Mariela Jovanni Plancarte Sauceda; Josmar Jose Plancarte Sauceda v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIELA JOVANNI PLANCARTE
SAUCEDA; JOSMAR JOSE PLANCARTE
SAUCEDA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-73312
Agency Nos.
A202-097-301
A202-097-302
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 10, 2021
Seattle, Washington
Filed August 20, 2021
Before: William A. Fletcher, Paul J. Watford, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher

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SUMMARY*
Immigration
Granting Mariela Plancarte Sauceda’s petition for review
of a decision of the Board of Immigration Appeals affirming
the denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture,
and remanding, the panel held that the Board’s rejection of
Plancarte’s proposed particular social group of “female
nurses” on the ground that “nursing” is not an immutable
characteristic was unreasonable, and that substantial evidence
did not support the Board’s finding of no governmental
involvement or acquiescence in a drug cartel’s actions forcing
her to provide them medical services.
The panel first concluded that venue under 8 U.S.C.
§ 1252(b)(2) was proper in the Ninth Circuit where: (1) the
immigration judge in this case formally transferred venue
from Salt Lake City to Boise; (2) thereafter Plancarte never
physically appeared in Salt Lake City, but rather remained in
Boise; (3) the IJ indicated that proceedings were conducted
in Boise, and the Board held that proper venue was in the
Ninth Circuit; (4) both final hearing notices designated Boise
as the location for the final hearing; and (5) the statute
expressly allows any of the participants in a removal hearing
to appear at the designated hearing location by “video
conference,” pursuant to 8 U.S.C. § 1129a(b)(2)(A)(iii), and
the IJ and the government attorney elected to do so from Salt
Lake City.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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PLANCARTE SAUCEDA V. GARLAND 3
Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),
the Board concluded that “female nurses” were not a
cognizable “particular social group” because being a nurse,
like being a taxi driver, is not an immutable characteristic.
The panel held that the Board erred by simply citing Matter
of Acosta, and failing to provide any meaningful analysis
about the immutability of “female nurses.” The panel
explained that in contrast to Acosta, Plancarte cannot avoid
compulsion by the cartel simply by changing jobs, because
even if she ceased employment as a nurse, she would still be
a nurse, as she has received specialized medical training and
has a professional license as a nurse. Moreover, the cartel
targeted Plancarte precisely because of her specialized
nursing skills, and threatened her and her family with torture
and death to force her to use those skills to provide medical
treatment to the cartel. Thus, regardless of whether she
would continue to work as a licensed nurse, Plancarte lacks
“the power to change” the immutable nursing
characteristics—her medical knowledge and nursing
skills—that make her important to the cartel. The panel
therefore granted the petition with respect to Plancarte’s
asylum and withholding of removal claims, and remanded for
consideration of the other required characteristics of her
proposed particular social group of “female nurses.”
Turning to Plancarte’s CAT claim, the panel concluded
that the Board’s decision ignored uncontradicted record
evidence showing both acquiescence and direct involvement
by government officials. The panel held that substantial
evidence therefore compelled the conclusion that there was
official involvement and acquiescence in the cartel forcing
Plancarte to provide medical treatment to cartel members.
The panel granted the petition with respect to CAT, and
remanded for a determination whether the likelihood of

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PLANCARTE SAUCEDA V. GARLAND 4
torture if Plancarte were returned to Mexico is sufficient to
warrant CAT relief.
COUNSEL
Vallerye Anderson (argued), Garcia & Anderson,
Sacramento, California, for Petitioners.
Timothy Bo Stanton (argued), Trial Attorney; Anthony P.
Nicastro, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
Mariela Plancarte Sauceda and her minor son petition for
review of a Board of Immigration (“BIA”) order affirming
the denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). Plancarte, a licensed nurse, claims she was forced
to provide medical services to drug cartel members, both at
and outside of the hospital where she worked. Plancarte
ultimately fled to the United States.
The BIA agreed with Plancarte that the Immigration
Judge (“IJ”) erred by not considering her proposed particular
social group of “female nurses,” but it deemed the error
harmless after determining that her occupation did not qualify
because in its view, being a nurse is not an immutable
characteristic. The BIA did not reach the question whether

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PLANCARTE SAUCEDA V. GARLAND 5
the proposed social group is sufficiently particular and/or
socially visible, and it failed to analyze whether Plancarte was
persecuted on account of her membership in this group. The
BIA also affirmed the IJ’s denial of relief under CAT.
We first address venue and hold that the Ninth Circuit is
the proper venue for this petition for review because Boise,
Idaho, is the place “in which the immigration judge
completed the proceedings.” See 8 U.S.C. § 1252(b)(2). We
next address the substance of Plancarte’s petition and hold
that (1) the BIA’s rejection of the proposed particular social
group of “female nurses” on the ground that “nursing” is not
an immutable characteristic was unreasonable, and (2) the
BIA’s CAT finding that there was no governmental
involvement or acquiescence in the cartel’s actions is not
supported by substantial evidence.
We grant the petition and remand to the BIA.
I. Background
A. Plancarte’s Evidence
The IJ found Plancarte’s removal hearing testimony
credible, and the BIA left this finding undisturbed. “We
therefore accept the following facts from her testimony as
true.” Davila v. Barr, 968 F.3d 1136, 1139 (9th Cir. 2020);
Garland v. Dai, 141 S. Ct. 1669, 1678 (2021) (holding that
reviewing courts may only treat an asylum seeker’s testimony
as credible if the agency first finds the applicant credible).
We accept as true both her oral and written testimony.
Plancarte is a licensed nurse from Arteaga, Michoacán,
Mexico. She obtained the position after the Mayor of

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Arteaga recommended her to Dr. Tello, the director of the
hospital. She wrote in her asylum application that the Mayor
recommended her for the position “because I had treated
cartel members before in silence and the Mayor wanted to
keep me there to continue to work on cartel members.”
Early in her employment at the hospital, Dr. Tello came
to Plancarte’s home. He was accompanied by cartel members
dressed in bulletproof vests and “belts with straps and
knives.” Dr. Tello told Plancarte they were going to “heal
some people.” Plancarte told the men she was off duty. One
cartel member, known as “El Rojo,” said, “[W]e are not
asking if you want to go. You are going.”
The men took Plancarte to an aviation field, blindfolded
her, and tied her hands with rope. They changed vehicles at
the field and took her to a cabin. Once there, the men took
off Plancarte’s blindfold and untied her hands. There were
three people with bullet wounds in the cabin. Plancarte was
told to treat them.
El Rojo then took Plancarte to another cabin. Inside,
there were three injured people who appeared to have been
kidnapped. She saw three men “gang raping a young
woman.” They also raped her with a “PVC pipe and tree
branches.” “They made me watch and told me this would
happen to me if I disobeyed them. I saw that the woman was
unconscious, bleeding out, and dying, and I could not do
anything to save her so she died.” El Rojo threatened
Plancarte’s family with violence and told Plancarte that the
cartel knew where she lived, knew where her family lived,
and knew everything about her.

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Plancarte was later forced to care for cartel members and
their family members at the hospital. The cartel members had
private rooms, special guards, and no identifying paperwork.
The police protected them by guarding the entrance to the
hospital. Upon discharge, the police escorted the cartel
members and their families out of the hospital.
On a later occasion, El Rojo and two other men came to
Plancarte’s home “in a hurry” and said, “[L]et’s go.”
Plancarte had her infant son in her arms. She told the men
she needed to set down her son. One of the men “snatched”
Plancarte’s son from her arms and gave him to Plancarte’s
mother. Another man pointed his gun at her mother and her
son, and said that he was not joking.
Plancarte was blindfolded, tied up, and taken to a house.
Inside the house, Plancarte saw that two cartel members, El
Rojo’s brother and another man, were injured. Dr. Tello and
three or four other people were also inside the house. At the
insistence of the cartel members, Plancarte treated the
wounded men. She was repeatedly threatened with violence
if she said anything about what she was being forced to do.
“[T]hey said to me that I was going to go through the same
thing [as] the girl I had seen, of how they killed her, of how
they tortured her. . . . They would say that they would have to
kill my mom or my son[.]”
On a final occasion, Plancarte initially refused to go to an
off-site location. Cartel members grabbed her and beat her
until she bled, kidnapped her son, and forced her into a
vehicle. Plancarte was taken to a house where there was a
man who had been shot twice, in the stomach and the foot.
Plancarte told the cartel members that she would do whatever
they asked as long as she got her son back. After Plancarte

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treated the man, the cartel members took her back to her
home at about 10:00 or 11:00 that night. Her son was there
when she arrived.
After this last episode, Plancarte fled to the United States.
B. Procedural History
When Plancarte arrived in the United States, she
immediately expressed her fears to immigration officials
about returning to Mexico. However, she did not file a
formal application for asylum until more than a year after her
entry into the United States.
In March 2018, the IJ issued a written decision denying
Plancarte’s applications for asylum, withholding of removal,
and relief under CAT. The IJ concluded that Plancarte’s
asylum application was untimely1 and that she was therefore
ineligible for asylum. The IJ denied withholding of removal
on the ground that “women who have been forced to work for
the cartel who are skilled labor” and “women forced to work
for the cartel because of their specialized skills who have
subsequently refused to work for the cartel” did not qualify as
particular social groups. The IJ failed to discuss Plancarte’s
proposed social group of “female nurses.” The IJ denied
CAT relief on the ground that Plancarte had not established
that it was more likely than not that she would be tortured by,
or with the acquiescence of, a Mexican public official. The
IJ wrote, “There is no evidence that public officials were
1 Plancarte argues she is eligible for an exception to the one-year
filing deadline under Mendez-Rojas v. Johnson, No. C16-1024, 2017 WL
1397749 (W.D. Wash. Jan. 10, 2017). The government does not dispute
this.

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PLANCARTE SAUCEDA V. GARLAND 9
involved in her being pressed into servitude for the cartel as
a nurse.”
On appeal, the BIA held that the IJ erred by not
considering Plancarte’s proposed particular social group of
“female nurses,” but that the error was harmless. In the view
of the BIA:
In light of prior precedent decisions, gender
can be an immutable characteristic. . . .
However, with respect to “nurses,” or the
portion of that group regarding nurses, we
discussed a similar claim in Matter of Acosta,
19 I&N Dec. at 211, regarding members of a
taxi collective who refused to participate in a
guerilla-sponsored work stoppage. We held
that neither of these characteristics is
immutable because the group members could
avoid the threats either by changing jobs or by
cooperating in the work stoppages. Matter of
Acosta, 19 I&N Dec. at 234.
“[E]ven assuming the respondent’s eligibility to apply for
asylum,” the BIA found no nexus to a particular social group.
Because Plancarte had not established a particular social
group, the BIA affirmed the IJ’s denial of both asylum and
withholding relief. The BIA affirmed the IJ’s denial of CAT
relief on the ground that “respondent did not show that she is
more likely than not to be tortured, by or with the
acquiescence . . . of a government official upon return to
Mexico.” The BIA wrote, “The Immigration Judge . . . noted
that there is no evidence that Mexican public officials were
involved in the respondent being pressed into service for a
criminal organization as a nurse.”

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II. Standard of Review
Our review is limited to the BIA’s decision except where
the IJ’s opinion is expressly adopted. Cordon-Garcia v. INS,
204 F.3d 985, 990 (9th Cir. 2000). We review legal
conclusions de novo. Davila, 968 F.3d at 1141. We review
for substantial evidence factual findings underlying the BIA’s
determination that a petitioner is not eligible for asylum,
withholding of removal, or CAT relief. Id. To prevail under
the substantial evidence standard, the petitioner “must show
that the evidence not only supports, but compels the
conclusion that these findings and decisions are erroneous.”
Id.
III. Discussion
A. Venue
On March 10, 2017, Plancarte moved to change venue
from Salt Lake City, Utah (in the Tenth Circuit) to Boise,
Idaho (in the Ninth Circuit). The IJ granted the motion on
April 10, 2017. The Portland, Oregon, Immigration Court
initially had administrative control over the Boise location
but at some point the Salt Lake City, Utah, Immigration Court
assumed administrative control of the case. In April and June
2017, after the IJ granted the motion to change venue to
Boise, final hearing notices were sent to Plancarte. Although
the notices for the next two hearings were issued by the Utah
Immigration Court, the designated hearing location was
Boise. The final hearing, like the earlier hearings, was
conducted remotely. At that hearing, the IJ and counsel for
the government were in Salt Lake City. Plancarte, her
counsel, and the interpreter were in Boise.

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All orders were entered in the name of the Utah
Immigration Court, but the IJ specified that proceedings were
“being conducted at the Salt Lake City Court’s Boise Idaho
hearing location.” The relevant statute, 8 U.S.C.
§ 1252(b)(2), provides: “The petition for review shall be
filed with the court of appeals for the judicial circuit in which
the immigration judge completed the proceedings.” We must
determine whether the proceedings were “completed” in
Boise or Salt Lake City.
In Yang You Lee v. Lynch, 791 F.3d 1261, 1262 (10th Cir.
2015), the IJ conducted proceedings by video conference
from an Immigration Court in Dallas, Texas (in the Fifth
Circuit). For most of his Immigration Court hearings, Lee
was in Oklahoma (in the Tenth Circuit). Id. During the
penultimate hearing, the IJ told Lee that he would be
transported to Dallas for the final hearing, and that the
address of the Dallas Immigration Court would appear at the
top of the final hearing notice. Id. The notice for the final
hearing included the address of the Dallas Immigration Court,
but listed an Oklahoma City address as the location for the
hearing. Id. at 1262–63. In fact, however, Lee’s final hearing
occurred at a Dallas Immigration Court, where Lee was
physically present. Id. at 1263. The IJ issued his final order
of removal from the Dallas Immigration Court. Id.
The Tenth Circuit held that the Fifth Circuit was the
proper venue because “venue began and remained in Dallas.”
Id. at 1265. The court noted that “the IJ held the final hearing
in Dallas, Texas; Mr. Lee and the government’s
representative physically appeared in Dallas for the final
hearing; and the IJ issued his final order from the Dallas
Immigration Court.” Id. at 1264.

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Lee is distinguishable from this case. Unlike in Lee, the
IJ in this case formally transferred venue from Salt Lake City
to Boise. Thereafter Plancarte never physically appeared in
Salt Lake City. Rather, she remained in Boise. The IJ
indicated that proceedings were conducted in Boise, and the
BIA held that proper venue is in the Ninth Circuit. Finally,
both final hearing notices designated Boise as the location for
the final hearing. The statute expressly allows any of the
participants in a removal hearing to appear at the designated
hearing location by “video conference,” see 8 U.S.C.
§ 1129a(b)(2)(A)(iii), and here the IJ and the government
attorney elected to do so.
A 2007 proposed regulation of the Executive Office for
Immigration Review provides that “venue shall lie at the
place of the hearing as identified on the charging document
or initial hearing notice, unless an immigration judge has
granted a change of venue to a different location.”
Jurisdiction and Venue in Removal Proceedings, 72 Fed. Reg.
14494, 14494 (Mar. 28, 2007). “[T]he designated hearing
location remains unaffected even if an immigration judge
from a different location is conducting the hearing by video
conference, or if the records in the case are filed with, and
maintained by, an administrative control court in a different
city.” Id. Under Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944), a proposed regulation is “entitled to respect” if it has
the “power to persuade.”
The Lee court declined to defer to the proposed regulation
because it would have resulted in an anomaly—namely, that
venue would have been in the Tenth Circuit because the final
hearing notice listed Oklahoma City as the final hearing
location even though the record showed that the IJ conducted
the proceedings from Dallas, where Lee was present for the

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final hearing. Lee, 791 F.3d at 1266. Here, by contrast, the
proposed regulation addresses the precise situation at issue.
As contemplated by the proposed regulation, once venue was
transferred to Boise, it remained there despite the fact that the
IJ was in Salt Lake City.
We therefore conclude that venue under 8 U.S.C.
§ 1252(b)(2) is proper in the Ninth Circuit.
B. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal
bears the burden of establishing eligibility. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1229a(c)(4)(A). To be eligible for
asylum, the applicant must show that “(1) [her] treatment
rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the
persecution was committed by the government, or by forces
that the government was unable or unwilling to control.”
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010); see also 8 U.S.C. § 1101(a)(42)(A). To be eligible for
withholding of removal, an applicant must demonstrate that
her life will be “threatened in that country because of [her]
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
Both forms of relief depend on a finding that the applicant
was harmed, or threatened with harm, on account of a
protected ground. One such ground is that the applicant is a
member of a particular social group. An applicant who
requests asylum or withholding of removal based on
membership in a particular social group must establish that
the group is: “(1) composed of members who share a
common immutable characteristic, (2) defined with

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PLANCARTE SAUCEDA V. GARLAND 14
particularity, and (3) socially distinct within the society in
question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237
(BIA 2014)).
“The term ‘particular social group’ is ambiguous.”
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.
2013) (en banc). “The BIA’s construction of ambiguous
statutory terms in the [Immigration and Nationality Act]
through case-by-case adjudication is entitled to deference
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984).” Id. at 1087. Under
Chevron, we must accept reasonable constructions of
ambiguous statutory terms, “even if we believe the agency’s
reading is not the best statutory interpretation.” Id.; see also
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020)
(“Because we have already concluded that the phrase
‘particular social group’ is ambiguous, we must adhere to an
agency interpretation of that term, so long as it is reasonable.”
(citation omitted)).
The BIA has specified the elements of a particular social
group in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA
2014), and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA
2014). Relevant to the petition before us, the BIA has
defined “immutable” to mean a characteristic “that the
members of the group either cannot change, or should not be
required to change because it is fundamental to their
individual identities or consciences.” Matter of W-G-R-, 26
I. & N. at 212 (quoting Matter of Acosta, 19 I. & N. Dec. 211,
233 (BIA 1985)). The “critical requirement” is that the
defining characteristic of the group be something that “either
cannot be changed” or “should not be required to [be]
change[d] in order to avoid persecution.” Id. at 213.

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Here, the BIA concluded that “female nurses” are not a
cognizable “particular social group” because being a nurse,
like being a taxi driver, is not an immutable characteristic.
However, rather than provide any meaningful analysis about
the immutability of “female nurses,” the BIA simply cited
Matter of Acosta, 19 I. & N. Dec. at 233. This alone was
error. See Diaz-Reynoso, 968 F.3d at 1086 (“The dissent’s
reliance on these decisions reflects its mistaken premise that
the rejection of a social group in one case suggests that a
similar group may be rejected summarily in another. . . .
[This] contravenes binding authority establishing that whether
a particular social group is cognizable ‘requires a fact-
specific inquiry based on the evidence in a particular case.’”)
(quoting Matter of L-E-A-, 27 I. & N. Dec. 581, 591 (A.G.
2019), vacated on other grounds by 28 I. & N. Dec. 304
(A.G. 2021)); see also Pirir-Boc v. Holder, 750 F.3d 1077,
1084 (9th Cir. 2014) (“To determine whether a group is a
particular social group for the purposes of an asylum claim,
the agency must make a case-by-case determination as to
whether the group is recognized by the particular society in
question.”).
Further, there are significant—and determinative—
differences between Acosta and this case. In Acosta, the
petitioner argued that he was a member of a particular social
group comprising members of a taxi driver cooperative in El
Salvador. 19 I. & N. Dec. at 232. The BIA rejected the
claimed group after finding that the identifying characteristics
of the group—working as a taxi driver and refusing to
participate in guerrilla-sponsored work stoppages—were not
immutable because group members could avoid the asserted
harm by either changing jobs or cooperating with the work
stoppages. Id. at 234.

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In contrast to Acosta, Plancarte cannot avoid compulsion
by the cartel simply by changing jobs, because even if she
ceased employment as a nurse, she would still be a nurse.
Plancarte has received specialized medical training and has a
professional license as a nurse. The cartel targeted Plancarte
precisely because of her specialized nursing skills. It
threatened her and her family with torture and death to force
her to use those skills to provide medical treatment to the
cartel.
As a licensed nurse, Plancarte is in a very different
position from a taxi driver. Unlike the skills necessary to
drive a car, possessed by most adults, professional nursing
skills are not shared by the general population. Plancarte’s
skills make her uniquely valuable to the cartel in a way that
taxi drivers are not. Even if she changed her profession, she
would still remain valuable to the cartel because she would
retain her medical knowledge and nursing skills. Thus,
regardless of whether she would continue to work as a
licensed nurse, she would remain a target of the cartel.
Plancarte is therefore unlike the taxi drivers in Acosta. She
lacks “the power to change” the immutable nursing
characteristics— her medical knowledge and nursing
skills—that make her important to the cartel.
We hold that the BIA’s conclusion that the proposed
particular social group of “female nurses” lacks an immutable
characteristic was unreasonable. We therefore grant the
petition with respect to Plancarte’s asylum and withholding
of removal claims, and remand for consideration of the other
required characteristics of her proposed particular social
group of “female nurses.” Because the BIA did not reach
other questions relevant to Plancarte’s asylum and
withholding claims, we also do not reach them.

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C. CAT Relief
To establish entitlement to protection under CAT, an
applicant must show “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); Kamalthas v. I.N.S.,
251 F.3d 1279, 1284 (9th Cir. 2001). The torture must be
“inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity
or other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1).
The IJ concluded that Plancarte was ineligible for CAT
relief because she failed to show that it was more likely than
not she would be tortured in Mexico by, or with the consent
or acquiescence of, a public official. The BIA affirmed the
IJ, concluding that Plancarte had not shown government
involvement or acquiescence.
“Where the Board 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 cannot stand.” Castillo v. Barr, 980 F.3d 1278,
1283 (9th Cir. 2020) (alteration in original) (quoting Cole v.
Holder, 659 F.3d 762, 772 (9th Cir. 2011)); see also 8 C.F.R.
§ 208.16(c)(3) (requiring the BIA to consider “all evidence
relevant to the possibility of future torture”); Aguilar-Ramos
v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of
the IJ and the BIA to consider [relevant evidence] constitutes
reversible error.”). “Relevant evidence includes the
petitioner’s testimony and country conditions evidence.”
Parada v. Sessions, 902 F.3d 901, 915 (9th Cir. 2018). A
petitioner’s credible testimony “may be sufficient to sustain
the burden of proof without corroboration.” 8 C.F.R.

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§ 1208.16(c)(2). Where, as here, the BIA does not expressly
state that it conducted de novo review and its order indicates
it gave the IJ’s decision significant weight, we will review the
IJ’s decision “as a guide to what lay behind the BIA’s
conclusion.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052,
1058 (9th Cir. 2006) (citation omitted).
Relying on the findings of the IJ, the BIA concluded that
Plancarte had not shown a likelihood of torture with the
acquiescence or involvement of government officials. The
BIA’s conclusion ignores uncontradicted record evidence
showing both acquiescence and direct involvement.
The relevant evidence includes Plancarte’s written
application and oral testimony, exhibits, and 2016 country
conditions reports. Plancarte wrote in her asylum application
and testified that the police were involved in the medical care
of cartel members, and that law enforcement corruption is a
serious and widespread problem in Mexico. She also
submitted country condition evidence corroborating her
testimony. Critically, the agency concluded that there was
“no evidence” that “Mexican officials were involved” in
Plancarte’s “being pressed into service by a criminal
organization as a nurse.” That conclusion is directly
contradicted by evidence in the record. Plancarte’s written
application states that the Mayor recommended she be hired
by the hospital because he wanted her to provide medical
treatment to cartel members.
We hold that substantial evidence compels the conclusion
that there was official involvement and acquiescence in the
cartel forcing Plancarte to provide medical treatment to cartel
members. We therefore grant Plancarte’s petition with
respect to CAT, and remand for a determination whether the

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likelihood of torture if she were returned to Mexico is
sufficient to warrant CAT relief.
D. Due Process
Plancarte last argues that the BIA denied her due process
when it failed to remand her case to the IJ for failure to admit
key evidence. We lack jurisdiction to consider this argument
because Plancarte failed to exhaust it. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Conclusion
We grant Plancarte’s petition for review. With respect to
asylum and withholding of removal, we remand to allow
reconsideration of Plancarte’s proposed particular social
group, and to allow the agency to reach other issues it has not
yet addressed. With respect to CAT, we remand for a
determination whether the likelihood of torture is sufficient
to warrant relief.
Petition GRANTED and REMANDED.

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