FILED NOT FOR PUBLICATION MAR 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL ANGEL SILVA-PIMENTEL, No. 20-70152 Petitioner, Agency No. A098-269-182 v. MEMORANDUM* MERRICK GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2021 San Francisco, California Before: BERZON, CHRISTEN, and BADE, Circuit Judges. Dissent by Judge BADE Petitioner Miguel Angel Silva-Pimentel, a native and citizen of Mexico, petitions for review of an Immigration Judge’s (IJ) order, issued at the reasonable fear stage, that determined Silva-Pimentel had not demonstrated a reasonable fear he will be tortured if he is removed to Mexico. We have jurisdiction pursuant to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 8 U.S.C. § 1252. We grant the petition and remand to the agency to consider petitioner’s application for relief pursuant to the Convention Against Torture (CAT). Because the parties are familiar with the facts, we recite only those necessary to resolve the petition. We review the IJ’s factual findings for substantial evidence, and “must uphold the IJ’s conclusion that [Silva-Pimentel] did not establish a reasonable fear of torture unless, based on the evidence, ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). Pursuant to 8 C.F.R. § 1208.31(c), an “alien shall be determined to have a reasonable fear of . . . torture if the alien establishes a reasonable possibility . . . that he or she would be tortured in the country of removal.” “Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him or her for an act he or she or a third person has committed or is suspected of having committed . . . or for any reason based on discrimination of any kind.” 8 C.F.R. § 208.18(a)(1). Under CAT, a person must demonstrate that torture was “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.” Zheng v. Ashcroft, 332 F.3d 2 1186, 1188 (9th Cir. 2003) (emphasis omitted) (quoting 8 C.F.R. § 208.18(a)(1)). When assessing a CAT claim, the agency must consider “all evidence relevant to the possibility of future torture,” including: (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 (iv) Other relevant information regarding conditions in the country of removal. 8 C.F.R. § 208.16(c)(3). The …
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