                             NOT FOR PUBLICATION                         FILED
                       UNITED STATES COURT OF APPEALS                     DEC 15 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


    LORENZO CORTEZ-ORTEGA, AKA,                    No. 13-71217
    Lorenzo Cortez,
                                                   Agency No. A092-691-062
                       Petitioner,

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

                       Respondent.


                              Appeal from an Order of the
                             Board of Immigration Appeals

                            Submitted December 13, 2016**
                               San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

          Petitioner Lorenzo Cortez-Ortega challenges the BIA’s dismissal of

Petitioner’s appeal of an Immigration Judge’s denial of Petitioner’s application for

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



*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
      The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          1
asserts that the IJ and the BIA (1) applied an incorrect legal standard to determine

whether it was more likely than not that Petitioner would suffer torture with the

Mexican government’s consent or acquiescence, and (2) drew conclusions that

were unsupported by substantial evidence. Because we agree with Petitioner’s

former argument, we do not reach the latter.

      To establish entitlement to deferral of removal under CAT, a party must

show that he will more likely than not be subjected to an “act by which severe pain

or suffering, whether physical or mental, is intentionally 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.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).

The acquiescence analysis requires consideration of whether the “[foreign]

government is not just willing but also able to control [the perpetrator], at least

insofar as it would affect [Petitioner].” Madrigal v. Holder, 716 F.3d 499, 509 (9th

Cir. 2013) (emphasis added).

      The IJ applied an incorrect legal standard when it held that the Mexican

government’s inability to prevent torture does not qualify as “acquiescence” under

the meaning of CAT. See id. The BIA adopted the IJ’s findings and conclusions

in their entirety. The BIA’s order did cite to the correct standard for CAT relief;

nevertheless, the BIA’s order failed to render the IJ’s legal error harmless for the

following reasons.

                                           2
      First, the BIA adopted the IJ’s decision in its entirety, without

acknowledging the legal error or providing any reasoning regarding why the

decision was correct under the applicable legal framework. See, e.g., Reyes-Reyes

v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (remanding where the BIA adopted

the IJ’s opinion applying an erroneous legal standard and failed to provide

alternative reasoning for affirming the IJ). Additionally, the BIA’s order notes

only the Mexican government’s willingness to control corruption and violence, as

opposed to its ability to do so—in other words, the BIA appears to have

functionally applied the same erroneous standard as the IJ. Its consideration of the

Mexican government’s willingness to combat torture does not necessarily bear on

that government’s ability to do so; on the contrary, “inability” suggests failed

efforts. See Madrigal, 716 F.3d at 506 (remanding for consideration of Petitioner’s

asylum request where the BIA considered “only the Mexican government’s

willingness to control Los Zetas, not its ability to do so” (emphasis in original)).

      Accordingly, we remand for consideration of Petitioner’s petition under the

appropriate legal standard, and therefore do not address Petitioner’s additional

arguments.

      GRANTED and REMANDED.




                                           3
                                                                             FILED
Cortez-Ortega v. Lynch, No. 13-71217
                                                                             DEC 15 2016
      O’SCANNLAIN, Circuit Judge, dissenting:                             MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      Precedent “does not require that [this Court] convert judicial review of

agency action into a ping-pong game.” NLRB v. Wyman-Gordon Co., 394 U.S.

759, 766 n.6 (1969). Remand in this case is not required because it “would be an

idle and useless formality.” Id. Petitioner’s argument for relief turns on the

existence of endemic corruption such that Mexican officials could not or would not

protect him, but the record indicates no such corruption on the part of the police

who have interacted with Petitioner’s family (and affirmatively suggests that they

acted in accordance with the law). The BIA’s error is harmless because “nothing

in the record could support a finding” that Petitioner qualifies for deferral of

removal under CAT. Khudaverdyan v. Holder, 778 F.3d 1101, 1107 n.3 (9th Cir.

2015) (citing Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d 420 (3d Cir. 2011)

(holding that BIA error is harmless when it is highly probable that error did not

affect case’s outcome)).

      I respectfully dissent.
