Morales v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY ARABILLAS MORALES,  No. 05-70672
Petitioner, Agency No.
v. A77-840-127
ALBERTO R. GONZALES, Attorney  ORDER
General, AMENDING
Respondent. OPINION AND
AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 17, 2006—Seattle, Washington
Filed January 3, 2007
Amended February 28, 2007
Before: Dorothy W. Nelson, David R. Thompson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Thompson
2427
MORALES v. GONZALES 2431
COUNSEL
Antonio Salazar, Seattle, Washington, for the petitioner.
Peter D. Keisler, Emily Anne Radford, Molly L. Debusschere,
U.S. Department of Justice, Washington, D.C., for the respon-
dent.
ORDER
The Respondent’s Motion to Amend Decision, which
motion was filed February 14, 2007, is granted in part.
The first sentence of the first paragraph of Section II.A.2 of
the Opinion filed January 3, 2007, and published at 472 F.3d
689, 695 (9th Cir. 2007), is amended by deleting therefrom
the following language:
Although we lack jurisdiction to review the IJ’s
finding that Morales was removable, we have juris-
diction to review the IJ’s denial of Morales’s appli-
cations for asylum and withholding of removal.
The following sentence is inserted in place of the deleted
sentence:
Although we lack jurisdiction to review the IJ’s
finding that Morales was removable, we have juris-
diction to review the IJ’s denial of Morales’s appli-
cation for asylum, pursuant to 8 U.S.C. § 1252(a)(2)
(B)(ii), and to review the IJ’s denial of Morales’s
application for withholding of removal to the extent
that Morales raises questions of law, including
mixed questions of law and fact, or constitutional
claims. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v.
Gonzales, No. 03-74351, ___ F.3d ___, ___ 2007
2432 MORALES v. GONZALES
U.S. App. LEXIS 3803, at *2, 9 (9th Cir. Feb. 22,
2007).
OPINION
THOMPSON, Senior Circuit Judge:
Nancy Arabillas Morales, a.k.a. Juan Manuel Arabillas
Morales, a male-to-female transsexual, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision summa-
rily affirming an Immigration Judge’s (“IJ”) removal order
and denial of her applications for asylum, withholding of
removal, and protection under the Convention Against Tor-
ture (“CAT”).
The IJ concluded that Morales was removable both because
she was an alien present in the United States without admis-
sion or parole and because she had been convicted of a crime
involving moral turpitude — communication with a minor for
immoral purposes under section 9.68A.090 of the Revised
Code of Washington. The IJ further found Morales would
have been eligible for asylum but for her conviction, which
the IJ determined was a particularly serious crime. Having
made that decision, the IJ denied Morales’s applications for
asylum and for withholding of removal. The IJ also denied
Morales’s application for CAT relief on the merits, holding
that Morales had not shown it was more likely than not she
would be tortured if she were returned to Mexico.
We conclude that we lack jurisdiction to review the IJ’s
finding that Morales was removable because Morales had
been convicted of a crime of moral turpitude. See 8 U.S.C.A.
§ 1252(a)(2)(C) (West 2005). Nevertheless, we have jurisdic-
tion to review the denial of Morales’s applications for asylum,
withholding of removal, and CAT relief. See 8 U.S.C.A.
§ 1252(a)(1), (4) (West 2005). We grant Morales’s petition
MORALES v. GONZALES 2433
for review of these claims. We conclude the IJ improperly
relied on a recitation of facts in the Washington appellate
court’s opinion affirming Morales’s conviction. Relying on
those facts, the IJ determined that Morales’s conviction was
for a particularly serious crime. A substantial portion of the
facts the IJ relied upon, however, applied to offenses for
which Morales had not been convicted. Therefore, we remand
to the BIA with instructions to remand to the IJ for a redeter-
mination of the “particularly serious crime” issue.
We also conclude the IJ applied an incorrect legal standard
to Morales’s application for CAT relief, and we remand for
a redetermination of that issue as well.
I. BACKGROUND
Nancy Arabillas Morales was born Juan Manuel Arabillas
Morales on June 24, 1968. She began using the name Nancy
when she was fourteen years old because she always felt that
she was more of a female than a male.
At the age of fifteen, Morales began working at a bar and
dressing as a woman. Around the same time, Morales moved
out of her family’s home because her father beat her and
would not allow her to dress as a woman. At the administra-
tive hearing, Morales testified that at the age of eight she was
raped by her brother, and when she began working at the bar,
she was raped by one of her customers. Morales was arrested
twice and jailed for being a minor working in a bar. She was
raped by several men in jail, and her cries were ignored by the
prison officials. Morales also suffered at least one beating at
the hands of a policeman in her hometown.
When Morales was sixteen, she moved from her hometown
of San Luis Potosi to Matamoros, Mexico, to be closer to the
United States. On one occasion, Morales attempted to enter
the United States from Matamoros. She was picked up by
seven men who attacked and raped her. Morales did not report
2434 MORALES v. GONZALES
the incident because she believed the police would only arrest
her. Morales was arrested several times in Matamoros for
dressing as a woman, but she was never charged or convicted
of any crime. The police often refrained from arresting her or
released her soon after her arrest if she gave them money.
In 1986, Morales came to the United States. She has lived
here since then and has returned to visit Mexico on only a
couple of occasions — once to receive breast implants and
once when her mother died. At the administrative hearing,
Morales had difficulty remembering the dates of her visits to
Mexico and whether she returned a third time. Morales testi-
fied that she wants to remain in the United States because she
has never been assaulted here, and she is afraid that, because
she is “more of a woman” now, she is more likely to be
assaulted in Mexico.
In April 2002, following a jury trial, Morales was convicted
of communication with a minor for immoral purposes under
section 9.68A.090 of the Revised Code of Washington. State
v. Morales, No. 50397-9-I, 2003 WL 22384696, at *1 (Wash.
Ct. App. Oct. 20, 2003). She had also been charged with third
degree rape of a child and third degree child molestation, but
the jury was unable to reach a verdict on the rape charge and
acquitted Morales of the child molestation charge. Id.
On November 19, 2003, the Department of Homeland
Security (“DHS”) charged Morales under section
212(a)(6)(A)(i) of the INA, 8 U.S.C.A. § 1182(a)(6)(A)(i)
(West 2005), with being an alien present in the United States
who had not been admitted or paroled. The DHS also charged
Morales with being removable under section 212(a)(2)(A)
(i)(I) of the INA, 8 U.S.C.A. § 1182(a)(2)(A)(i)(I) (West
2005), because she had been convicted of a crime involving
moral turpitude.
At her hearing before the IJ, Morales was the only witness.
The IJ found Morales removable on both charges and denied
MORALES v. GONZALES 2435
her applications for asylum, withholding of removal, and
CAT relief. The IJ stated that but for Morales’s conviction for
communication with a minor for immoral purposes, he would
have found her eligible for asylum under Hernandez-Montiel
v. INS, 225 F.3d 1084 (9th Cir. 2000). With regard to her con-
viction for communication with a minor for immoral pur-
poses, the IJ relied on facts recited in the Washington
appellate court’s opinion affirming that conviction and deter-
mined she had been convicted of a particularly serious crime;
for that reason, the IJ concluded Morales was ineligible for a
grant of asylum or withholding of removal.
The IJ determined the only relief for which Morales was
possibly eligible was relief under the CAT, but he found
Morales had failed to demonstrate it was more likely than not
she would be tortured if she were to return to Mexico. He
based his denial on Morales’s “very general” testimony, her
return visits to Mexico, the mention of a Mexico City gay
pride parade in the 2002 country report for Mexico, and the
respect Morales’s siblings living in Mexico had gained for her
since she had moved to the United States and started sending
them money.
In analyzing the specific incidents of abuse suffered by
Morales, the IJ focused on Morales’s interactions with the
police and other government officials in Mexico. The IJ found
it especially significant that these incidents had occurred some
substantial period of time in the past, all prior to 1986. The
IJ also found it significant that Morales could not remember
the dates of her return visits to Mexico, including the date of
her mother’s death. Nevertheless, the IJ made no adverse
credibility finding.
Morales appealed to the BIA, which summarily affirmed
the IJ’s decision, and this petition for review followed.
II. DISCUSSION
When, as here, the BIA affirms the decision of an IJ with-
out opinion, this court reviews the IJ’s ruling as the final
2436 MORALES v. GONZALES
agency decision. Acosta v. Gonzales, 439 F.3d 550, 552 (9th
Cir. 2006). We review de novo the IJ’s legal determinations.
Id. The IJ’s findings of fact are reviewed for substantial evi-
dence and are treated as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)
(quoting 8 U.S.C.A. § 1252(b)(4)(B) (West 2005)).
A. Jurisdiction
1. Order of Removal
[1] Under 8 U.S.C. § 1252(a)(2)(C), this court lacks “juris-
diction to review any final order of removal against an alien
who is removable by reason of having committed a criminal
offense covered in section 1182(a)(2) . . . .” 8 U.S.C.
§ 1252(a)(2)(C). The offenses covered in § 1182(a)(2) include
crimes involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)
(i)(I).
This court has “jurisdiction ‘to determine whether jurisdic-
tion exists.’ ” Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir.
2001) (quoting Flores-Miramontes v. INS, 212 F.3d 1133,
1135 (9th Cir. 2000)). This jurisdiction includes determining
threshold issues, which in this case involves whether Morales
is an alien who has committed an act that constitutes the
essential elements of a crime involving moral turpitude. See
id. at 1001; 8 U.S.C. §§ 1182(a)(2)(A)(i), 1252(a)(2)(C).
Morales admits she is a native and citizen of Mexico, but
she does not admit committing a crime involving moral turpi-
tude. We nevertheless conclude that her conviction for com-
munication with a minor for immoral purposes is such a
crime.
“To determine whether a specific crime falls within a par-
ticular category of grounds for removability, we apply the cat-
egorical and modified categorical approaches set forth in
MORALES v. GONZALES 2437
Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109
L. Ed. 2d 607 (1990).” Cuevas-Gaspar v. Gonzales, 430 F.3d
1013, 1017 (9th Cir. 2005). Under the categorical approach,
we ask “whether the full range of conduct encompassed by
the [criminal] statute constitutes a crime of moral turpitude.”
Id.
Section 9.68A.090 of the Revised Code of Washington pro-
vides that “a person who communicates with a minor for
immoral purposes, or a person who communicates with some-
one the person believes to be a minor for immoral purposes,
is guilty of a gross misdemeanor.” Wash. Rev. Code
§ 9.68A.090(1). The essential elements of this state crime are
(1) communication (through words or conduct) (2) with a
minor or someone the defendant believes to be a minor (3) for
immoral purposes of a sexual nature. See State v. Hosier, 133
P.3d 936, 941 (Wash. 2006) (stating that “communication”
includes “conduct as well as words” and “immoral purpose”
refers to “sexual misconduct”) (citations and internal quota-
tion marks omitted). Thus, immorality is one of the elements
of the crime under Washington law.
[2] Moral turpitude refers generally to conduct that is “in-
herently base, vile, or depraved, and contrary to accepted
rules of morality.” Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1169 (9th Cir. 2006) (quoting Tseung Chu v. Cornell,
247 F.2d 929, 934 (9th Cir.1957)); see also Knapik v. Ash-
croft, 384 F.3d 84, 89 (3rd Cir. 2004) (defining moral turpi-
tude as “conduct that is inherently base, vile, or depraved,
contrary to the accepted rules of morality and the duties owed
other persons, either individually or to society in general”).
Sexual communication with a minor is inherently wrong and
contrary to the accepted rules of morality and the duties owed
between persons. The full range of conduct prohibited by sec-
tion 9.68A.090 of the Revised Code of Washington categori-
cally constitutes a crime involving moral turpitude. Therefore,
without proceeding to the modified categorical approach, we
conclude that Morales has been convicted of a crime involv-
2438 MORALES v. GONZALES
ing moral turpitude, and this court lacks jurisdiction to review
the IJ’s final order of removal. See 8 U.S.C. §§ 1182(a)(2),
1252(a)(2)(C)-(D) (West 2005).
2. Denial of Asylum and Withholding of Removal
Although we lack jurisdiction to review the IJ’s finding that
Morales was removable, we have jurisdiction to review the
IJ’s denial of Morales’s application for asylum, pursuant to 8
U.S.C. § 1252(a)(2)(B)(ii), and to review the IJ’s denial of
Morales’s application for withholding of removal to the extent
that Morales raises questions of law, including mixed ques-
tions of law and fact, or constitutional claims. See 8 U.S.C.
§ 1252(a)(2)(D); Ramadan v. Gonzales, No. 03-74351, ___
F.3d ___, ___ 2007 U.S. App. LEXIS 3803, at *2, 9 (9th Cir.
Feb. 22, 2007). The INA provides that “no court shall have
jurisdiction to review . . . [a] decision or action of the Attor-
ney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of
Homeland Security, other than the granting of relief under
section 1158(a) of this title.” 8 U.S.C.A. § 1252(a)(2)(B)(ii)
(West 2005).
Section 1158(a) governs asylum applications. 8 U.S.C.A.
§ 1158(a) (West 2005). Thus, because decisions whether to
grant asylum are exempted from § 1252(a)(2)(B)(ii)’s
jurisdiction-stripping mandate, we have jurisdiction to review
the IJ’s denial of Morales’s asylum application. See Hosseini
v. Gonzales, 464 F.3d 1018, 1021 (9th Cir. 2006) (“We . . .
have jurisdiction to review the BIA’s discretionary denial of
Hosseini’s application for asylum.”) (citing § 1252(a)(2)
(B)(ii)).1
1
Section 1252(a)(2)(B)(ii) only applies to discretionary decisions. The
IJ’s determination that Morales was statutorily ineligible for asylum was
arguably not a “decision . . . the authority for which is specified . . . to be
in the discretion of the Attorney General,” 8 U.S.C. § 1252(a)(2)(B)(ii),
MORALES v. GONZALES 2439
With regard to withholding of removal, if the decision to
deny Morales that form of relief was based on the Attorney
General’s discretion exercised pursuant to a statute granting
him discretion to make that decision, we would lack jurisdic-
tion to review the denial. Matsuk, 247 F.3d at 1002. In Mat-
suk, the BIA exercised its discretion, “pursuant to Section
1231(b)(3)(B)(ii), ‘to determine whether an aggravated felony
conviction resulting in a sentence of less than 5 years is a par-
ticularly serious crime.’ ” Id. (citation omitted). This court
was therefore jurisdictionally barred from reviewing the
denial of withholding of removal. Id.
In denying Morales’s application for withholding of
removal, the IJ did not make the same determination the BIA
made in Matsuk. Morales’s conviction was for a gross misde-
meanor under state law, and the IJ never determined that it
constituted an aggravated felony. Cf. Afridi v. Gonzales, 442
F.3d 1212, 1217-18 (9th Cir. 2006) (determining first that
Afridi was convicted of an aggravated felony and then consid-
ering whether the conviction, although it did not result in a
sentence of at least five years, was for a particularly serious
crime); Singh v. Ashcroft, 351 F.3d 435, 439-40 (9th Cir.
2003) (involving only a challenge to the “particularly serious
crime” determination and not challenging categorization of
the crime as an aggravated felony). Here, the IJ determined
that Morales’s non-aggravated felony conviction resulting in
a sentence of less than five years was for a particularly serious
crime. The question is whether the IJ was statutorily granted
discretion to make that decision.
The government argues that 8 U.S.C. § 1231(b)(3)(B)(ii)
gives the Attorney General absolute discretion to make the
because the asylum statute states that an alien “shall not” be found eligible
for asylum if the Attorney General determines she has been convicted of
a particularly serious crime. See 8 U.S.C.A. § 1158(b)(2)(A) (West 2005).
In either case, we are not divested of jurisdiction to review the IJ’s denial
of Morales’s asylum application.
2440 MORALES v. GONZALES
determination whether any crime is a particularly serious
crime, and therefore, we lack jurisdiction to review the IJ’s
decision related to withholding of removal. That interpretation
broadens the discretion we have previously determined
§ 1231(b)(3)(B)(ii) grants to the Attorney General. See Afridi,
442 F.3d at 1217 (stating § 1231(b)(3)(B)(ii) gives the Attor-
ney General “discretion to determine whether an aggravated
felony conviction resulting in a sentence of less than five
years is a particularly serious crime”) (citation omitted,
emphasis added); Unuakhaulu v. Gonzales, 416 F.3d at 931,
935 (9th Cir. 2005) (same); Singh, 351 F.3d at 439 (same);
Matsuk, 247 F.3d at 1002 (same).
Whether the Attorney General’s discretion should be
broadened need not be determined in this case, however,
because Morales presents a question of law over which this
court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).
See Afridi, 442 F.3d at 1218 (discussing appellate court’s
jurisdiction to consider legal questions related to the determi-
nation of whether a crime is particularly serious). Morales’s
appeal raises a legal question regarding what an IJ may con-
sider in determining whether a crime is particularly serious.
[3] We, therefore, have jurisdiction to consider Morales’s
petition for review on both the asylum and withholding of
removal questions. The denial of asylum is reviewable
because it is specifically exempted from § 1252(a)(2)(B)(ii)’s
jurisdiction-stripping provisions. The denial of withholding of
removal is reviewable because Morales raises a legal question
pertaining to what an IJ may refer to in deciding whether a
prior offense is a particularly serious crime.
3. Denial of CAT Protection
The government also argues we lack jurisdiction to review
the IJ’s denial of Morales’s application for CAT relief. The
government cites no specific statutory provision barring our
jurisdiction to review applications for CAT relief, but instead
MORALES v. GONZALES 2441
relies on 8 U.S.C. § 1252(a)(2)(C)-(D), which divests courts
of appeal of jurisdiction to review orders of removal unless
the petition for review presents a constitutional issue or ques-
tion of law.
The government argues Morales’s petition for review of the
IJ’s denial of her CAT claim presents only factual issues
regarding whether she is more likely than not to be tortured
if she is returned to Mexico, and therefore, this court does not
have jurisdiction to consider her petition for CAT relief. We
disagree.
First, without regard to whether Morales’s CAT claim pre-
sents only factual issues, the IJ applied the wrong legal stan-
dard in denying her CAT application. See infra Part II.C. We
have jurisdiction under 8 U.S.C. § 1252(a) to determine the
proper legal standard for CAT relief. See Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1053 (9th Cir. 2006). Second, as to
our resolution of factual issues, when an IJ does not rely on
an alien’s conviction in denying CAT relief and instead
denies relief on the merits, none of the jurisdiction-stripping
provisions — § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or
§ 1252(a)(2)(C) — apply to divest this court of jurisdiction.
See Unuakhaulu, 416 F.3d at 936-37.
The government argues Unuakhaulu is not controlling
because this court previously decided in Ruiz-Morales v. Ash-
croft, 361 F.3d 1219, 1220 (9th Cir. 2004), that we lacked
jurisdiction to review an alien’s CAT claim where the alien
was found removable and denied CAT relief because he had
been convicted of an aggravated felony. There is no conflict,
however, between Unuakhaulu and Ruiz-Morales. The IJ in
Ruiz-Morales found that Ruiz-Morales had committed an
aggravated felony and ordered him removed on that basis.
Ruiz-Morales, 361 F.3d at 1220-21. In contrast, the IJ in
Unuakhaulu “found that Unuakhaulu was removable based on
his aggravated felony conviction, but neither ordered him
removed on that basis nor relied on the aggravated felony
2442 MORALES v. GONZALES
conviction in denying Unuakhaulu’s application for withhold-
ing of removal and for relief under CAT.” Unuakhaulu, 416
F.3d at 933.
[4] The present case is similar to Unuakhaulu in that the IJ
did not rely on Morales’s conviction in denying her relief
under the CAT. Instead, the IJ concluded Morales had not
shown it was more likely than not that she would be tortured
if she were returned to Mexico. Therefore, the IJ’s denial of
CAT relief was on the merits and under Unuakhaulu is
reviewable by this court. See id. at 936-37.
In sum, we have jurisdiction to review Morales’s applica-
tions for asylum, withholding of removal and relief under the
CAT. We now consider those applications.
B. The IJ’s Particularly Serious Crime Determination
The IJ concluded Morales would have been eligible for
asylum and withholding of removal but for his finding that
she had been convicted of a particularly serious crime.
[5] The IJ, however, improperly relied on a recitation of
facts contained in the Washington appellate court’s opinion
affirming Morales’s conviction. The IJ used that recitation of
facts to determine that Morales had been convicted of a par-
ticularly serious crime. Morales contends those facts should
not have been part of the IJ’s consideration because they
related to charges of which she was not convicted. We agree.
Morales was charged with rape of a child, child molestation,
and communication with a minor for immoral purposes, but
she was only convicted of communication with a minor for
immoral purposes. Morales, 2003 WL 22384696, at *1. She
was acquitted of the child molestation charge, and there was
a hung jury on the charge of child rape. Id.
[6] The facts recited in the Washington appellate court’s
opinion on which the IJ relied included evidence that Morales
MORALES v. GONZALES 2443
exposed her breasts to a fifteen-year-old boy, fondled the gen-
itals of the fifteen-year-old boy and his fourteen-year-old
friend, and performed fellatio on the fifteen-year-old boy. See
id. These facts applied to crimes of which Morales was not
convicted. The IJ should not have relied on them in determin-
ing that the crime of which Morales was convicted was a par-
ticularly serious crime.
Morales also argues the IJ should not have relied on facts
stated in the Washington appellate court’s opinion because
that opinion is not within the list of “judicially noticeable doc-
uments” described in Parrilla v. Gonzales, 414 F.3d 1038 (9th
Cir. 2005). In Parrilla, we applied the modified categorical
approach to determine whether the alien’s conviction was for
an aggravated felony. Id. at 1043. The modified categorical
approach is not generally employed, however, in determining
whether a petitioner has been convicted of a particularly seri-
ous crime. Instead, courts proceed directly to an analysis of
the factors developed by the BIA in its In re Frentescu deci-
sion. See Afridi, 442 F.3d at 1219 (citing In re Frentescu, 18
I. & N. Dec. 244, 247 (BIA 1982)). These include “ ‘the
nature of the conviction, the circumstances and underlying
facts of the conviction, the type of sentence imposed, and,
most importantly, whether the type and circumstances of the
crime indicate that the alien will be a danger to the communi-
ty.’ ” Id. (quoting In re Frentescu, 18 I. & N. Dec. at 247).
[7] The same record of conviction is used in making both
the aggravated felony and the particularly serious crime deter-
minations. According to the BIA, in consulting that record of
conviction to determine the facts and circumstances underly-
ing the alien’s conviction, it is permissible to “look to the con-
viction records and sentencing information . . . [but] . . . not
[to] engage in a retrial of the alien’s criminal case or go
behind the record of conviction to redetermine the alien’s
innocence or guilt.” In re L-S-, 22 I. & N. Dec. 645, 651 (BIA
1999).
2444 MORALES v. GONZALES
[8] We defer to the BIA’s statutory interpretation that only
the record of conviction and sentencing information may be
considered in determining whether Morales’s conviction was
for a particularly serious crime. The BIA’s interpretation is
entitled to deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984), and INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999), because the appli-
cable statutes here are both silent regarding the basis for
determining whether a conviction is for a particularly
serious crime, see 8 U.S.C. §§ 1158(b)(2)(A)(ii) and
1231(b)(3)(B)(ii) (West 2005), and the BIA’s interpretation is
based on a reasonable — and therefore permissible — con-
struction of the statute. See Simeonov v. Ashcroft, 371 F.3d
532, 535 (9th Cir. 2004) (stating deference is owed to the
BIA’s interpretation of the INA “unless that interpretation is
contrary to the plain and sensible meaning of the statute”).
Therefore, we defer to the BIA’s interpretation in In re L-S-
that the particularly serious crime determination, which we
must consider in this case, may be made by looking only to
the record of conviction and sentencing information.
We have previously defined what constitutes the record of
conviction, stating it “consists of a narrow, specified set of
documents that includes ‘the state charging document, a
signed plea agreement, jury instructions, guilty pleas, tran-
scripts of a plea proceeding and the judgment.” Ferreira v.
Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (quoting
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th
Cir. 2003)). The record of conviction may also include “ ‘any
explicit factual finding by the trial judge to which the defen-
dant assented.’ ” Parrilla, 414 F.3d at 1043 (quoting Shepard
v. United States, 544 U.S. 13, 16 (2005)).
Although the Washington appellate court opinion recites
the evidence presented at Morales’s trial, see Morales, 2003
WL 22384696, at *1, 3, neither it nor the trial court made any
factual findings regarding the conduct for which Morales was
MORALES v. GONZALES 2445
acquitted or on which the jury was unable to reach a verdict.2
The Washington appellate court considered the evidence in
the context of Morales’s appeal challenging the sufficiency of
the evidence for her conviction. Id. at *1-3.
“For purposes of a challenge to the sufficiency of the evi-
dence, the appellant admits the truth of the State’s evidence
and all inferences that a trier of fact can reasonably draw from
it.” State v. Silva, 24 P.3d 477, 482-83 (Wash. Ct. App. 2001);
see State v. Myers, 941 P.2d 1102, 1107 (Wash. 1997). In this
context, the evidence is viewed in the light most favorable to
the prosecution. Myers, 941 P.2d at 1107; Silva, 24 P.3d at
482. No factual findings are actually made, and no admissions
are entered into by the defendant. Instead, for the sole purpose
of determining the sufficiency of the evidence, the evidence
is presumed true.
[9] It was from this isolated context that the IJ drew the
facts and circumstances of Morales’s conviction. This is far
different from relying on a charging document read in con-
junction with a valid plea agreement, where a defendant
admits the alleged facts in a way that is binding for the pur-
poses of conviction and subsequent proceedings. See Lara-
Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).
Here, in her appeal, Morales did not admit the truth of the evi-
dence presented by the State for all future purposes; she sim-
ply allowed the state appellate court to assume the truth of the
State’s evidence for the purpose of her challenge to its suffi-
ciency. And a substantial portion of that evidence, as recited
by the Washington appellate court, applied to crimes of which
she was not convicted.
[10] The IJ thus erred in relying on the facts recited in the
2
In considering the recitation of evidence in the state appellate court’s
opinion as part of the “record of conviction,” the IJ referred to the recita-
tion of factual matters in that opinion as “the factual findings” of the Court
of Appeals of Washington. This is not actually the case.
2446 MORALES v. GONZALES
Washington appellate court’s opinion because those facts
were not admitted or established as “the circumstances and
underlying facts of conviction.” See In re Frentescu, 18 I. &
N. Dec. at 247. On remand, the BIA shall remand to the IJ for
a redetermination — based on the record of conviction as
defined in Ferreira, Parrilla, and In re L-S-, as well as infor-
mation relied on in Morales’s sentencing proceeding — to
determine whether Morales’s conviction was for a particularly
serious crime. The IJ shall also consider the remaining In re
Frentescu factors, including the type of sentence imposed and
whether the type and circumstances of the crime indicate that
Morales will be a danger to the community. See In re
Frentescu, 18 I. & N. Dec. at 247.
C. Protection Under the CAT
[11] To be entitled to relief under the CAT, an alien must
show “ ‘he is more likely than not to suffer intentionally-
inflicted cruel and unusual treatment’ ” in the country to
which he is removed. Nuru v. Gonzales, 404 F.3d 1207, 1221
(9th Cir. 2005) (quoting Wang v. Ashcroft, 320 F.3d 130, 134
(2d Cir. 2003)). The IJ’s factual findings in connection with
a denial of CAT relief are reviewed for substantial evidence.
Ornelas-Chavez, 458 F.3d at 1055-56. “The ‘substantial evi-
dence’ standard requires us to uphold the BIA’s determination
if supported by ‘reasonable, substantial, and probative evi-
dence on the record.’ ” Id. at 1056 (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). The IJ’s application of
legal standards, however, is reviewed de novo. Id. at 1055.
The IJ found Morales had not shown she was more likely
than not to be tortured if she were returned to Mexico. The IJ
also noted that pertinent regulations define torture as “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) (2006).
The IJ quoted from the regulation that defines “acquiescence
of a public official” as requiring “that the public official, prior
MORALES v. GONZALES 2447
to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” Id. § 208.18(a)(7). Gov-
ernment acquiescence is not restricted to actual control or
knowledge, willful acceptance, or even an agency relation-
ship; it includes “willful acceptance” or “willful blindness” on
the part of government officials toward abuse inflicted exclu-
sively by private individuals. Reyes-Reyes v. Ashcroft, 384
F.3d 782, 787 88 (9th Cir. 2004) (citing Zheng v. Ashcroft,
332 F.3d 1186, 1194-95 (9th Cir. 2003)).
Although the IJ quoted the correct legal standard for assess-
ing CAT claims, his decision and the record show that he did
not actually apply that standard. At the administrative hearing,
the IJ asked Morales several questions about her interaction
with police officers in Mexico. In his decision, the IJ men-
tioned briefly that Morales had been raped by men, but this
was immediately followed by the IJ’s discussion regarding
Morales’s contact with the Mexican police. During the admin-
istrative hearing, the IJ focused on whether the men who
attacked Morales had any connection with the Mexican gov-
ernment and what position the Mexican government took
toward transgender people.
After Morales testified that men other than police officers
beat her up on the streets, the IJ stated that he was only con-
cerned with government misconduct: “Well, I understand, but
the men who did the egregious things to you, — and I’m, by
that I’m referring to the rapes — they didn’t have any connec-
tion to the Mexican government, did they?” In his decision,
the IJ had only this to say as to the history of Morales’s tor-
ture:
[Morales] has reported lamentable incidents of her
being “raped” by men. She was asked a number of
times about interaction with government officials in
Mexico such as the police. She gave very general
testimony of perhaps being arrested approximately
2448 MORALES v. GONZALES
eight times. The respondent does not have a very
good memory at all for dates or the particulars of a
given incident. With regard to any misconduct by the
police directed at her, she states that there were occa-
sions that she was “slapped,” and that the police “ha-
rassed” her for dressing as a woman.
IJ Decision at 5-6 (Feb. 27, 2004).
The IJ did not mention the majority of Morales’s testimony,
which she contends established her past torture. Most notably,
the IJ’s opinion included no reference to prison officers
laughing and ignoring Morales’s screams and cries while she
was repeatedly raped by fellow inmates. The IJ discussed only
direct government action, and apparently afforded no weight
to the instances of violence and rape that Morales was sub-
jected to but which she did not report because of “willful
blindness” if not outright acceptance by police officers who
would only throw her in jail or extort bribes from her if she
attempted to report the incidents.
[12] The IJ did not state specifically that he was denying
Morales’s application for CAT relief based on her failure to
allege a connection between her attackers and the Mexican
government. Cf. Ornelas-Chavez, 458 F.3d at 1055; Reyes-
Reyes, 384 F.3d at 785; Zheng, 332 F.3d at 1188. Neverthe-
less, it appears that by focusing on direct government involve-
ment or connection with Morales’s attackers, the IJ implicitly
ignored this court’s precedent regarding whether there was
“willful blindness” on the part of government officials. Reyes-
Reyes, 384 F.3d at 787 (citing Zheng, 332 F.3d at 1194-95).3
3
The IJ also cited In re J-E-, 23 I. & N. Dec. 291 (BIA 2002), in con-
cluding that Morales had not made out a claim for relief under the CAT.
In re J-E- stands, in part, for the proposition that a petitioner must have
been in the custody or control of a public official at the time of torture.
Ornelas-Chavez, 458 F.3d at 1059. This court has previously concluded
that this is an incorrect interpretation of the regulations defining torture.
Id. (citing Azanor v. Ashcroft, 364 F.3d 1013, 1020 (9th Cir. 2004)).
MORALES v. GONZALES 2449
[13] Because the IJ applied an erroneous legal standard
regarding government conduct in connection with Morales’s
application for CAT relief, we remand for a determination
pursuant to the proper legal standard as set forth in Reyes-
Reyes and Zheng.
III. CONCLUSION
The IJ properly found that Morales was removable because
she was an alien present in the United States without admis-
sion or parole. The IJ also properly found that Morales was
removable because she had been convicted of a crime involv-
ing moral turpitude.
The IJ erred, however, in denying Morales’s applications
for asylum and withholding of removal by relying on facts
recited in the Washington appellate court’s opinion, which
that court assumed to be true in its consideration of Morales’s
sufficiency of the evidence argument. The IJ used that state-
ment of facts to determine that Morales’s conviction was for
a particularly serious crime, but a substantial portion of those
facts related to crimes for which Morales had not been con-
victed. The IJ also applied an incorrect legal standard to deter-
mine that Morales was ineligible for CAT relief.
Petition for Review GRANTED in part. Case
REMANDED for further proceedings consistent with this
opinion.