                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


JOSE ZAMORA-CHAVEZ,                              No.   13-74144

              Petitioner,                        Agency No. A043-363-407

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted December 7, 2016**
                                Pasadena, California

Before: PREGERSON, NGUYEN, and OWENS, Circuit Judges.

      Jose Zamora-Chavez, a Mexican citizen and a lawful permanent resident,

petitions for review of the Board of Immigration Appeals (BIA)’s dismissal of his

appeal of an Immigration Judge (IJ)’s (1) finding that Zamora-Chavez is ineligible

for a discretionary waiver of deportation under the former Immigration and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nationality Act (INA) § 212(c), and (2) denial of Zamora-Chavez’s application for

deferral of removal under the Convention Against Torture (CAT). Because the

parties are familiar with the facts, we do not recount them here.

       Because the BIA conducted its own review of the evidence and law rather

than simply adopting the IJ’s decision, this court’s “review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks and citation

omitted). We review the BIA’s factual findings for substantial evidence and

review its legal conclusions de novo. Garcia v. Holder, 749 F.3d 785, 789 (9th

Cir. 2014). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the

petition.

       First, the BIA did not err in finding that Zamora-Chavez is ineligible for

relief under § 212(c). When Zamora-Chavez entered his plea of no contest to a

controlled substance charge in August 1996, and when his deportation proceedings

commenced in December 1996, § 440(d) of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) barred him from receiving relief in the form of a

§ 212(c) waiver because he was an “alien who [was] deportable by reason of

having committed any criminal offense covered in” INA § 241(a)(2)(B)(i), now

codified at 8 U.S.C. § 1227(a)(2)(B)(i).


                                           2
      Neither the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001),

nor this court’s decision in Pascua v. Holder, 641 F.3d 316 (9th Cir. 2011),

changes this result. These decisions establish that an alien who was eligible for

§ 212(c) relief at the time he or she entered a guilty plea remains eligible for that

relief even if deportation proceedings were commenced after the effective date of

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), St. Cyr, 533 U.S. at 326, or if deportation proceedings commenced

before that date and deportation charges were added based on post-IIRIRA

convictions, Pascua, 641 F.3d at 319; however, neither decision allows relief for

an alien who was not eligible for a waiver under § 212(c) in the first instance.

Zamora-Chavez was not eligible for such relief because he entered his no contest

plea subject to § 440(d) of AEDPA and its withdrawal of eligibility for § 212(c)

relief from aliens convicted of a controlled substance crime. See Matter of

Abdelghany, 26 I. & N. Dec. 254, 271-72 (BIA 2014); see also 8 U.S.C. § 1182(c)

(1996). Therefore, the BIA correctly determined that Zamora-Chavez is ineligible

for relief under INA § 212(c).

      Second, for the CAT claim, the BIA’s conclusion that it was not more likely

than not that Zamora-Chavez would be tortured upon return to Mexico was

supported by substantial evidence. The CAT defines torture as “an extreme form


                                           3
of cruel and inhuman treatment,” and requires that it have been “specifically

intended to inflict severe physical or mental pain or suffering.” 8 C.F.R.

§ 1208.18(a). As the IJ found and the BIA affirmed, Zamora-Chavez failed to

carry his burden of establishing that he was more likely than not to be tortured

based on his (1) mental illness, (2) bisexuality, or (3) foreign or “Americanized”

appearance. See 8 C.F.R. § 1208.16(c)(2) (burden of proof on applicant); see also

8 C.F.R. § 1208.17(a) (applicant who establishes eligibility for CAT withholding

but is subject to mandatory denial shall be granted CAT deferral).

      Zamora-Chavez’s contentions regarding his mental illness were too

speculative to carry his burden of proof, particularly because petitioner did not

know how much his medication would cost in Mexico and simply theorized that he

would be unable to obtain it and would then be tortured. See Xiao Fei Zheng v.

Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (finding that the petitioner’s “claims

of possible torture remain[ed] speculative” and therefore did not compel reversal);

see also Maroufi v. INS, 772 F.2d 597, 599 (9th Cir. 1985) (rejecting an asylum

application that “consisted solely of conclusory and speculative inferences drawn

from generalized events”). Furthermore, even if Zamora-Chavez established that

he would be institutionalized and that the conditions of the institution would

amount to torture, he failed to establish that the Mexican government created the


                                          4
conditions with the specific intent of torturing the institution’s patients. See

Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).

      With respect to his bisexuality, Zamora-Chavez showed that discrimination

against LGBT individuals exists in Mexico, but failed to establish that (1) the

discrimination rises to the level of torture, or (2) it is so widespread as to make it

more likely than not that petitioner would himself be tortured. See Alphonsus v.

Holder, 705 F.3d 1031, 1049 (9th Cir. 2013). Similarly, Zamora-Chavez failed to

establish that any kidnapping of foreign nationals (1) would amount to torture, or

(2) was so widespread as to make it more likely than not that it would happen to

him. Accordingly, the record does not compel reversal of the BIA’s decision. See

Garcia, 749 F.3d at 789 (this court upholds the BIA’s factual findings “unless any

reasonable adjudicator would be compelled to conclude to the contrary” (quoting 8

U.S.C. § 1252(b)(4)(B))).

      PETITION FOR REVIEW DENIED.




                                            5
