon which the BIA relied.” Navas v. INS, 217 F.3d 646, 658
n.16 (9th Cir. 2000) (quoting Martinez-Zelaya v. INS, 841
F.2d 294, 296 (9th Cir. 1988)) (quotation marks omitted).
9970 ORNELAS-CHAVEZ v. GONZALES
III.
A.
Ornelas-Chavez claims the BIA applied the wrong legal
standard in determining that he was not eligible for withhold-
ing of removal based upon the alleged persecution he suffered
in Mexico at the hands of private persons. We agree.
[1] Under IIRIRA, Ornelas-Chavez may not be removed to
Mexico if his “life or freedom would be threatened . . .
because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). Ornelas-Chavez is entitled to the presump-
tion that such a threat exists if he can show he suffered past
persecution on account of his membership in a protected
social group.3 See 8 C.F.R. § 208.16(b)(1)(I); Baballah v.
Ashcroft, 367 F.3d 1067, 1079 (9th Cir. 2004). “Persecution
may be inflicted either by the government or by persons or
organizations which the government is unable or unwilling to
control.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)
(quotation marks omitted). Ornelas-Chavez can meet his bur-
den either by offering credible and persuasive testimony, 8
C.F.R. § 208.16(b) (“The testimony of the applicant, if credi-
ble, may be sufficient to sustain the burden of proof without
corroboration.”), or by producing specific documentary evi-
dence to support his claim, see Al-Harbi v. INS, 242 F.3d 882,
891 (9th Cir. 2001) (holding that “documentary evidence per-
taining to the asylum applicant himself and to the events in
which he was involved . . . can independently establish facts
essential to . . . an asylum claim”).
In concluding that Ornelas-Chavez did not establish he was
3
Whether Ornelas-Chavez belongs to a protected social group is not at
issue in this appeal. See generally Hernandez-Montiel v. INS, 225 F.3d
1084, 1094 (9th Cir. 2000) (recognizing as a distinct social group “gay
men with female sexual identities in Mexico”).
ORNELAS-CHAVEZ v. GONZALES 9971
persecuted in the past by private parties the Mexican govern-
ment was unable or unwilling to control, the BIA cited only
two pieces of evidence: background country conditions and
Ornelas-Chavez’s failure to report the incidents to the authori-
ties.
[2] Evidence of background country conditions alone can-
not establish that specific acts of persecution did or did not
occur. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th
Cir. 1999). Its proper use is “to provide information about the
context in which the alleged persecution took place, in order
that the factfinder may intelligently evaluate the petitioner’s
credibility.” Id. Thus, the BIA’s decision could not properly
rest on this evidence unless it specifically held that some or
all of Ornelas-Chavez’s testimony was not credible in light of
the background conditions. But the BIA did not do so.
Because it made no adverse credibility finding, it was there-
fore required to accept Ornelas-Chavez’s testimony, and all
reasonable inferences to be drawn from it, as true. See Zheng,
332 F.3d at 1189 n.4.
Ornelas-Chavez offered testimonial evidence both at the
hearing and in his declaration supporting his asylum applica-
tion, which described his alleged persecution and, more
importantly, the indifference and danger that characterized his
dealings with government officials. While only a very small
boy, his teacher chastised him for suffering sexual abuse. At
his father’s bidding, his hometown police jailed him and
threatened to do so again if he continued dating men. His
supervisors at the Uruapan state prison refused to keep co-
workers from harassing him for being homosexual. Even in
Guadalajara, where Ornelas-Chavez for a short time per-
formed in transvestite shows, he had “to go out in the street
without any makeup . . . so [he was] not attack[ed] by the
police.” ER at 78. Indeed, when asked directly why he did not
report his alleged persecution to the police, Ornelas-Chavez
answered, “Because the same police mistreated you and har-
rasse[d] you. Even two of my friends were assassinated.” ER
9972 ORNELAS-CHAVEZ v. GONZALES
at 54. The latter statement refers to the Uruapan police’s bru-
tal maiming and murder of two of Ornelas-Chavez’s homo-
sexual friends. Although the BIA was required to accept all
this testimony regarding Ornelas-Chavez’s experience with
government authorities as true, its decision mentions only that
“the respondent never reported his incidents of harm to gov-
ernment authorities.”
We must therefore conclude that the only credible testimo-
nial evidence the BIA considered in determining that the
Mexican government was unwilling or unable to control
Ornelas-Chavez’s alleged persecutors was the fact that
Ornelas-Chavez did not report the incidents of abuse he suf-
fered to the police. Such treatment of the evidence was tanta-
mount to making the reporting of private persecution a sine
qua non for the success of Ornelas-Chavez’s withholding of
removal claim.
[3] Neither IIRIRA nor the regulations implementing it
require that an alien seeking withholding of removal based on
third-party persecution must have reported that persecution to
the authorities. In fact, any such requirement would contradict
the BIA’s own precedent. See, e.g., In re S- A-, 22 I. & N.
Dec. 1328, 1335 (BIA 2000) (holding that an applicant who
convincingly demonstrated that she “could not rely on the
authorities to protect her” from her father’s abuse and that, by
turning to governmental authorities for help, “her circum-
stances may well have worsened,” was not required to report
private persecution to government authorities to qualify for
asylum).
[4] Moreover, a reporting requirement conflicts with the
way this court has implicitly handled a petitioner’s evidence
of governmental unwillingness or inability to control private
persecution. It is true that “where non-governmental actors
are responsible for persecution . . . we consider whether an
applicant reported the incidents to police.” Baballah, 367 F.3d
at 1078. We do so “because in such cases a report . . . may
ORNELAS-CHAVEZ v. GONZALES 9973
show governmental inability to control the actors.” Id. But we
have never held, as the BIA essentially did here, that reporting
private persecution is a prerequisite for relief. Indeed, in
Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004), a case
similar to this one, we stated that the imposition of a reporting
requirement “would indeed be troubling,” especially in light
of precedent documenting police abuse of men with female
sexual identities in Latin America and record evidence that
victims of rape generally under-report such crimes. Id. at 789
n.3. However, we declined there to decide whether imposing
a per se reporting requirement under section 1231(b)(3) was
improper because we granted the petition on other grounds.
See id. at 789. In contrast, in Castro-Perez v. Gonzales, 409
F.3d 1069 (9th Cir. 2005), we denied the petition of a young
Honduran woman who was raped twice by her boyfriend
because she had not carried her burden of showing the gov-
ernment was unable or unwilling to control her boyfriend’s
abusive conduct. Id. at 1070-72. But we reached this conclu-
sion both because she failed to report the rapes to government
authorities and because her reasons for not reporting them—
she believed “the police would not investigate a date rape, and
. . . she was afraid of how her father would react”—did not
compel our finding that “the Honduran government must bear
some responsibility for Castro-Perez’s rapes.” Id. In other
words, we denied her petition only after considering whether
she had provided sufficient evidence to justify not reporting
her alleged persecution to the authorities. Accord Boer-
Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005)
(considering, where petitioner claimed fear kept him from
reporting private persecution to the police, whether that fear
was reasonable under the circumstances).
[5] We now make explicit what was implicit in these earlier
cases: an applicant who seeks to establish eligibility for with-
holding of removal under section 1231(b)(3) on the basis of
past persecution at the hands of private parties the govern-
ment is unwilling or unable to control need not have reported
that persecution to the authorities if he can convincingly
9974 ORNELAS-CHAVEZ v. GONZALES
establish that doing so would have been futile or have sub-
jected him to further abuse.
Ornelas-Chavez argues that, when reviewed under the cor-
rect legal standard, the evidence in the record supports a find-
ing that he is entitled to withholding of removal under section
1231(b)(3). But where the BIA applies the wrong legal stan-
dard to an applicant’s claim, the appropriate relief from this
court is remand for reconsideration under the correct standard,
not independent review of the evidence. See INS v. Orlando
Ventura, 537 U.S. 12, 16-17 (2002); Azanor v. Ashcroft, 364
F.3d 1013, 1020-21 (9th Cir. 2004).
[6] Because the BIA improperly applied a reporting
requirement in its analysis of Ornelas-Chavez’s section
1231(b)(3) claim, we grant his petition on this claim and
remand to the BIA for reconsideration of the evidence under
the correct standard.
B.
The BIA rendered its CAT decision in a single sentence,
saying simply that it “agree[d] with the Immigration Judge
that the respondent did not prove that, if removed to Mexico,
he more likely than not will suffer torture as specifically
defined by regulation.” “[T]his court has required the Board
to ‘state its reasons and show proper consideration of all fac-
tors when weighing equities and denying relief.’ ” Hassan v.
INS, 927 F.2d 465, 467 (9th Cir. 1991) (quoting Mattis v. INS,
774 F.2d 965, 968 (9th Cir. 1985)). Where, as here, the BIA
does not expressly state whether it conducted de novo review
and the lack of analysis in its order suggests it gave signifi-
cant weight to the IJ’s decision, we will review the IJ’s deci-
sion “as a guide to what lay behind the BIA’s conclusion.”
Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000) (citing
Avetova-Elisseva v. INS, 213 F.3d 1192, 1196-97 (9th Cir.
2000) and Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.
1995)). But the BIA may not discharge the burden of support-
ORNELAS-CHAVEZ v. GONZALES 9975
ing its decision with a proper consideration of all factors by
adopting an IJ’s decision that is deficient. See Tukhowinich v.
INS, 64 F.3d 460, 465 (9th Cir. 1995).
The IJ concluded that Ornelas-Chavez did not meet his bur-
den of proof under CAT because the evidence did not estab-
lish that the government “sanctioned” his torture. This
decision is deficient, requiring us to remand, because the IJ
applied the wrong legal standard.
[7] To qualify for protection under CAT, Ornelas-Chavez
must establish that he suffered torture, i.e., severe pain or suf-
fering intentionally inflicted for discriminatory purposes “by
or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity.”
See 8 C.F.R. § 208.18(a)(1). “Acquiescence of a public offi-
cial requires that the public official, prior to the activity con-
stituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to
prevent such activity.” 8 C.F.R. § 208.18(a)(7). In Zheng we
reversed a BIA decision interpreting the regulations imple-
menting CAT to require that public officials be “willfully
accepting of” torture. See Zheng, 332 F.3d at 1194. We held
they require only that government officials “turn a blind eye”
to the torture. Id. at 1196 (“The correct inquiry . . . is whether
a respondent can show that public officials demonstrate ‘will-
ful blindness’ to the torture of their citizens by third parties,
or . . . would turn a blind eye to torture.” (citations and quota-
tion marks omitted)). Because “sanction”4 connotes greater
volition and approbation than “acquiescence,”5 “awareness,”6
“willful blindness,”7 and even “willful acceptance,” the IJ
4
BLACK’S LAW DICTIONARY 1369 (8th Ed. 2004) (“To approve, authorize,
or support”).
5
Id. at 25 (“[T]acit or passive acceptance; implied consent to an act”).
6
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 81 (10th Ed. 1998)
(“[R]ealization, perception, or knowledge” and “vigilance in observing or
alertness in drawing inferences from what one experiences”).
7
BLACK’S LAW DICTIONARY 1630 (“Deliberate avoidance of knowledge
of a crime, esp[ecially] by failing to make a reasonable inquiry about sus-
pected wrongdoing despite being aware that it is highly probable.”).
9976 ORNELAS-CHAVEZ v. GONZALES
used a higher legal standard to assess Ornelas-Chavez’s CAT
claim than is permitted under the law.
The government claims the IJ’s “misstatement” of the law
was harmless because “none of the mistreatment of which
[Ornelas-Chavez] complains occurred by or at the instigation
of or with the consent or acquiescence of a public official
‘who ha[d] custody or physical control’ of him.” The govern-
ment relies on In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en
banc), for the proposition that 8 C.F.R. § 208.18(a)(1)
requires an applicant to have been in the custody or control
of a public official at the time of his torture. But we clearly
rejected that interpretation of the regulation in Azanor. See
364 F.3d at 1020. Therefore, we reject the government’s
harmless error claim.
[8] The dissent argues that the IJ’s “errant word choice”
amounts to harmless error since a closer inspection of the IJ’s
actual “mode of analysis” reveals that she did not review the
evidence under a different standard than the regulations dic-
tate. Dissenting Op. at 9990. The dissent bases this argument
on the IJ’s finding that Ornelas-Chavez “presented no evi-
dence that the authorities refused to protect him or that the
authorities did not protect him, since he never reported any of
these incidents to authorities.” But the dissent’s argument is
unpersuasive because the standard implicit in this finding is
also higher than that dictated by CAT.8 As indicated above,
the implementing regulations require an applicant to prove
that, before the alleged torture occurred, a public official had
“awareness of such activity and thereafter breach[ed] his or
her legal responsibility to intervene to prevent such activity.”
8
We also note that the IJ’s finding, which simply ignores Ornelas-
Chavez’s testimony, is unsupported by substantial evidence. Ornelas-
Chavez said at his hearing both that he told his second-grade teacher he
had sexual intercourse with a man and that he repeatedly told his supervi-
sor at the state prison that co-workers harassed and beat him because he
was gay. Thus, the record shows, in direct contradiction to the IJ’s finding
of fact, that Ornelas-Chavez did report his alleged torture.
ORNELAS-CHAVEZ v. GONZALES 9977
8 C.F.R. § 208.18(a)(7). With logic similar to that underpin-
ning the BIA’s section 1231(b)(3) decision, the IJ’s decision
rests on the unwarranted premise that the only way a public
official can have such awareness, and thus that the duty to
intervene can arise, is if the applicant reports the alleged tor-
ture to him. But, as with section 1231(b)(3), we have never
required that an applicant report his alleged torture to public
officials to qualify for relief under CAT. Indeed, in Zheng we
specifically held that CAT does not even require that a public
official have “actual knowledge” of the alleged torture. See
Zheng, 332 F.3d at 1196. It is enough that public officials
could have inferred the alleged torture was taking place,
remained willfully blind to it, or simply stood by because of
their inability or unwillingness to oppose it. See id. at 1195
n.8. By assuming in its analysis of Ornelas-Chavez’s CAT
claim that public officials must be informed of alleged torture
by the victim, the IJ imposed a higher burden of proof than
is permitted under CAT, and consequently her resulting deci-
sion was improper.
Like the dissent, we have our doubts about whether the
record evidence supports a claim for relief under CAT. But it
is not our job to make that determination. Our job is to ensure
that the IJ employed the proper legal standards in reaching her
decision and that her conclusions are supported by substantial
evidence. In performing this task, we are limited to “grant[-
ing] or deny[ing] the petition for review based on the [IJ’s]
reasoning rather than our independent analysis of the record.”
Azanor, 364 F.3d at 1021. With this restriction in mind, we
note what the IJ did not find. First, she did not specifically
find that the rapes or beatings Ornelas-Chavez suffered in his
youth failed to satisfy the high standard for torture as defined
in 8 C.F.R. § 208.18(a)(1). Second, the IJ did not specifically
find that those rapes and beatings, though they occurred when
Ornelas-Chavez was still a boy, failed to provide sufficient
support for the likelihood that he would be tortured if returned
to Mexico. Third, she did not find that either Ornelas-
Chavez’s teacher or his supervisor at the prison had not been
9978 ORNELAS-CHAVEZ v. GONZALES
informed of the alleged torture “prior to” its occurrence, as
required by 8 C.F.R. § 208.18(a)(7), such that she or he could
not have breached the “legal responsibility to intervene to pre-
vent such activity.” Fourth, she did not find that either the
teacher or the prison supervisor was not a “public official” to
whom this duty to intervene applied. The IJ did not make any
of these specific findings. Therefore, we cannot affirm the IJ’s
decision on any of these specific grounds, even if we believe
substantial evidence in the record supports them. See Navas,
217 F.3d at 658 n.16 (“[T]his court cannot affirm the BIA on
a ground upon which it did not rely.”). Instead, the IJ con-
cluded simply that Ornelas-Chavez failed to show that the
authorities “sanctioned” his alleged torture because he did not
report it. As discussed above, this conclusion, besides being
unsupported by substantial evidence in the record, misrepre-
sents the relevant legal standard.
[9] Because the IJ’s decision is fatally flawed, we must
reverse the BIA’s decision and remand. See Tukhowinich, 64
F.3d at 465. Again, whether the record establishes that
Ornelas-Chavez is eligible for withholding of removal under
CAT should be determined under the correct legal standard on
remand, not by our own independent review of the evidence.
See Azanor, 364 F.3d at 1020-21.
IV.
We hold that the BIA applied impermissibly strict stan-
dards to both Ornelas-Chavez’s section 1231(b)(3) claim and
his CAT claim. Accordingly, we grant Ornelas-Chavez’s peti-
tion for review and remand the case to the BIA for further
proceedings consistent with this opinion.
PETITION GRANTED IN PART, REMANDED.
ORNELAS-CHAVEZ v. GONZALES 9979
O’SCANNLAIN, Circuit Judge, dissenting:
In this case our modest task is to decide whether the Board
of Immigration Appeals’ (“BIA”) decision to deny Petitioner
Ornelas-Chavez’s claims was free of legal error and supported
by substantial evidence. Because neither sympathy for the
petitioner nor distrust of the BIA or the Immigration Judge
(“IJ”) should compromise a careful assessment of the admin-
istrative decisions and record evidence, I respectfully dissent.
I
First, the court holds that the BIA applied the wrong legal
standard to Ornelas-Chavez’s claim to withholding of
removal under 8 U.S.C. § 1231(b)(3) because it imposed a
strict “reporting requirement” to establish government perse-
cution. Maj. Op. at 9970-74. With respect, it did no such
thing.
A
Any fair reading of the BIA’s decision demonstrates that it
applied the proper legal standard. In relevant part, the BIA
stated:
The respondent suffered an incident of harm, a
detention of several hours apparently at this [sic]
request of his father, at the hands of government
agents. This single incident does not rise to the level
of persecution. All of the other harm suffered by the
respondent occurred at the hands of private citizens.
The respondent did not report any of these incidents
to government authorities.
. . . Accordingly, where the respondent never
reported his incidents of harm to government author-
ities, and where the background evidence in the
record is inconclusive, the Immigration Judge prop-
9980 ORNELAS-CHAVEZ v. GONZALES
erly found that the respondent did not prove that the
Mexican government is unwilling or unable to con-
trol those who harmed or may harm him.
(Emphasis added.) The majority, adopting Ornelas-Chavez’s
argument wholesale, seems to fixate on the last sentence of
the first quoted paragraph: “The respondent did not report any
of these incidents to government authorities.” Indeed, with
only a passing nod to the sentence’s context, the majority dis-
torts entirely the BIA’s reasoning.
The BIA did not apply nor did it adopt a strict “reporting
requirement.” True, it observed that there was no evidence
that Ornelas-Chavez reported the alleged incidents. However,
as the majority concedes, it then considered this dearth of evi-
dence in combination with the background country conditions
evidence, which failed to demonstrate a pattern of indiffer-
ence by the government. The BIA concluded, in light of these
categories of evidence, that the IJ could appropriately find
“that the respondent did not prove that the Mexican govern-
ment is unwilling or unable to control those who harmed or
may harm him.”
Under our circuit’s case law, this is an entirely proper mode
of analysis. The persecution of which Ornelas-Chavez com-
plains must be shown to have been perpetrated by the govern-
ment, or else Ornelas-Chavez must show that the government
“is unwilling or unable to control those elements of its society
responsible for targeting a particular class of individuals.”
Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000)
(citation and internal quotation marks omitted). Accordingly,
whether the petitioner has reported the incidents to the author-
ities is clearly relevant to, even if not dispositive of, the ulti-
mate question of whether the government was “unwilling or
unable to control” the persecutors. See, e.g., Baballah v. Ash-
croft, 367 F.3d 1067, 1078 (9th Cir. 2004) (citations omitted).
In this light, it is clear that the BIA’s consideration of gen-
eral country conditions stood to confirm its conclusion that
ORNELAS-CHAVEZ v. GONZALES 9981
Ornelas-Chavez did not meet his burden. That the BIA con-
sidered such background evidence itself conclusively demon-
strates that the inquiry was not terminated by any rigid
reporting requirement. Ultimately, I think it clear that the BIA
asked and answered the right question: whether Ornelas-
Chavez’s alleged persecutors were parties whom the Mexican
authorities were unwilling or unable to control. The BIA was
correct to treat Ornelas-Chavez’s failure to report the alleged
persecution as relevant to that question.
In arriving at its errant conclusion, the majority observes
that the BIA “cited only two pieces of evidence,” and since
one of them was inconclusive, it must have been improper
that the other—the alleged “reporting requirement”—was “a
sine qua non for the success of Ornelas-Chavez’s withholding
of removal claim.” Maj. Op. at 9971, 9972. But where, I won-
der, is the flaw in the BIA’s analysis?
Presumably Ornelas-Chavez had two options: to prove that
the government was unwilling or unable to control such per-
secution generally, or to prove that it was unwilling or unable
to control his persecutors specifically. See, e.g., Castro-Perez
v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (considering
country reports to determine whether the Honduran govern-
ment was willing or able to control rape generally, and con-
sidering the petitioner’s specific situation). Since Ornelas-
Chavez failed to do the former, to meet his burden it was nec-
essary that he have done the latter. And because there is little
other evidence in the record to suggest the government’s dis-
position towards Ornelas-Chavez’s particular troubles, the
BIA properly deemed rather important in this case—“a sine
qua non,” even!—that Ornelas-Chavez failed to report the
alleged abuse to government authorities.1 So, the majority
1
There is no evidence that the authorities had (or should have had)
knowledge of the rapes or beatings. Ornelas-Chavez presented evidence
that government officials witnessed a couple incidents of harassment, but
no incidents of persecution or torture.
9982 ORNELAS-CHAVEZ v. GONZALES
concedes that reporting vel non may be relevant, see Maj. Op.
at 9972-73; yet it grants the petition because in this particular
case the failure to report is too relevant.
The BIA did not, as the majority seems to suggest, improp-
erly consider background country conditions as “establish[-
ing] that specific acts of persecution occurred or did not
occur.” Maj. Op. at 9971. Although the BIA, having made no
adverse credibility determination, was required to accept
Ornelas-Chavez’s testimony as factually true, it was not
required to adopt his preferred legal conclusion: that the
authorities would not have acted to curb the persecution he
alleges took place. The background evidence in the record
was obviously relevant to the merits of that issue, and the BIA
was entitled, if not obligated, to consider it. See Castro-Perez,
409 F.3d at 1072; Avetova-Elisseva, 213 F.3d at 1198-99;
Andriasian v. INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999).2
The testimony provided by Ornelas-Chavez, while also rele-
vant, was evidence of an anecdotal, subjective variety and
thus not particularly probative. Indeed, the background evi-
dence substantially negates Ornelas-Chavez’s perception. See
infra section I.B.1.
Our standard of review in immigration cases is well-
established: we must affirm the BIA if the record contains
substantial evidence for its decision; we cannot justify grant-
ing the petition for review merely by pointing to other record
evidence which, in our own view, supports the alien’s claim.
See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).
The majority cannot say that Ornelas-Chavez’s testimony
compels a rational fact finder to conclude that the government
was unwilling or unable to control his alleged persecutors.
Thus, the majority opts for another, more innovative
approach: it holds that the BIA applied the wrong legal
2
The majority’s attempt to limit the use of background country condi-
tions evidence to credibility determinations, see Maj. Op. at 9971, is
entirely without authority.
ORNELAS-CHAVEZ v. GONZALES 9983
standard—simply because there exists supportive evidence
that the BIA failed explicitly to discuss. See Maj. Op. at 9971-
72. But Ornelas-Chavez’s testimony was not somehow legally
distinct from the balance of the record; it was merely addi-
tional evidence on the same “unwilling or unable to control”
question. Accordingly, the majority’s holding seems little
more than a willful circumvention of the Supreme Court’s
prescribed standard of review.
In short, the majority goes to great lengths to divine in the
BIA’s analysis some kind of per se rule, which it can then
merrily reject. As I have sought to demonstrate, such “report-
ing requirement” is of the majority’s own imagining. Surely
one may infer much from the typically brief text of an admin-
istrative decision—especially when one is all too eager to
conjure a meaning that will justify granting the petition for
review. Cf. Kumar v. Gonzales, 435 F.3d 1019, 1037 (9th Cir.
2006) (Kozinski, J., dissenting) (“[T]he majority picks apart
the [BIA’s] findings piece by piece, scrutinizing [its] every
sentence as if it is completely unconnected to the rest of the
opinion.”). Such creative invention, however, is not appropri-
ate to our role in reviewing the lawful adjudication of an
administrative body.
B
Had the majority given the BIA’s decision a fair reading,
it could not then hold that Ornelas-Chavez met his burden of
showing that the evidence would compel any reasonable fact
finder to conclude that he was more likely than not to suffer
persecution upon his return to Mexico. Singh v. INS, 134 F.3d
962, 966 (9th Cir. 1998).
1
There is no evidence of past persecution, as defined by the
regulations, in this case. The Mexican government was not
involved in any persecution of Ornelas-Chavez; the single,
9984 ORNELAS-CHAVEZ v. GONZALES
six-hour detention by a reluctant local police chief, at the
request of Ornelas-Chavez’s father, does not rise to that level.
See, e.g., Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995).
Critically, the evidence also falls short of compelling a
finding that any past private “persecution” at issue was perpe-
trated by parties whom the government was unwilling or
unable to control. Ornelas-Chavez has not “convincingly
established”—or proven by any standard—that his resort to
government authorities would have been futile. Cf. Korablina
v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998). As the BIA
found, the relevant background evidence is, at best, inconclu-
sive. Ornelas-Chavez relies on little more than a bare assump-
tion that the police would have done nothing had he reported
the abuse—a showing that we have previously deemed insuf-
ficient. See Castro-Perez, 409 F.3d at 1072.
The administrative record provides little support for
Ornelas-Chavez’s claim of past persecution. The evidence
regarding general country conditions, while perhaps revealing
societal disfavor of homosexuals, does not demonstrate that
the authorities would have been inattentive to the primary
incidents of persecution alleged here: the rape and physical
abuse of a young child. Even if the majority were willing to
overlook the relevance of Ornelas-Chavez’s age—allowing
him to gild his allegations in the armor of sexual orientation
and gender identity—there is no evidence in the record that
the Mexican authorities would have viewed the incidents in
similar terms and thus permitted the abuse.
Even assuming that a few individual police officers were
beholden to Ornelas-Chavez’s father because they rented a
house on his land, Ornelas-Chavez makes no allegation that
this potential bias somehow seeped into all (or even most)
persons holding Mexican authority. It is true that Ornelas-
Chavez’s teacher failed to take any action in response to his
allegations of sexual contact. But at best, this testimony estab-
lishes one teacher’s ineptitude; it does not compel a finding
ORNELAS-CHAVEZ v. GONZALES 9985
that the Mexican authorities generally would have been indif-
ferent to the rape of a young child.3 Lastly, I note that when,
at the prison at which he worked, Ornelas-Chavez informed
his supervisor of the abuse by his coworkers, the supervisor
exhibited a willingness to control the alleged conduct by
offering to adjust Ornelas-Chavez’s shift so that he could
avoid his would-be persecutors. Ornelas-Chavez cannot prove
that this measure would have been inadequate because he
chose to resign his employment. That the supervisor “took no
action against the co-workers,” Maj. Op. at 9967, is of little
relevance.
The various items of evidence Ornelas-Chavez put forth
fail to support his claim because his subjective perceptions of
government officials are not relevant—much less dispositive.
The critical inquiry as to government responsiveness is objec-
tive, and we have always considered the “unwilling or unable
to control” requirement in that context. See, e.g., Malty v.
3
Quite the contrary, the administrative record includes a U.S. Depart-
ment of State country report, dated March 31, 2003, which documents
extensive efforts by the Mexican government to promote the well-being of
the country’s children. The government has in place the National Institute
for the Integral Development of the Family, which fields complaints of
abuse against children. A 2000 law provides for imprisonment of up to ten
years for the sexual corruption of a minor under 16 years of age; parents
convicted of such crimes are stripped of custody over their children.
Accomplices to sexual abuse face similar prison terms. In 2000, the Mexi-
can Congress also passed a constitutional amendment “to protect the rights
of children and teenagers and ensure respect for their dignity.” Moreover,
the Protection of the Rights of Children and Adolescents Law “provides
for the right to life, nondiscrimination, healthy living conditions, protec-
tion against threat to liberty and physical abuse, a healthy family life,
health services, equal treatment for persons with disabilities, education,
pursuit of happiness, and freedom of thought and expression.” Penalties
for violation include fines and imprisonment.
The same State Department country report also documents ongoing
dangers faced by Mexico’s youth, but the record evidence falls far short
of compelling the conclusion that the government is “unwilling or unable
to control” persecution of the type primarily alleged here.
9986 ORNELAS-CHAVEZ v. GONZALES
Ashcroft, 381 F.3d 942, 948 (9th Cir. 2004). Ornelas-
Chavez’s personal belief that the relevant Mexican authorities
would have been unwilling to shield him from persecution is
grossly insufficient.
In sum, while I do not discount nor make light of the harms
Ornelas-Chavez has apparently suffered, I must also conclude
that the evidence does not compel a finding—as it must do
under our limited standard of review—that the harms were
occasioned by persons whom the government was unwilling
or unable to control.
2
Having failed to produce compelling evidence of past per-
secution by actors whom the government was unwilling or
unable to control, Ornelas-Chavez would not be entitled to a
presumption of future persecution. See 8 C.F.R.
§ 1208.13(b)(1). His claim to withholding of removal would
then fail if he also falls short of independently establishing a
clear probability of future persecution. See Lim v. INS, 224
F.3d 929, 938 (9th Cir. 2000).
a
On this record, there simply is insufficient showing that
homosexuals are currently subject to official persecution in
Mexico. The U.S. Department of State’s June 1997 country
report documented “no evidence of systematic official perse-
cution of homosexuals,” and Ornelas-Chavez’s other evidence
was not to the contrary. A report from a private group, dated
May 2000, stated that “repression by . . . authorities is now
the exception, not the rule,” and noted that societal attitudes
are trending towards tolerance.
The record evidence further demonstrates extensive legal,
political, and cultural advances by homosexuals in Mexico,
including the enactment of legislation prohibiting discrimina-
ORNELAS-CHAVEZ v. GONZALES 9987
tion on the basis of sexual orientation, wide acceptance of
participation by homosexuals in two of the three major politi-
cal parties, and the election of openly homosexual govern-
ment representatives. To the extent private persecution
occurs, the record suggests that the government’s response
has changed. One news report in the record, for example,
notes that the Mexico City police “have set up a unit special-
izing in dealing with homophobic crimes, and are to get sensi-
tivity training.”
b
Nor was the evidence so compelling that any rational fact
finder must conclude that Ornelas-Chavez, individually,
would more likely than not be subject to persecution by actors
whom the government was unwilling or unable to control. 8
C.F.R. § 1208.16(b)(1)-(2); see Sael v. Ashcroft, 386 F.3d
922, 925 (9th Cir. 2004); Hoxha v. Ashcroft, 319 F.3d 1179,
1185 (9th Cir. 2003). While the record reveals societal disfa-
vor of homosexuality generally, it exposes few incidents of
actual persecution. These general country conditions do not
compel reversal of the BIA. More directly, there is simply no
evidence that Ornelas-Chavez is likely to be singled out by
the government or by private forces whom the government is
unwilling or unable to control.4
Read as a whole, the record is not such that a reasonable
fact finder must conclude that Ornelas-Chavez is more likely
4
It is true that Ornelas-Chavez’s father may be the lone exception. But
the record discloses no evidence that his father is seeking him out for the
purpose of persecution such that it is likely to happen again. Cf., e.g.,
Mendoza-Perez v. INS, 902 F.2d 760, 762 (9th Cir. 1990). Since Ornelas-
Chavez reached adulthood, he has had only one run-in with his father.
This incident, a 1998 altercation, was an isolated occurrence; it took place
when the two encountered each other by chance at the home of Ornelas-
Chavez’s aunt. Ornelas-Chavez himself acknowledged living in Mexico
without incident for many years prior. As such, the incident does not com-
pel a conclusion contrary to the one reached by the BIA.
9988 ORNELAS-CHAVEZ v. GONZALES
than not to be persecuted in the future if he is returned to Mexico.5
I would affirm the BIA’s decision because it is supported by
substantial evidence.
II
I must also dissent from the majority’s holding that the BIA
applied an incorrect legal standard as to the level of govern-
ment involvement required for relief under the Convention
Against Torture (“CAT”). Maj. Op. at 9974-78. Again, the
majority’s reading of the relevant administrative decision is
partisan and inaccurate. Further, there is absolutely no evi-
dence of torture of homosexuals by the Mexican government
(or by private parties with the government’s consent or acqui-
escence) in this record. Random incidents of private violence
simply cannot support the notion that official torture of homo-
sexuals is systematic or even common. As such, the IJ’s deci-
sion on the CAT claim is supported by substantial evidence.
A
The applicable regulations define “torture” as “severe pain
or suffering, whether physical or mental” when intentionally
inflicted “with the consent or acquiescence of a public official
or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1) (emphasis added). In this case, the IJ found
5
The showing made by Ornelas-Chavez is not nearly as compelling as
those we have considered previously. In Boer-Sedano v. Gonzales, 418
F.3d 1082 (9th Cir. 2005), the petitioner presented evidence that he had
been raped repeatedly by a police officer. Id. at 1086. In Hernandez-
Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the petitioner was raped
twice by police officers. Id. at 1088. In the latter case, the petitioner pre-
sented expert testimony and documentation showing that the government
would not protect a particular subclass: gay men with female sexual iden-
tities. Id. at 1094. Of course, the Hernandez-Montiel case is six years old
—and much of the record evidence it cited is far older. The important
point, in any case, is that Ornelas-Chavez has not made a remotely similar
showing.
ORNELAS-CHAVEZ v. GONZALES 9989
that Ornelas-Chavez had “provided no evidence of past tor-
ture or any mental or physical intentionally inflicted severe
pain or suffering that is sanctioned by a public official.”
(Emphasis added.) The majority seizes upon the word “sanc-
tioned” to assert an erroneous application by the IJ of a legal
standard “higher” than that prescribed in the regulations. Maj.
Op. at 9975.
While the IJ may have employed imprecise diction in that
passage, the majority is again too keen to find fault in the
agency decision we now review. Earlier in its order, the IJ
explained, in part, that “[t]he Respondent presented no evi-
dence that the authorities refused to protect him or that the
authorities did not protect him, since he never reported any of
these incidents to the authorities.” Id. at 9976. This phraseol-
ogy indicates that the IJ considered whether the authorities
were aware of the alleged abuses such that they could possi-
bly “consent or acquiesce.” Thus, the IJ necessarily found that
Ornelas-Chavez’s evidence fell short of even the proper “con-
sent or acquiescence” standard. Although the word “sanc-
tioned” arguably suggests affirmative approval by the
government, there is no indication in the opinion that the IJ
actually reviewed the evidence for conduct beyond the gov-
ernment’s “tacit or passive acceptance” or “implied consent to
an act.” I also find it significant that the IJ’s errant word
choice was simply part of its summary declaration at the end
of the opinion, not in any way enmeshed in the actual analysis
of the facts.
There was not, as the majority suggests, implicit in the IJ’s
finding a standard “also higher than that dictated by CAT.”
Maj. Op. at 9976. In so asserting, the majority again lays bare
the analytical flaw that infects its entire opinion: it posits that
“the IJ’s decision rests on the unwarranted premise that the
only way a public official can have such awareness . . . is if
the applicant reports the alleged torture to him.” Id. at 9977.
Reporting is not the only way a public official can have such
awareness, but in this case there was absolutely no suggestion
9990 ORNELAS-CHAVEZ v. GONZALES
of an alternative. No government agent witnessed the alleged
torture; there was no suggestion that someone else may have
told the government about it; and there was insufficient evi-
dence that the government is willfully blind to such torture
generally. The IJ’s statement, read in context, was clearly an
assessment of the facts of this particular case. It was not an
erroneous, general statement of law upon which we could
grant the petition for review.
In sum, a fair reading of the decision leads to the conclu-
sion that the word “sanctioned” was inconsequential to the
analysis and ultimately harmless.6 Yet the majority excitedly
reverses the IJ on the CAT claim as if one errant word choice,
bereft of context and contained in a summary sentence, con-
stituted the smoking gun for which it was searching. See
Kumar, 435 F.3d at 1035 (Kozinski, J., dissenting) (“This is
the nub of the IJ’s reasoning, which the majority ignores, pre-
ferring to nitpick the IJ’s isolated statements.”). Rather than
condemn the IJ solely on the authority of Black’s Law
Dictionary and Merriam-Webster’s Collegiate, I would look
to the mode of analysis it actually employed. The IJ applied
the correct standard and committed no error of any conse-
quence to this case.
6
The majority rejects the harmlessness of the misstatement on the basis
of the government’s argument, under an invalidated BIA decision, that
Ornelas-Chavez must have been in the “custody or physical control” of a
public official. Maj. Op. at 9976. But the IJ never asserted that Ornelas-
Chavez must have been in the custody of a public official; rather, it
applied the correct legal standard—that he must have been in the custody
or physical control “of a perpetrator.” See Azanor v. Ashcroft, 364 F.3d
1013, 1019 (9th Cir. 2004) (citing 8 C.F.R. § 208.18(a)(6)). The majority,
it seems, has seized on the government’s curious argument in order to
engage in a bit of misdirection. Obviously the government’s litigation
position has nothing to do with the IJ’s analysis, which, I would have
thought, was the actual subject of our review.
ORNELAS-CHAVEZ v. GONZALES 9991
B
Because, in my view, the IJ did not apply an erroneous
standard to his CAT claim, the final step in our review is to
consider whether the record evidence is so compelling that
any rational finder of fact would conclude that Ornelas-
Chavez more likely than not would be tortured, with the con-
sent or acquiescence of the government, upon his return to
Mexico. Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir.
2005). Clearly, the record evidence does not even come close
to meeting this stringent standard.
1
The majority seeks to curtail such inquiry by suggesting
that “the IJ concluded simply that Ornelas-Chavez failed to
show that the authorities ‘sanctioned’ his alleged torture
because he did not report it,” and that we therefore cannot
affirm the IJ’s decision on any other ground even if supported
by substantial evidence. Maj. Op. at 9977-78.
But the IJ’s decision was not so cabined. She found no past
torture because, in part, Ornelas-Chavez did not report any
abuse. But the majority ignores at least four paragraphs in
which the IJ discussed the facts that she felt undermined
Ornelas-Chavez’s claims of future harm. She considered “[Pe-
titioner’s] testimony and evidence offered by the [Petitioner],”
and concluded that Ornelas-Chavez had “not shown that he is
more likely than not to be tortured if he were to be removed
to Mexico.” Given that conclusion, the IJ necessarily found
many of the facts the majority claims it did not find.7
7
First, the IJ did indeed find that the rapes and beating Ornelas-Chavez
suffered in his youth did not qualify as “torture,” because no government
actor was aware of such abuses before they occurred. Second, the IJ found
that Ornelas-Chavez had failed to prove the likelihood that he would be
tortured if returned to Mexico. Third, the IJ’s finding that Ornelas-Chavez
did not report any abuses to the government necessarily means that she
found he did not inform anyone of torture “prior to” its occurrence.
9992 ORNELAS-CHAVEZ v. GONZALES
As such, we should consider any record evidence that sup-
ports the IJ’s finding that Ornelas-Chavez failed to meet his
burden of showing a likelihood of torture upon his return to
Mexico. See Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.
1987) (“The substantial evidence test is essentially a case-by-
case analysis requiring review of the whole record.”).8
2
As already noted, the regulations define torture for CAT
purposes as severe pain or suffering “inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8
C.F.R. § 208.18(a)(1) (emphasis added). In turn,
“[a]cquiescence of a public official requires that the public
official, prior to the activity constituting torture, have aware-
ness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Id.
§ 208.18(a)(7) (emphasis added); see Kamalthas v. INS, 251
F.3d 1279, 1282 (9th Cir. 2001). In short, the “consent or
acquiescence” requirement means that the government must
be aware of the allegedly tortuous conduct, or at least will-
fully blind to it. Zheng v. Ashcroft, 332 F.3d 1186, 1188-89
(9th Cir. 2003) (citation omitted).
Past torture does not create a presumption of entitlement to
CAT relief, although it is relevant to the ultimate inquiry:
whether “it is more likely than not that [the petitioner] would
be tortured if removed to the proposed country of removal.”
8 C.F.R. § 208.16(c)(2); see Mohammed v. Gonzales, 400
F.3d 785, 802 (9th Cir. 2005) (citing 8 C.F.R.
8
The cases cited by the majority say only that we will not apply in the
first instance the correct legal standard where the agency applied an erro-
neous standard, see Azanor v. Ashcroft, 364 F.3d 1013, 1020-21 (9th Cir.
2004), and that we will not decide a case on an entirely separate ground
which the agency did not consider, see Navas v. INS, 217 F.3d 646, 658
n.16 (9th Cir. 2000). Those cases are not applicable here.
ORNELAS-CHAVEZ v. GONZALES 9993
§ 1208.16(c)(3)). There is no evidence on this record that the
Mexican authorities were aware of or willfully blind to the
past abuses perpetrated by Ornelas-Chavez’s father, cousins,
or others.9 By his own admission, Ornelas-Chavez never told
anyone about the rapes he endured as a child. The lone excep-
tion was his confession to a school teacher that he had been
sexually abused. However, the teacher was not informed of
the alleged torture “prior to” its occurrence such that she
could breach a legal duty to prevent it. See 8 C.F.R.
§ 208.18(a)(7).10 The allegation of an attempt by Ornelas-
Chavez’s co-workers to smother him with a pillow—which,
if anything, constitutes only attempted torture—suffers from
the same flaw: the supervisor was not aware of the incident
until after its occurrence. Moreover, as suggested above, the
record does not compellingly demonstrate that the authorities
were willfully blind to such conduct. As such, I must con-
clude that on this record there is no evidence of past torture,
as defined by the regulations, to be considered under Ornelas-
Chavez’s CAT claim.
9
For purposes of this discussion, I assume that the rapes and beatings
Ornelas-Chavez suffered at the hands of his cousins and father, respec-
tively, constitute torture. See Al-Saher v. INS, 268 F.3d 1143, 1147 (9th
Cir. 2001) (sustained beatings), amended by 355 F.3d 1140 (9th Cir.
2004); cf. Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir. 1996) (“The
effects of rape appear to resemble the effects of torture.”). I know of no
other allegations of past conduct that would qualify under the regulatory
definition.
As to the prior knowledge of a public official, it is true that the police
detained Ornelas-Chavez for six hours when he was 16 years old. But this
action was in no way connected to an incident of torture.
10
For this reason, the majority is clearly incorrect to suggest that the IJ’s
finding was unsupported by substantial evidence. Ornelas-Chavez told his
teacher that he “had had sex with a male.” But he further explained in a
written declaration that he did not tell his teacher exactly what happened
—the alleged rape—because his cousins had threatened him. At the hear-
ing, Ornelas-Chavez was asked repeatedly whether he ever told anyone
about the alleged rapes and other instances of abuse, and each time he
answered “no” without qualification.
9994 ORNELAS-CHAVEZ v. GONZALES
As to the ultimate question, the likelihood that Ornelas-
Chavez will be tortured in the future if removed to Mexico,
the evidence utterly falls short. It is first worth noting that the
sexual abuse took place during Ornelas-Chavez’s youth, spe-
cifically between the ages of six and twelve. Circumstances
have so fundamentally changed—he is now an adult—that
Ornelas-Chavez is rather unlikely to be subjected to future
injury in the form of rape. As noted, the same conclusion
applies to the beatings to which Ornelas-Chavez was sub-
jected by his father. And as to the attempted assault by
Ornelas-Chavez’s co-workers at the state prison, there is sim-
ply no indication that these would-be torturers have singled
out Ornelas-Chavez such that he would again be a target.
The evidence of general country conditions as it pertains to
Mexican homosexuals does not paint a picture so dire as to
compel reversal of the BIA decision. See 8 C.F.R.
§ 1208.16(c)(3)(iii)-(iv). Quite the contrary, the record con-
tains numerous references to an ever-improving situation.
And although there have been some homosexuality-related
murders documented over five years, there are, according to
this record, as many as 12,600,000 Mexicans of homosexual
orientation.11 Thus, it is impossible to conclude that “more
likely than not” Ornelas-Chavez would suffer this fate.
Harassment and arbitrary detentions by police officers, to the
extent they occur, do not constitute torture. More generally,
the evidence does not rise to the level that has compelled us
to grant a petition for review in prior cases. There is no record
evidence alleging that “torture [is] routinely administered” to
11
Record evidence included an estimate that between eight and twelve
percent of the Mexican population of 105 million persons is homosexual
in orientation. See U.S. Department of State Homepage, Background
Note: Mexico, at http://www.state.gov/r/pa/ei/bgn/35749.htm (last visited
June 28, 2006) (providing statistics as to total population).
The record, of course, also includes an observation that the number of
homosexuality-related homicides (1) mirrors the homicide rate for the
Mexican population generally, and (2) has been in sharp decline since the
early 1990s.
ORNELAS-CHAVEZ v. GONZALES 9995
any group in Mexico, see Al-Saher, 268 F.3d at 1147; nor is
there evidence that torture is “an institution,” or otherwise so
pervasive against homosexuals that we must conclude more
likely than not Ornelas-Chavez would fall prey to it, see Khup
v. Ashcroft, 376 F.3d 898, 907 (9th Cir. 2004).
I would affirm the determination that Ornelas-Chavez
failed to meet his burden of showing that he was more likely
than not to be tortured, as specifically defined by the regula-
tions, if returned to Mexico.
III
For all of the foregoing reasons, I respectfully dissent.