NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE MONTES ALFARO, No. 20-71099 Petitioner, Agency No. A072-878-982 v. MEMORANDUM * MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 3, 2023 San Francisco, California Before: WARDLAW, NGUYEN, and KOH, Circuit Judges. Jorge Montes Alfaro (“Montes”), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) order denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing the agency’s factual findings for substantial * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. evidence, see Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), and the legal standard it applied de novo, Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023), we grant in part and deny in part the petition for review. 1. Montes contends that the agency failed to consider the appropriate factors and proper evidence—in particular, his mental health—in evaluating whether his crime qualified as particularly serious for purposes of asylum and withholding of removal. 1 See Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020); see also Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018) (holding that the BIA’s “rationale—that evidence of an individual’s mental condition at the time he or she committed the crime of conviction is categorically irrelevant—is unreasonable”). We disagree. The IJ’s discussion of the crime indicates that she fully understood and considered the nature and impact of Montes’s mental health condition at the time of the crime. Montes points to several lines in the IJ’s decision which, he contends, show that the IJ either disregarded his mental health condition or qualified his offense as particularly serious because he committed it during a schizophrenic episode. For example, the IJ concluded that “the danger the respondent posed to the community at the time remains the same as if he were not suffering from hallucinations.” 1 A particularly serious crime renders a noncitizen categorically ineligible for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding). 2 Read in context, however, the IJ’s statements demonstrate that she took into account Montes’s mental state and level of intent when committing the crime in accordance with Gomez-Sanchez, and nevertheless concluded that he posed a danger to the community. See Matter of B-Z-R-, 28 I. & N. Dec. 563, 566 (Att’y Gen. 2022) (“[A]n individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply.”). The IJ thus applied the correct legal standard in concluding that Montes’s crime qualified as particularly serious. That conclusion ends …
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