Wilber Acevedo Granado v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILBER AGUSTIN ACEVEDO No. 19-72381
GRANADOS, AKA Wilber Acevedo,
AKA Wilbert Acevedo, AKA Agency No.
Wilbur Acevedo, A213-018-914
Petitioner,
v. OPINION
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 22, 2020
San Francisco, California
Filed March 24, 2021
Before: Richard R. Clifton, N. Randy Smith, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Clifton
2 ACEVEDO GRANADOS V. GARLAND
SUMMARY*
Immigration
The panel granted in part and denied in part Wilber
Agustin Acevedo Granados’s petition for review of the Board
of Immigration Appeals’ decision affirming an Immigration
Judge’s denial of asylum, withholding of removal, and
protection under the Convention Against Torture, and
remanded, holding that the Board erred in misunderstanding
Acevedo’s proposed social group based on his intellectual
disability for purposes of asylum and withholding relief, and
that substantial evidence supported the denial of CAT
protection.
The Board held that Acevedo’s proposed social group
comprised of “El Salvadoran men with intellectual disabilities
who exhibit erratic behavior” was not cognizable because it
lacked particularity and social distinction. The panel
concluded that the agency misunderstood Acevedo’s
proposed social group, explaining that the Board and IJ
treated the term “intellectual disability” as if it were applied
by a layperson, instead of recognizing that the term as used in
Acevedo’s application referred to an explicit medical
diagnosis with several specific characteristics. The panel
wrote that recognized that way, the clinical term “intellectual
disability” may satisfy the “particularity” and “social
distinction” requirements necessary to qualify for asylum and
withholding of removal. However, because the IJ did not
recognize the proposed social group before her, the panel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ACEVEDO GRANADOS V. GARLAND 3
remanded to the agency for fact-finding on an open record to
determine if the group was cognizable.
As to the particularity determination, the panel held that
the Board and IJ erred by assuming that a determination of
mental illness was a subjective one, to be carried out by a
judge. The panel wrote that the particularity standard does
not expect that IJs make independent diagnoses based on their
observations in the courtroom. The panel noted that the
record in this case contained professional evaluations
conducted by recognized psychologists, retained by the
government, who reported their findings in professional
terms, and diagnosed Acevedo with an intellectual disability.
The panel wrote that like finders of fact generally, the IJ was
not required to accede to these expert opinions, but she was
not entitled to disregard the terms of the psychologists’
diagnoses. The panel wrote that the fact that the average
layperson may not be able to accurately identify an individual
with an “intellectual disability” does not make the clinical
definition subjective or amorphous, and that similarly, the
possibility that individuals within the group may have sub-
diagnoses or concurrent diagnoses does not make the group
overbroad.
As to the social distinction analysis, the panel concluded
that the Board’s decision was flawed in two ways. First, the
panel held that the Board erred in concluding that Acevedo’s
proposed group did not meet the social distinction
requirement because the record did not support the
determination that El Salvadoran society in general perceives
the group to be a meaningful social unit, distinct from the
larger population of mentally ill individuals. The panel
explained that the social distinction inquiry asks whether the
society in general perceives, considers, or recognizes persons
4 ACEVEDO GRANADOS V. GARLAND
sharing the particular characteristic to be a group, not whether
the group is sufficiently distinguishable from other, similarly-
persecuted groups, or whether the individual is a part of one
group to the exclusion of other groups. The panel wrote that
the possibility that individuals with intellectual disabilities are
subsumed in a larger group of persecuted individuals with
mental illnesses does not control the social distinction
analysis, because the question is whether individuals with
intellectual disabilities are singled out for greater persecution
than the general population.
Second, the panel held that the Board erred in concluding
that evidence of discrimination or harassment of individuals
exhibiting outward symptoms or behavioral manifestations of
physical or mental illnesses was insufficient to establish
social distinction. The panel wrote that if individuals are
treated badly because they manifest a certain condition, that
treatment by itself suggests that the group of people with that
condition is viewed as socially distinct, because they have
been singled out for mistreatment. The panel observed that
the record established that Salvadoran society stigmatizes
those with mental illness as “locos,” and that individuals with
intellectual disabilities suffer abuse, neglect, and lack of
services, and are periodically targeted and killed. The panel
explained that this evidence of harassment and discrimination
is an important factor in the determination of whether the
group is sufficiently distinct in the society in question to
establish a cognizable particular social group.
Because the Board’s rejection of Acevedo’s alternative
proposed social group comprised of “indigent El Salvadoran
men, lacking familial support, suffering from severe mental
disabilities and exhibiting erratic behavior” was premised
entirely on its erroneous rejection of his first proposed group,
ACEVEDO GRANADOS V. GARLAND 5
the panel concluded that its decision could not stand.
Additionally, the panel observed that both the Board and IJ
failed to meaningfully engage with the language of the
alternative group, and emphasized that the Board and IJ are
not free to ignore arguments raised by a party.
The panel held that substantial evidence supported the
denial of CAT protection because the record did not a compel
a finding that police or medical workers at the National
Public Hospital have the requisite specific intent to torture
individuals with intellectual disabilities.
COUNSEL
Keuren A. Parra Moreno (argued) and Jared Renteria
(argued), Certified Law Students; Evangeline G. Abriel
(argued), Supervising Counsel; Santa Clara University School
of Law, Santa Clara, California; for Petitioner.
Maarja T. Luhtaru (argued), Trial Attorney; Keith I.
McManus, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
CLIFTON, Circuit Judge:
Petitioner Wilber Agustin Acevedo Granados
(“Acevedo”), a native of El Salvador, petitions for review of
the decision by the Board of Immigration Appeals (“BIA”)
6 ACEVEDO GRANADOS V. GARLAND
affirming an order of removal and the denial by the
Immigration Judge (“IJ”) of Acevedo’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). Acevedo’s petition is
based on his fear that, if returned to El Salvador, he would
face persecution or torture on account of his membership in
a particular social group, defined based on his intellectual
disability. The BIA rejected Acevedo’s claims on the ground
that the proposed group definition was not cognizable. The
BIA held that Acevedo’s proposed social group was not
sufficiently particular, finding that the terms “intellectual
disability” and “erratic behavior” rendered the proposed
group “amorphous, overbroad, diffuse, [and] subjective.” The
BIA further determined that the group was not a “meaningful
social unit, distinct from the larger population of mentally ill
individuals” in El Salvador.
We conclude that the agency misunderstood Acevedo’s
proposed social group, and thus grant the petition for review
with respect to the claims for asylum and withholding of
removal. The BIA and IJ treated the term “intellectual
disability” as if it were applied by a layperson. Instead, that
term as used in Acevedo’s application referred to an explicit
medical diagnosis with several specific characteristics.
Recognized that way, the clinical term “intellectual
disability” may satisfy the “particularity” and “social
distinction” requirements necessary to qualify for asylum and
withholding of removal. However, because the IJ did not
recognize the proposed social group before her, we remand to
the agency for fact-finding on an open record to determine if
the group is cognizable.
ACEVEDO GRANADOS V. GARLAND 7
As for the claim for CAT relief, however, we deny the
petition. The denial of CAT relief by the agency was
supported by substantial evidence.
I. Background
Acevedo is a native of El Salvador, born on July 25, 1988,
currently 32 years old. In 1989, his mother, Maria Granados
Flores (“Granados”), came to the United States because she
was afraid she would be targeted by guerillas as a result of
her husband’s employment with the Salvadoran military
police. Acevedo was left in the care of his father and
grandmother in El Salvador. When Acevedo was four or five
years old, his father was killed by the guerillas. Thereafter, he
remained under the care of his grandmother until 2006 or
2007, when he came to this country to be with his mother in
Los Angeles.
Granados testified that, when Acevedo was an infant,
doctors in El Salvador told her that he was “fine” and
“normal.” After he came to the United States, though, she
began noticing things that caused her concern regarding his
mental health. For example, she “would always see him . . .
talk to himself, [and] laugh by himself.” Granados testified
that, on several occasions, Acevedo’s mental health caused
altercations leading to multiple arrests, though none led to
convictions.
It appears that the last of those arrests occurred in July
2017, when police arrested Acevedo and his brother Henry
after a dispute with another brother, Rene. During the
altercation, Acevedo allegedly attempted to stab Rene with a
pocket knife. Acevedo was charged with exhibiting a deadly
weapon, vandalism, and resisting arrest. During the state
8 ACEVEDO GRANADOS V. GARLAND
court proceedings related to these charges, a doubt was raised
regarding Acevedo’s competency to stand trial, and Acevedo
was referred to Dr. Timothy D. Collister, Ph.D., for a
competency evaluation. Dr. Collister reportedly questioned
Acevedo’s ability to stand trial, but before the state court held
a hearing to determine Acevedo’s competency, he was taken
into custody by the Government in connection with removal
proceedings.
The Department of Homeland Security commenced
removal proceedings against Acevedo in 2018. At an initial
calendar hearing, at which Acevedo appeared without a
lawyer, Immigration Judge James M. Left formed a doubt as
to whether Acevedo was capable of representing himself in
further proceedings. He assigned the case to a different
Immigration Judge, Amy T. Lee (referred to throughout as
the “IJ”) to see if Acevedo needed assistance.
Acevedo appeared again the following week at a hearing
before the new IJ. At that time, he recalled the previous
hearing, but he did not appear to know why the hearing had
been rescheduled or, more generally, appear to understand
what was going on, why he was arrested, or what an attorney
does. The IJ set a date for a hearing on Acevedo’s
competency and instructed the Government to schedule an
additional examination of Acevedo’s mental status.
When he appeared again before the IJ about a month later,
Acevedo again could not explain who detained him, why they
detained him, or the type of facility at which he was detained.
The IJ observed that he “simply does not appear to have
much awareness of what is happening.” She ordered a
forensic competency evaluation by a court ordered
psychologist.
ACEVEDO GRANADOS V. GARLAND 9
Upon receipt of the requested evaluations, on April 23,
2018, the IJ found that Acevedo was “not competent to
represent himself” and directed the appointment of a qualified
representative.
Both the agency’s psychological evaluation, conducted by
Wendy Ng, Psy.D., and the court-ordered clinical forensic
evaluation, conducted by Jasmine Tehrani, Ph.D., diagnosed
Acevedo with an Intellectual Disability, as defined in the
Diagnostic and Statistical Manual of Medical Disorders
(“DSM-5”).1 The DSM-5 defines Intellectual Disability as a
developmental disorder marked by deficits in intellectual
functioning and in adaptive skills related to everyday tasks.
Both psychological evaluations spoke to the satisfaction of
the DSM-5’s criteria for an Intellectual Disability.
Dr. Ng provided an overview of the documented history
of Acevedo’s significant sub-average intellectual functioning,
including his low education attainment and his difficulty
reading, writing, doing math, and understanding time. She
also detailed some of the results of the assessment by
Dr. Collister done in connection with the criminal case
described above. That assessment estimated Acevedo’s
intellectual functioning as equivalent to a seven-year-old
child and his academic skill development at a kindergarten
level. She found that Dr. Collister’s determinations were
1
The DSM is a handbook published by the American Psychiatric
Association, used by health care professionals all over the world as an
authoritative guide to the diagnosis of mental disorders. It has been
periodically revised since it was first published in 1952. The latest version,
DSM-5 (sometimes termed DSM-V), was published in 2013, after a
fourteen-year revision process, and reflects the latest medical
u n d e r s t a n d i n g s o f me n ta l d i s o r d e r s . S e e g e n e r a l l y
www.psychiatry.org/psychiatrists/practice/dsm.
10 ACEVEDO GRANADOS V. GARLAND
“consistent with [Acevedo’s] general mental abilities
observed throughout [her] evaluation.” Finally, Dr. Ng
assessed that Acevedo’s Intellectual Disability “significantly
impairs his receptive and expressive communication skills,
thereby affecting his ability to converse in a coherent,
accurate, and effective manner” and making it difficult for
him to “understand[] the meaning of information being given
to him, including basic questions, phrases, sentences, and
descriptive information.” As such, Dr. Ng concluded that “[a]
supportive family environment will be essential to provide
assistance for activities of daily living.”
Similarly, Dr. Tehrani stated that Acevedo had an
Intellectual Disability, and concluded that “the nature and
severity of [Acevedo’s] mental illness is such that he cannot
provide coherent or relevant information. His thought
processes are simplistic, concrete; his short-term memory is
poor.” Although multiple evaluations indicated that Acevedo
appeared to be “responding to internal stimuli,” Dr. Tehrani
did not reach a specific psychosis diagnosis because Acevedo
denied auditory or visual hallucinations at the time of
interview.
Both of these evaluations were consistent with four
psychological and psychiatric assessments conducted by
agency staff while Acevedo was detained at the Adelanto
Detention Facility. Each concluded that Acevedo was
developmentally disabled with an apparent Intellectual
Disability, and “appear[ed] to be ‘faking good’” in stating
that he understood when he did not.
With the help of a court-appointed lawyer, Acevedo filed
an application for asylum, withholding of removal, and
protection under the CAT. 8 U.S.C. §§ 1158(b)(1)(A),
ACEVEDO GRANADOS V. GARLAND 11
1231(b)(3)(A); 8 C.F.R. § 208.16. Acevedo’s application was
based on his fear that, if returned to El Salvador, he would
face persecution or torture on account of his membership in
a particular social group, which he defined as “El Salvadoran
men with intellectual disabilities who exhibit erratic
behavior,” or in the alternative, “indigent El Salvadoran men,
lacking familial support, suffering from severe mental
disabilities and exhibiting bizarre behavior.”
Dr. Samuel Nickels, Ph.D., an expert witness on relevant
country conditions in El Salvador, testified in support of
Acevedo’s application. Dr. Nickels explained that access to
mental health providers and medications in El Salvador is
limited, and homeless individuals with severe mental
illnesses who are unable to survive on the streets are often
admitted to an inpatient program at the National Public
Hospital. There, electroconvulsive therapy is a “frontline
treatment” and doctors do not always administer anesthesia
prior to the procedure, nor do they always ask patients for
consent. Finally, Dr. Nickels testified that family support is
critical for individuals with mental illness in El Salvador.
Without family support, mentally disabled individuals are
likely to become indigent and homeless, be abused in the
streets, and may be killed or die an early death due to health
challenges.
There was evidence in the record that Acevedo had no
family in El Salvador who could take care of him. Granados
testified regarding the remaining family members in El
Salvador that Acevedo’s aunt cared for his grandmother, who
is eighty years old, and that neither were able to care for
Acevedo, although she asked them. She did not know
anywhere else in El Salvador that he could go to live.
12 ACEVEDO GRANADOS V. GARLAND
Following the denial by the BIA of Acevedo’s appeal of
the order of removal, Acevedo filed with this court a timely
petition for review. We have jurisdiction under 8 U.S.C.
§ 1252.
II. Asylum and Withholding of Removal
We first consider the BIA’s denial of Acevedo’s asylum
and withholding claims, reviewing de novo questions of law,
except to the extent that deference is owed to the agency’s
reasonable interpretations of its governing statutes and
regulations. See Garcia-Martinez v. Sessions, 886 F.3d 1291,
1293 (9th Cir. 2018). Findings of fact are reviewed for
substantial evidence. Arrey v. Barr, 916 F.3d 1149, 1157 (9th
Cir. 2019).
An alien may qualify for asylum, 8 U.S.C. § 1158(b)(1),
if he is unable or unwilling to return to his country “because
of . . . a well-founded fear of persecution on account of . . .
membership in a particular social group.” 8 U.S.C.
§ 1101(a)(42)(A). Similarly, he may qualify for withholding
of removal under 8 U.S.C. § 1231(b)(3) if he shows that his
“life or freedom would be threatened . . . because of the
alien’s . . . membership in a particular social group.”
When a petition for asylum or withholding of removal is
based on membership in a particular social group, the
applicant must establish that the proposed group is
“(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Rios v. Lynch,
807 F.3d 1123, 1127-28 (9th Cir. 2015) (quoting Matter of
M-E-V-G, 26 I. & N. Dec. 227, 237 (BIA 2014)).
ACEVEDO GRANADOS V. GARLAND 13
The BIA affirmed the IJ’s determination that Acevedo’s
proposed group of “El Salvadoran men with intellectual
disabilities who exhibit erratic behavior” was not legally
cognizable because the proposed group was not sufficiently
particular or socially distinct. Although the BIA recognized
that the IJ had not considered the alternative definition
offered by Acevedo, “indigent El Salvadoran men, lacking
familial support, suffering from severe mental disabilities and
exhibiting erratic behavior,” it concluded that the alternative
was not cognizable as a particular social group either, because
that group was “largely encompassed by the social group
specifically considered by the Immigration Judge.”
A. Particularity
To satisfy the particularity element, a proposed group
must be “defined by characteristics that provide a clear
benchmark for determining who falls within the group.”
Matter of M-E-V-G-, 26 I. & N. Dec. at 239-40. In other
words, the group must be “discrete” and have “definable
boundaries.” Id. at 239.
In denying Acevedo’s asylum claim, the BIA reasoned
that the proposed group was not sufficiently particular
because the “imprecise contours of the [terms] ‘intellectual
disability’ and ‘erratic behavior’ renders the proposed group
‘amorphous, overbroad, diffuse, [and] subjective,’” citing
Matter of W-G-R-, 26 I. & N. Dec. 208, 214 (BIA 2014). The
BIA further explained that “[t]he group could include
individuals with vastly different intellectual disabilities as
well as diverse behavioral manifestations.”
We appreciate that the term “mental illness” may cover a
broad range of disorders of varying severity, and may, on its
14 ACEVEDO GRANADOS V. GARLAND
own, lack particularity because of its breadth. We also
recognize that the term “intellectual disability” can be used,
especially by laypersons, in a way that lacks precision. The
BIA’s assessment here was not based on the evidence in the
record regarding Acevedo, however. Acevedo was diagnosed
with “intellectual disability” as that term is used within the
psychological profession. The particular social group that he
proposed did not encompass all mental illnesses and was not
based on a lay description but was limited to individuals with
a specific diagnosis of “intellectual disability,” as defined by
the DSM-5.
Intellectual disability, formerly known as “mental
retardation,” is a commonly recognized mental illness for
which the DSM-5 details a well-established medical
definition providing several universal, specific, immutable
characteristics.2, 3 These characteristics provide a clear
2
The DSM-5 diagnosis of intellectual disability requires the
satisfaction of three criteria: (1) Deficits in intellectual functions, such as
reasoning, problem solving, planning, abstract thinking, judgment,
academic learning, and learning from experience, confirmed by both
clinical assessment and individualized, standardized intelligence testing;
(2) Deficits in adaptive functioning that result in failure to meet
developmental and sociocultural standards for personal independence and
social responsibility. Without ongoing support, the adaptive deficits limit
functioning in one or more activities of daily life, such as communication,
social participation, and independent living, across multiple environments,
such as home, school, work, and community; and (3) Onset of intellectual
and adaptive deficits during the developmental period. DSM-5, 318.0.
3
“Intellectual Disability” is a listed “mental disorder” under the
DSM-5 handbook. It is unclear from the handbook whether an
“Intellectual Disability” is also a “mental illness.” However, the medical
professionals used the term “mental illness” in describing Acevedo’s
condition. Thus, we similarly use the term.
ACEVEDO GRANADOS V. GARLAND 15
benchmark from which professional psychologists can
determine who falls within the group.
The BIA erred in affirming the IJ’s particularity decision
because its reasoning assumed that a determination of mental
illness was a subjective one, to be carried out by a judge.
Indeed, the IJ explicitly refused to “make the subjective
determination as to what diagnoses might constitute
‘intellectual disability’” and decided that Acevedo did not
display “erratic behavior,” because the IJ only witnessed
“nervous smiling and laughter” in the courtroom, which the
IJ did not consider “‘out of the ordinary,’ let alone ‘erratic.’”
However, the particularity standard does not expect that
immigration judges make independent diagnoses based on
their observations in the courtroom. The record in this case
contained evaluations conducted by recognized psychologists,
retained by the government, who reported their findings in
professional terms. Those evaluations, all of which diagnosed
Acevedo with an intellectual disability, were not challenged
below. Like finders of fact generally, the IJ was not required
to accede to these expert opinions, but she was not entitled to
disregard the terms of the psychologists’ diagnosis.
The fact that the average layperson may not be able to
accurately identify an individual with an Intellectual
Disability does not make the clinical definition subjective or
amorphous. Similarly, the possibility that individuals within
the group may have sub-diagnoses or concurrent diagnoses
does not make the group overbroad.
Mental illness may be difficult to recognize, but that does
not disqualify it from satisfying the requirements for a
particular social group. The fact that the IJ was unable to
16 ACEVEDO GRANADOS V. GARLAND
detect or assess the extent of Acevedo’s intellectual disability
was not enough to justify disregard of the evidence in the
record that documented clinical diagnoses by licensed
professionals.
B. Social Distinction
To meet the “social distinction” requirement, the
proposed social group must be recognized as a group or
“faction” within the relevant society. Matter of M-E-V-G-,
26 I. & N. Dec. at 238. The criteria asks whether the proposed
group is perceived by the society in question to be
“sufficiently separate” from the rest of the society. Id. at 241.
Here, the IJ misunderstood the proposed social group, and
thus did not make the findings of fact necessary to determine
whether the group met the social distinction requirement.
The BIA’s social distinction analysis was independently
flawed in two ways.
First, the BIA committed a legal error in holding that the
proposed group did not meet the social distinction
requirement because the record does “not support the
determination that El Salvadoran society in general perceives
[the proposed group] to be a meaningful social unit, distinct
from the larger population of mentally ill individuals.” The
social distinction inquiry asks whether the “society in general
perceives, considers, or recognizes persons sharing the
particular characteristic to be a group,” Pirir-Boc v. Holder,
750 F.3d 1077, 1082 n.4 (9th Cir. 2014), not whether the
group is sufficiently distinguishable from other, similarly-
persecuted groups, or whether the individual is a part of one
group to the exclusion of other groups. The possibility that
ACEVEDO GRANADOS V. GARLAND 17
individuals with intellectual disabilities are subsumed in a
larger group of persecuted individuals with mental illnesses
does not control the social distinction analysis, because the
question is whether individuals with intellectual disabilities
are singled out for greater persecution than the general
population.
Second, the BIA erred in holding that “the fact that
individuals with certain illnesses or disabilities may face
discrimination or harassment if exhibiting outward symptoms
or behavioral manifestations of those conditions does not
establish that the respondent’s particular social group is
socially distinct.” That conclusion seems inconsistent on its
face. If individuals are treated badly because they manifest a
certain condition, that treatment by itself suggests that the
group of people with that condition is viewed as socially
distinct, because they have been singled out for mistreatment.
We have repeatedly recognized that “[e]vidence such as
country conditions reports, expert witness testimony, and
press accounts of discriminatory laws and policies, historical
animosities, and the like may establish that a group exists and
is perceived as ‘distinct’ or ‘other’ in a particular society.”
Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)
(quoting M-E-V-G-, 26 I. & N. Dec. at 241); Diaz-Torres v.
Barr, 963 F.3d 976, 980–82 (9th Cir. 2020) (same).
Here, the record established that Salvadoran society
stigmatizes those with mental illness as “locos,” and that
individuals with intellectual disabilities suffer abuse, neglect,
and lack of services, and are periodically targeted and killed.
Together, this evidence of harassment and discrimination is
an important factor in the determination of whether the group
is sufficiently distinct in the society in question to establish
a cognizable particular social group. We thus remand for the
18 ACEVEDO GRANADOS V. GARLAND
agency to consider the social distinction inquiry in light of the
evidence of discrimination and persecution.
C. The Alternative Particular Social Group Definition
Acevedo’s second proposed particular social group
consisted of “indigent El Salvadoran men, lacking familial
support, suffering from severe mental disabilities and
exhibiting erratic behavior.” As noted above, at 13, the IJ did
not discuss that proposed social group. As the BIA’s rejection
of it was entirely premised on its erroneous rejection of his
first proposed group as not cognizable, the dismissal of the
alternative definition cannot stand on our review of the
current petition.
We add, though, that “IJs and the BIA are not free to
ignore arguments raised by [a party].” Sagaydak v. Gonzales,
405 F.3d 1035, 1040 (9th Cir. 2005). Neither the IJ nor BIA
meaningfully engaged with the language of the alternative
definition to determine if it satisfied the requisite elements.
The IJ did not address the question at all, and the BIA only
addressed the issue in a two-sentence footnote, explaining
that “the [second] group is largely encompassed by the social
group specifically considered by the IJ.”
In fact, the alternative definition arguably resolved some
of the problems that the BIA and IJ had with the first
proposed group. To the extent that the BIA found that the
initial group was too broad to be particular, the alternative
group offered several new limiting conditions, applying only
to those individuals who were “indigent,” “lacking familial
support,” and had mental disabilities characterized as
“severe.” Likewise, to the extent that “intellectual disability”
was too specific to create a group socially distinct in
ACEVEDO GRANADOS V. GARLAND 19
Salvadoran society, the revised formulation could resolve the
issue by using the broader term “mental disabilities” in lieu
of “intellectual disabilities.”
There may be rare circumstances in which the BIA could
properly overlook an IJ’s failure to consider a proposed social
group, but this is not one of them. On remand, Acevedo’s
second proposed group must be given proper consideration.
III. Convention Against Torture
Acevedo’s application for CAT protection was denied
because he did not sufficiently establish that Salvadoran
officials had the specific intent to torture him and also failed
to establish that it was more likely than not that he would be
tortured. Under substantial evidence review, the facts in the
record do not compel a different conclusion, so we deny that
portion of the petition for review. Arrey v. Barr, 916 F.3d
1149, 1157 (9th Cir. 2019).
To qualify for relief under CAT, an applicant must show
that the alleged mistreatment rises to the level of torture. “In
order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or
suffering.” 8 C.F.R. § 1208.18(a)(5). We have considered a
similar claim based on conditions in Mexico’s mental health
hospitals and concluded that evidence that conditions were
squalid did not prove that any Mexican official had the
specific intent to inflict suffering upon patients required to
establish an entitlement to relief under CAT. Villegas v.
Mukasey, 523 F.3d 984, 988–90 (9th Cir. 2008). In that case,
we held that an applicant must show “that the actor intend the
actual consequences of his conduct, as distinguished from the
20 ACEVEDO GRANADOS V. GARLAND
act that causes these consequences.” Id. at 989. That standard
applies here.
The record does not a compel a finding that police or
medical workers at the National Public Hospital have the
requisite specific intent to torture individuals with intellectual
disabilities. On the contrary, the record indicates that police
lack the requisite mental state because, as described by Dr.
Nickels, they are mistaking intellectually disabled people for
dangerous gang members and seeking to gain their
compliance, albeit perhaps through unacceptably brutal
tactics. Similarly, the record does not establish that the
hospital staff intended to torture. Dr. Nickels testified that the
hospital staff is “a very mixed bag,” with some “very
compassionate workers” but also some “workers who abuse
and neglect” patients. There is insufficient evidence to
compel a finding that even the “abusive” workers intend to
torture those with intellectual disabilities. Rather, there is an
equally plausible explanation that the abuse and neglect is a
result of the units’ occupancy rates, which at one point, were
over 800% capacity.
For these reasons, we deny the petition as to the CAT
claims.
IV. Conclusion
For the foregoing reasons, we grant the petition for review
of the asylum and withholding claims and deny the petition
for review of the CAT claims. We remand this matter for
further fact-finding on an open record, consistent with this
opinion.
ACEVEDO GRANADOS V. GARLAND 21
PETITION GRANTED IN PART and DENIED IN
PART; REMANDED FOR FURTHER PROCEEDINGS.