                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 27 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
LORETO QUINTERO-MOLINA, AKA                      No.   15-71518
Loreto Quintero,
                                                 Agency No. A093-142-827
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 6, 2016
                              Pasadena, California

Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.


      Loreto Quintero-Molina (“Molina”), a native and citizen of Mexico and

formerly a legal permanent resident of the United States, petitions for review of the

Board of Immigration Appeals’ (“BIA”) determination that he was ineligible for

deferral of removal under the Convention Against Torture (“CAT”). The BIA


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
adopted and affirmed the Immigration Judge’s (“IJ”) decision to deny relief under

CAT. Reviewing de novo, we conclude that the BIA erred as matter of law in

failing to aggregate the potential sources of torture that Molina would face if

removed to Mexico. Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2012).

    1. An applicant for relief under CAT must show a “greater than 50 percent

likelihood that he will be tortured” and that a public official will acquiesce in that

torture. Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013) (citing

8 C.F.R. § 1208.16(c)(2); Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011)).

      2. Under CAT, torture is “any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person. . . .”

8 C.F.R. § 1208.16(c)(2). “Acts constituting torture are varied, and include

beatings and killings.” Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir.

2008); see also 8 C.F.R. § 1208.18; Reyes v. Lynch, No. 14-70686, 2016 WL

6994243, at *13 (9th Cir. Nov. 30, 2016) (holding that killings constitute torture

for the purposes of CAT). Molina presented several reasons why he would likely

face torture if returned to Mexico, including threats that he and his family members

have received and killings perpetrated against his family members who live in

Mexico.




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      3. In determining whether a person is likely to face torture, an IJ must

consider all evidence of torture in the aggregate. Cole v. Holder, 659 F.3d at 774.

The IJ should assess the petitioner’s “overall risk of being tortured” rather than

“treating each potential source of torture individually.” Id. Here, the BIA erred as

a matter of law when it adopted and affirmed the IJ’s decision, which separately

considered each reason Molina would face torture but failed to consider his risk of

torture in the aggregate. Because the BIA applied an erroneous legal standard, we

grant the petition and remand so that it may, in the first instance, apply the correct

legal standard. Lopez v. Ashcroft, 366 F.3d 799, 807 (9th Cir. 2004) (citing Zheng

v. Ashcroft, 332 F.3d 1186, 1197 (9th Cir.2003)).

      4. In addition to showing a greater than 50 percent likelihood of torture, an

applicant for CAT must show that the government is likely to acquiesce in that

torture. Madrigal, 716 F.3d at 508. The IJ did not determine whether the Mexican

government would acquiesce in Molina’s torture. The BIA, however, concluded

that the IJ “properly determined that . . . the record is insufficient to show that the

Mexican Government would acquiesce in or turn a blind eye to torture.” Where, as

here, the basis for the BIA’s conclusion is unclear, a remand is required so that the

BIA may clarify the basis for its decision on this issue. Alphonsus v. Holder, 705




                                            3
F.3d 1031, 1044-45 (2013) (citing Delgado v. Holder, 648 F.3d 1095, 1108 (9th

Cir. 2011)).



Petition GRANTED and REMANDED.




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