                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ANTIPAS JOHNLANG KONOU,                           No. 09-71454
                      Petitioner,
                                                   Agency No.
                     v.                           A088-450-936

 ERIC H. HOLDER, JR., Attorney                       OPINION
 General,
                         Respondent.


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

                 Argued and Submitted
       November 7, 2013—San Francisco, California

                          Filed May 9, 2014

      Before: Sidney R. Thomas, Ronald Lee Gilman,*
        and Johnnie B. Rawlinson, Circuit Judges.

                   Opinion by Judge Gilman




 *
   The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2                       KONOU V. HOLDER

                           SUMMARY**


                            Immigration

   The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal, and protection under the Convention Against
Torture.

    The panel held that the Board may consider sentencing
enhancements for purposes of determining whether an alien
who has not committed an aggravated felony has nonetheless
committed a particularly serious crime, and that in this case,
the Board did not abuse its discretion in concluding that the
nature of petitioner’s conviction, the circumstances and facts
underlying the conviction, and the type of sentence imposed,
including the sentencing enhancement, supported the finding
that petitioner’s assault and battery conviction constituted a
particularly serious crime.

    The panel held that substantial evidence supported the
Board’s determination that petitioner failed to establish a
clear probability of future torture because the Marshall
Islands country report indicated that laws criminalizing
homosexuality were categorically not enforced.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     KONOU V. HOLDER                        3

                        COUNSEL

Alison Dixon, San Francisco, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Assistant Director, D. Nicholas
Harling (argued), Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.


                         OPINION

GILMAN, Circuit Judge:

    Petitioner Antipas J. Konou seeks review of an order by
the Board of Immigration Appeals (BIA) reversing the
Immigration Judge’s (IJ’s) finding that Konou was eligible
for relief under the Convention Against Torture (CAT). This
case arises from the fact that Konou fled the Marshall Islands
in 1980 as a teenager after being sexually assaulted and
beaten as a homeless, homosexual child. The authorities
there allegedly did nothing to intervene. He came to
California under a student visa and remained without
documentation.

    In 1999, Konou was convicted in a California state court
of assault with a deadly weapon other than a firearm and of
battery with serious bodily injury following a fight with his
then-boyfriend. The IJ found that this crime was particularly
serious, rendering Konou ineligible for withholding of
removal. But the IJ further found that Konou was more likely
than not to be tortured for his homosexuality if forced to
4                   KONOU V. HOLDER

return to the Marshall Islands. The IJ therefore granted
Konou CAT relief.

    On review, the BIA reversed the IJ’s CAT determination
because it concluded that the Marshall Islands has no
enforced prohibition on homosexuality. But the BIA
affirmed the IJ’s particularly-serious-crime determination,
thus subjecting Konou to immediate deportation. Konou has
appealed. For the reasons set forth below, we DENY
REVIEW of the BIA’s decision.

                   I. BACKGROUND

    The BIA summarized the facts underlying its decision as
follows:

           The respondent is a native and citizen of
       the Marshall Islands who alleges that he has
       been harmed and will more likely than not be
       tortured on account of his homosexuality.
       The Immigration Judge found that the
       respondent credibly testified that he was
       abused by the public on numerous occasions
       when he was a homeless minor. . . .

           . . . [T]he 2007 Department of State report
       provides that “there were no accounts of
       societal violence based on sexual orientation”
       and that in general “homosexuals were
       accepted in society” (Exh. 3).             The
       Immigration Judge found that Marshall
       Islands law criminalizes homosexuality with
       a maximum penalty of 10 years and that the
       potential enforcement of such law established
             KONOU V. HOLDER                       5

that the respondent will more likely than not
be tortured (I.J. at 11). However, the 2007
Department of State report also provides that
there are “no enforced laws criminalizing
homosexuality” (Exh. 3) (emphasis added).
In other words, the evidence indicates that
even if a law criminalizing homosexuality
exists, it is not enforced. Hence, there is no
objective evidence establishing that the
respondent will “more likely than not” be
subjected to the law criminalizing
homosexuality. Moreover, substandard prison
conditions and isolated instances of
mistreatment of prisoners are insufficient to
establish torture as defined in the Convention
Against Torture. Matter of J-E-, 23 I&N Dec.
291 (BIA 2002), overruled on other grounds,
Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir.
2004). Based on the foregoing, we find that
the respondent failed to establish that he will
more likely than not be tortured. 8 C.F.R.
§ 1208.17(c). Matter of V-K-, 24 I&N Dec.
500 (BIA 2008). Accordingly, we will sustain
the appeal and reverse the Immigration
Judge’s grant of deferral of removal.

     Finally, we will address the Immigration
Judge’s particularly serious crime finding (I.J.
at 7). The respondent was convicted for the
offense of assault with a deadly weapon other
than a firearm with great bodily injury and
battery with serious bodily injury due to a
fight he had with his then boyfriend in 1999
(I.J. at 5–7; Exh. 1). We are in agreement
6                    KONOU V. HOLDER

       with the Immigration Judge’s conclusion that
       the assault and battery convictions constitute
       a particularly serious crime and find no reason
       to disturb that analysis. See generally, Matter
       of N-A-M-, 24 I&N Dec. 336 (BIA 2007)
       (discussing the broad range of information
       that may be considered in making an
       individualized determination that a conviction
       is for a particularly serious crime); Matter of
       S-V-, 22 I&N Dec. 1306, 1309 (BIA 2000)
       (particularly serious crimes encompass
       statutory provisions requiring an intent to
       deprive a person of property through the use
       of force, violence, assault, or putting in fear),
       overruled on other grounds Zheng v. Ashcroft,
       332 F.3d 1186 (9th Cir. 2003).

    Following the BIA’s decision, Konou agreed to voluntary
removal and currently resides in the Marshall Islands. On
appeal, he claims that “[t]he BIA erred in reversing the grant
of deferral of removal under the Convention Against Torture
by the Immigration Court.” Konou also challenges the BIA’s
determination that his California offenses were particularly
serious crimes, rendering him ineligible for withholding of
removal. The government maintains that the denial of relief
under the CAT was proper, as was the determination that
Konou’s convictions constituted particularly serious crimes.
                     KONOU V. HOLDER                         7

II. ANALYSIS

A. Standard of review for relief under the Convention
   Against Torture

   In CAT cases,

       [w]e review issues of law regarding CAT
       claims de novo. Where the BIA conducts its
       own review of the evidence and the law, this
       panel only reviews the BIA’s decision, except
       to the extent it expressly adopts the IJ’s
       decision. The BIA’s findings underlying its
       determination that an applicant is not eligible
       for relief under the CAT are reviewed for
       substantial evidence. Under the substantial
       evidence standard, the court upholds the
       BIA’s determination unless the evidence in
       the record compels a contrary conclusion.

           Because neither the BIA nor the IJ made
       an adverse credibility finding, we must
       assume that [Konou’s] factual contentions are
       true. As a result, the facts to which [he]
       testified are deemed true, and the question
       remaining to be answered becomes whether
       these facts, and their reasonable inferences,
       satisfy the elements of the claim for relief.

Cole v. Holder, 659 F.3d 762, 769–70 (9th Cir. 2011) (third
alteration in original) (internal citations and quotation marks
omitted).
8                   KONOU V. HOLDER

B. Relief under the Convention Against Torture

    As set forth in Garcia-Milian v. Holder, No. 09-71461,
slip op. at 5 (9th Cir. Feb. 13, 2014) (as amended on the
denial of rehearing en banc):

       Torture is an extreme form of cruel and
       inhuman treatment that either (1) is not
       lawfully sanctioned by that country or (2) is
       lawfully sanctioned by that country, but
       defeats the object and purpose of CAT. In
       addition, the torture must be inflicted by or at
       the instigation of or with the consent or
       acquiescence of a public official or other
       person acting in an official capacity. Thus
       relief under the Convention Against Torture
       requires a two part analysis—first, is it more
       likely than not that the alien will be tortured
       upon return to his homeland; and second, is
       there sufficient state action involved in that
       torture.

(internal citations and quotation marks omitted). “The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.16(c)(2).

    Konou and the government principally dispute whether
the BIA was entitled to credit the 2007 Department of State’s
Country Report on Human Rights Practices on the Marshall
Islands (which finds that the Marshall Islands have no
enforced proscriptions on homosexuality) over Konou’s
testimony that, because he had been tortured as a homeless,
homosexual child, he is likely to be tortured again. We note
                      KONOU V. HOLDER                          9

that Konou does not claim that the BIA applied an improper
standard of review to the IJ’s decision nor does he argue that
the BIA engaged in improper fact finding.

    The record regarding current public attitudes towards
homosexuality in the Marshall Islands is less than clear. But
the record contains substantial evidence supporting the BIA’s
conclusion that Konou would not likely be subjected to
torture if removed to the Marshall Islands. See Cole,
659 F.3d at 783 (“When presented with a record containing
conflicting evidence, we are restrained to determine only
whether the agency’s decision is supported by substantial
evidence.”).

   Regulations implementing the CAT instruct that “[t]he
burden of proof is on the applicant . . . to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). Among the factors that the IJ and the BIA
must consider are:

        (i) Evidence of past torture inflicted upon the
        applicant;

        (ii) Evidence that the applicant could relocate
        to a part of the country of removal where he
        or she is not likely to be tortured;

        (iii) Evidence of gross, flagrant or mass
        violations of human rights within the country
        of removal, where applicable; and
10                     KONOU V. HOLDER

        (iv) Other relevant information regarding
        conditions in the country of removal.

Id. § 1208.16(c)(3).

    The Report on which the BIA relied states that “[t]here
were no accounts of societal violence based on sexual
orientation” and that “homosexuals were accepted in society.”
Konou responds by contending, first, that the Report does not
prove that he will avoid torture if returned and, second, that
his past torture indicates that he will likely be tortured again.
His concerns are not totally baseless, but his assertions are
insufficient to prove that the BIA’s decision lacked
substantial evidence in the record.

    We start with the proposition that the BIA was entitled to
accord the Report substantial weight. “U.S. Department of
State country reports are the most appropriate and perhaps the
best resource for information on political situations in foreign
nations.” Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir.
2008) (internal quotation marks omitted). Indeed, “a
petitioner can demonstrate eligibility for CAT relief despite
an adverse credibility finding if the State Department reports,
standing alone, compel[ ] the conclusion that [petitioner] is
more likely than not to be tortured upon return . . . .” Jie Cui
v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013)
(alterations in original) (internal citation and quotation marks
omitted).

   But just as a State Department Report alone can carry an
applicant’s burden of establishing a probability of torture, a
Report can also serve to outweigh an applicant’s evidence of
a probability of torture. See Nuru v. Gonzalez, 404 F.3d
1207, 1219 (9th Cir. 2005) (“It is well-accepted that country
                     KONOU V. HOLDER                       11

conditions alone can play a decisive role in granting relief
under [CAT].”) (alteration in original) (internal citation and
quotation marks omitted).

    Moreover, the BIA’s interpretation of the Report is
entitled to deference. See Sowe, 538 F.3d at 1286. The BIA
interpreted the Report to indicate that “even if a law
criminalizing homosexuality exists, it is not enforced.”
Courts “are not in a position to second-guess the [BIA’s]
construction of . . . somewhat contradictory . . . country
report[s].” Id.

    Nonetheless, the BIA generally must provide
“individualized analysis of how [the Report] will affect the
specific petitioner’s situation.” Id. The BIA explained that
because the law is not enforced, “there is no objective
evidence establishing that respondent will ‘more likely than
not’ be subject to the law criminalizing homosexuality.” In
other words, categorical nonenforcement of the Marshall
Islands’ law that criminalizes homosexuality would
necessarily preclude enforcement against Konou. The Report
therefore provides substantial evidence supporting the BIA’s
conclusion that Konou failed to carry his burden of showing
that he is more likely than not to be tortured upon return to
the Marshall Islands.

    Nor was the BIA required, as Konou contends, to presume
that Konou would be tortured again because of his own
credible testimony that he had been subjected to torture as a
homeless child. On this point, the BIA cites Mohammed v.
Gonzales, 400 F.3d 785, 802 (9th Cir. 2005), for the
proposition that “the showing of past torture does not give
rise to a regulatory presumption of fear of future torture.”
The quotation is accurate, but the case contains further
12                   KONOU V. HOLDER

language that tempers the quoted statement. In particular,
Mohammed also noted that “[t]he regulations provide that
evidence of past torture should be considered in deciding the
question of future torture, and they instruct the adjudicator to
consider evidence of gross, flagrant or mass violations of
human rights within the country of removal.” Id. (internal
citations and quotation marks omitted). In this case, the
evidence provided by the Report indicates that there are no
mass violations of human rights relevant to Konou’s
situation.

    This court has also said that “a State Department report on
country conditions, standing alone, is not sufficient to rebut
the presumption of future persecution when a petitioner has
established past persecution.” Molina-Estrada v. I.N.S.,
293 F.3d 1089, 1096 (9th Cir. 2002). But that authority stems
from the asylum context and deals with persecution, not
torture. See id. These contexts are not interchangeable:

       [T]he Convention’s reach is both broader and
       narrower than that of a claim for asylum or
       withholding of deportation: coverage is
       broader because a petitioner need not show
       that he or she would be tortured on account of
       a protected ground; it is narrower, however,
       because the petitioner must show that it is
       more likely than not that he or she will be
       tortured, and not simply persecuted upon
       removal to a given country.

Kamalthas v. I.N.S., 251 F.3d 1279, 1283 (9th Cir. 2001)
(internal quotation marks omitted). And even if past torture
is deemed sufficient to raise a presumption of future torture,
the government may overcome such a presumption by
                     KONOU V. HOLDER                       13

“individualized analysis of how changed conditions will
affect the specific petitioner’s situation.” Molina-Estrada,
293 F.3d at 1096 (internal quotation marks omitted).

    The Board was therefore entitled to conclude that
Konou’s testimony does not give rise to a likelihood of future
torture because of the contrary evidence supplied by the
Report. Cf. Mutuku v. Holder, 600 F.3d 1210, 1213–14 (9th
Cir. 2010) (“The 2002 Country Report, when considered in
its entirety, confirms that abuses like those suffered by
Mutuku are still common in Kenya.”). Specifically, the BIA
reasoned that the factors that precipitated Konou’s
mistreatment as a child would be less relevant to a “self-
sufficient homosexual adult.” This analysis is somewhat
cursory, but it is sufficient to explain why Konou’s own
testimony of past torture did not establish a likelihood of
future torture. And because we hold that substantial evidence
supports the BIA’s determination that Konou is not likely to
be subjected to torture based on his sexual orientation upon
return to the Marshall Islands, this case differs from cases
such as Bromfield v. Mukasey, 543 F.3d 1071, 1079–80 (9th
Cir. 2008), which hold that enforced prohibitions on
homosexuality can support a CAT claim.

C. Particularly-serious-crime finding

   Konou also challenges the BIA’s finding that his
California assault and battery convictions constituted
“particularly serious crimes” that rendered him ineligible for
withholding of removal.           As this court held in
Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir.
2013) (quoting 8 U.S.C. §§ 1231(b)(3)(A) and
1231(b)(3)(B)(ii)),
14                   KONOU V. HOLDER

       an alien may not be removed to a nation in
       which his life or freedom would be threatened
       on a protected ground unless the Attorney
       General decides [that] . . . the alien, having
       been convicted by a final judgment of a
       particularly serious crime[,] is a danger to the
       community of the United States.

“[A] crime is particularly serious if the nature of the
conviction, the underlying facts and circumstances and the
sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.” Delgado v.
Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc).

    “[T]he BIA’s determination that an alien was convicted
of a particularly serious crime is a discretionary decision, and
we review such decisions under an abuse-of-discretion
standard.” Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th
Cir. 2013) (alteration in original) (internal quotation marks
omitted). “Although we cannot reweigh evidence to
determine if the crime was indeed particularly serious, [we]
can determine whether the BIA applied the correct legal
standard.” Blandino-Medina, 712 F.3d at 1343 (alteration in
original) (internal quotation marks omitted).

    The BIA articulated the following standard for
determining whether the alien has committed a particularly
serious crime in Matter of Frentescu, 18 I. & N. Dec. 244,
247 (BIA 1982):

       In judging the seriousness of a crime, we look
       to such factors as the nature of the conviction,
       the circumstances and underlying facts of the
       conviction, the type of sentence imposed, and,
                     KONOU V. HOLDER                         15

        most importantly, whether the type and
        circumstances of the crime indicate that the
        alien will be a danger to the community.
        Crimes against persons are more likely to be
        categorized as “particularly serious crimes.”

    The BIA did not abuse its discretion in determining that
Konou’s assault-and-battery convictions were particularly
serious crimes. It adopted the IJ’s reasoning, which noted
among other things that the judge “enhanced the sentence
with the additional three years [of imprisonment] for causing
bodily injury.” The IJ also emphasized that Konou “kicked
[his boyfriend] twice” after his boyfriend was already on the
ground. Thus, by citing the nature of the conviction, the
circumstances and underlying facts of the conviction, and the
type of sentence imposed, the IJ applied the correct legal
standard. See Delgado, 648 F.3d at 1107.

    Konou responds by arguing that the IJ improperly relied
on the state court’s three-year sentencing enhancement. He
cites United States v. Corona-Sanchez, 291 F.3d 1201 (9th
Cir. 2002), for the proposition that an enhancement is not part
of the sentence for the conviction. But the context of
Corona-Sanchez is largely inapposite to the question that the
present case poses. Corona-Sanchez “present[ed] the
question of whether a California state conviction for the petty
theft of cigarettes and beer constitutes an aggravated felony
under 8 U.S.C. § 1101(a)(43)(G) and therefore justifies
increasing a sentence for unlawful reentry pursuant to
8 U.S.C. § 1326(b)(2).” Id. at 1202.

    In holding that the California conviction did not constitute
an aggravated felony for immigration purposes, this court in
Corona-Sanchez determined that the BIA“must consider the
16                   KONOU V. HOLDER

sentence available for the crime itself, without considering
separate recidivist sentencing enhancements.” Id. at 1209.
The court reached this decision, however, only in the context
of whether the offense is one “for which the term of
imprisonment [is] at least one year as required by 8 U.S.C.
§ 1101(a)(43)(G).” Id. at 1208 (alteration in original)
(internal quotation marks omitted). Neither party contends
that the 8 U.S.C. § 1101(a)(43)(G) definition of an aggravated
felony is at issue in the present case.

    Instead, Konou utilizes Corona-Sanchez to argue that
because the BIA cannot consider a sentencing enhancement
when it determines whether a crime categorically constitutes
an aggravated felony, and because “all aggravated felony
convictions are deemed to be particularly serious crimes,”
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 917 (9th Cir.
2004), it follows that the BIA cannot consider a sentencing
enhancement when it determines whether a crime is
particularly serious. But the foregoing logic ignores a crucial
distinction: Not all particularly serious crimes are aggravated
felonies. See Delgado, 648 F.3d at 1097 (“[W]e hold that, for
purposes of withholding of removal, an offense need not be
an aggravated felony to be a particularly serious crime.”). In
other words, just because a sentencing enhancement cannot
be considered for the purpose of determining whether the
crime is an aggravated felony does not imply that it cannot be
considered for purposes of determining whether the crime is
particularly serious.

    No circuit appears to have addressed the precise issue
of whether an IJ may consider sentencing enhancements
for purposes of determining whether an alien who has
not committed an aggravated felony has nonetheless
committed a “particularly serious crime” under 8 U.S.C.
                     KONOU V. HOLDER                       17

§ 1231(b)(3)(B)(ii). We conclude, in light of Delgado,
648 F.3d at 1097, that the IJ properly considered the two-year
enhancement under the Frentescu factors. First, Frentescu
instructs that the IJ may consider the “type of sentence
imposed.” An enhanced sentence by its plain language can
be considered a type of sentence.

    Second, the foregoing distinction between aggravated
felonies and particularly serious crimes actually suggests
broader discretion in the particularly-serious-crime
determination. This court has already observed that

       [a]ggravated felonies for which an alien
       receives a sentence of imprisonment of five
       years or more are particularly serious crimes
       per se. This per se class, however, [does] not
       preclude the Attorney General from
       determining that, notwithstanding the length
       of sentence imposed, an alien has been
       convicted of a particularly serious crime.

Blandino-Medina, 712 F.3d at 1345 (footnote and internal
quotation marks omitted). In the withholding-of-removal
context, this determination must be made on a case-by-case
basis because “the withholding of removal statute is notably
missing an analogue provision [contained in the asylum
statute] permitting the Attorney General to designate crimes
as categorically particularly serious [by rulemaking] even if
they are not aggravated felonies for which the defendant has
received a sentence of at least five years.” Id. at 1346. This
emphasis on case-by-case analysis instead of rulemaking for
determining whether an offense that is not an aggravated
felony nonetheless constitutes a particularly serious crime
18                  KONOU V. HOLDER

would be undercut if the BIA were required to apply a bright-
line rule to each case-by-case determination.

                   III. CONCLUSION

  For all of the reasons set forth above, we DENY
REVIEW of the BIA’s decision.
