                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 12, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JORGE ALBERTO RUIZ-GIEL,

              Petitioner,

v.                                                          No. 14-9510
                                                        (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

              Respondent.


                             ORDER AND JUDGMENT*


Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.


       Jorge Alberto Ruiz-Giel, a Salvadoran national, seeks review of a Board of

Immigration Appeals’ (BIA’s) decision upholding his removal as an aggravated felon

and denying relief under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252(a)(1), as limited by § 1252(a)(2)(C), and we deny

the petition in part and dismiss in part.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     BACKGROUND

      Mr. Ruiz’s parents brought him as an infant to the United States in 1986. In

2002, he became a lawful permanent resident. But over the ensuing decade, Mr. Ruiz

garnered two felony convictions in Nevada state court. Specifically, in 2005, he

pleaded guilty and was convicted of conspiring to commit robbery. And in 2011, he

pleaded guilty and was convicted of possessing a controlled substance for the

purpose of sale. On the controlled-substance conviction, Mr. Ruiz was sentenced to a

minimum of 12 months’ imprisonment.

      As a result of the convictions, the Department of Homeland Security (DHS)

served Mr. Ruiz with a notice to appear on charges that he was removable as an

aggravated felon. An Immigration Judge (IJ) sustained the charges, and Mr. Ruiz

sought relief under the CAT.

      During a hearing, Mr. Ruiz testified that he had been to El Salvador only once,

to meet his now-deceased grandmother. He also testified that, while detained by

immigration officials, he acquired a gang-related tattoo that would create problems

with the two main gangs in El Salvador.

      An expert on conditions in El Salvador testified that Mr. Ruiz would likely be

tortured or killed by a gang if deported to that country because of his gang-related

tattoos, inability to speak Spanish, limited familial support, and status as a deportee.

When asked whether El Salvadoran police would assist Mr. Ruiz if he sought




                                          -2-
protection, the expert testified that the police “might or might not do anything” to

help him. R. at 215.

      At the conclusion of the hearing, the IJ determined that Mr. Ruiz had not

shown eligibility for CAT relief. Specifically, the IJ found that while it was possible

he would be harmed by gangs in El Salvador, there was no persuasive evidence

showing that police were likely to acquiesce in that conduct. Consequently, the IJ

ordered Mr. Ruiz removed to El Salvador.

      The BIA upheld Mr. Ruiz’s removal, concluding that (1) state court documents

showing Mr. Ruiz’s convictions were authentic; (2) Mr. Ruiz’s controlled-substance

conviction was an aggravated felony under the modified categorical approach; and

(3) Mr. Ruiz had not sufficiently shown acquiescence by El Salvadoran police if gang

members sought to torture or kill him.

                                     DISCUSSION

                               I. Standards of Review

      Because a single member of the BIA entered a brief affirmance order under

8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final order of removal,

but “we may consult the IJ’s opinion to the extent that the BIA relied upon or

incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). We review

the BIA’s factual findings for substantial evidence, and its legal conclusions de novo.

Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009).




                                          -3-
                                II. Aggravated Felony

A. Admissibility of the Conviction Documents

      Mr. Ruiz argues that DHS failed to properly authenticate the criminal

information and judgment of conviction that were used to prove his

controlled-substance conviction. He complains that DHS labeled the documents in

an exhibit list’s table of contents as a “Certified Record of Conviction,” R. at 489

(emphasis added), and that “the simple act of identifying a document in a table of

contents as certified” does not “mean that the drafter is a legal custodian of the

document.” Pet’r Br. at 23. He further argues that the BIA engaged in impermissible

factfinding by “misunderstanding or misrepresent[ing]” his argument to be that DHS

“‘self-authorized’ the documents.” Id. at 22.

      Mr. Ruiz’s arguments are flawed. First, the BIA’s interpretation of a party’s

argument is not a finding of fact. Second, the BIA concluded that the conviction

documents were authentic because they bore the Nevada court’s electronic file stamp

and were certified by the assistant chief counsel of DHS as “originals, or copies

thereof, from the records of [DHS].” R. at 488. The BIA did not, as Mr. Ruiz

suggests, rely on the label given to the documents in a table of contents. Indeed, the

BIA relied on In re Velasquez, 25 I. & N. Dec. 680, 684 (BIA 2012), which held that

because “the precise methods of authentication described in [the governing statute




                                          -4-
and regulations1] are not mandatory or exclusive[,] . . . [t]he guiding principle is that

proper authentication requires some sort of proof that the document is what it

purports to be.” Id. (italics and internal quotation marks omitted).

      Mr. Ruiz does not contest the BIA’s reliance on In re Velasquez. Nor does he

complain that the documents contain any errors or that he has not been convicted as

DHS alleged. Indeed, he appears to acknowledge that there would have been no

problem admitting the documents if DHS had stated on the record that it had

“received the documents as originals and/or copies of records kept by the legal

custodian of [DHS].” Pet’r Br. at 24 (internal quotation marks omitted). Yet that is

essentially what the DHS assistant chief counsel stated in his certification to the

immigration court. See R. at 488 (“I HEREBY CERTIFY that the annexed

documents are originals, or copies thereof, from the records of the said Department

of Homeland Security, relating to . . . JORGE ALBERTO RUIZ-GIEL.”). The BIA

went even further, holding that the certification, in combination with the state court

file stamps, was sufficient to show the documents’ authenticity. Mr. Ruiz has
1
       In 8 U.S.C. § 1229a(c)(3)(B), Congress provided a list of “documents or
records (or a certified copy of such an official document or record)” that “shall
constitute proof of a criminal conviction.” The list includes “[a]n official record of
judgment and conviction.” Id. § 1229a(c)(3)(B)(i). Regulations accompanying the
statute provide a variety of ways to authenticate such a record. See, e.g., 8 C.F.R.
§ 1003.41(b) (“attest[ation]” by an immigration officer that a copy is “a true and
correct copy of the original”); id. § 1003.41(c) (“certifi[cation]” by a DHS official
and a state or court official that an electronically received document is an official
record from the state’s record repository); 8 C.F.R. § 287.6(a) (“attest[ation] by the”
record’s legal custodian); id. § 1003.41(d) (admission of “[a]ny other evidence that
reasonably indicates the existence of a criminal conviction”).


                                           -5-
provided nothing to undermine the BIA’s determination that the conviction

documents were authentic and admissible.2

B. Mr. Ruiz’s Controlled-Substance Conviction

      During Mr. Ruiz’s removal proceeding, DHS had “the burden of establishing

by clear and convincing evidence that [he] was subject to removal” for having an

aggravated-felony conviction. Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130

(10th Cir. 2005) (internal quotation marks omitted). The BIA consulted the criminal

information to ascertain that the controlled substance involved in the crime was

heroin, and determined that DHS had met its burden under the process known as the

modified categorical approach.3 Mr. Ruiz challenges the BIA’s resort to the

information to determine if his conviction constituted an aggravated felony.



2
        DHS suggests that this court lacks jurisdiction to review the documents’
admissibility because admissibility does not implicate a constitutional claim or a
question of law. See Waugh v. Holder, 642 F.3d 1279, 1281 (10th Cir. 2011) (“[O]ur
jurisdiction to review an order of removal against an aggravated felon is significantly
limited: we may review the removal order only to the extent petitioner raises
constitutional or legal challenges to the order[.]”). But it seems axiomatic that the
jurisdiction-stripping consequences of an aggravated-felony conviction do not kick in
until it has been determined that there has indeed been a conviction. See 8 U.S.C.
§ 1229a(c)(3)(A) (providing that the government “has the burden of establishing by
clear and convincing evidence that, in the case of an alien who has been admitted to
the United States, the alien is deportable”). If DHS submitted sufficient proof of a
conviction, the issue then becomes whether that conviction qualifies as an aggravated
felony. If the answer is in the affirmative, only then does the jurisdictional bar arise.
3
      In the context of a guilty plea, the judicial records that may be reviewed under
a modified categorical approach include “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or [some]
                                                                             (continued)
                                           -6-
       Before addressing whether the information was properly consulted, we pause

to set out the process necessarily leading up to the modified categorical approach.

       Under the straight categorical approach, courts “compare the elements of the

statute forming the basis of the defendant’s conviction with the elements of the

‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United

States, 133 S. Ct. 2276, 2281 (2013). At this stage, “only . . . the statutory

definitions of the prior offenses, and not . . . the particular facts underlying those

convictions” are relevant. See Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105,

1108 (10th Cir. 2006) (internal quotation marks omitted). “Accordingly, a state

offense is a categorical match with a generic federal offense only if a conviction of

the state offense necessarily involved facts equating to the generic federal offense.”

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (brackets, ellipsis, and internal

quotation marks omitted). But if the elements of the crime of conviction reach

“a broad range of conduct, some of which would constitute an aggravated felony and

some of which would not,” the analysis is modified to “resolve the ambiguity by

consulting reliable judicial records.” Vargas, 451 F.3d at 1109 (internal quotation

marks omitted).

       The BIA did not set out its analysis leading up to its application of the

modified categorical approach. In other words, the BIA did not discuss whether


comparable judicial record of this information.” Vargas v. Dep’t of Homeland Sec.,
451 F.3d 1105, 1108 (10th Cir. 2006) (internal quotation marks omitted).


                                           -7-
Mr. Ruiz’s conviction for possessing a controlled substance for sale necessarily

involved facts equating to a generic federal offense.4 Rather, it proceeded directly to

the modified categorical approach, as Mr. Ruiz had focused his arguments on (1) the

necessity of the modified categorical approach because the judgment of conviction

did not identify the controlled substance involved; and (2) the limitation noted in

Descamps that indivisible state statutes cannot be analyzed under the modified

categorical approach.

      Before this court, Mr. Ruiz advances, as he must, the same arguments that he

presented to the BIA, essentially conceding that his conviction statute categorically

matches a generic federal offense in all relevant respects except for the identity of the

controlled substance. We therefore proceed, as did the BIA, to determine whether

Descamps permits the modified categorical approach in this case.

      Under Descamps, the modified categorical approach comes into play only

when the statute of conviction is divisible, meaning that it

      sets out one or more elements of the offense in the alternative—for
      example, stating that burglary involves entry into a building or an
      automobile. If one alternative (say, a building) matches an element in
      the generic offense, but the other (say, an automobile) does not, the
4
        There are “two routes through which a state drug conviction can qualify as an
aggravated felony.” Garcia v. Holder, 440 F. App’x 660, 663 (10th Cir. 2011)
(internal quotation marks omitted) (citing Daas v. Holder, 620 F.3d 1050, 1054
(9th Cir. 2010), and Catwell v. Att’y Gen., 623 F.3d 199, 206 (3d Cir. 2010)). The
conviction qualifies if either “‘(a) it would be punishable as a felony under the
federal Controlled Substances Act [21 U.S.C. §§ 801-971], or (b) it is a felony under
state law and includes an illicit trafficking element.’” Id. (alteration in original)
(quoting Catwell, 623 F.3d at 206).


                                          -8-
      modified categorical approach permits . . . courts to consult a limited
      class of documents, such as indictments and jury instructions, to
      determine which alternative formed the basis of the defendant’s prior
      conviction.

Descamps, 133 S. Ct. at 2281. An indivisible statute, on the other hand, contains

“a single, indivisible set of elements.” Id. at 2282. For instance, an indivisible

statute would criminalize assault with a weapon, instead of criminalizing assault with

a gun, a knife, or an explosive. See id. at 2290. The modified categorical approach

is not available for an indivisible statute. Id. at 2281-82. Thus, we must determine

whether Mr. Ruiz’s conviction statute “list[s] potential offense elements in the

alternative, render[ing] opaque which element played a part in [his] conviction,” such

that the BIA properly consulted the criminal information under the modified

categorical approach. Id. at 2283.

      Mr. Ruiz was convicted under Nev. Rev. Stat. § 453.337(1), which

provides that “it is unlawful for a person to possess for the purpose of sale

flunitrazepam, gamma-hydroxybutyrate, any substance for which flunitrazepam or

gamma-hydroxybutyrate is an immediate precursor[,] or any controlled substance

classified in schedule I or II.” Mr. Ruiz’s judgment of conviction does not identify

the controlled substance at issue. According to Mr. Ruiz, at least one of Nevada’s

schedule I substances (1,4-Butanediol) is not listed in the federal drug schedules.

See Nev. Admin. Code § 453.510(4) (classifying 1,4 Butanediol as a hallucinogenic

substance); 21 C.F.R. § 1308.11-.15 (listing the federal drug schedules, none of



                                          -9-
which reference 1,4 Butanediol).5 Thus, Mr. Ruiz asserts that he is not categorically

an aggravated felon and that the modified categorical approach would be necessary to

determine whether he is.

      Mr. Ruiz proceeds, then, to argue that Descamps bars the modified categorical

approach because § 453.337(1) is indivisible. He seems to reason that the controlled

substance’s identity is not an offense element because “a jury in Nevada would [not]

have been required to agree unanimously on the identity of the controlled substance.”

Pet’r Br. at 32. But Mr. Ruiz is mistaken.6 In Nevada, “the particular identity of the

controlled substance” is an element of the offense. See Muller v. Sheriff, Clark Cnty.,

572 P.2d 1245, 1245 (Nev. 1977). Indeed, the identity of the controlled substance

possessed for the purpose of sale determines whether the defendant must be charged

under § 453.337 (flunitrazepam, gamma-hydroxybutyrate, and schedule I and II

substances) or under § 453.338 (schedule III, IV, and V substances). Because

§ 453.337 lists specific controlled substances alternatively, and it does not employ an

“indeterminate” moniker open to hypothetical conceptions, Descamps, 133 S. Ct.


5
       Although 1,4-Butanediol is not listed in the federal drug schedules, we note
that courts have found it to be a proscribed controlled-substance analogue under
21 U.S.C. § 813. See, e.g., United States v. Washam, 312 F.3d 926, 931 (8th Cir.
2002).
6
       As the government points out, Mr. Ruiz has seemingly adopted conflicting
positions in this case. On the one hand, he claims that drug identity is an offense
element, precluding a categorical determination that he is an aggravated felon. And
on the other hand, he claims that drug identity is not an element, precluding a
modified categorical approach. Either way, he loses.


                                         - 10 -
at 2290, we conclude that the statute is divisible.7 Cf. In re Chairez-Castrejon,

26 I. & N. Dec. 349, 354-55 (BIA 2014) (applying Descamps and concluding that the

necessary showing of divisibility was not made). In particular, § 453.337 resembles

Descamps’ description of a divisible statute that would “criminalize[ ] assault with

any of eight specified weapons.” 133 S. Ct. at 2290. Section 453.337 similarly

criminalizes possession for the purpose of sale any of a multitude of specified

controlled substances. Thus, we conclude that the statute is suitable for the modified

categorical approach.8

      Mr. Ruiz advances no other challenges to the BIA’s holding that his § 453.337

conviction qualifies as an aggravated felony. He has thus waived any other challenge

to that holding. See Iliev v. Holder, 613 F.3d 1019, 1026 n.4 (10th Cir. 2010)


7
       The Ninth Circuit has reached a similar conclusion while analyzing
California’s unauthorized-possession-of-a-controlled-substance statute, Cal. Health &
Safety Code § 11377(a). That statute lists five categories of prohibited substances,
either by reference to drug-schedule numbers or other statutes. The court held that
because § 11377(a) “criminalizes the possession of any one of th[e] [listed]
substances[,] [t]he statute thus effectively creates several different crimes.”
Coronado v. Holder, 747 F.3d 662, 668-69 (9th Cir. 2014) (ellipsis and internal
quotation marks omitted). Consequently, the court determined that the statute was
suitable under Descamps to a modified categorical analysis. Id. at 669.
8
       Mr. Ruiz complains that the BIA “erred as a matter of law” by not explaining
its conclusion that a modified categorical approach was consistent with Descamps.
Pet’r Br. at 34. But he fails to cite any authority mandating a particular quantum of
analysis when the BIA addresses a party’s argument. And as the Supreme Court has
stated, an agency need only set forth the basis of its administrative action “with such
clarity as to be understandable.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
In any event, whether § 453.337 is divisible under Descamps is a purely legal
question that we review de novo.


                                         - 11 -
(observing that failure to develop an argument in the opening brief results in the

argument being waived).

C. The CAT

      Mr. Ruiz turns next to the BIA’s conclusion that he does not qualify for CAT

relief. He argues that the BIA erred by (1) “finding that the [IJ] accurately applied

the ‘willful blindness’ standard,” Pet’r Br. at 42; (2) “failing to determine the

likelihood that a public official would more likely than not acquiesce to the ‘mental

torture’ of individuals like Mr. Ruiz,” id. at 44; and (3) concluding that Mr. Ruiz was

not entitled to CAT relief despite the evidence showing that Mr. Ruiz might be

tortured or killed in El Salvador. The government responds that Mr. Ruiz’s

aggravated-felony conviction deprives this court of jurisdiction to consider his

CAT-related arguments. We agree with the government, but only as to Mr. Ruiz’s

second and third arguments.

      When an alien is ordered removed because of an aggravated-felony

conviction, we can review only constitutional claims or questions of law. 8 U.S.C.

§ 1252(a)(2)(C) & (D). Mr. Ruiz’s first argument, concerning the willful-blindness

standard, implicates a question of law. See Gallimore v. Holder, 715 F.3d 687,

690 (8th Cir. 2013) (determining that criminal alien’s “challenge[ ] [to the

willful-blindness] legal standard used by the BIA” was reviewable). Thus, it is

reviewable.




                                          - 12 -
       The CAT “prohibits the return of an alien to a country where it is more likely

than not that he will be subject to torture by a public official, or at the instigation or

with the acquiescence of such an official.” Karki v. Holder, 715 F.3d 792, 806

(10th Cir. 2013) (internal quotation marks omitted). “[W]illful blindness suffices to

prove acquiescence.” Id.

       Mr. Ruiz’s argument appears to be that the IJ interpreted “willful blindness” to

require governmental awareness of a specific threat against him, rather than

governmental awareness of threats to “similarly situated” persons. Pet’r Br. at 40.

Mr. Ruiz claims that the IJ’s interpretation, and the BIA’s acceptance of that

interpretation, contravenes Karki v. Holder, in which this court held that a

“[p]etitioner does not need to present evidence that the government knows of the

specific threat against him in order to show that the government would likely turn a

blind eye to his torture” upon removal to his native country. 715 F.3d 792, 807

(10th Cir. 2013).

       The IJ in Mr. Ruiz’s case defined “willful blindness” as “requir[ing] that prior

to the activity constituting the torture[,] law enforcement have awareness of such

activity and thereafter breach their legal responsibility to intervene or prevent the

activity.” R. at 143. The BIA determined that the IJ’s definition was consistent with

Karki, and we agree. In defining “willful blindness,” the IJ observed that “law

enforcement in El Salvador is overwhelmed by gangs and high crime.” Id. This

general statement is consistent with Karki’s admonition that “actual knowledge” by


                                           - 13 -
the government of a specific threat is not required. Karki, 715 F.3d at 807. And

while the IJ also observed that “[t]here is evidence that the police may be less

interested in helping [Mr. Ruiz],” R. at 143, we do not read that observation as

importing an actual-knowledge requirement into the willful-blindness standard.

Rather, viewed in the context of the IJ’s other statements, the IJ was simply

recounting Mr. Ruiz’s evidence that police “might or might not” help a person, like

Mr. Ruiz, who has gang-related tattoos and who has been removed from the United

States. R. at 215. Thus, the agency did not utilize a flawed willful-blindness

standard.

      Finally, we turn to this court’s jurisdiction over Mr. Ruiz’s second and third

CAT arguments. We conclude that those arguments are not reviewable as they

attempt to raise issues of fact. Specifically, to determine the likelihood of

governmental acquiescence to torture (Mr. Ruiz’s second argument), and whether the

evidence as a whole shows Mr. Ruiz’s eligibility for CAT relief (his third argument),

we would have to weigh the evidence in this case. The criminal-alien bar prevents

that. See Siwe v. Holder, 742 F.3d 603, 613 (5th Cir. 2014) (holding that the court

lacked jurisdiction to review whether alien “established that he will more likely than

not be tortured if . . . removed”); Gallimore, 715 F.3d at 690 (observing that factual

disputes and determinations regarding CAT claims “are foreclosed by the criminal

alien bar”); Green v. Att’y Gen., 694 F.3d 503, 507-08 (3d Cir. 2012) (concluding

that factual determinations regarding government acquiescence and eligibility for


                                         - 14 -
CAT relief are subject to the criminal-alien bar); Saintha v. Mukasey, 516 F.3d 243,

249-50 (4th Cir. 2008) (stating that the “likelihood that the [criminal alien] would

suffer torture at the government’s consent or acquiescence” presents a factual

question beyond review); Boakai v. Gonzales, 447 F.3d 1, 5 (1st Cir. 2006)

(concluding that the court lacked jurisdiction to consider criminal alien’s “argument

that the BIA was wrong in rejecting the CAT claim”); Hamid v. Gonzales, 417 F.3d

642, 647 (7th Cir. 2005) (holding that the criminal-alien bar applied to alien’s CAT

claim that the IJ failed to “correctly consider[ ], interpret[ ], and weigh[ ] the

evidence”); but see Edu v. Holder, 624 F.3d 1137, 1141-42 (9th Cir. 2010) (stating

that the criminal-alien bar “does not deprive [a court] of jurisdiction over denials of

deferral of removal under the CAT,” and that “jurisdiction extends to both issues of

law and issues of fact”).

                                      CONCLUSION

       We deny Mr. Ruiz’s petition for review to the extent he challenges the BIA’s

determinations that he is an aggravated felon and that the correct willful-blindness

standard was used for his CAT claim. We dismiss the remainder of the petition as

jurisdictionally barred.

                                                   Entered for the Court


                                                   Jerome A. Holmes
                                                   Circuit Judge




                                          - 15 -
