                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 02 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MAURICIO ARNOLDO RAMIREZ                         No. 08-73764
AYALA,
                                                 Agency No. A039-259-147
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 7, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

       The petitioner in argument before us waived the issue we now address. In

response to our order for supplemental briefing as to whether we are bound by this

waiver, the government concedes that we have discretion to address the issue, but




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
urges us not to do so. See Aleman v. Glickman, 217 F.3d 1191, 1196 (9th Cir.

2000); In re America West Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000).

      In his original hearing before the IJ, the petitioner developed evidence that

he had a diminished mental capacity and that this made him more likely to be

tortured. The IJ granted CAT relief in part because his diminished mental capacity

made it “more likely than not that he would be tortured in the prison systems or in

the country of El Salvador if returned there.” The Department of Homeland

Security appealed, and the BIA concluded that the IJ had erred by considering the

aggregate of three factors: “1) the respondent faced trouble surviving without

better language or social skills and without family support; 2) the respondent faced

harm from street gangs; and 3) the respondent may be arrested because of his gang-

related tattoos or harmed by government-sponsored vigilantes.” The BIA

remanded to the IJ, stating that petitioner could qualify for CAT protection only on

the basis of the IJ’s third consideration (or the second consideration if the

petitioner could make the necessary showings to a governmental connection).

      On remand, the IJ held another hearing, at which petitioner presented

additional background documents and expert testimony focused on his gang-

related tattoos. After considering this additional evidence, the IJ denied

petitioner’s application for deferral of removal under CAT, noting that the BIA


                                           2
“stated that the only factor relevant to the CAT analysis is [petitioner’s] possible

arrest and torture as a result of his gang-related tattoos.” The IJ specifically

“decline[d] to entertain arguments that his diminished mental capacity . . . should

be considered.” The BIA dismissed petitioner’s appeal without addressing whether

his diminished mental capacity made him more likely to be tortured. The

government concedes that the petitioner has exhausted this issue.

      The question of whether the diminished mental capacity of a petitioner is

relevant to a CAT claim is new and important. The BIA’s first decision, speaking

only of petitioner’s language difficulties and minimal social skills, did not clearly

focus on the question whether the petitioner’s diminished mental capacity made

him more likely to be tortured. The likelihood of such abuse is to be measured not

only by information about the torturers but by the vulnerability of their victim. It

is a sad truth of human experience that a victim’s haplessness enhances the

confidence of a bully.

      Expert testimony from a psychologist indicated that the petitioner “has been

delayed in motor development and also delayed in speaking ability as well. The

[petitioner] cannot learn basic skills such as caring for his own hygiene . . . .[He]

will be unable to be self reliant for basic health needs.” Expert testimony also

indicated that the petitioner would be arrested because his appearance would


                                           3
identify him as a gang member, and that, due to his developmental delays,

petitioner would be unable to respond appropriately to police questioning. If these

reports are accurate, Ayala’s condition may well be relevant in weighing the

likelihood of his being tortured by the police, or by government-linked death

squads or gang members whose actions are acquiesced to by the government.

      Accordingly, we REMAND to the BIA for reconsideration in accordance

with this decision.




                                         4
                                                                                FILED
Ayala v. Holder, No. 08-73764                                                   MAY 02 2011

                                                                             MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, dissenting:                                          U.S. COURT OF APPEALS



      I dissent from the majority’s decision to remand for reconsideration of the

petitioner’s mental capacity. The petitioner did not raise mental capacity in his

opening brief and, when asked at oral argument whether he was raising this issue,

his attorney explicitly stated that he did not seek review of the petitioner’s mental

capacity. There is no evidence that the Petitioner’s decision to waive the mental

capacity issue was anything other than a tactical decision. This court has

previously declined to exercise its discretion to consider waived issues in similar

circumstances. See, e.g., In re Burnett, 435 F.3d 971, 975-77 (9th Cir. 2006)

(declining to consider waived issue where the litigants had not raised the issues

below and there were no extraordinary circumstances that would justify the court’s

discretionary power to consider the issues); A-1 Ambulance Serv. Inc., v. County of

Monterey, 90 F.3d 333, 339 (9th Cir. 1996) (declining to apply the court’s

discretion to consider an issue raised for the first time on appeal where it was not

adequately and timely raised below).

      Although the panel majority concludes that evidence of diminished mental

capacity is “new and important” and remands for further consideration of the

petitioner’s mental capacity, the BIA must decide what weight, if any, to give to

the evidence cited by the majority. Under our substantial evidence standard, it is
not for us to independently weigh the evidence. See Donchev v. Mukasey, 553

F.3d 1206, 1213 (9th Cir. 2009) (“We are not free to look anew at the testimony

and then measure the soundness of the agency’s decision by what we would have

found.”); Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994) (“This strict standard

bars the reviewing court from independently weighing the evidence and holding

that the petitioner is eligible for asylum, except in cases where compelling

evidence is shown.”).

      Because we should not have exercised our discretion to consider an issue

that the petitioner waived, and because I disagree with the panel majority’s focus

on certain expert testimony in its disposition remanding to the BIA, I dissent.
