Francisco Aguilar Torres v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO AGUILAR TORRES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1639
Agency No.
A092-526-201
MEMORANDUM*
FRANCISCO AGUILAR TORRES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-735
Agency No.
A092-526-201
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 26, 2024
Pasadena, California
Before: RAWLINSON, LEE, and BRESS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Francisco Aguilar Torres (Aguilar Torres), a native and citizen of Mexico,
petitions for review of the decisions of the Board of Immigration Appeals (BIA)
denying his applications for asylum, relief under the Convention Against Torture
(CAT), and cancellation of removal. We deny the petitions for review in part and
dismiss the petitions for review in part.
1. The BIA properly ruled that Aguilar Torres was not entitled to asylum
because his five proposed particular social groups comprised of “Mexican males
who exhibit symptoms associated with suffering” from “paranoid delusions,”
“unspecified delirium,” “cognitive impairments that affect executive functioning,”
“unspecified anxiety,” and “major depressive disorder” lacked particularity.
Reviewing this legal issue de novo, see Antonio v. Garland, 58 F.4th 1067, 1072
(9th Cir. 2023), we agree that the proposed groups are not “discrete” and lack
“definable boundaries” under the particularity requirement for cognizable
particular social groups. Andrade v. Garland, 94 F.4th 904, 911 (9th Cir. 2024)
(citation and internal quotation marks omitted). As the BIA observed, “the terms
‘symptoms associated with suffering’ from the listed conditions [were] general in
nature,” and could “encompass all possible symptoms of those conditions.” See id.
at 911-12 (holding that proposed social group comprised of “Mexicans with mental
health disorders characterized by psychotic features who exhibit erratic behavior”
lacked particularity because “the phrase may cover a range of conduct that varies

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in frequency, duration, and character”) (citation omitted). Aguilar Torres is not
entitled to asylum because each of his proposed social groups, whether premised
on the Diagnostic and Statistical Manual of Mental Disorders or Aguilar Torres’
psychological evaluation, are too “amorphous, overbroad, diffuse, [and]
subjective” to meet the particularity requirement. Id. at 911 (citation omitted).
In the alternative, Aguilar Torres is not entitled to asylum, as he failed to
establish an objectively reasonable fear of future persecution in Mexico. See
Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022). Contrary to Aguilar Torres’
assertions, we discern no legal or constitutional error in the BIA’s review of
Aguilar Torres’ future persecution claim. See Marcu v. I.N.S., 147 F.3d 1078,
1083 (9th Cir. 1998) (explaining that “[t]he BIA’s opinion demonstrates that it
heard the claim, considered the evidence, and decided against [Aguilar Torres].
No more was required.”); see also Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271
(9th Cir. 2001) (recognizing that “a petitioner may not create the jurisdiction that
Congress chose to remove simply by cloaking an abuse of discretion argument in
constitutional garb”).
2. Because the Immigration Judge (IJ) found Aguilar Torres removable due
to his commission of two crimes involving moral turpitude, see 8 U.S.C. §
1227(a)(2)(A)(ii), we must dismiss for lack of jurisdiction Aguilar Torres’
challenge to the factual findings underlying the determination that he failed to

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establish a well-founded fear of future persecution. See Coria v. Garland, No. 22-
970, -- F.4th --, 2024 WL 1164863, at *14 (9th Cir. Mar. 19, 2024); see also 8
U.S.C. § 1252(a)(2)(C).
3. Substantial evidence supports the agency’s denial of CAT relief because
Aguilar Torres does not face an individualized or aggregate risk of torture in
Mexico. See Rodriguez-Hernandez v. Garland, 89 F.4th 742, 746 (9th Cir. 2023)
(explaining that “[w]e review the BIA’s denial of CAT relief for substantial
evidence”). The agency sufficiently considered “the total probability that” Aguilar
Torres “will be tortured” in Mexico based on “all potential sources of and reasons
for” the purported torture in Mexico’s penal, rehabilitation, and mental health
institutions, as well as lack of medical care. Velasquez-Samayoa v. Garland, 49
F.4th 1149, 1154 (9th Cir. 2022), as amended (citation omitted) (emphasis in the
original). Moreover, substantial evidence supports the agency’s determination that
Aguilar Torres’ CAT claim was premised on an overly speculative and
hypothetical chain of events that would result in his torture in Mexico. See
Blandino-Medina v. Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (concluding that
the petitioner was not entitled to CAT relief based on “a series of worst-case
scenarios”); see also Andrade, 94 F.4th at 915 (explaining that “[b]ecause the
allegations of torture rest on a hypothetical chain of events, CAT relief cannot be
granted unless each link in the chain is more likely than not to happen”) (citation

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and internal quotation marks omitted). Thus, even “[c]onsidering the risks of
torture in the aggregate, [Aguilar Torres] has not shown that the record compels a
finding that he is likely to be tortured if returned to Mexico.” Andrade, 94 F.4th at
916.
4. Aguilar Torres does not demonstrate that his hearing “was so
fundamentally unfair that [he] was prevented from reasonably presenting his case,”
Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016) (citation and internal quotation
marks omitted), or any other colorable legal or constitutional error in the agency’s
denial of cancellation of removal. As a result, we lack jurisdiction over the
agency’s discretionary denial of cancellation of removal. See Figueroa Ochoa v.
Garland, 91 F.4th 1289, 1293 (9th Cir. 2024), as amended.
PETITIONS FOR REVIEW DENIED in part and DISMISSED in
part.1
1 Aguilar Torres’ motion to stay removal, Dkt. # 2 (No. 22-1639), is denied. The
temporary stay of removal shall remain in place until the mandate issues.

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