Villegas v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERT MICHEL VILLEGAS, 
Petitioner, No. 04-74162
v.
 Agency No.
A92-351-558
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 10, 2008—Pasadena, California
Filed April 23, 2008
Before: Cynthia Holcomb Hall, Thomas G. Nelson, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Hall
4257
VILLEGAS v. MUKASEY 4259
COUNSEL
Venu Alagh and Marie Johnson, Korenberg, Abramowitz &
Feldun, Sherman Oaks, California, for the petitioner.
Blair T. O’Connor, U.S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.
4260 VILLEGAS v. MUKASEY
OPINION
HALL, Circuit Judge:
I.
INTRODUCTION
Petitioner Gilbert Michel Villegas is a citizen of Mexico
with severe bipolar disorder, who was lawfully admitted to
the United States. In 1996, he committed second degree rob-
bery in violation of California Penal Code § 211. The govern-
ment initiated removal proceedings because of this offense.
Villegas conceded removability and sought withholding of
removal and relief under the Convention Against Torture
(“CAT”). His theory was that if removed to Mexico, he would
be unable to afford medications to control his disorder and
likely wind up confined indefinitely in a Mexican mental
institution, where conditions are deplorable.
The IJ denied relief. He held that the robbery conviction
was a “particularly serious crime” that precluded withholding
of removal. As to CAT relief, the IJ ruled that although Ville-
gas testified credibly and presented uncontested evidence of
inhuman conditions in Mexican mental institutions, those con-
ditions did not amount to “torture” because nothing indicated
that they were created with the specific intent to harm the
mentally disabled. The BIA summarily affirmed.
As we explain below, we lack jurisdiction to address the
withholding claim. As to the CAT claim, we hold that the IJ
correctly construed “torture” to require specific intent to
inflict harm — intent which is not present on this record.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Villegas was born in Mexico in 1968 and came to the
United States when he was five years old. He was admitted
VILLEGAS v. MUKASEY 4261
as a permanent resident in June 1990. Shortly thereafter, offi-
cials with Los Angeles County diagnosed Villegas with bipo-
lar disorder. He now controls his symptoms through three
forms of medication, which he pays for with benefits he
receives through Medi-Cal and Social Security and with
money he earns working as a handyman. Unmedicated, how-
ever, the disorder causes recurring emotional problems and
makes Villegas “lose touch with reality.”
During a time in 1996 when he was off his normal medica-
tion, Villegas robbed a man by using a screwdriver, which
“nicked” the victim’s hand during a struggle. Because of this
incident, Villegas was charged with second degree robbery in
violation of California Penal Code § 211.1 He pled guilty on
January 22, 1997, and was sentenced to two years in prison.
Based on this conviction, the government charged that Vil-
legas was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an
alien convicted of an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(F) (defining “aggravated felony” to include “a
crime of violence . . . for which the term of imprisonment [is]
at least one year”). After failing to convince the government
to drop the case as a matter of prosecutorial discretion, Ville-
gas conceded removability and sought relief in the forms of
withholding of removal and protection under the CAT. He
testified that if he were removed, he would be unable to afford
his medications and that without them, his bipolar disorder
would “take[ ] over.” Therefore, Villegas claimed, he was
likely to wind up confined by the Mexican government in a
mental institution, where conditions are deplorable.
The IJ admitted substantial evidence about the conditions
in Mexican mental institutions, including (1) the sworn testi-
1
The statute provides: “Robbery is the felonious taking of personal
property in the possession of another, from his person or immediate pres-
ence, and against his will, accomplished by means of force or fear.” Cal.
Penal Code § 211.
4262 VILLEGAS v. MUKASEY
mony of a Dr. Robert Okin from another immigration matter,
(2) the transcript of a “20/20” television program entitled
“The Abandoned Ones,” and (3) the transcript of an NPR
radio address. Dr. Okin’s testimony indicated that no judicial
review exists when a patient is involuntarily committed in a
Mexican mental institution, and that once admitted, the
patient becomes a ward of the hospital. According to Dr.
Okin, this meant that once admitted, the person is “going to
stay there for life by and large.”
The “20/20” report included stories of terrible squalor
inside the facilities:
Feces and urine are everywhere. The men walk
through it all day, often with their bare feet. There is
no toilet paper. The tap water runs only sporadically.
There’s no soap and there’s no towels. It’s nauseat-
ing. The smell is . . . unbearable.
The report also found that patients in the children’s ward were
consistently tied to their beds or otherwise restrained, result-
ing in weakened limbs and, in some cases, amputations. The
NPR report was similar, describing conditions where “the
mentally ill and mentally retarded are lumped together, some-
times chained, ill-clothed, abused, and otherwise dehuman-
ized.” It also noted that even according to Mexican officials,
the majority of people in the institutions did not need to be
there. The NPR story summarized the conditions in Mexican
facilities as “rock bottom” when compared to other countries.
The IJ admitted this evidence and deemed Villegas to have
testified credibly, but he ultimately denied relief. He deemed
Villegas’ robbery conviction a “particularly serious crime”
that precluded withholding of removal. As to the CAT, the IJ
expressed some uncertainty about whether Villegas had dem-
onstrated a likelihood that he would actually end up confined
in a Mexican mental institution. The IJ made no explicit find-
ing on this issue, however, as he ruled that Villegas’ request
VILLEGAS v. MUKASEY 4263
for CAT protection “turn[ed] on whether he has demonstrated
that the authorities in Mexico have a specific intent to torture
person[s] similarly situated.” Citing In re J-E-, 23 I. & N.
Dec. 291 (BIA 2002) (en banc), which denied CAT relief to
a petitioner who risked incarceration in similarly horrible con-
ditions in Haitian prison, the IJ ruled that CAT relief required
specific intent to inflict harm, and that without such intent,
indefinite confinement under subhuman conditions in a Mexi-
can mental facility did not amount to torture. He therefore
denied CAT relief as well.2 The BIA summarily affirmed.
III.
DISCUSSION
Villegas does not contest the classification of his robbery
conviction as an aggravated felony and does not dispute that
he is removable. He only attacks the IJ’s conclusions concern-
ing withholding of removal and relief under the CAT.
A. Withholding of Removal
[1] We lack jurisdiction over Villegas’ claims concerning
withholding of removal. “Withholding of removal” refers to
relief under the rule that the Attorney General may not
remove an alien to a country where the alien’s life or freedom
would be threatened because of his “race, religion, national-
ity, membership in a particular social group, or political opin-
ion.” 8 U.S.C. § 1231(b)(3)(A). Withholding is not available,
however, if “the Attorney General decides” that the alien
“having been convicted . . . of a particularly serious crime is
a danger to the community of the United States.” Id.
§ 1231(b)(3)(B)(ii). Crimes resulting in imprisonment for at
least five years are “particularly serious” per se, while the
2
The IJ also denied Villegas’ requests for asylum and a discretionary
waiver of removal under former INA § 212(c). Villegas does not challenge
these rulings here.
4264 VILLEGAS v. MUKASEY
Attorney General can determine that any aggravated felony,
regardless of the sentence imposed, is particularly serious. See
id.; Singh v. Ashcroft, 351 F.3d 435, 439 (9th Cir. 2003).
[2] Here, even though Villegas’ robbery conviction carried
a sentence of only two years, the IJ characterized it as “partic-
ularly serious” and an indication that Villegas was a danger
to the community. This determination is committed by statute
to the Attorney General’s discretion, so this court lacks juris-
diction to review it. Matsuk v. INS, 247 F.3d 999, 1002 (9th
Cir. 2001); see 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding judi-
cial review of any decision “the authority for which is speci-
fied . . . to be in the discretion of the Attorney General”).
Moreover, since the determination is not a “question[ ] of
law” within the court’s jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(D), the court also lacks jurisdiction because Vil-
legas is removable for having committed an aggravated fel-
ony. See 8 U.S.C. § 1252(a)(2)(C); id. § 1227(a)(2)(A)(iii).
B. CAT
Villegas levels two main attacks against the IJ’s denial of
CAT relief. First, he argues that the IJ should not have
required him to demonstrate that Mexican officials had a
“specific intent” to harm mentally disabled people, and that it
should be enough that officials’ actions concerning mental
institutions had the foreseeable result of inflicting harm. Sec-
ond, he contends that even if specific intent is the proper stan-
dard, his evidence was adequate and the IJ erred in
concluding otherwise. We have jurisdiction to address both
arguments because where, as here, “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 provi-
sions — § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or
§ 1252(a)(2)(C) — apply to divest this court of jurisdiction.”
Morales v. Gonzales, 478 F.3d 972, 980-81 (9th Cir. 2007)
(citing Unuakhaulu v. Gonzales, 416 F.3d 931, 936-37 (9th
Cir. 2005)). Both arguments lack merit, however.
VILLEGAS v. MUKASEY 4265
[3] Congress implemented the CAT in 1998 when it passed
the Foreign Affairs Reform and Restructuring Act
(“FARRA”). Pub. L. No. 105-277, Div. G, Title XXII,
§ 2242, 112 Stat. 2681-822 (codified as a note to 8 U.S.C.
§ 1231). This implementing legislation provides that the
United States will not “expel, extradite, or otherwise effect
the involuntary return of any person to a country in which
there are substantial grounds for believing the person would
be in danger of being subjected to torture.” Id. § 2242(a). An
applicant for CAT relief has the burden “to establish that it is
more likely than not that he . . . would be tortured if
removed.” Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.
2001) (quoting 8 C.F.R. § 208.16(c)(2)) (alteration in origi-
nal).
Villegas argues that the IJ should have expansively con-
strued “torture” to include “general intent” — that is,
instances where an intentional action has the foreseeable
result of inflicting severe harm on disabled people. To deter-
mine whether Villegas is correct, we look to the Convention’s
implementing regulations, which are “subject to” the “reser-
vations, understandings, declarations, and provisos contained
in the United States Senate resolution of ratification of the
Convention.” Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th
Cir. 2003) (citing § 2242(b) of the FARRA).
[4] When these sources are consulted, Villegas’ argument
fails quickly. The regulations 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 obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind, when such pain or suffering is
4266 VILLEGAS v. MUKASEY
inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other per-
son acting in an official capacity.
8 C.F.R. § 1208.18(a)(1) (emphasis added). The regulations
further provide that “to constitute torture, an act must be spe-
cifically intended to inflict severe physical or mental pain or
suffering.” 8 C.F.R. § 1208.18(a)(5) (emphasis added). This
squares exactly with the Senate ratification resolution, which
provided: “[T]he United States understands that, in order to
constitute torture, an act must be specifically intended to
inflict severe physical or mental pain or suffering . . . .” 136
Cong. Rec. S17,486-01, S17,491 (1990) (emphasis added).
Moreover, the IJ here relied upon In re J-E-, 23 I. & N.
Dec. 291, 298 (BIA 2002) (en banc), which construed the
CAT’s implementing regulations to require specific intent.
The BIA’s decision in J-E- is not lightly disregarded.
“[J]udicial deference to the Executive Branch is especially
appropriate in the immigration context where officials ‘exer-
cise especially sensitive political functions that implicate
questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (citation omitted).
[5] Every other circuit to consider the question has con-
cluded that “torture” under the CAT requires specific intent to
inflict harm. See Pierre v. Gonzales, 502 F.3d 109, 113-119
(2d Cir. 2007); Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir.
2005); see also Majd v. Gonzales, 446 F.3d 590, 597 (5th Cir.
2006) (rejecting a CAT claim because “[m]ost of the suffering
[the petitioner] described was inflicted without any specific
intent”). The only case to the contrary, which Villegas relies
on here, is Zubeda v. Ashcroft, 333 F.3d 463, 474 (3d Cir.
2002). But the Third Circuit later repudiated this portion of
Zubeda as dicta and reached a contrary result, Auguste, 395
F.3d at 147-48, and the Second Circuit has rejected Zubeda as
unpersuasive, Pierre, 502 F.3d at 117-18. We also decline to
follow it.
VILLEGAS v. MUKASEY 4267
Finally, we note that defining “torture” to require specific
intent to inflict harm does not conflict with our holding in
Zheng. In that case, we held that for a government official to
“acquiesce” in acts of torture by a private party within the
meaning of 8 C.F.R. § 1208.18(a)(1), the public official need
not have actual knowledge of, or willfully accept, the torture.
See 332 F.3d at 1194-97. Rather, “acquiescence” requires
only that a public official have an awareness of private tor-
ture, which includes willful blindness to the act. See id. But
Zheng specifically addressed official acquiescence in torture
by private parties, so it should not be read to hold that the tor-
ture itself can exist without specific intent of someone —
either the government official or the private party to whom
the official acquiesces — to inflict severe harm. See Pierre,
502 F.3d at 118 (“A private actor’s behavior can constitute
torture under the CAT without a government’s specific intent
to inflict it if a government official is aware of the persecu-
tor’s conduct and intent and acquiesces in violation of the
official’s duty to intervene . . . . But in that scenario, there is
specific intent — the intent of the private actor.”).
[6] Accordingly, we hold that to establish a likelihood of
torture for purposes of the CAT, a petitioner must show that
severe pain or suffering was specifically intended — that is,
that the actor intend the actual consequences of his conduct,
as distinguished from the act that causes these consequences.
Id.; cf. Black’s Law Dictionary 825 (8th ed. 2004) (defining
“general intent” as “[t]he intent to perform an act even though
the actor does not desire the consequences that result”).
[7] Applying this standard is relatively simple here. Ville-
gas cites nothing in the record that indicates specific intent,
and we find nothing. While Villegas is correct that a variety
of evidence showed that Mexican mental patients are housed
in terrible squalor, nothing indicates that Mexican officials (or
private actors to whom officials have acquiesced) created
these conditions for the specific purpose of inflicting suffering
upon the patients. Moreover, the record indicates that the
4268 VILLEGAS v. MUKASEY
Mexican government has given human rights organizations
free access to its mental institutions, and is taking steps to
improve conditions. We agree with Villegas that we must
assess the conditions as they currently exist. But the evidence
of a desire to improve confirms the conclusion that, currently,
the conditions in the Mexican mental health system exist not
out of a deliberate intent to inflict harm, but merely because
of officials’ historical gross negligence and misunderstanding
of the nature of psychiatric illness. Therefore, though cer-
tainly deplorable, the conditions do not amount to torture
within the meaning of the CAT. This defeats the CAT claim.3
IV.
CONCLUSION
The petition is DISMISSED as to the claim for withholding
of removal and DENIED as to the CAT.
3
We do not decide whether the record compels the conclusion that Vil-
legas would even end up in a Mexican mental institution. The IJ avoided
making a finding on this topic, and “this court cannot affirm the BIA on
a ground upon which it did not rely.” Navas v. INS, 217 F.3d 646, 658
n.16 (9th Cir. 2000).