NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GUILLERMO AVILA-ARIAS, No. 20-71340 Petitioner, Agency No. A073-991-100 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2021 Pasadena, California Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,** District Judge. Partial Dissent and Partial Concurrence by Judge VANDYKE Petitioner Guillermo Avila-Arias (“Avila-Arias”) petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision denying his application for deferral of removal under the Convention Against Torture (“CAT”). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny it in part, and remand for further proceedings. When “the BIA agrees with the IJ decision and also adds its own reasoning, we review the decision of the BIA and those parts of the IJ’s decision upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We review factual findings for substantial evidence and “uphold the agency determination unless the evidence compels a contrary conclusion.” Id. at 1028. Where the BIA does not consider all the evidence before it, either by “misstating the record [or] failing to mention highly probative or potentially dispositive evidence,” its decision is legal error and cannot stand. Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011); Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020). 1. Substantial evidence supports the BIA’s determination that Avila-Arias’s past experiences do not rise to the level of torture. The BIA reviewed the record evidence, incorporated the IJ’s analysis, and added its own reasoning that the circumstances surrounding the death threats and attempted abduction Avila-Arias suffered did not amount to the “extreme and prolonged cruel and inhuman treatment” that define torture. See 8 C.F.R. § 1208.18(a). Avila-Arias does not identify record evidence that “compels a contrary conclusion,” Duran-Rodriguez, 918 F.3d at 1028, nor does he demonstrate legal error in the BIA’s examination of probative facts or interpretation of applicable law. 2 2. The BIA legally erred by misrepresenting record evidence and rejecting probative expert testimony without explanation in its determination that Avila- Arias could safely relocate within Mexico to avoid future harm. Relevant considerations for a CAT claim include evidence of safe internal relocation, evidence of mass violations of human rights in the country of removal, and other pertinent country conditions. Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (quoting 8 C.F.R. § 1208.16(c)(3)). Avila-Arias presented expert testimony from Dr. Alfonso Gonzales explaining why he could not relocate safely within Mexico. Dr. Gonzales described why La Union cartel viewed Avila-Arias to be a high priority target, that it …
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