Walter Javier Alvarenga Romero v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13187
____________________
WALTER JAVIER ALVARENGA ROMERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A212-944-965
____________________
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2 Opinion of the Court 20-13187
Before J ILL PRYOR , L UCK , and B RASHER , Circuit Judges.
PER C URIAM :
Walter Alvarenga Romero petitions for review of the Board
of Immigration Appeals’s dismissal of his appeal of the immigration
judge’s order denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture. He ar-
gues that the board erred by affirming the denial of his asylum and
withholding of removal claims because the evidence compels a
finding that, if he were removed to his home country of El Salva-
dor, he would be persecuted on account of his membership in his
particular social group—individuals who suffer from a mental ill-
ness and behave erratically. After a thorough review of the record
and with the benefit of oral argument, we grant Alvarenga’s peti-
tion as to his claims for asylum and withholding of removal and
remand for further proceedings, but we deny it as to his claim un-
der the Convention Against Torture.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Alvarenga, a citizen of El Salvador, came to the United States
in 2007 when he was sixteen years old. In 2012, he began exhibiting
the symptoms of a mental illness. Alvarenga heard voices and ex-
perienced paranoia. His family called the police, who hospitalized
Alvarenga. He was later diagnosed with schizophrenia.
Following his diagnosis, Alvarenga’s symptoms re-emerged
whenever he refused to take his medication, and his family would
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20-13187 Opinion of the Court 3
have him hospitalized—often for weeks at a time. Alvarenga was
hospitalized four times between 2012 and 2017 because of his schiz-
ophrenia.
The Immigration Court Proceedings
In 2017, the Department of Homeland Security served Al-
varenga with a notice to appear before the Immigration Court. Al-
varenga conceded removability and the immigration judge sus-
tained the charge. Alvarenga then requested asylum, withholding
of removal, and relief under the Convention Against Torture. The
immigration judge denied Alvarenga relief and ordered him re-
moved to El Salvador.
Alvarenga appealed to the board, and the board remanded
the case to the immigration judge to determine whether Alvarenga
was competent, and, if necessary, to conduct a new hearing with
appropriate procedural safeguards. On remand, the immigration
judge determined that Alvarenga wasn’t competent to litigate his
own case and appointed counsel.
Alvarenga, now represented, then filed a second application
for asylum, withholding of removal, and relief under the Conven-
tion Against Torture. Alvarenga argued that he had a well-founded
fear of future persecution if he were removed to El Salvador on
account of his particular social group: individuals from El Salvador
who suffer from a mental illness and behave erratically.1 He
1 Alvarenga also proposed several alternate social groups as a basis for relief:
“Individuals in El Salvador who suffer from schizophrenia; Schizophrenic
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4 Opinion of the Court 20-13187
contended that El Salvador had a “horrific record” in dealing with
people suffering from severe mental illness and stigmatized mental
illness. This stigma rose to the level of persecution, Alvarenga
maintained, because he would be harmed by government officials
(the police, the military, and the staff in El Salvador’s mental health
institutions), and by gangs that the government was “unable and
unwilling to control.” Alvarenga also argued that he was likely to
be “singled out” for persecution because he wouldn’t receive ade-
quate treatment for his schizophrenia, he would end up homeless
because he had no family in El Salvador, and he would exhibit er-
ratic behavior attributable to his mental illness, which in turn
would cause gang members to notice and persecute him.
Alvarenga submitted reports from the United Nations and
other organizations describing the poor state of El Salvador’s men-
tal health facilities, the overuse of institutionalization, and the soci-
etal stigma against individuals with mental illnesses. Alvarenga
also submitted an affidavit from Dr. Samuel Nickels, an expert on
social conditions in El Salvador, describing the state of El Salvador’s
mental health facilities, the poor treatment of individuals who
individuals in El Salvador; Individuals in El Salvador diagnosed with paranoid
schizophrenia; Individuals from El Salvador who suffer from paranoid schizo-
phrenia and display erratic behavior; Individuals from El Salvador who suffer
from severe mental disabilities; Individuals from El Salvador who suffer [from]
paranoid schizophrenia without family support, such as schizophrenia [sic];
[and] Schizophrenic individuals in El Salvador without family support.”
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20-13187 Opinion of the Court 5
suffer from mental illnesses, and the heightened risks they face
from gang members and the police.
The immigration judge held a hearing on Alvarenga’s appli-
cation. Alvarenga testified about his mental illness, his history of
hospitalizations, his lack of family support in El Salvador, and his
fear of returning.
Dr. Nickels also testified in support of Alvarenga’s applica-
tion. He explained that if Alvarenga were to be hospitalized in El
Salvador’s primary mental health institution, he would likely be
subjected to involuntary electroconvulsive therapy.2 Dr. Nickels
explained that there were widespread instances of overcrowding
and medical neglect in the mental health institution: a common
sight included patients “behind bars,” wearing “no clothing,” or
just lying “on the cement floor in catatonic positions.”
Dr. Nickels explained that he believed Alvarenga would end
up homeless in El Salvador, which would make him particularly
susceptible to abuse by gang members and the police who would
interpret his erratic behavior as resistance or disrespect. Dr. Nick-
els testified that gang members were “known to get irritated with
these folks and just deal with them by stabbing or beating them
up,” and that “there is real physical abuse and, sometimes, death
and killings that result from the [mental] illnesses that these folks
2 Electroconvulsive therapy is a psychiatric treatment where a patient is anes-
thetized, fitted with an electric helmet, and then jolted with a pulse of electric-
ity running through the frontal lobe of the patient’s brain.
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6 Opinion of the Court 20-13187
have.” Dr. Nickels explained that although there are laws in El Sal-
vador prohibiting discrimination against the mentally ill, gang
members operate with impunity and the risk of violence was fur-
ther exacerbated by the ongoing gang wars.
When he was asked how people in El Salvador would know
that Alvarenga suffered from a mental illness, Dr. Nickels explained
that:
[T]hey may or may not know that the person has a
mental illness depending on whether they have any
education and understanding about what a mental ill-
ness is. What they will certainly be able to observe
and understand [is] that this person has bizarre behav-
iors . . . that would sort of stigmatize this person as
being loco, crazy or violent and so in that sense, they
would certainly be identifiable, what you and I would
call somebody with mental illness but people across
society might not use that term. They might just
simply say, “Yeah, he’s a crazy guy. Watch out for
him . . . .”
Dr. Nickels testified that this stigma put Alvarenga at a higher risk
of harm relative to someone who didn’t suffer from a mental ill-
ness.
The immigration judge again denied Alvarenga’s application
for asylum, withholding of removal, and relief under the Conven-
tion Against Torture. The immigration judge assumed that
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Alvarenga’s proposed particular social groups were cognizable, but
concluded that he was ineligible for asylum because Alvarenga
hadn’t demonstrated past persecution or a well-founded fear of fu-
ture persecution on account of a statutorily protected ground.3
The immigration judge found that Alvarenga and Dr. Nickels were
credible but explained that even though Alvarenga subjectively be-
lieved he would be persecuted, he had failed to show there was a
“nexus” between any future persecution and his mental illness.
The immigration judge broke his “nexus” finding into three parts:
nexus as to El Salvador’s mental health system; nexus as to gang
members; and nexus as to the police.
As to persecution in El Salvador’s primary mental health in-
stitution, the immigration judge found that any harm to Alvarenga
would be “due to underfunding of mental health services and a lack
of trained professionals rather than a specific desire to harm those
with mental illnesses.” The immigration judge also found that Al-
varenga couldn’t show a “pattern or practice” of persecution by
mental health workers on account of his particular social group be-
cause any mistreatment by them would result from “an under-
funded system and lack of training.”
3 The immigration judge also determined that Alvarenga had not demon-
strated the harm he feared in El Salvador rose to the level of persecution. But
the board did not reach this issue and did not adopt the immigration judge’s
finding on this point. We therefore do not consider it.
See Gonzalez v. U.S.
Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (“We do not consider issues that
were not reached by the [board].”).
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As to persecution by gang members and the police, the im-
migration judge found that Alvarenga had not shown they would
know he had a mental illness; rather, he “could be harmed or in-
carcerated due to a police officer’s lack of training regarding those
with mental illnesses or a gang member’s lack of education regard-
ing those with mental illnesses.” The immigration judge also
found there was no pattern or practice of persecution by gang
members or the police on account of his particular social group be-
cause there was no evidence that people with mental illnesses were
“systematically targeted by gangs or police officers on account of
their mental disability, or that there is a heightened level of impu-
nity for individuals who commit crimes against the disabled.” The
immigration judge instead found that “the evidence suggest[ed]
that” Alvarenga “would face harm arising from conditions of civil
strife and general criminal activity,” which was not on account of
his mental illness.
Because Alvarenga hadn’t shown a well-founded fear of fu-
ture persecution on account of a protected ground, the immigra-
tion judge concluded that he was also ineligible for withholding of
removal and relief under the Convention Against Torture.
The Board of Immigration Appeals’s Decision
Alvarenga appealed to the board, and the board dismissed
his appeal. The board said that the immigration judge didn’t clearly
err in finding that Alvarenga’s particular social group wouldn’t be
“a central reason” for his persecution. The board also broke down
the nexus finding into three parts—nexus as to El Salvador’s
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20-13187 Opinion of the Court 9
psychiatric hospitals, nexus as to gang members, and nexus as to
the police.
As to El Salvador’s psychiatric hospitals, the board said that
the immigration judge didn’t clearly err in finding that any harm
Alvarenga would face in a mental health institution would be be-
cause of underfunding and a lack of training, rather than a specific
desire to harm those with a mental illness. As to gangs, the board
said there was no nexus because Dr. Nickels testified that people in
El Salvador would likely only recognize a person as having a men-
tal illness if they had an individualized education regarding mental
illness. The board also said that although Dr. Nickels testified that
Alvarenga’s symptoms and erratic behavior would increase the
chances of gang members targeting him, this evidence suggested
that Alvarenga would face only harms arising from conditions of
general criminal activity. As to the police, the board said that the
immigration judge didn’t clearly err in finding that any harm by the
police would be on account of frustration with Alvarenga’s behav-
ior “rather than specifically on account of [his] mental illness.”
Finally, the board determined that the immigration judge
didn’t clearly err in finding that there was no pattern or practice of
persecution by mental health professionals, gangs, or the police
against Alvarenga’s particular social group because there were laws
on the books prohibiting discrimination against the mentally ill,
and the evidence did not show that those with a mental illness were
“systematically targeted.” The board determined that because Al-
varenga had not established that any future persecution would “be
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10 Opinion of the Court 20-13187
on account of a protected ground,” he had failed to establish his
eligibility for asylum.
The board then concluded that because Alvarenga had failed
to establish his eligibility for asylum, he was also ineligible for with-
holding of removal. And because any mistreatment by mental
health workers would be caused by insufficient resources and inad-
equate training, the board said that Alvarenga was ineligible for re-
lief under the Convention Against Torture.
II. STANDARD OF REVIEW
We review the board’s decision as the final judgment unless
the board expressly adopts the immigration judge’s decision.
Gon-
zalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Where
the board agrees with the immigration judge’s reasoning, we re-
view the decisions of both the board and the immigration judge to
the extent they agree.
Id.
“[W]e review” the board’s “conclusions of law de novo and
factual determinations under the substantial evidence test.”
Id.
Under the substantial evidence test, we view the record in the light
most favorable to the board’s decision and draw all reasonable in-
ferences in the board’s favor.
Adefemi v. Ashcroft, 386 F.3d 1022,
1027 (11th Cir. 2004) (en banc). We “must affirm the [board]’s de-
cision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.”
Id. (quotation
marks omitted). The board’s “findings of fact” may be “reversed
by this court only when the record compels a reversal; the mere
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20-13187 Opinion of the Court 11
fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.”
Id.
“Whether a petitioner has established a sufficient nexus between
persecution and a statutorily protected ground is a question of fact
and therefore reviewed under the substantial evidence test.”
Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1373 (11th Cir. 2021).
III. DISCUSSION
Alvarenga argues that the board erred in affirming the im-
migration judge’s denial of his claims for asylum, withholding of
removal, and relief under the Convention Against Torture. We
address each of Alvarenga’s claims below.
Asylum and the Nexus Requirement
We focus on the narrow question of nexus—the sole basis
for the board’s affirmance of the immigration judge’s denial of Al-
varenga’s asylum claim. Alvarenga argues that Dr. Nickels’s testi-
mony compelled the conclusion that his mental illness would be
“one central reason” he would suffer persecution at the hands of
three different groups: gang members, the police, and mental
health professionals. We agree with Alvarenga as to the first group.
The evidence in this case—unrefuted by the government in any
way—was that gang members likely would intentionally target and
attack Alvarenga because of his mental illness and because they
would identify him as “crazy” or “loco.” This undisputed evidence
compels the conclusion that “one central reason” for his
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12 Opinion of the Court 20-13187
persecution by gang members if he returned to El Salvador would
be his particular social group.
An asylum claim requires the applicant to prove that: (1) he
was previously persecuted “on account of race, religion, national-
ity, membership in a particular social group, or political opinion,”
or (2) he has a “well-founded fear” of future persecution “on ac-
count of” a protected ground. 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1); 8 C.F.R. § 208.13(a), (b). Because Al-
varenga’s mental illness emerged after he came to the United
States, this is a “well-founded fear” case.
To be eligible for asylum, an applicant “must show a nexus
between the alleged persecution and a protected status—‘that race,
religion, nationality, membership in a particular social group, or
political opinion was or will be at least
one central reason for per-
secuting the applicant.’”
Murugan v. U.S. Att’y Gen., 10 F.4th 1185,
1195 (11th Cir. 2021) (quoting 8 U.S.C. § 1158(b)(1)(B)(i));
see also
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir.
2021) (explaining that the “causal element” of an asylum claim is
“known as the nexus requirement”).
We have said that a “reason is central if it is ‘essential’ to the
motivation of the persecutor.”
Sanchez-Castro, 998 F.3d at 1286
(citation omitted). “In other words, the protected ground cannot
play a minor role” in the applicant’s “fears of future mistreatment.
That is, it cannot be incidental, tangential, superficial, or subordi-
nate to another reason for harm.”
Id. (quotation omitted). Thus,
any “feared future persecution must be at least in significant part
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20-13187 Opinion of the Court 13
‘because of’ the protected ground.”
Id. (quoting
Rodriguez Mo-
rales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007)). An ap-
plicant can satisfy the nexus requirement “by presenting ‘specific,
detailed facts showing a good reason to fear that he . . . will be
sin-
gled out for persecution on account of’ such [protected] ground.”
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009)
(quoting
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005)).4
Here, because the board “considered only the nexus require-
ment, we review only whether substantial evidence supports its
finding that [Alvarenga] did not satisfy that requirement.”
See
Sanchez-Castro, 998 F.3d at 1286. “We do not consider whether
[Alvarenga] . . . has a well-founded fear of future persecution,” or
whether his proposed particular social group was valid.
See id. In
other words, the only thing we consider as to Alvarenga’s asylum
claim is the question of nexus.
The board and immigration judge found, for two reasons,
that Alvarenga failed to establish a nexus between future persecu-
tion by gangs and his particular social group. First, they said that
4 An applicant for asylum can also prove nexus “if he can establish a pattern or
practice of persecution of a group of which he is a member.”
Mehmeti, 572
F.3d at 1200 (citing 8 C.F.R. § 208.13(b)(2)(iii)). Because we conclude that that
the record “compels” a finding that Alvarenga would be singled out for perse-
cution in El Salvador on account of his particular social group,
see Adefemi,
386 F.3d at 1027, we do not address whether he established a pattern or prac-
tice of persecution targeting the group.
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14 Opinion of the Court 20-13187
people in El Salvador would “likely only recognize a person as hav-
ing a mental illness if [those people] had an individualized educa-
tion regarding mental illness.” And second, they said that the evi-
dence suggested Alvarenga would experience only “harm arising
from conditions of general criminal activity.”
As to the first finding, Alvarenga argues that Dr. Nickels’s
testimony established that gang members “would recognize [him]
as being ‘a crazy guy’” and would persecute him for that reason.
He contends that the board misconstrued Dr. Nickels’s testimony
that his potential persecutors “may not know that [a] person has a
mental illness,” because Dr. Nickels explained that his persecutors
would “certainly be able to observe and understand” mental illness,
regardless of whether they understood “mental illness” as a psychi-
atric concept. We agree. The record compels a finding that, even
if gang members would persecute Alvarenga because of his behav-
ior, any persecution would be “on account of” his particular social
group—people in El Salvador who suffer from mental illness and
exhibit erratic behavior.
Dr. Nickels’s affidavit and testimony, credited by the immi-
gration judge and relied on by the board, do not support the first
reason given by the board and the immigration judge—that gang
members would likely recognize a person as having a mental illness
only if they had an individualized education regarding mental ill-
ness. As Dr. Nickels explained, even if gang members lacked “any
education and understanding about what a mental illness is,” they
would readily recognize someone exhibiting symptoms of mental
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20-13187 Opinion of the Court 15
illness as “crazy.” While Alvarenga’s assailants might not use clin-
ical terms like “mental illness” to describe him, if a gang member
harmed Alvarenga because he was “crazy” or “loco,” that gang
member would persecute him “on account of” his mental illness.
Dr. Nickels’s report and testimony were the only evidence
in the record as to whether gang members would know that Al-
varenga was mentally ill. And the uncontested evidence, which the
parties relied on and which the immigration judge found credible,
was that they would. Dr. Nickels’s unrefuted testimony that gang
members would recognize Alvarenga as being a “crazy” person and
would persecute him because he was “crazy” compels a finding
that his particular social group would be “‘essential’ to the motiva-
tion of the persecutor.”
See id. (citation omitted).
As to the second reason given by the board and the immi-
gration judge to find no nexus—that the evidence suggested Al-
varenga would experience only “harm arising from conditions of
general criminal activity”—the record again compels a contrary
finding. Dr. Nickels explained that although everyone in El Salva-
dor faces some risk from gangs, the risk would be different and
greater for Alvarenga. Dr. Nickels discussed “numerous stories”
from El Salvador describing stabbings, extortion, and other violent
interactions between gang members and the mentally ill. Dr. Nick-
els explained that “gang members sometimes force persons with
cognitive impairments to collect ‘rent’ money for the gangs or de-
liver threats” to businesses or individuals. He also explained that
“[i]t is common for mentally ill persons” to be “physically beaten”
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16 Opinion of the Court 20-13187
or even “killed” by gang members who are “either frustrated by the
bizarre behaviors of persons with mental illness, or who are trying
to prove their worth by attacking vulnerable persons, including
those with mental illnesses.” Dr. Nickels recounted how new gang
members in El Salvador deliberately kill “vulnerable persons” in
“gang initiation[s]” to “climb the ladder of prestige within the
gang.”
People with mental illnesses in El Salvador are “easy to sin-
gle out,” Dr. Nickels explained, because “their behavior and physi-
cal condition [are] easily identified with persons that others call
‘crazy.’” For this reason, Dr. Nickels said Alvarenga was “high[ly]”
likely to be “singled out” by gangs for persecution. He described
how Alvarenga’s “conditions and behaviors would put him at risk
of inappropriately crossing gang territorial lines and being ques-
tioned, abused, or killed.” That risk would be greater for Alvarenga
than the average Salvadoran subject to general criminal activity,
Dr. Nickels said, because he would likely become homeless due to
the absence of family support, and “[h]omeless persons [in El Sal-
vador] are particularly vulnerable to experiencing violence,” in-
cluding deliberate and intentional targeting at the hands of danger-
ous gang members.
There’s no dispute that crime affecting everyone in a coun-
try is insufficient to establish nexus because it is not on account of
a particular social group.
See Sanchez-Castro, 998 F.3d at 1287–88
(explaining that the applicant failed to establish nexus because the
harm she feared was “not unique to her particular social group”
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20-13187 Opinion of the Court 17
and was “consistent with general criminal activity”). But the key
difference here is that Dr. Nickels’s affidavit and testimony are
compelling evidence—and the only evidence—that Alvarenga
would be targeted and victimized by gangs because of his mental
illness. Although everyone in El Salvador faces some risk from
gangs, the evidence presented by Alvarenga—unrebutted by the
government—shows that the risk faced by him is different and
greater than the risk faced by others. And the evidence shows that
gang members would deliberately target Alvarenga on account of
his particular social group because, as Dr. Nickels put it, he would
be “easy to single out” due to his severe mental illness.
We conclude that the evidence compels the finding that Al-
varenga would likely be “singled out” for persecution by gangs “on
account of” his particular social group.
See Mehmeti, 572 F.3d at
1200 (explaining that proof showing a good reason to fear being
singled out for persecution because of a protected ground satisfies
nexus). In other words, Alvarenga “established a sufficient nexus
between [the] persecution” he feared “and a statutorily protected
ground.”
See Jathursan, 17 F.4th at 1373. Because the board relied
solely on the absence of nexus to affirm the rejection of Alvarenga’s
asylum claim, we grant this part of his petition, vacate the board’s
denial of his asylum claim, and remand for further proceedings.
We reiterate that our holding today is a narrow one. We do
not address whether the harms Alvarenga feared amount to perse-
cution. We do not address whether his proposed particular social
group was a valid one. And we do not address whether Alvarenga
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18 Opinion of the Court 20-13187
established that any persecution would be “by government forces
or by non-government groups that the government cannot con-
trol.”
Sama v. U.S. Att’y Gen., 887 F.3d 1225, 1231–32 (11th Cir.
2018) (citation and quotation marks omitted). We simply hold that
the board and immigration judge erred in finding that Alvarenga
failed to establish a nexus between his particular social group and
his feared future persecution by gangs in El Salvador. We leave it
to the board to resolve the other issues implicated by Alvarenga’s
asylum claim that are not resolved here.
Withholding of Removal
Alvarenga argues that the immigration judge abused its dis-
cretion by failing to analyze his withholding of removal claim. But
an applicant who fails to establish his eligibility for asylum neces-
sarily fails to establish that he is eligible for withholding of removal.
Mehmeti, 572 F.3d at 1200. Thus, where an immigration judge
finds that an applicant is not entitled to asylum, the immigration
judge is “not obligated to make specific findings with respect to
withholding of removal.”
Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1249 n.3 (11th Cir. 2006).
Here, the board and immigration judge concluded that be-
cause Alvarenga was not eligible for asylum, he also was not enti-
tled to withholding of removal. Given that Alvarenga’s withhold-
ing of removal claim was based on the same facts as his asylum
claim, the board and immigration judge were not required to make
specific findings as to his withholding of removal claim.
See id.
But, because the board determined that Alvarenga was ineligible
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20-13187 Opinion of the Court 19
for withholding of removal only because he was ineligible for asy-
lum, granting Alvarenga’s petition as to his asylum claim also re-
quires that we grant his petition as to his withholding of removal
claim.
See Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239
(11th Cir. 2007) (explaining that because “the [immigration judge]
denied [the] application for withholding of removal based upon his
conclusion that she would not have established the less stringent
standard for asylum,” our decision vacating the denial of the asy-
lum claim also required vacating the denial of the withholding of
removal claim).
Convention Against Torture
Alvarenga argues that the board erred by rejecting his claim
for relief under the Convention Against Torture because any harm
he would suffer would not be inflicted with the specific intent to
torture him. He contends that, like the applicant in
Jean-Pierre v.
U.S. Attorney General, 500 F.3d 1315 (11th Cir. 2007), he would be
subjected to torture in a mental health institution with the acqui-
escence of the government in El Salvador.
To qualify for relief under the Convention Against Torture,
an applicant must show that it is “more likely than not that he
would be tortured by or with the acquiescence of a public official
in his home country.”
Gonzalez, 820 F.3d at 406;
see 8 C.F.R.
§ 1208.16(c)(2). Torture is “any act by which severe pain or suffer-
ing, whether physical or mental, is intentionally inflicted on a per-
son” in order to “obtain[] from him or her or a third person infor-
mation or a confession, punish[] him or her for an act he or she or
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20 Opinion of the Court 20-13187
a third person has committed or is suspected of having committed,
intimidat[e] or coerc[e] him or her or a third person, or for any rea-
son based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).
Because torture is “an extreme form of cruel and inhuman treat-
ment,” it doesn’t encompass “lesser forms of cruel, inhuman or de-
grading treatment or punishment.”
Id. § 1208.18(a)(2). For an act
to be torture, it “must be specifically intended to inflict severe phys-
ical or mental pain or suffering.”
Id. § 1208.18(a)(5).
Substantial evidence supports the board’s finding that any
harm that Alvarenga would suffer in a mental health institution
wouldn’t be inflicted on him with the specific intent to cause him
severe pain or suffering. Dr. Nickels testified that the mental health
institutions in El Salvador are woefully underfunded, and their staff
are poorly trained and unfamiliar with psychiatric “best practices.”
The deplorable conditions at the hospitals and outdated treatments
like electroconvulsive therapy wouldn’t be inflicted on Alvarenga
with the intent to harm him, but because of a lack of resources and
proper training. The record doesn’t compel a finding that the al-
leged harms Alvarenga would suffer in a mental health institution
amount to torture as defined under the Convention Against Tor-
ture.
See id. (providing that an act “must be specifically intended
to inflict severe physical or mental pain or suffering” to be torture).
Alvarenga’s case is not like
Jean-Pierre. There, we vacated
the board’s decision because it “failed to give reasoned considera-
tion to” the applicant’s Convention Against Torture claim.
Jean-
Pierre, 500 F.3d at 1326. Here, conversely, the board gave reasoned
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20-13187 Opinion of the Court 21
consideration to Alvarenga’s claim under the Convention Against
Torture and, as we explained, substantial evidence supported the
board’s finding that any harm he would suffer in a Salvadoran psy-
chiatric hospital wouldn’t be inflicted on him with the specific in-
tent to cause him severe pain or suffering.
Moreover, as the board observed, there are laws in El Salva-
dor prohibiting discrimination against the mentally ill. While those
laws may not effectively prevent all of Alvarenga’s mistreatment,
we cannot say that this amounts to acquiescence by the govern-
ment in El Salvador to torture.
See Reyes-Sanchez v. U.S. Att’y
Gen., 369 F.3d 1239, 1242–43 (11th Cir. 2004) (holding that a gov-
ernment that unsuccessfully attempts to apprehend those respon-
sible for torture does not “acquiesce” to torture). We therefore
deny Alvarenga’s petition as to this claim.
IV. CONCLUSION
Alvarenga’s petition for review is granted in part and denied
in part. We deny the petition as to Alvarenga’s claims for relief
under the Convention Against Torture. We grant the petition as
to Alvarenga’s claims for asylum and withholding of removal, va-
cate the decision of the board on these claims, and remand for fur-
ther proceedings consistent with this opinion.
PETITION GRANTED IN PART, DENIED IN PART,
AND REMANDED.
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