Boer-Sedano v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE PATRICIO BOER-SEDANO, 
Petitioner, No. 03-73154
v.
 Agency No.
A76-335-880
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submission deferred February 3, 2005
Submitted June 21, 2005**
San Francisco, California
Filed August 12, 2005
Before: Dorothy W. Nelson, William A. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge D.W. Nelson
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General. Fed. R. App. P. 43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
10513
BOER-SEDANO v. GONZALES 10517
COUNSEL
Angela M. Bean, Angela M. Bean & Associates, Oakland,
California, for the petitioner.
Peter D. Keisler, Margaret J. Perry, and Mary Jane Candaux,
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for the respondent.
OPINION
D.W. NELSON, Circuit Judge:
Jose Patricio Boer-Sedano, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’
(BIA’s) summary affirmance of the Immigration Judge’s (IJ)
10518 BOER-SEDANO v. GONZALES
denial of his requests for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We
grant his petition for review in part, reverse the BIA’s deci-
sion on his asylum claim and remand for the Attorney General
to exercise his discretion on this claim. We also remand to the
BIA to reevaluate Boer-Sedano’s withholding of removal and
CAT claims in light of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Boer-Sedano last entered the United States on September 6,
1990, as a nonimmigrant visitor with authorization to remain
in the United States for six months. On November 7, 1997,
Boer-Sedano was placed in removal proceedings for overstay-
ing this visa. On November 15 and 20, 2001, during a merits
hearing before the IJ, Boer-Sedano conceded his removability
based on overstay. However, he sought asylum, withholding
of removal, and protection under the CAT. Because the IJ
found Boer-Sedano to be credible, the following facts to
which he testified, including the reasonable inferences to be
drawn from these facts, must be accepted as true. See Damon
v. Ashcroft, 360 F.3d 1084, 1086 n.2 (9th Cir. 2004); Zheng
v. Ashcroft, 332 F.3d 1186, 1189 n.4 (9th Cir. 2003).
Boer-Sedano was born in Tampico, a small Mexican city,
and is a homosexual man living with Acquired Immune Defi-
ciency Syndrome (AIDS). Boer-Sedano testified that he has
known he was gay since the age of seven and that he could
not live “a gay life openly in Mexico” because of how he
would be treated if his sexuality were known. Despite his
attempts to conceal his sexuality, others could perceive it and
Boer-Sedano was ostracized by his family, friends, and co-
workers on this basis. His family refused to allow him to
interact with other family members or his friends, fearing that
Boer-Sedano would be a “bad influence” on them. Boer-
Sedano was also harassed at his Tampico workplace because
of his sexuality. Coworkers called him a “maricon” (“faggot”)
and tried to convince another department head to accept him,
BOER-SEDANO v. GONZALES 10519
but the department head refused because he did not want
“queers” working in his department.
Boer-Sedano’s asylum claim centers on his interactions, in
1988, with a “high-ranking police officer.” Late one evening,
the officer stopped Boer-Sedano and a friend in the town
square and arrested and detained the two men for twenty-four
hours. The officer told the two men they were being held for
being gay and because he believed they were on their way to
a hotel together. Boer-Sedano correctly testified that being
gay is not a crime in Mexico. Over the next three months, the
same police officer stopped Boer-Sedano on nine separate
occasions. On each occasion, the officer ordered Boer-Sedano
into his official police car, drove to a dark location, and
forced Boer-Sedano to perform oral sex on him.
To get Boer-Sedano to comply, the officer told Boer-
Sedano that he knew “where [he] lived and where [he]
worked” and would tell others that Boer-Sedano was a homo-
sexual if he resisted. After each time Boer-Sedano performed
oral sex on the officer, the officer would hit Boer-Sedano’s
head and arms and insult him by saying that he “didn’t know
how to [perform oral sex] well.” The officer also warned
Boer-Sedano that “if he killed [him] and threw [his] body
somewhere no one would ask about [him], . . . because . . .
[he] was a gay person” and the officer would not be commit-
ting murder, but simply “cleaning up society.” During one
encounter with this officer, the officer “pulled out his hand
gun and put a bullet in the chamber and rolled the cylinder
and put the gun to [Boer-Sedano’s] head and said ‘if you’re
lucky this is going to be your fate.’ ”
After these events, Boer-Sedano quit his job and “didn’t go
out of [his] house]” because he was afraid the officer would
find him and continue this abuse. Seeking safety, Boer-
Sedano fled to Monterrey, Mexico. For about a year, Boer-
Sedano lived in Monterrey, worked at an underground gay
discotheque, and began to apply for a visa to enter the United
10520 BOER-SEDANO v. GONZALES
States. His life in Monterrey remained difficult and he could
not openly identify as a homosexual. In April 1989, Boer-
Sedano was granted a U.S. visitor’s visa, but he testified that
he did not immediately use the visa to enter the United States
because he wanted to save money to assist in his permanent
relocation.
Around the time of regional gubernatorial elections,
approximately in July 1989, the local police conducted many
raids, including one on Boer-Sedano’s workplace. The police
arrested the customers and the staff who were performing a
strip show and closed down the bar. Boer-Sedano testified
that the police asked him if he was a homosexual and that he
denied his homosexuality to avoid arrest. After this raid Boer-
Sedano testified that he was “very, very much afraid” because
he feared that the officers were going to assault him and “the
same story [was] going to repeat itself.” Boer-Sedano testified
that after the raid he felt he would not be safe living in Mex-
ico as a gay man. After the raid, Boer-Sedano acquired money
for his resettlement by traveling for a period of over one year
between the United States and Mexico to purchase goods and
resell them in Mexico.
Boer-Sedano fled to San Francisco in September 1990 and
has not returned to Mexico. In 1992, he was diagnosed with
the Human Immunodeficiency Virus (HIV) and later with
AIDS.1 For the last ten years, Boer-Sedano has worked as a
waiter and a bus boy at a hotel, which provides him with
health insurance that covers his AIDS treatment, including a
combination of six drugs. Over the course of his treatment,
Boer-Sedano has developed immunity to some medications,
necessitating changes to new drugs. His doctor testified via
phone and submitted a letter stating that Boer-Sedano “will
require undoubtedly early access to new anti-retroviral
agents” in the future. Boer-Sedano testified that he would not
1
Before coming to the United States, Boer-Sedano tested negative for
HIV.
BOER-SEDANO v. GONZALES 10521
be able to get a job in Mexico because he is a homosexual
man with AIDS. Without a job, Boer-Sedano testified that he
could not afford health insurance or the drugs he currently
takes to maintain his health. He also testified that the drugs he
uses are not available in Mexico and provided corroborating
evidence to support this claim.
On November 20, 2001, the IJ found Boer-Sedano ineligi-
ble for asylum because he failed to establish past persecution
on account of a protected basis. The IJ concluded that the sex
acts that Boer-Sedano was forced to perform by the police
officer were simply “a personal problem” he had with this
officer. The IJ further concluded that Boer-Sedano had not
established a well-founded fear of persecution because “he
was not subject to systematic persecution which prevented
him from living his chosen life style, . . . particularly after he
moved to Monterrey.” The IJ also denied Boer-Sedano’s
withholding of removal and CAT claims. Boer-Sedano timely
appealed to the BIA, which on August 4, 2003, affirmed the
IJ without opinion. Boer-Sedano timely petitioned for review.
STANDARD OF REVIEW
We review the BIA’s decision on whether a petitioner
established eligibility for asylum under the substantial evi-
dence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th
Cir. 2004). “This standard limits reversals of BIA decisions to
situations where the Petitioner presented evidence so compel-
ling that no reasonable factfinder could fail to find that Peti-
tioner has not established eligibility for asylum.” Ali v.
Ashcroft, 394 F.3d 780, 784 (9th Cir. 2005) (internal quota-
tions and brackets omitted). Here, because the BIA affirmed
without opinion, we review the IJ’s decision as the final
agency determination. 8 C.F.R. § 1003.1(e)(4); see also Fal-
con Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).
10522 BOER-SEDANO v. GONZALES
DISCUSSION
I. Asylum Claim
A. Boer-Sedano Established Past Persecution
[1] To qualify for asylum, Boer-Sedano must show that he
is a refugee or one “who is unable or unwilling to return to
. . . [his native] country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion[.]” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The
IJ rejected Boer-Sedano’s argument that he was persecuted on
account of his membership in the particular social group of
male homosexuals in Mexico because she found that this did
not constitute a particular social group for asylum purposes.
We recently held that “alien homosexuals” constitute a partic-
ular social group. Karouni v. Gonzales, 399 F.3d 1163, 1172
(9th Cir. 2005). Therefore, the BIA erred in affirming the IJ’s
conclusion that homosexual men in Mexico could not form
the basis of a social group claim.
[2] Whether particular acts constitute persecution for asy-
lum purposes is a legal question, which we review de novo.
Hernandez-Montiel v. INS, 225 F.3d 1084, 1097 (9th Cir.
2000). We have held that sexual assault, including forced oral
sex, may constitute persecution. Id. Therefore, there can be no
doubt that the nine sex acts that Boer-Sedano was forced to
perform rise to the level of persecution.
[3] “[W]e have [also] consistently held that death threats
alone can constitute persecution.” Navas v. INS, 217 F.3d 646,
658 (9th Cir. 2000). The IJ’s minimization of the death threat
Boer-Sedano received from the police officer may account for
her failure to recognize that he suffered persecution. When
counsel referred to the death threat the officer issued to Boer-
Sedano during a “game” of Russian Roulette, the IJ warned
her to “classify [the incident] as it was rather than a death
BOER-SEDANO v. GONZALES 10523
threat.” We fail to see how holding a loaded gun to Boer-
Sedano’s head and threatening to pull the trigger was any-
thing but a death threat, especially in light of the officer’s
statement that Boer-Sedano would be “lucky” if there was a
bullet in the chamber and a separate statement that if the offi-
cer killed him it would be considered a good thing by society
because he was gay. Accordingly, the IJ erred as a matter of
law by concluding that Boer-Sedano had not been persecuted.
[4] To establish past persecution, Boer-Sedano must also
show that the persecution he suffered was “inflicted either by
the government or by persons or organizations which the gov-
ernment is unable or unwilling to control.” Sangha v. INS,
103 F.3d 1482, 1487 (9th Cir. 1997). Boer-Sedano testified
that the police officer who persecuted him was “high rank-
ing.” During Boer-Sedano’s first encounter with the officer,
the officer arrested and detained Boer-Sedano and his friend
for 24 hours because the officer suspected that they were gay
and were going to a hotel together. Police officers are the pro-
totypical state actor for asylum purposes. See, e.g.,
Hernandez-Montiel, 225 F.3d at 1097 (noting that petitioner’s
assaults by the police demonstrated that he “is at risk of
[being] persecut[ed] [by] the very agency which purports to
protect him by law”). These persecutory acts by a single gov-
ernmental or quasi-governmental official are sufficient to
establish state action. See id. at 1097-98; Lazo-Majano v. INS,
813 F.2d 1432, 1434 (9th Cir. 1987).
[5] Although the IJ faulted Boer-Sedano for not reporting
the persecution he suffered to the police, we generally con-
sider whether an asylum applicant reported persecution to the
police only when a non-governmental actor is responsible for
the persecution. Baballah v. Ashcroft, 367 F.3d 1067, 1078
(9th Cir. 2004) (noting that “when the government is respon-
sible for persecution, the [state actor] prong of our asylum
inquiry is satisfied without further analysis. As a result, no
inquiry into whether a petitioner reported the persecution to
police is necessary.”). Moreover, Boer-Sedano explained why
10524 BOER-SEDANO v. GONZALES
he did not report the incidents: he was afraid. This fear was
reasonable considering that the police officer was high rank-
ing and arrested and detained Boer-Sedano on a previous
occasion without any intervention from other government
officials.
[6] The IJ concluded that the officer’s persecution of Boer-
Sedano was not on account of his status as a homosexual. The
evidence in the record does not support this conclusion. The
police officer initially arrested Boer-Sedano only after asking
him if he was gay and only after seeing him with a friend,
whom the officer concluded was his gay partner. Furthermore,
the officer’s words during the assaults make clear that he was
motivated by Boer-Sedano’s sexuality. See, e.g., Borja v. INS,
175 F.3d 732, 735-36 (9th Cir. 1999) (en banc) (holding that
petitioner’s credible testimony that she was assaulted by
members of a violent, anti-government group only after tell-
ing them that she opposed their practices established past per-
secution on account of a protected ground). In addition, when,
as here, “there is no evidence of a legitimate . . . purpose for
a government’s harassment of a person” a presumption arises
“that the motive for the harassment is on account of a pro-
tected ground.” Karouni, 399 F.3d at 1174-75 (internal quota-
tions, citation, and brackets omitted). Accordingly, the record
compels the conclusion that Boer-Sedano is a member of the
social group consisting of homosexual men in Mexico and
that he was persecuted on account of this status.
B. Boer-Sedano Has a Well-Founded Fear of Persecution
[7] Because Boer-Sedano has established past persecution,
he is presumed to have a well-founded fear of future persecu-
tion. 8 C.F.R. § 1208.13(b)(1). According to the regulations,
the burden then shifts to the government to show, by a pre-
ponderance of the evidence, that either there has been a “fun-
damental change in circumstances,” such that Boer-Sedano no
longer has a well-founded fear, or that he could “avoid future
persecution by relocating to another part of [Mexico] . . . , and
BOER-SEDANO v. GONZALES 10525
under all the circumstances, it would be reasonable to expect
[him] to do so.” Id. at § 1208.13(b)(1)(i)(A)-(B). The IJ con-
cluded that Boer-Sedano did not have a well-founded fear of
persecution if returned to Mexico because: (1) the country
conditions indicate that “there is no evidence of systematic
official persecution of homosexuals,” (2) relocation was pos-
sible, and (3) Boer-Sedano’s “fear of persecution is com-
pletely alleviated by his repeated voluntary return [trips] to
Mexico.”
1. Changed Country Conditions
[8] We have repeatedly held that the government has not
rebutted the presumption of a well-founded fear of persecu-
tion when, as is the case here, evidence in the country report
indicates that persecution similar to that experienced by the
petitioner still exists. Agbuya v. INS, 241 F.3d 1224, 1231
(9th Cir. 2001); Kataria v. INS, 232 F.3d 1107, 1115 (9th Cir.
2000). The IJ attempted to limit these findings in the country
report by stating that the majority of the anti-gay violence
reported in Mexico was against transvestites and that Boer-
Sedano is “a low-profile, non-transvestite gay man” who “has
never been openly identified as a homosexual except by the
one police officer.” This statement misrepresents the record,
as it is beyond doubt that Boer-Sedano’s homosexuality was
known to his family, coworkers, and the officer who assaulted
him. Moreover, the two country reports in the record do not
indicate that the violence against homosexuals is largely lim-
ited to violence against transvestites. The 1997 country report
concluded that “violence against homosexuals is not uncom-
mon, especially in establishments or areas frequented by
gays.” 1997 Bureau of Democracy, Human Rights and Labor,
U.S. Dep’t of State, Mexico: Profile of Asylum Claims &
Country Conditions 6, reprinted in Administrative Record
(AR) at 272. In addition, the 2001 country report, which was
also in the record, indicates that violence against homosexuals
continues to be a problem in Mexico and does not limit this
10526 BOER-SEDANO v. GONZALES
violence as targeted at transvestites. The 2001 country report
states:
Amnesty International has reported that homosexual
men and women are likely to be victims of abuse and
violence. In its 1999 annual report, the Citizen’s
Commission Against Homophobic Crimes reported
that on average three murders are committed because
of sexual orientation per month, and . . . that the
police fail to investigate these crimes seriously.
2001 U.S. Dep’t of State, Mexico: Country Reports on Human
Rights Practices: 2000 17, reprinted in AR at 292. Boer-
Sedano also submitted newspaper articles showing that the
Mexican police have committed numerous violations of the
rights of sexual minorities in Mexico, including beatings and
sexual abuse. See, e.g., Tijuana Police Harass Gays in Park
(1998) (newspaper article detailing abuses by police against
homosexuals), reprinted in AR at 335; Lesbians and Gays,
Victims of the Police (1997) (same), reprinted in AR at 420;
Sam Dillon, Gay Rights, Prejudice and Politics in Mexico,
New York Times (1997) (same), reprinted in AR at 426-29.
Based on the substantial evidence in the record, we hold that
the government failed to rebut the presumption of a well-
founded fear of persecution based on changed country condi-
tions.
2. Relocation Within Mexico
[9] The IJ found that Boer-Sedano could relocate safely in
Mexico because he did not prove a risk of countrywide perse-
cution. However, because Boer-Sedano established past per-
secution, the burden was on the INS to show, by a
preponderance of the evidence, that relocation was reason-
able. 8 C.F.R. § 1208.13(b)(1)(ii). Cutting against such a find-
ing is the evidence in the country report showing that violence
against homosexuals is not limited to any one area and the
fact that Boer-Sedano suffered persecution at the hands of a
BOER-SEDANO v. GONZALES 10527
government official, which raises a presumption that “a threat
exists nationwide” and that “internal relocation is unreason-
able.” Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.
2003); see also 8 C.F.R. § 1208.13(b)(3)(ii). To rebut this pre-
sumption of a nationwide threat, the relevant regulation
requires the IJ to consider the following nonexhaustive fac-
tors, to decide whether any of them made relocation unreason-
able: “whether the applicant would face other serious harm in
the place of suggested relocation; any ongoing civil strife
within the country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and cul-
tural constraints, such as age, gender, health, and social and
family ties.” 8 C.F.R. § 1208.13(b)(3).
[10] The IJ failed to consider the “serious harm” Boer-
Sedano would face if he was relocated within Mexico or the
“social and cultural constraints,” including his health status,
which made such relocation unreasonable. Id. We have inter-
preted this regulation as precluding relocation when a peti-
tioner’s age, limited job prospects, and lack of family or
cultural connections to the proposed place of relocation mili-
tate against a finding that relocation would be reasonable. See
Knezevic v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir. 2004);
Melkonian, 320 F.3d at 1071. However, we have not yet had
occasion to consider when a petitioner’s health status, in com-
bination with other social and cultural constraints, may make
relocation unreasonable.
The record reflects that Boer-Sedano would face significant
social and cultural constraints as a gay man with AIDS in
Mexico, as hostility towards and discrimination against HIV/
AIDS patients is common in Mexico. Tijuana AIDS Hospice
Shut Down by City, (1999), reprinted in AR at 309 (describ-
ing closure of AIDS hospice by city and transfer of patients
to a hospital that does not provide HIV drugs and noting alle-
gations of abuse of patients at the hospice); International Gay
and Lesbian Human Rights Commission, Mexican Refugees in
1990’s Canada: Beyond the Limits of Repression 62, 65,
10528 BOER-SEDANO v. GONZALES
reprinted in AR at 328, 331 (noting numerous human rights
complaints based on neglect and denial of treatment to HIV
patients as well as businesses’ manipulation of physical
exams to refuse to hire or to terminate employees with HIV);
and Victor Janoff, Life Under Siege: In Mexico, do gay people
face discrimination, extortion and murder?, Simon Fraser
News (1996), reprinted in AR at 433 (“Mexican homosexuals
are under siege, demoralized by rampant police brutality and
mistreatment of people with AIDS.”).
[11] In addition, the evidence reveals that Boer-Sedano’s
health status would make relocation unreasonable. Boer-
Sedano’s doctor testified that Boer-Sedano’s treatment has
been complicated by his resistance to virtually all licensed
AIDS medications. Letter from Boer-Sedano’s doctor,
reprinted in AR at 473; see also a subsequent letter from this
doctor, reprinted in AR at 302. In response, Boer-Sedano’s
doctor prescribed investigational medications, which he testi-
fied are unavailable — even for purchase — in Mexico. Id.;
AR 253 (doctor’s testimony). Without these drugs, Boer-
Sedano’s doctor testified that his condition would “rapidly
deteriorate.” AR 253. Boer-Sedano produced evidence to cor-
roborate the doctor’s testimony that the AIDS drugs he takes
are unavailable in Mexico. See Dana Calvo, Less Help for
Mexicans With AIDS, Associated Press (1997), reprinted in
AR at 375-76 (article describing scarcity of AIDS drugs in
Mexico); Scarcity in IMSS (1998), reprinted in AR at 378
(same); and Tijuana AIDS Clinic Faces Drug Shortage
(1996), reprinted in AR at 431 (same). Boer-Sedano also tes-
tified that his status as a homosexual with AIDS would make
it impossible to find a job to provide health insurance or
money to pay to import the needed drugs from elsewhere. We
hold, therefore, that after considering the cumulative evidence
on the social and cultural constraints Boer-Sedano would face
as a homosexual man in Mexico, his current health, and the
likelihood that serious harm would come to him if forced to
relocate to Mexico where he could not obtain his required
medication, no reasonable factfinder could conclude that the
BOER-SEDANO v. GONZALES 10529
INS has carried its burden of showing that such relocation
was reasonable.
3. Return Trips
[12] Despite Boer-Sedano’s testimony that the purpose of
his trips between the United States and Mexico was to limit
his time in Mexico while he gathered enough income to flee
permanently, the IJ concluded that these trips rebutted the pre-
sumption of a well-founded fear of persecution. According to
our precedent, return trips can be considered as one factor,
among others, that rebut this presumption. See Belayneh v.
INS, 213 F.3d 488, 491 (9th Cir. 2000) (determining that the
presumption was rebutted when the applicant made three
return trips, there had been two favorable changes in govern-
ment, fifteen years had passed between the past persecution
and the asylum request, and there was no nexus between the
spouse’s persecution and the applicant’s fear). We have never
held that the existence of return trips standing alone can rebut
this presumption. In light of the evidence of continuing perse-
cution of homosexuals in Mexico, no reasonable factfinder
could find that Boer-Sedano’s return trips alone demonstrate
a fundamental change in circumstances sufficient to show that
Boer-Sedano no longer has a well-founded fear of persecu-
tion. We hold that the IJ erred in finding to the contrary. For
these reasons, we conclude that Boer-Sedano is statutorily eli-
gible for asylum and remand for an exercise of discretion.
II. Withholding of Removal Claim
[13] Relief under withholding of removal is mandatory if
the petitioner establishes that his “life or freedom would be
threatened” in the country to which he would be removed on
account of one of the five protected grounds. 8 U.S.C.
§ 1231(b)(3)(A). The standard of proof required to establish
eligibility for withholding of removal is higher than the stan-
dard for establishing eligibility for asylum. Compare INS v.
Stevic, 467 U.S. 407, 424 (1984) (standard under former with-
10530 BOER-SEDANO v. GONZALES
holding statute) with INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987) (asylum standard). Because Boer-Sedano estab-
lished past persecution, a presumption arises that his “life or
freedom would be threatened in the future” if he was removed
to Mexico. See 8 C.F.R. § 1208.16(b)(1); Hoque v. Ashcroft,
367 F.3d 1190, 1198 (9th Cir. 2004). Precisely the same
restrictions on rebutting the presumption apply in the with-
holding context as in the asylum context. 8 C.F.R.
§ 1208.16(b)(1). The IJ concluded that because Boer-Sedano
failed to establish past persecution for asylum, he could not
satisfy the higher standard for withholding of removal.
Because we conclude that Boer-Sedano is statutorily eligible
for asylum, we remand to the BIA to consider in the first
instance Boer-Sedano’s withholding of removal claim in light
of this presumption. See Ali, 394 F.3d at 791.
III. Convention Against Torture Claim
[14] To obtain relief under the CAT an applicant must
establish “that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). The regulations interpreting the
CAT define torture as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as . . . punishing him or her
for an act he or she or a third person has committed
or is suspected of having committed, . . . or for any
reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instiga-
tion of . . . a public official or any person acting in
an official capacity.
Id. at § 1208.18(a)(1). Boer-Sedano has not presented evi-
dence that compels any reasonable factfinder to determine
that the IJ erred in denying him relief under the CAT. Accord-
BOER-SEDANO v. GONZALES 10531
ingly, we affirm the IJ’s determination that he is ineligible for
relief under the CAT.
CONCLUSION
The petition for review is granted in part, and the case is
remanded for the Attorney General to exercise his discretion
over Boer-Sedano’s asylum claim and for further consider-
ation of Boer-Sedano’s withholding of removal claim. We
also affirm the IJ’s denial of Boer-Sedano’s application for
relief under the CAT.
PETITION GRANTED in part, REMANDED in part,
and DENIED in part.