Garcia-Botello v. Bondi

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 25, 2026
• Docket: 24-9507
• Status: Published

Opinion

Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 25, 2026

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

JAVIER GARCIA-BOTELLO,

Petitioner,

v. No. 24-9507

PAMELA J. BONDI 1, United States Attorney General,

Respondent.

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IMMIGRANT LEGAL DEFENSE; DISABILITY RIGHTS ADVOCATES; LAW PROFESSORS; HARVARD LAW SCHOOL PROJECT ON DISABILITY; NATIONAL IMMIGRANT JUSTICE CENTER; HARVARD IMMIGRATION AND REFUGEE CLINIC,

Amici Curiae. _________________________________

Petition for Review of an Order from the Board of Immigration Appeals _________________________________

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current Attorney General, Pamela J. Bondi, is automatically substituted for Merrick B. Garland, who was the Attorney General when Mr. Garcia-Botello filed his petition for review. Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 2

Carolyn M. Welter, Wheeler Trigg O’Donnell LLP, Denver, Colorado (Gabrielle L. Lombardi, Wheeler Trigg O’Donnell LLP, Denver, Colorado, and Laura Lunn, Director of Advocacy & Litigation, Rocky Mountain Immigrant Advocacy Network, Westminster, Colorado, with her on the briefs) for Petitioner.

Duncan T. Fulton, Trial Attorney (Erica B. Miles, Assistant Director, with him on the brief), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Jessica Zhang, Immigrant Legal Defense of Oakland, California, filed an amicus curiae brief on behalf of Immigrant Legal Defense, Disability Rights Advocates, and Law Professors, in support of Petitioner.

Steven H. Schulman, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., filed an amicus curiae brief on behalf of Harvard Law School Project on Disability, National Immigrant Justice Center, and Harvard Immigration and Refugee Clinic, in support of Petitioner. _________________________________

Before HOLMES, Chief Judge, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

HOLMES, Chief Judge. _________________________________

Javier Garcia-Botello, a Mexican citizen, petitions for review of an order by

the Board of Immigration Appeals (“BIA”) affirming the denial by an Immigration

Judge (“IJ”) of his application for relief from removal under the Convention Against

Torture (“CAT”). 2 Exercising jurisdiction under 8 U.S.C. § 1252, we deny the

petition for review. 3

2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. NO. 100-20, 1465 U.N.T.S. 113. 3 We grant Mr. Garcia-Botello’s motion to proceed in forma pauperis. See FED. R. APP. P. 24(b)(2). Furthermore, during the pendency of this appeal, this court entered a temporary stay of removal. See Order Granting Temporary Stay, 2 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 3

Mr. Garcia-Botello has remained in the United States unlawfully since 1998,

when at the age of thirteen he overstayed his temporary tourist visa. He came to the

attention of the Department of Homeland Security (“DHS”) when, after experiencing

profound behavioral changes wrought by injuries he sustained in a serious car

accident, he was convicted of assault. In 2018, the DHS charged him as removable to

Mexico for remaining in the United States beyond the expiration of his visa, in

violation of 8 U.S.C. § 1227(a)(1)(B). 4 Before the agency, he conceded his

removability, but he sought withholding of removal under the CAT. He argued that,

because of the disabling injuries he suffered in the car accident, he likely would be

institutionalized and tortured upon removal to Mexico. The IJ denied his application,

and the BIA affirmed.

Mr. Garcia-Botello now petitions this court for review of the BIA’s denial of

relief. 5 His petition raises four 6 challenges: (1) the BIA erred in failing to consider

No. 24-9507, at 1–2 (10th Cir., filed Aug. 8, 2025). The temporary stay entered by the court is lifted upon issuance of the mandate. 4 In pertinent part, it states: “Any alien who is present in the United States in violation of this chapter or any other law of the United States[] . . . is deportable.” 8 U.S.C. § 1227(a)(1)(B). Noncitizens who overstay their temporary tourist visa violate 8 U.S.C. § 1202(g). 5 Although the BIA affirmed the IJ’s denial of CAT relief, we refer throughout to the BIA as having denied relief because we review its single-member, brief order “as the final agency determination.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). 6 Mr. Garcia-Botello’s petition also raises two other challenges, but we decline to reach them.

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He firstly argues that the BIA erred in failing to consider his risk of torture from criminal organizations. But he failed to exhaust that argument before the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.”); Miguel-Pena v. Garland, 94 F.4th 1145, 1158 (10th Cir. 2024) (exercising discretion to consider § 1252(d)(1) exhaustion where, as here, government forfeited objection to failure to exhaust); see also Bonilla-Espinoza v. Bondi, 166 F.4th 51, 58 (10th Cir. 2026) (same). To be sure, Mr. Garcia-Botello submitted country conditions evidence before the IJ which described, as a general matter, the dangers criminal gangs posed to the public at large. However, his brief on appeal to the BIA only mentioned criminal organizations twice, in passing, in a subsection devoted to the risk of torture in penal settings. The subsection’s heading stated: “The abuses in the criminal justice system and violence perpetrated by criminal organizations also rise to the level of torture and must be aggregated with the likelihood of torture in the institutional setting.” R. at 129 (Resp’t’s Opening Br. on Appeal, filed May 15, 2020) (italicization omitted). Then, the subsection’s first paragraph concluded its discussion of “the abuses found in prison settings” by stating, “Finally, when criminal organizations kidnap, torture, and kill individuals for ransom or when they perceive them to be threats, the gruesome methods they use intentionally inflict severe pain and suffering and clearly rise to the level of torture.” Id. These two perfunctory references to criminal organizations were inadequate to administratively exhaust Mr. Garcia-Botello’s argument before this court that criminal organizations pose an independent risk of torture. See Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991) (“The failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies with respect to that question. . . .”); Birhanu v. Wilkinson, 990 F.3d 1242, 1253–54 (10th Cir. 2021) (finding failure to exhaust argument before BIA where noncitizen’s brief on appeal to BIA contained only two references to argument “without specifically explaining why [the argument] entitle[d] him to relief,” and therefore “did not fairly present his legal theory to the BIA”), vacated on unrelated grounds sub nom., Wolie Birhanu v. Garland, 142 S. Ct. 2862 (2022) (mem.); see also Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (finding failure to exhaust argument before BIA where noncitizen’s brief on appeal to BIA “did discuss the use of the Country Report for Macedonia,” but “did not make his current argument[,] . . . provided no legal basis for this argument, and [] was mentioned only in the context of [a different argument]”), abrogated on unrelated grounds by, Santos-Zacaria v. Garland, 598 U.S. 411, 413–14, 416 (2023); cf. Rangel-Fuentes v. Bondi, 155 F.4th 1138, 1147 (10th Cir. 2025) (“While the BIA is not obligated to develop arguments for litigants, it may also not turn a blind eye to the arguments plainly before it.” (emphasis added)).

He secondly argues that the BIA erred in failing to consider in the aggregate his risk of torture from multiple sources. Yet, as we conclude infra, the BIA did not 4 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 5

the entirety of his and his mother’s testimony; (2) the BIA erred in treating the

disjunctive governmental acquiescence requirement—that the torture be by a public

official or with their consent or acquiescence—as conjunctive; (3) substantial

evidence did not support the IJ’s factual finding, which the BIA affirmed, 7 that his

anticipated torturers would not possess the requisite specific intent; and (4) the BIA

erred in treating the governmental acquiescence requirement as being met only by

total failure to prevent or respond to torture.

We first recount the background facts giving rise to Mr. Garcia-Botello’s

removal proceedings. Next, we explain the procedural history leading up to his

petition for review. We then assess the merits of his challenges to the BIA’s denial

of CAT relief. And for the reasons that follow, we reject Mr. Garcia-Botello’s

challenges as unavailing and deny his petition for review.

err in affirming the IJ’s finding that all actors who might mistreat Mr. Garcia-Botello would lack the requisite specific intent “to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5) (“An act that results in unanticipated or unintended severity of pain and suffering is not torture.”). And to the extent that finding did not encompass criminal organizations, as we explained supra, that purported source of torture was not properly before the BIA. Thus, there was no risk of “torture” for the BIA to aggregate. 7 Because the BIA does not find facts in the first instance, but reviews the IJ’s factual findings for clear error, see 8 C.F.R. § 1003.1(d)(3)(i), we refer throughout to the factual findings as having been made by the IJ and “affirmed” or “adopted” by the BIA.

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I

In February 1998, at the age of thirteen, Mr. Garcia-Botello was admitted to

the United States from Mexico on a temporary tourist visa. 8 That May, his visa

expired, but he remained in the United States unlawfully. For a time, he led a

relatively normal life, graduating from high school, marrying his high-school

girlfriend, starting a family, and maintaining steady employment. In 2009, however,

he was involved in a serious car accident.

At the age of twenty-six, Mr. Garcia-Botello suffered life-altering injuries

when he was ejected from the passenger seat of a fast-moving car of which the driver

had lost control. He sustained severe and permanent spinal injuries, which now

require him to use a walker. And he suffered a traumatic brain injury (“TBI”) that

caused a “significant change to [his] personality and cognitive functioning [that was]

much worse than the physical impact.” R. at 365 (Psychological Evaluation – Decl.

of Brieanne Kidd Kohrt, PhD, dated Jan. 9, 2020).

Mr. Garcia-Botello’s post-accident behavior has been marked by agitation and

aggression. As a result, he has had “an increased number of encounters with the

police.” Id. at 366. His post-accident criminal history includes a 2012 arrest for

obstructing police and disturbing the peace; a 2014 arrest for damaging property and

disturbing the peace; another 2014 arrest for first-degree arson; four 2015 arrests for

assaulting a first responder, failure to appear, assaulting a peace officer, and violating

8 We derive these background facts from “uncontroverted parts of the record.” Ramos v. Bondi, 155 F.4th 1154, 1159 n.3 (10th Cir. 2025). 6 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 7

a protection order; and two 2016 convictions for assault by drugging. Following his

2016 convictions, the DHS initiated removal proceedings against him.

II

A

On November 29, 2018, the DHS filed a Notice to Appear, charging

Mr. Garcia-Botello as removable to Mexico for remaining in the United States

beyond the expiration of the temporary tourist visa on which he was admitted, in

violation of 8 U.S.C. § 1227(a)(1)(B).

B

On January 24, 2019, Mr. Garcia-Botello appeared before an Immigration

Judge for a hearing, where he admitted the factual allegations against him. The IJ

ordered that Mr. Garcia-Botello be removed to Mexico. However, the BIA remanded

the case to the IJ on August 2, 2019, based on concerns that Mr. Garcia-Botello was

not competent to participate in the removal proceedings. On September 19, 2019, the

IJ conducted a Judicial Competency Inquiry and found that Mr. Garcia-Botello was

not competent to represent himself. Accordingly, the IJ appointed counsel to

represent him.

On November 14, 2019, Mr. Garcia-Botello filed an application for

withholding of removal under the CAT pursuant to 8 C.F.R. § 1208.17. 9 In his

9 Mr. Garcia-Botello also applied for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3), but he conceded his ineligibility for that relief before the agency. 7 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 8

supporting declaration, Mr. Garcia-Botello averred that if he were sent back to

Mexico, he would “have no one there” and would be unable to “get around without a

wheelchair or a walker,” “hold a job,” or “manage basic care for [himself].” R. at

1253 (Attach. to Form I-589, dated May 19, 2019). “I would probably end up on the

streets,” Mr. Garcia-Botello continued, “where my behaviors would make me a

target.” Id. He feared being “killed,” “jailed,” or “forced into an institution” where

people are “treat[ed] . . . like animals” with “no rights and no way to fight it.” Id.

Mr. Garcia-Botello’s argument was essentially that the mistreatment he would

experience in Mexico satisfied the CAT’s definition of torture and would therefore

entitle him to protection in the United States.

In addition to his own statement, Mr. Garcia-Botello submitted as evidence in

support of his application for CAT protection a declaration from his mother; a report by

clinical psychologist Dr. Brieanne Kidd Kohrt; medical records; criminal records; and

country-conditions evidence.

On January 10, 2020, Mr. Garcia-Botello appeared before the IJ for a hearing on

his application for protection under the CAT. Mr. Garcia-Botello testified, and he also

presented testimony from Dr. Kohrt and his mother.

Mr. Garcia-Botello’s testimony exhibited his cognitive limitations: it was

repetitive and meandering, and he struggled to answer many of the questions put to

him. He did, however, answer basic questions about himself and the 2009 car

accident. He testified that he has been unable to work since the accident. He

remembered some details about his criminal history but could not remember other

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crimes at all. For example, he remembered an instance of spitting on a law

enforcement officer but could not remember his aggravated assault convictions.

Mr. Garcia-Botello testified that he was afraid to return to Mexico. His

testimony focused on his fears about past victimization of his family members by

cartels rather than his fear of disability discrimination: even when prompted as to the

latter, he testified only about his cousins who were killed and raped by criminals

seeking money from his family. He also testified that he has friends in Mexico but

no family there who could care for him, and that he did not believe he would be able

to find employment or appropriate medical care.

Dr. Kohrt’s testimony concerned a report that she had prepared after

evaluating Mr. Garcia-Botello the week prior. Based on her evaluation, Dr. Kohrt

diagnosed Mr. Garcia-Botello with Major Neurocognitive Disorder due to TBI with

behavioral disturbance and explained that his condition significantly diminished his

cognitive abilities and independence. In her report, Dr. Kohrt summarized

Mr. Garcia-Botello’s ongoing symptoms as follows:

He has significant executive functioning difficulties, which lead to him being impulsive, not understanding complex ideas, having difficulties with memory and concentration, and not being able to inhibit inappropriate behaviors, including his frequent use of profanity, outbursts of irritability and anger, and in the past, sexualized behavior. His emotions are very intense, and thus can become extremely agitated or angry, or extremely sad and hopeless. This is all consistent with the extent and location of his brain injury. This intense emotional lability in addition to his inability to inhibit behaviors, and his initial confusion and disorientation following the injury, appears to have led to an increase in unpredictable, and at times, aggressive behavior. While this was stabilized on medications, which included an antipsychotic and an antidepressant, his inability to

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understand the consequences of his behavior or the experience of others has significantly limited his judgement and ability to engage with others in a socially appropriate way. . . . [H]e does not possess the skills to independently inhibit this behavior.

R. at 373–74 (underlining omitted). Consistent with these symptoms, Dr. Kohrt

opined that “[t]he level of disability he experiences . . . is severe.” Id. at 374–75.

Although Mr. Garcia-Botello’s symptoms have, at times, stabilized with medication,

she continued, “it is unlikely that his condition will improve over time.” Id. at 375.

As a result of his condition, Dr. Kohrt assessed that Mr. Garcia-Botello is “unable to

live independently,” “care for himself, hold down a job, maintain adult relationships,

or engage fully in society,” and that he needs “ongoing and significant support from

his family in order to stay safe and healthy,” “significant monitoring and medical

attention,” and “psychiatric medication to maintain emotional and behavioral

stability.” Id. Dr. Kohrt also found that Mr. Garcia-Botello’s symptoms are

exacerbated by substance use, including alcohol and marijuana, which he has some

history of abusing.

Dr. Kohrt characterized Mr. Garcia-Botello’s interactions with police as

“consistent with his injury.” Id. at 374. “Without the necessary treatment and

supports,” she concluded, “he is at high risk for victimization by others, and will

likely have further incidents of bizarre, agitated or aggressive behavior that will

likely result in further interactions with the criminal justice system.” Id. at 377.

Pursuant to these findings, Dr. Kohrt testified that Mr. Garcia-Botello could

succeed in a highly structured, predictable, controlled environment, and that his care

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plan should include consistent monitoring from medical professionals, proper

medication, abstinence from drugs and alcohol, therapy, and trained caregiving. By

contrast, she testified that it would be “dangerous for him and probably for others” if

he were to live alone. Id. at 268.

Mr. Garcia-Botello’s mother, Hilda Botello Gallegos, 10 testified that before the

2009 accident, Mr. Garcia-Botello was a good son, a good student, a hard worker,

and a good friend. But, she explained, “in that accident[,] that son . . . died and a

new son was born.” Id. at 304. She testified that Mr. Garcia-Botello is unable to live

independently. Importantly, she testified that he often forgets to take his medication,

and that this has led to as many as forty incidents in which she has had to call

paramedics; many of these episodes have also involved law enforcement, and some

have led to arrests.

Ms. Botello Gallegos testified that there was no one in Mexico to care for her

son; her only family there was a brother who could not care for her son because he

was already caring for a daughter with special needs. The rest of her family left

Mexico for the United States, fleeing violence: she testified that in Mexico, her niece

was kidnapped, her nephew was kidnapped and killed, and another niece was

kidnapped and sexually abused. She averred that, in Mexico, there is “a lot of

violence” that “mostly comes from the government,” specifically “bad people in the

10 We note that Mr. Garcia-Botello’s Opening Brief refers to his mother as “Ms. Gallegos Botello” rather than Ms. Botello Gallegos. We use the latter because that is the name that she uses in her declaration. See R. at 284 (“My name is Hilda Botello Gallegos.”). 11 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 12

government,” id. at 311; however, she testified that neither she nor her son had been

previously harmed by a government official in Mexico. She stated that neither she

nor her family would move to Mexico if Mr. Garcia-Botello were deported because

of fears of violence. Indeed, Ms. Botello Gallegos testified that she has only returned

to Mexico to visit family on a few occasions since obtaining her immigration status

as a lawful permanent resident.

Mr. Garcia-Botello introduced as country-conditions evidence a series of

reports detailing investigations into torture and other human rights abuses in Mexico.

The reports were authored by organizations including the Inter-American

Commission on Human Rights (“IACHR”); Amnesty International; the United

Nations Special Rapporteur; the U.S. Department of State’s Bureau of Democracy,

Human Rights, and Labor; and Disability Rights International (“DRI”).

Mr. Garcia-Botello presented these reports as evidence that police, prison guards,

health-care workers, and criminal organizations engage in physical violence to obtain

confessions or information, to punish and humiliate victims, to extort money, and for

discriminatory purposes.

C

After considering the evidence presented and finding Mr. Garcia-Botello’s and

Ms. Botello Gallegos’s testimony to be credible, the IJ denied Mr. Garcia-Botello’s

application for protection under the CAT. The IJ held that Mr. Garcia-Botello did

not satisfy his burden to establish that he “more likely than not” risked torture in

Mexico by or with the acquiescence of a public official or person acting in an official

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capacity. Although the IJ made a finding that Mr. Garcia-Botello’s “erratic

behavior” and related criminal history in the United States indicated a “potential” for

similar encounters with law enforcement in Mexico, the IJ was not persuaded that

Mr. Garcia-Botello would more likely than not be detained or institutionalized. R. at

207. Similarly, the IJ found that even if Mr. Garcia-Botello were to face encounters

with Mexican law enforcement, he did not establish that he would more likely than

not face torture, as defined by the CAT.

In particular, the IJ found that Mr. Garcia-Botello did not establish that he was

likely to experience harm resulting from an actor’s “specific intent to cause [him]

severe pain or suffering” based on his disability even if he were detained or

institutionalized in Mexico. Id. Rather, the IJ found that the evidence reflected a

likelihood that any harm he experienced would be from “neglect, a lack of resources,

or insufficient training or education.” Id. at 208 (citing Matter of J-R-G-P-, 27 I. &

N. Dec. 482, 484 (BIA 2018)). The IJ also held that Mr. Garcia-Botello did not show

that any harm he might experience would be by or at the acquiescence of a Mexican

official.

D

Mr. Garcia-Botello appealed the IJ’s ruling to the BIA, and the BIA affirmed

in a single-member, brief order. The BIA “acknowledge[d] the hardship that

[Mr. Garcia-Botello’s] removal will cause him due to the seriousness of his physical

and mental health disabilities, and his lack of close contacts in Mexico.” R. at 4

(Written Decision of BIA, filed Feb. 16, 2024). The BIA also acknowledged that

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“some law enforcement agents engage in unlawful conduct in Mexico, and prison

conditions can be harsh and life-threatening.” Id. at 5. The BIA further noted

Mr. Garcia-Botello’s “descriptions of abuse and neglect by healthcare staff” in

Mexican mental health institutions, which it described as “underfunded” and

“experienc[ing] significant infrastructure and service problems.” Id. It also

recognized that efforts by the Mexican government to “address[] . . . abuse in mental

health facilities . . . have been applied inconsistently and resulted in limited

improvements.” Id.

Nonetheless, the BIA affirmed the IJ’s finding that—even assuming

Mr. Garcia-Botello engaged in “erratic behavior” in Mexico that would expose him

to imprisonment or institutionalization—he had failed to establish eligibility for CAT

protection. Id. at 4–6. First, the BIA found that “a mentally ill person’s greater risk

of harm in a Mexican prison results from the inadequacy of the Mexican prison

system, as opposed to a specific intent to torture the mentally ill.” Id. at 5 (citing

Matter of J-R-G-P-, 27 I. & N. Dec. at 485–86). Second, the BIA concluded that any

“mistreatment” Mr. Garcia-Botello might experience in “a mental institution in

Mexico” “would be the result of neglect, lack of resources, or insufficient training

and education, as opposed to a specific intent to torture him.” Id. Third, the BIA

determined that the Mexican government’s “ongoing issues” implementing its

prohibition on discrimination against persons with disabilities and mixed attempts to

investigate and mitigate abuse in mental health facilities were “insufficient to

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establish that a public official more likely than not will acquiesce (including the

concept of willful blindness) in torture of the respondent.” Id.

“Overall,” the BIA stated, “the Immigration Judge did not commit legal error

or clear factual error in determining that the respondent did not establish that he more

likely than not will be tortured by or with the acquiescence (including the concept of

willful blindness) of a public official.” Id. at 6. The BIA accordingly dismissed

Mr. Garcia-Botello’s appeal of the IJ’s denial of CAT relief.

Mr. Garcia-Botello now petitions this court for review of the BIA’s decision.

III

With the factual circumstances of Mr. Garcia-Botello’s petition established,

we now turn to the legal standards guiding our review of the BIA’s decision.

We review the BIA’s single-member, brief order affirming the IJ’s order “as

the final agency determination.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir.

2006); see also Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (“On appeal of a

BIA order, ‘[t]he scope of our review is governed by the form of the BIA decision.’

Where, as here, a single BIA member issues a brief order affirming the IJ’s decision,

we review the order as the final agency determination and limit our review to the

grounds relied upon by the BIA.” (alteration in original) (citation omitted) (quoting

Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011))). Nonetheless, we “may

consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.”

Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013) (quoting Sarr v. Gonzales, 474

F.3d 783, 790 (10th Cir. 2007)); see also Htun, 818 F.3d at 1118 (“But, ‘when

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seeking to understand the grounds provided by the BIA, we are not precluded from

consulting the IJ’s more complete explanation of those same grounds.’” (quoting

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006))).

“We review the BIA’s legal determinations de novo” and the factual findings

adopted by it for substantial evidence. 11 Niang v. Gonzales, 422 F.3d 1187, 1196

(10th Cir. 2005); see also Nasrallah v. Barr, 590 U.S. 573, 583–84 (2020)

(“Although a noncitizen may obtain judicial review of factual challenges to CAT

orders, that review is highly deferential . . . . The standard of review is the

substantial-evidence standard . . . .”). Under the substantial-evidence standard, we

view the factual findings adopted by the BIA as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Escobar-Hernandez v.

11 We have jurisdiction to review Mr. Garcia-Botello’s factual challenges to the BIA’s decision even though he was convicted of crimes specified in 8 U.S.C. § 1252(a)(2)(C), which provision, in conjunction with § 1252(a)(2)(D), bars judicial review of purely factual challenges to final orders of removal against noncitizens who are “removable by reason of having committed a criminal offense covered in section [] [] 1227(a)(2)(A)(iii).” See 8 U.S.C § 1227(a)(2)(A)(iii) (covering aggravated felonies); R. at 4 (noting Mr. Garcia-Botello’s concession that his crimes of conviction were aggravated felonies); Nasrallah v. Barr, 590 U.S. 573, 583 (2020) (characterizing § 1252(a)(2)(C) as “Congress’s decision to bar judicial review of factual challenges to final orders of removal”). This is so because Mr. Garcia-Botello was found removable “by reason of” his presence in the United States beyond the expiration of the visa on which he was admitted, not his criminal convictions. See R. at 185, 1473. And his factual challenges are directed to the BIA’s denial of his application for CAT relief, not his order of removal. See, e.g., R. at 3; Pet’r’s Opening Br. at 15; see Nasrallah, 590 U.S. at 583 (“Congress’s decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders.”); see also Igiebor v. Barr, 981 F.3d 1123, 1126 (10th Cir. 2020) (“[T]he jurisdictional bar set out in 8 U.S.C. § 1252(a)(2)(C)–(D) does not apply to final orders denying CAT relief.”). 16 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 17

Barr, 940 F.3d 1358, 1361 (10th Cir. 2019); accord 8 U.S.C. § 1252(b)(4)(B); Htun,

818 F.3d at 1119. And we extend “deferential” review to the BIA’s resolution of

mixed questions of law and fact that are primarily factual, such as whether the BIA

properly analyzed established facts under a statutorily provided legal standard. 12 See

Wilkinson v. Garland, 601 U.S. 209, 212, 225 (2004) (explaining that “[t]he

application of a statutory legal standard . . . to an established set of facts is a

quintessential mixed question of law and fact,” and giving “deferential” review

where that inquiry was “primarily factual”); accord Martinez v. Garland, 98 F.4th

1018, 1021 (10th Cir. 2024).

Relief from removal under the CAT is mandatory if the applicant proves that

“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); accord Niang, 422 F.3d at 1194;

Uanreroro, 443 F.3d at 1202.

12 We understand this “deferential” standard of review to necessarily be less exacting than de novo review of a purely legal question. To date, however, we have not elaborated on what precise standard such “deferential” review entails. See Hermosillo-Robles v. Bondi, No. 24-9552, 2025 WL 1576766, at *2 n.2 (10th Cir. June 4, 2025) (unpublished) (“We have not elaborated on the ‘deferential standard of review’ for hardship determination challenges that was first announced in Wilkinson.” (citing Martinez v. Garland, 98 F.4th 1018, 1021 (10th Cir. 2024))); cf. United States v. Ellis, 23 F.4th 1228, 1238 n.6 (10th Cir. 2022) (“We deem the reasoning of the unpublished decisions cited herein to be persuasive and instructive. We do not accord them controlling weight and recognize that they are not binding on us.”).

For example, we have not stated whether this deferential review equates to the substantial evidence standard of review. We decline to opine further today because the issue is not presented for our consideration and not determinative of our disposition of Mr. Garcia-Botello’s petition. 17 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 18

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 obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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) (emphases added). “In order to constitute torture, an act

must be specifically intended to inflict severe physical or mental pain or suffering.”

Id. § 1208.18(a)(5).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach his

or her legal responsibility to intervene to prevent such activity. Such awareness

requires a finding of either actual knowledge or willful blindness.” Id.

§ 1208.18(a)(7); accord Karki, 715 F.3d at 806.

IV

Mr. Garcia-Botello raises four challenges to the BIA’s denial of CAT relief:

(1) the BIA erred in failing to consider the entirety of his and his mother’s testimony;

(2) the BIA erred in treating the disjunctive governmental acquiescence

requirement—that the torture be by a public official or with their consent or

acquiescence—as conjunctive; (3) substantial evidence did not support the IJ’s

factual finding, affirmed by the BIA, that his anticipated torturers would not possess

the requisite specific intent; and (4) the BIA erred in treating the governmental

18 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 19

acquiescence requirement as being met only by total failure to prevent or respond to

torture. We address each challenge in turn, although we find none availing.

First, Mr. Garcia-Botello argues that the BIA erroneously disregarded his and his

mother’s testimony, in violation of the Due Process Clause of the Fifth Amendment and

8 U.S.C. § 1229a. This challenge is unavailing. His due process and § 1229a arguments

fail because the BIA clearly referenced his and his mother’s testimony. And his due

process argument fails for the additional reason that he cannot show that he was

prejudiced by any oversight.

Mr. Garcia-Botello contends that the BIA completely disregarded his and his

mother’s credible testimony, in violation of his Fifth Amendment due process rights and

8 U.S.C. § 1229a. As support, he points to the agency’s findings that Ms. Botello

Gallegos would continue to care for Mr. Garcia-Botello if he were sent back to Mexico,

and that, even without access to medication and treatment, Mr. Garcia-Botello would not

act in such a way as to attract the attention of law enforcement and be detained in a prison

or mental health institution. He maintains that these factual findings are at odds with his

and his mother’s credible testimony.

Initially, we note that Mr. Garcia-Botello’s argument appears to be a

substantial-evidence challenge masquerading as a claim of procedural error. As we

explain infra, the BIA plainly did not commit the procedural error of failing to consider

relevant evidence. In light of this, it appears to us that the real concern animating

Mr. Garcia-Botello’s argument—which rests on the contention that specific factual

19 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 20

findings are contradicted by his and his mother’s credible testimony—is that those

specific factual findings were not supported by substantial evidence. Cf. Espinosa v.

Garland, No. 23-9515, 2023 WL 8539441, at *4 (10th Cir. Dec. 11, 2023) (unpublished)

(explaining that because certain evidence “was plainly and explicitly considered in the

BIA’s opinion,” petitioner’s claim of error alleging failure to consider that evidence

“concern[ed] not whether the BIA considered the evidence, but how it considered the

evidence”). 13 But “we ‘will not make arguments for [Mr. Garcia-Botello] that [he] did

not make in [his appellate] briefs.’” Cox v. Glanz, 800 F.3d 1231, 1256 (10th Cir. 2015)

(second and third alterations in original) (quoting O’Neal v. Ferguson Constr. Co., 237

F.3d 1248, 1257 n.1 (10th Cir. 2001)). We therefore evaluate his claim at face value.

Mr. Garcia-Botello challenges the BIA’s alleged disregard of his and his mother’s

testimony as violative of due process and 8 U.S.C. § 1229a. “[A]n allegation of

wholesale failure to consider evidence implicates due process.” Alzainati v. Holder, 568

F.3d 844, 851 (10th Cir. 2009) (quoting Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir.

2008)), abrogated on unrelated grounds by, Wilkinson, 601 U.S. at 217; see also Zubia

Escarcega v. Garland, No. 22-9550, 2024 WL 3688734, at *4 (10th Cir. Aug. 7, 2024)

(unpublished) (same); Espinosa, 2023 WL 8539441, at *2 (same). Whether wholesale

failure to consider evidence also implicates 8 U.S.C. § 1229a, however, is a question of

first impression in our circuit.

13 We rely on unpublished cases for their persuasive value and do not treat them as binding precedent. See United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015). 20 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 21

Section 1229a requires an IJ to “decide whether an alien is removable from the

United States . . . based . . . on the evidence produced at the hearing,” including witness

testimony. 8 U.S.C. § 1229a(c)(1)(A). It directs IJs to “determine whether or not the

testimony is credible” and “weigh the credible testimony along with other evidence of

record.” Id. § 1229a(c)(4)(B). At least one of our sister circuits has determined that

these directives create a statutory requirement that immigration factfinders not arbitrarily

ignore unrebutted, legally significant evidence. See Cortes v. Garland, 105 F.4th 124,

135 (4th Cir. 2024). But Mr. Garcia-Botello does not identify any case from our court in

which we have articulated this standard as a statutory requirement that emerges from 8

U.S.C. § 1229a.

In any event, we need not decide that question here. This is so because, even

assuming arguendo that failure to consider evidence violates § 1229a in addition to due

process, Mr. Garcia-Botello’s challenge fails because the BIA plainly did not fail to

consider the testimony of Mr. Garcia-Botello and his mother. 14 Our decision in Alzainati,

568 F.3d 844, is instructive. In Alzainati, the petitioner argued that the BIA had erred in

failing wholesale to consider certain evidence. Id. at 851. We disagreed, deducing from

the language of the BIA’s opinion that it had considered the evidence. See id. The BIA

had “noted ‘the majority of the documentation’ was ‘new and previously unavailable.’”

14 We also need not decide that question because the parties do not appear to contest it. See Pet’r’s Opening Br. at 24–32; Resp’t’s Resp. Br. at 46–49; United States v. Rocha, 145 F.4th 1247, 1267 (10th Cir. 2025) (assuming without deciding and applying parties’ mutual conception of governing law where legal question matter of first impression). 21 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 22

Id. (quoting Admin. R. at 2). And the administrative record had reflected that the vast

majority of the “new” documentation consisted of the evidence that the petitioner

contended had not been considered by the BIA. Id. We therefore deduced that the BIA

had considered the evidence. See id. (“Because the new evidence consisted only of two

exhibits—approximately twenty-seven pages of school records and the psychologist’s

three-page evaluation—the BIA’s reference to ‘the majority of the documentation’ allays

any constitutional concern we might have that the BIA wholly failed to consider the

school records.”).

Here, the BIA’s consideration of the testimony of Mr. Garcia-Botello and his

mother can be deduced much more readily. As Mr. Garcia-Botello concedes, the IJ

explicitly discussed and made positive credibility determinations about both his and his

mother’s testimony. For example, the IJ clearly noted that “Respondent’s mother

testified that since Respondent’s 2009 accident, she has cared for him and reminded

Respondent to take his medication. . . . She expressed her commitment to caring for her

son if he remains in the United States.” R. at 207. And the IJ explicitly “note[d] that

Respondent’s and his mother’s testimony indicate that they fear Respondent will be

harmed upon return to Mexico.” Id. at 205. Moreover, those determinations were

incorporated into the BIA’s opinion. See, e.g., id. at 4 (discussing how “the Immigration

Judge applied Matter of J-R-R-A-[, 26 I. & N. Dec. 609 (BIA 2015)] . . . in finding the

respondent credible”); id. at 5 (“[W]e will not disturb the Immigration Judge’s finding

that, even assuming the respondent will engage in erratic behavior that attracts the

attention of law enforcement, he has not shown that he more likely than not would be

22 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 23

tortured in Mexico.”). Thus, we are not persuaded that the BIA disregarded the

testimony of Mr. Garcia-Botello and his mother. Cf. Espinosa, 2023 WL 8539441, at *4

(rejecting claim of error alleging that BIA failed to consider evidence of hardship to

petitioner’s third child where “the new evidence in this case—Petitioner’s third

qualifying child—was plainly and explicitly considered in the BIA’s opinion”).

To the extent it arises under Fifth Amendment due process, Mr. Garcia-Botello’s

claim of error alleging that the BIA failed to consider his and his mother’s testimony also

fails for lack of prejudice. See Alzainati, 568 F.3d at 851 (“To prevail on a due process

claim, an alien must establish not only error, but prejudice.”); see also, e.g.,

Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1064 (10th Cir. 2004) (rejecting due process

challenge because petitioner could not “demonstrate any prejudice from the alleged due

process violation”). Specifically, even if the BIA had ignored Mr. Garcia-Botello’s and

his mother’s testimony, and even if that testimony conclusively showed that Ms. Botello

Gallegos would not care for Mr. Garcia-Botello if he were deported to Mexico—leading

Mr. Garcia-Botello to act out in such a way as to attract the attention of law enforcement,

thus precipitating his incarceration or institutionalization—the BIA’s denial of CAT relief

remains proper because any mistreatment Mr. Garcia-Botello might suffer would not be

the result of his putative tormentors’ specific intent to torture.

The BIA upheld the IJ’s determination that any mistreatment Mr. Garcia-Botello

might experience in Mexico would not be the result of specific intent by the perpetrators

to torture him—a determination we also uphold, as explained infra—and, consequently, it

would not qualify as torture under the CAT. Accordingly, the BIA held that

23 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 24

Mr. Garcia-Botello did not qualify for CAT relief “even assuming [he would] engage in

erratic behavior that attracts the attention of law enforcement.” R. at 5 (emphasis

added). This statement demonstrates that the specific-intent issue is dispositive for

Mr. Garcia-Botello’s CAT claim and that the particular factual conclusions

Mr. Garcia-Botello challenges on due process grounds would not alter the ultimate

disposition of his case even if they came out the other way.

In sum, because the BIA would still have denied him CAT relief on this proper

specific-intent basis, any error that Mr. Garcia-Botello sees (which, we emphasize, we do

not see) did not alter the outcome of his proceeding. Because “the result would have

been no different” if the BIA had failed to consider the contested evidence,

Mr. Garcia-Botello fails to establish prejudice. Garcia-Marrufo, 376 F.3d at 1064. In

other words, because of the specific-intent issue in Mr. Garcia-Botello’s case, he was not

prejudiced by the BIA’s factual conclusions that he challenges.

The BIA did not violate Mr. Garcia-Botello’s due process or statutory rights by

failing to consider his and his mother’s testimony, and, even if it had, such an error would

not have prejudiced Mr. Garcia-Botello.

Second, Mr. Garcia-Botello argues that the BIA applied the incorrect legal test to

determine whether Mexican government officials would be involved in any torture by

reading the CAT to require that the government as a whole acquiesce to torture. We

review this legal argument de novo and hold that the BIA applied the correct legal

standard for acquiescence.

24 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 25

Mr. Garcia-Botello contends that the BIA’s approach to the acquiescence standard

conflated the two ways of showing government acquiescence: through the consent of any

public officials to torture by private individuals, or through intentional acts of torture by

any public officials. Mr. Garcia-Botello believes this erroneous approach improperly

doomed his government acquiescence theory because it caused the BIA to ignore his

showing of the specific intent of public officials: “evidence that police and prison guards

torture to obtain confessions or information [and] that health-care workers, lacking any

therapeutic justification, torture to punish misbehavior or discriminate against people

with disabilities.” Pet’r’s Opening Br. at 36.

Mr. Garcia-Botello also contends that the BIA’s error caused it to ignore his

showing of acquiescence by public officials to torture by private actors: evidence that

private health-care workers torture to punish misbehavior and “evidence . . . that

members of criminal organizations torture to extort money, threaten, or intimidate” while

“government officials knowingly bring persons with disabilities to unregulated private

mental health facilities that carry out grave acts of torture, knowingly leave them there,

and despite significant evidence of these acts of torture, fail to ban these unregulated

facilities” and while “public officials coordinate and even collude with criminal

organizations to inflict torture,” creating a “‘critically high’ level of impunity for torturers

in Mexico.” Id. at 36–37.

Mr. Garcia-Botello is, of course, correct that the test for government acquiescence

is disjunctive. “By requiring that torture be ‘[1] by or at the instigation or [2] with the

consent or acquiescence of a public official,’ CAT protection requires a connection

25 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 26

between torture and the government in one of two ways, but not both.”

Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1145 (10th Cir. 2023) (alterations in

original) (emphasis added) (quoting DeCarvalho v. Garland, 18 F.4th 66, 72 (1st Cir.

2021)), abrogated in part on unrelated grounds by, Riley v. Bondi, 606 U.S. 259, 263

(2025). “First, the CAT applies to pain or suffering inflicted by a ‘public official acting

in an official capacity or other person acting in an official capacity.’” Id. (quoting 8

C.F.R. § 1208.18(a)(1)). “[P]ublic officials or other persons act ‘in an official capacity’

when they act ‘under color of law.’” Id. (alteration in original) (quoting Matter of O-F-

A-S-, 28 I. & N. Dec. 35, 39 (U.S. Att’y Gen. 2020)). “An act is ‘“under the color of

law” when the actor misuses power possessed by virtue of law and made possible only

because the actor was clothed with the authority of law.’” Id. (quoting Matter of O-F-A-

S-, 28 I. & N. Dec. at 39). “Second, if someone who is not a public official or a person

acting in an official capacity inflicted the pain or suffering, the CAT applicant must show

that public officials ‘acquiesce[d]’ to the acts constituting torture.” Id. (alteration in

original). “This standard does not require actual knowledge, or willful acceptance by the

government . . . . Rather, willful blindness suffices to prove acquiescence.” Id. (quoting

Karki, 715 F.3d at 806).

However, we are unpersuaded that the BIA failed to recognize and apply the

disjunctive standard here. The BIA correctly cited the proper disjunctive legal standard.

See R. at 6 (“[T]he respondent did not establish that he more likely than not will be

tortured by or with the acquiescence (including the concept of willful blindness) of a

public official.” (emphasis added) (first citing 8 C.F.R. § 1208.17(a); then citing 8 C.F.R.

26 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 27

§ 1208.18(a); and then citing Karki, 715 F.3d at 806)); see also Berdiev v. Garland, 13

F.4th 1125, 1132 (10th Cir. 2021) (concluding that BIA applied correct legal standard

where it cited to precedent containing correct standard). And the BIA clearly

contemplated both types of government conduct—that is, affirmative torturous conduct

by public officials directly, and acceptance by public officials of torturous conduct by

private actors—as distinct theories. The BIA discussed treatment by “law enforcement

agents” and officials operating the “Mexican prison system” as candidates under the

former theory, and it also discussed treatment in “mental health facilities” that “the

government” was “investigating and addressing” as a candidate under the latter theory.

R. at 5. Nothing about the BIA’s opinion leads us to conclude that it mistakenly

collapsed the disjunctive standard into a single, conjunctive standard.

To the extent Mr. Garcia-Botello’s animating concern is that the BIA improperly

considered only evidence of official action on behalf of the entire Mexican government

as a whole rather than the actions of specific public officials, we are also unpersuaded.

The BIA explicitly discussed evidence concerning treatment by “some law enforcement

agents” and “healthcare staff” at an individual level. R. at 5. And we reiterate that the

BIA was “not required to ‘write an exegesis on every contention’” so long as it

“announce[d] its decision in terms sufficient to enable [us] to perceive that it ha[d] heard

and thought and not merely reacted.” Maatougui v. Holder, 738 F.3d 1230, 1242–43

(10th Cir. 2013) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)).

We are convinced the BIA did so here; its decision demonstrates that it considered

Mr. Garcia-Botello’s various theories of torture from a variety of private and public

27 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 28

officials. It applied the correct disjunctive standard for government acquiescence and did

not commit legal error.

Mr. Garcia-Botello’s next argument is that the BIA made three errors when it

affirmed the IJ’s factual finding that all actors who might mistreat Mr. Garcia-Botello

would lack the requisite specific intent to torture him. In this section, we examine each

of the three errors that Mr. Garcia-Botello alleges in the BIA’s evaluation in turn, and we

ultimately conclude that each allegation is meritless.

First, Mr. Garcia-Botello argues that the BIA erred in its specific-intent analysis

by failing to consider “evidence that anticipated torturers act for one of the proscribed

purposes in 8 C.F.R. § 1208.18[15], even though acting with such purposes is evidence of

specific intent.” Pet’r’s Opening Br. at 38. In other words, Mr. Garcia-Botello’s

apparent contention is that evidence the harms enumerated in § 1208.18 (e.g., “severe

pain or suffering”) were inflicted by an actor for one of § 1208.18’s condemned purposes

establishes, without more, that the actor acted with the requisite specific intent. As

support, he cites to the Ninth Circuit’s decision in Guerra v. Barr, 974 F.3d 909 (9th Cir.

15 8 C.F.R. § 1208.18(a)(1) enumerates as proscribed purposes “obtaining . . . a confession, punishing . . . for an act . . . committed or [] suspected of having [been] committed, intimidating or coercing[,] . . . or for any reason based on discrimination of any kind.”

28 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 29

2020), and the Second Circuit’s decision in Pierre v. Gonzales, 502 F.3d 109 (2d Cir.

2007). 16

We are not persuaded. Our circuit has never held that acting with one of the

proscribed purposes listed in 8 C.F.R. § 1208.18, without more, is sufficient to establish

specific intent to torture—at least Mr. Garcia-Botello has not identified any such case for

us, and we have not found any. Furthermore, neither Guerra nor Pierre stands for the

proposition that the BIA must expressly treat this evidence as determinative on the

requisite specific-intent question.

In Guerra, the petitioner, like Mr. Garcia-Botello, sought CAT protection on the

ground that upon removal to Mexico he likely would be tortured in a prison or a

psychiatric institution based on his mental disability. 974 F.3d at 911. The IJ found that

Mexican officials in mental health institutions would have a specific intent to torture him

because they would “intentionally inflict harm on [him] for a proscribed purpose.” Id. at

913. The BIA rejected the IJ’s specific-intent finding as clearly erroneous—instead

“accord[ing] more weight to country reports in the record that the extreme measures were

taken as a misguided effort to prevent patients from harming themselves or others,” and

“attributing the persistence of these problems to ‘the difficulties inherent in addressing a

16 Mr. Garcia-Botello further clarifies the import of his argument by directing us to a University of Virginia law journal article. Pet’r’s Opening Br. at 39. There, as Mr. Garcia-Botello highlights, the commentators offer the following observation: “The specific intent requirement for torture is met by evidence that pain or suffering will be knowingly inflicted on an individual for a proscribed purpose.” Oona A. Hathaway, Aileen Nowlan & Julia Spiegel, Tortured Reasoning: The Intent to Torture Under International and Domestic Law, 52 VA. J. INT’L L. 791, 820 (2012). 29 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 30

complex public policy issue with insufficient material resources.’” Id. at 913–14

(quoting record). On the petitioner’s petition for review, the Ninth Circuit concluded that

the BIA erred in failing to review the IJ’s specific-intent finding for clear error. Id. at

914.

Although Guerra’s upshot is that the BIA erred in weighing, for purposes of the

CAT specific-intent determination, the evidence of unsophistication and lack of resources

more heavily than the evidence of actors inflicting harm for a proscribed purpose, it does

not further Mr. Garcia-Botello’s cause. The Ninth Circuit’s point was not that evidence

of unsophistication and resource limitations cannot outweigh evidence that actors inflict

harm for a purpose proscribed by 8 C.F.R. § 1208.18 when evaluating specific intent. Its

point, rather, was that once the IJ weighed the evidence as such, the BIA lacked the

authority on clear error review to upset that determination merely because it would have

weighed those factors differently. It reasoned:

[T]he clear error standard does not allow the BIA to reweigh the evidence when the IJ’s account of the evidence is plausible. See Rodriguez[ v. Holder], 683 F.3d [1164,] 1171 [(9th Cir. 2012)] (discussing Anderson[ v. City of Bessemer City, N.C.], 470 U.S. [564,] 573–74[ (1985)]). The IJ acknowledged and rejected the alternative explanation that mental health officials’ actions can be explained by gross negligence and a misunderstanding of the nature of psychiatric illness. On appeal, the BIA stated that it “accord[ed] more weight to country reports in the record that [the IJ] did not find persuasive.” But the BIA cannot reverse the IJ’s factual finding “even though [it is] convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson, 470 U.S. at 574[].

Id. at 914. And it distinguished its earlier decision in Villegas v. Mukasey, 523 F.3d 984

(9th Cir. 2008), which denied a petition for review of a BIA order affirming an IJ’s

30 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 31

finding of no specific intent based on evidence of unsophistication and resource

limitations, on the ground that the IJ there “denied CAT relief.” Id. at 914–15. In other

words, the BIA did not err in Villegas because the IJ’s determination that evidence of

unsophistication and resource limitations weighed more heavily was not clearly

erroneous.

Understood in this light, Guerra does not further Mr. Garcia-Botello’s cause.

Here—like in Villegas, and unlike in Guerra—the IJ weighed in its specific-intent

calculus the evidence of Mexico’s resource limitations more heavily than any purported

evidence that Mr. Garcia-Botello’s anticipated torturers acted for a proscribed purpose. It

could permissibly do so under clear error review if there was adequate record support.

Pierre, 502 F.3d 109, is also unhelpful to Mr. Garcia-Botello. True, the Second

Circuit noted that “[e]vidence showing an illicit purpose may easily overlap with

evidence showing a specific intent to inflict severe pain or suffering.” Pierre, 502 F.3d at

119 n.8. But the Second Circuit proceeded to clarify that the foregoing observation did

not establish a categorical rule: although the court noted that “imprisonment,” the action

at issue in that case, “is by its nature designed to punish” (one of the purposes listed in

the regulation), the court decided that imprisonment itself does not satisfy the definition

of torture. Id. The Second Circuit ultimately denied the petition because it held that

there was no error in the BIA’s assessment that harsh penal conditions did not amount to

torture. See id. at 111. Accordingly, Mr. Garcia-Botello’s interpretation of Pierre—as

supporting his view that acting with one of the proscribed purposes listed in 8 C.F.R.

§ 1208.18, without more, is sufficient to establish specific intent to torture—is misguided.

31 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 32

In sum, Mr. Garcia-Botello fails to show that the BIA’s specific-intent analysis

was erroneous because it failed to consider and accord appropriate weight to evidence

that his anticipated torturers acted with one of the purposes that 8 C.F.R. § 1208.18

condemns.

Mr. Garcia-Botello also argues that the BIA ignored circumstantial evidence of

specific intent based on “the nature and severity of [the] anticipated acts.” Pet’r’s

Opening Br. at 43. As support, he cites several cases from other circuits that he believes

may be read to suggest that specific acts, undertaken intentionally, are so torturous in

nature that the performance of them alone evinces a specific intent to torture. He

identifies several acts—“beatings[,] . . . prolonged restraints, isolation, and

non-consensual psychosurgeries”—that he believes he will be subjected to and that he

believes would fall into this category. Id. at 48.

We begin our analysis by noting that Mr. Garcia-Botello has again not identified

any case from our court or from the Supreme Court that establishes a precedent for his

preferred approach—viz., finding a specific intent to torture based solely on the character

of the acts themselves. As a consequence, we see no reason to adopt such a standard

unless we are persuaded by the non-binding cases of our sister circuits on which

Mr. Garcia-Botello seeks to rely. We summarize the most salient of those cases here.

Mr. Garcia-Botello’s best case is Kang v. Attorney General of the United States,

611 F.3d 157 (3d Cir. 2010). There, the Third Circuit reversed the BIA’s denial of CAT

relief and granted the petitioner withholding of removal pursuant to the CAT because

32 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 33

“the evidence . . . compel[led] the conclusion that it [wa]s more likely than not that Kang

w[ould] be tortured if returned to China.” Id. at 167–68. The petitioner, a Chinese

citizen, was a member of a group that had been targeted with an arrest warrant by

Chinese authorities for providing food and shelter to North Korean refugees. See id. at

160. The Third Circuit determined that the petitioner had shown it was more likely than

not that he would be tortured, and it dismissed the government’s contentions that the

mistreatment the petitioner had shown he would likely be subjected to was “merely

evidence of deplorable prison conditions” or “substandard prison conditions.” Id. at 167.

In so holding, the court noted that “[t]he acts themselves compel the conclusion that they

were intended to inflict pain.” Id.

Even if Kang could be understood to support Mr. Garcia-Botello’s proposition that

certain acts themselves evince a specific intent to cause pain, we are not persuaded to

apply it to this case, because the acts of the Chinese officials are different in kind and

degree from the acts alleged here. In Kang, the potential treatment included being

“suffocated [using a plastic bag], deprived of sleep, . . . and/or forced to stand for long

periods of time.” Id. at 166. We understand the Third Circuit’s inclination to find a

torturous purpose from these acts because we do not see any justification for these

practices that can be chalked up to unsophistication or a lack of resources. On the other

hand, the country-conditions evidence here shows that, at the extreme,

Mr. Garcia-Botello may face the use of prolonged restraints, psychosurgery, and corporal

punishment. See R. at 558 (Report of the Special Rapporteur, dated Dec. 29, 2014); id. at

628–29 (Abandoned & Disappeared: Mexico’s Segregation and Abuse of Children and

33 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 34

Adults with Disabilities, dated Nov. 30, 2010). Although certainly shocking to our

sensibilities in the United States about how to best and most humanely treat persons with

disabilities, these practices do not by their very nature “compel the conclusion that they

were intended to inflict pain.” Kang, 611 F.3d at 167 (emphasis added).

To the contrary, the BIA could reasonably conclude that they reflect a lack of

sophistication and resources. See, e.g., R. at 558 (“Detention centres do not have the

facilities, resources or trained staff to provide decent treatment and the necessary medical

and psychological care to persons with disabilities . . . .”); id. at 628–29 (“[A]uthorities

reported that in the absence of other forms of treatment for behavior problems or

aggression, they usually use psychotropic medications. But when this does not work,

people may be subject to psychosurgery.”); id. at 673 (Abuses Found at Mexican

Institutions for Disabled, dated Nov. 30, 2010) (“[Lobotomies] fell into disrepute

internationally in the 1950s because it frequently caused irreversible brain damage. But it

remains legal in Mexico.”); see also, e.g., Fiddler v. Bondi, 147 F.4th 757, 759–60 (7th

Cir. 2025) (“Mr. Fiddler did not show that police practices embodied the requisite intent

or purpose of torture. Rather, ‘instances of violence against mentally ill individuals

appear to be the unfortunate result of a combination of stigma, lack of training, and lack

of resources, which does not amount to torture.’” (quoting A.R. 153)); Andrade v.

Garland, 94 F.4th 904, 915 (9th Cir. 2024) (concluding that substantial evidence

supported agency’s determination that “the poor conditions in Mexico’s mental health

facilities are not created with the requisite specific intent” where record supported “a

34 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 35

plausible inference that budgetary constraints, not an intent to torture those with

psychiatric disabilities, are to blame”).

Mr. Garcia-Botello also cites Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) in

support of his argument. In Ridore, the petitioner sought review of a BIA decision

vacating an IJ’s finding that the petitioner was entitled to CAT protection. See id. at 909.

The Ninth Circuit agreed with the petitioner and granted review, finding that the BIA had

erred in reviewing the IJ’s decision. See id. We understand why Mr. Garcia-Botello

believes Ridore helps his argument. The petitioner’s basis for CAT protection was that

he would be “put into prison for a prolonged period of time under horrific conditions that

his expert testified and the IJ found would be almost ‘equivalent to a death warrant,’” and

the IJ agreed that those conditions amounted to torture because various factors suggested

that the conditions were intentionally created by the Haitian government. Id. at 911.

However, a careful reading of Ridore materially distinguishes it from this case.

The Ridore court granted the petition not because it agreed with the IJ’s assessment that

the conditions alleged amounted to torture, but rather because, as in Guerra, 974 F.3d

909, the BIA applied the incorrect standard of review to the IJ’s factual findings,

assessing them de novo based on the country-conditions evidence rather than reviewing

them for clear error. See 696 F.3d at 919. Indeed, the Ninth Circuit was careful to clarify

that it declined to “decide whether the IJ’s assessment of the evidence or his factual

findings and conclusions therefrom were correct.” Id. at 913 n.1. Therefore, Ridore does

not represent another circuit’s endorsement of a relaxed intent standard, so we will not

adopt such a standard based on its reasoning.

35 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 36

Another case Mr. Garcia-Botello relies on is Zubeda v. Ashcroft, 333 F.3d 463 (3d

Cir. 2003). In Zubeda, the Third Circuit granted a petition for review of a BIA decision

vacating an IJ’s grant of CAT relief. See id. at 465. The primary reason for the court’s

remand was to obtain greater clarity on several antecedent factual findings, such as

whether the petitioner would be detained if she were removed to the Democratic

Republic of the Congo. See id. However, the court also “determine[d] whether the

record could, as a matter of law, support a claim for relief under [the CAT].” Id. at 465

n.1 (emphasis added). As part of its assessment of the legal framework, the court stated,

“[a]lthough the [CAT] regulations require that severe pain or suffering be ‘intentionally

inflicted,’ [8 C.F.R. § 1208.18(a)], we do not interpret this as a ‘specific intent’

requirement.” Id. at 473.

However, Zubeda was abrogated by the Third Circuit in Auguste v. Ridge, 395

F.3d 123 (3d Cir. 2005). In Auguste, the Third Circuit affirmed the district court’s denial

of habeas relief to an immigrant seeking CAT protection from removal to Haiti. See id.

at 128. The basis for the appellant’s CAT claim was that he would be “detained by

Haitian authorities for an indeterminate amount of time in harsh and intolerable prison

conditions” qualifying as torture if he were removed. Id. at 129. His claim therefore

presented a similar theory to Mr. Garcia-Botello’s and teed up the specific-intent question

for the court. The Third Circuit took the opportunity to reevaluate the intent requirement

for CAT relief. See id. at 139–48. First, in an about-face from Zubeda’s statement

(which it dismissed as dicta), the court confirmed “there is no doubt that the applicable

standard to be applied for CAT claims in the domestic context is the specific intent

36 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 37

standard.” Id. at 143–44. Further interpreting the meaning of the specific-intent

requirement, the court stated:

Thus, in the context of the Convention, for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act, namely the infliction of the severe pain and suffering. In contrast, if the actor intended the act but did not intend the consequences of the act, i.e., the infliction of the severe pain and suffering, although such pain and suffering may have been a foreseeable consequence, the specific intent standard would not be satisfied.

Id. at 145–46.

Applying this standard, the Auguste court evaluated the “circumstances” that the

appellant believed qualified as acts of torture and found that none of them were torture

because the responsible parties lacked the specific intent. See id. at 151–54. The court

determined that “harsh and brutal prison conditions,” which it acknowledged were

“objectively deplorable,” caused prisoners to “experienc[e] pain and suffering on a daily

basis,” and were “among the worst [the court] ha[d] ever addressed,” nevertheless did not

give rise to CAT protection because “the pain and suffering that the prisoners experience

in Haiti [could] not be said to be inflicted with a specific intent by the Haitian

government.” Id. at 153–54. The court further explained:

As the BIA found in Matter of J-E-[, 23 I. & N. Dec. 291 (BIA 2002)], the prison conditions, which are the cause of the pain and suffering of the detainees, result from Haiti’s economic and social ills, not from any intent to inflict severe pain and suffering on detainees by, for instance, creating or maintaining the deplorable prison conditions. The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.

37 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 38

Id.

The court left the door open to future claims based on “brutal and deplorable

prison conditions,” explaining that it was “not adopting a per se rule” that such conditions

“can never constitute torture.” Id. at 154. “To the contrary,” the court explained, “if

there is evidence that authorities are placing an individual in such conditions with the

intent to inflict severe pain and suffering on that individual, such an act may rise to the

level of torture.” Id.

Auguste provides a few takeaways, none of them helpful to Mr. Garcia-Botello.

First, Auguste clearly abrogates Zubeda and renders that case useless as a persuasive

articulation of the CAT intent requirement. Second, Auguste unambiguously holds that

the CAT intent element requires that perpetrators act with the specific intent to inflict

pain and suffering. Mere knowledge that pain and suffering will result does not qualify

an act as torture. Third, and perhaps most importantly, the case undermines the

proposition for which Mr. Garcia-Botello cites Zubeda: that the nature of certain acts are,

alone, sufficient to establish specific intent. Fourth and finally, Auguste provides an

example of the fact pattern in Mr. Garcia-Botello’s case and exemplifies precisely why he

cannot prevail. When someone seeking CAT protection can only point to harsh

treatment, but cannot show that such treatment is the result of anything other than a

country’s “economic and social ills,” that person fails to show a specific intent to torture

and cannot obtain CAT relief. Auguste, 395 F.3d at 153.

Finally, Mr. Garcia-Botello relies on Oxygene v. Lynch, 813 F.3d 541 (4th Cir.

2016), abrogated in part on unrelated grounds by, Nasrallah, 590 U.S. at 576, but his

38 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 39

reliance is seriously misplaced. In Oxygene, the Fourth Circuit opined on the CAT intent

requirement. See id. at 550. Notably, it adopted the same standard as the Third Circuit in

Auguste, which “requires a CAT claimant to demonstrate that the state actor who

mistreats him desires to cause his severe pain or suffering.” Id. at 548. The court

distinguished the applicable “specific intent” standard, which “‘corresponds loosely’ with

‘purpose,’” from a “general intent” standard, which “‘corresponds loosely’ with

‘knowledge.’” Id. at 549 (quoting United States v. Bailey, 444 U.S. 394, 405 (1980)).

“Of course,” the court noted, “the factfinder in a criminal trial may infer an actor’s desire

to bring about a consequence from facts illustrating that he knew precisely what would

result from his actions. . . . But it is the prerogative of the factfinder to make the

inferential leap from knowledge to desire.” Id. The Oxygene court’s statement does not

support Mr. Garcia-Botello’s position that it was error for the IJ not to find specific intent

based purely on the conditions in Mexican prisons and mental health facilities. To the

contrary, Oxygene suggests that (1) additional facts should aid the intent inquiry, which

(2) is always a case-specific determination for the factfinder (the IJ), and (3) most

importantly, ignoring the reasons for the perpetrator’s actions erases the specific-intent

inquiry.

In sum, we are not persuaded that the IJ erred by declining to infer specific intent

to torture from the nature of the conditions to which Mr. Garcia-Botello alleges he will be

subject upon his return to Mexico.

39 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 40

Mr. Garcia-Botello’s final specific-intent argument is essentially a more

fleshed-out version of a claim we perceived him to be making in IV.B, which is that the

BIA supposedly focused only on system-wide, official acts of the Mexican government

rather than considering the specific intent of individual public officials.

Mr. Garcia-Botello is correct that an individual qualifies for CAT protection if

they can show they will more likely than not face torture from any “public official acting

in an official capacity or other person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1); accord Arostegui-Maldonado, 75 F.4th at 1145. “[P]ublic officials or

other persons act ‘in an official capacity’ when they act ‘under color of law.’”

Arostegui-Maldonado, 75 F.4th at 1145 (alteration in original) (quoting Matter of

O-F-A-S-, 28 I. & N. Dec. at 39). “An act is ‘“under the color of law” when the actor

misuses power possessed by virtue of law and made possible only because the actor was

clothed with the authority of law.’” Id. (quoting Matter of O-F-A-S-, 28 I. & N. Dec. at

39). Therefore, actions by individual public officials can qualify as torture under the

CAT. The government as a whole does not need to undertake or direct torture as official

policy so long as the petitioner can show a public official who engages in torture is acting

under color of law.

While Mr. Garcia-Botello gets the law right, we are unpersuaded by his criticism

of the disposition of his case. The BIA clearly indicated that it considered evidence of

abuse by individuals. The BIA noted, for example, the IJ’s determination that “some law

enforcement agents engage in unlawful conduct.” R. at 5 (emphasis added). And it

40 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 41

evaluated and upheld the IJ’s refusal “to infer specific intent from descriptions of abuse

and neglect by healthcare staff.” Id. (emphasis added). The BIA naturally discussed, as

the IJ did, Mexican law regarding the treatment of individuals with disabilities as well as

government-wide interventions to address mistreatment. But the BIA did not focus on

these system-wide components at the expense of torture by individuals. The BIA

appropriately assessed the intent of all the different groups of individuals from whom

Mr. Garcia-Botello professed to face a risk of torture.

Contrary to Mr. Garcia-Botello’s three arguments, the IJ’s factual findings on

specific intent are supported by substantial evidence. The first specific-intent finding the

BIA adopted was “that a mentally ill person’s greater risk of harm in a Mexican prison

results from the inadequacy of the Mexican prison system, as opposed to a specific intent

to torture the mentally ill.” R. at 5. The BIA likewise endorsed the IJ’s second

specific-intent finding, that “mistreatment” in “mental institution[s] in Mexico” “would

be the result of neglect, lack of resources, or insufficient training and education, as

opposed to a specific intent to torture [Mr. Garcia-Botello] within the meaning of the

regulations.” Id.

The BIA’s affirmations of the IJ’s specific-intent findings are supported by the

evidence. As the IJ noted, Mr. Garcia-Botello himself provided evidence showing that

conditions in detention facilities in Mexico result from “overcrowding” as well as the

“poor condition” of “infrastructure” at most of the detention facilities. Id. at 207–08

(citing id. at 556). Regarding the treatment of individuals with disabilities in detention

41 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 42

facilities, the evidence reveals that Mexican “[d]etention centres do not have the

facilities, resources or trained staff to provide decent treatment and the necessary

medical and psychological care to persons with disabilities.” Id. at 558 (emphasis

added). The evidence also shows that poor treatment in mental health institutions results

from “inadequate supervision” in those settings. Id. at 208 (citing id. at 493 (U.S. Dep’t

of State, Country Reports on Human Rights Practices for 2018)). And the evidence

reveals that “[t]he primary reason for institutionalization” of individuals with disabilities

in general “is Mexico’s lack of community-based services to provide the support

necessary for individuals with mental disabilities to live in the community.” Id. at 626.

In sum, substantial evidence supports the IJ’s findings that resource problems—not the

specific intent to cause pain and suffering—are the animating cause of the conditions

Mr. Garcia-Botello fears.

The ultimate resolution of Mr. Garcia-Botello’s claim follows a pattern in which

the BIA has upheld under clear error review an IJ’s finding that poor treatment in prison

and healthcare settings, including Mexico’s, results from insufficient resources rather

than a specific intent to torture, and the courts have held such decisions to be supported

by substantial evidence. In Matter of J-R-G-P-, the BIA dismissed a respondent’s appeal

of an IJ’s order denying him CAT protection. See 27 I. & N. Dec. at 482. The

respondent’s theory, like Mr. Garcia-Botello’s, was that if he were removed to Mexico,

“given his mental health issues, he will be arrested and either imprisoned or committed to

a mental health facility in Mexico, where law enforcement officials or mental health

workers will subject him to harm rising to the level of torture.” Id. at 483. The IJ found

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that even if the respondent were imprisoned or committed, “there was insufficient

evidence to show that Mexican authorities would have the specific intent to harm him in

a penal or psychiatric institution.” Id. The BIA determined that this finding was not

clearly erroneous in light of the evidence in the record. Id. at 486.

The BIA agreed with the IJ in Matter of J-R-G-P- that “any extreme pain and

suffering the respondent may experience as an arrestee, in prison, or in a mental health

facility in Mexico will more likely than not result from a lack of resources, training,

education, or negligence—rather than acts specifically intended to inflict severe pain or

suffering upon the respondent.” Id. The BIA acknowledged that “the record indicates

that detainees and prisoners with mental health issues often do not receive necessary

medications and medical attention,” but it determined that “such appalling conditions

result from a lack of resources and training to provide adequate medical and

psychological care.” Id. Similarly, the BIA determined that “conditions in th[e]

country’s mental institutions are the result of limited options for controlling patients’

violent behavior and a lack of resources and training—not a specific intent to inflict pain

or suffering on patients.” Id. at 487. To be sure, all of this may be cold comfort to

Mr. Garcia-Botello, but the BIA’s analysis conforms to, and is consistent with, the legal

requirements to establish torture.

We also discern similarities between Mr. Garcia-Botello’s case and Joshi v.

Garland, 112 F.4th 181 (4th Cir. 2024). In Joshi, the Fourth Circuit denied a petition for

review of a BIA decision denying CAT protection to “an alien with a well-documented

history of debilitating and dangerous mental illnesses.” Id. at 184. The petitioner sought

43 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 44

CAT protection on the basis that he had been subjected to “electroconvulsive therapy”

when he was previously in India and would likely be subject to similar mistreatment upon

his removal to that country. Id. at 195. The BIA had affirmed the IJ’s finding that

“[m]odified [electroconvulsive therapy] was not administered for the purpose of inflicting

pain or torture.” Id. (first alteration in original).

The Fourth Circuit concluded that “[s]ubstantial evidence supports the Agency’s

finding that Joshi’s alleged torturers did not ‘intentionally inflict[]’ his purported pain or

suffering for proscribed purposes.” Id. (second alteration in original). The court agreed

with the BIA that “Modified [electroconvulsive therapy] was not administered for the

purpose of inflicting pain or torture.” Id. (alteration in original) (quoting J.A. 102). “To

the contrary,” the court stated, “the record reasonably suggests that they were accepted

medical interventions to help Joshi.” Id. (emphasis in original). We do not take a

normative position on the acceptability of the medical interventions to which

Mr. Garcia-Botello may be subjected. However, akin to the petitioner in Joshi,

Mr. Garcia-Botello’s focus on the medical interventions and resulting harms that he may

face in Mexico fatally truncates the legal analysis that requires a showing of specific

intent by the actors: viz., his argument elides the specific-intent requirement for torture by

failing to show, as to the healthcare providers, that their treatments of him would be

animated by anything other than good-faith intentions to aid him in a universe of limited

resources and training.

In sum, Mr. Garcia-Botello has not shown that the IJ’s factual finding, as affirmed

by the BIA, that any individuals who would mistreat him would lack the specific intent to

44 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 45

torture him was not supported by substantial evidence. We therefore uphold this factual

finding. Without showing specific intent, Mr. Garcia-Botello cannot establish that he

faces a risk of torture; so, he cannot establish eligibility for withholding of removal under

the CAT.

Mr. Garcia-Botello’s final argument is that the BIA erroneously applied a standard

for acquiescence by the government that was more demanding than the actual standard.

According to Mr. Garcia-Botello, the BIA erroneously required that he present evidence

that government officials “effectively do nothing to prevent torture” in order to establish

government acquiescence when, in fact, he only needed to show that government officials

“regularly fail to take action to prevent or punish torture.” Pet’r’s Opening Br. at 52

(quoting R. at 193). Mr. Garcia-Botello contends that the BIA’s application of this

improperly high standard led the BIA to disregard evidence that public officials engage in

precisely that behavior “through underreporting, under-investigation, under-prosecuting,

and under-convicting acts of torture and . . . fail[ing] to enforce laws against

discrimination or create practical changes.” Id. at 54. Mr. Garcia-Botello contends that

this is a legal error, so we review this question de novo. We hold that the BIA did not

commit legal error when reviewing the IJ’s government acquiescence finding.

“Acquiescence of a public official requires that the public official, prior to the

activity constituting the torture, have awareness of such activity and thereafter breach his

or her legal responsibility to prevent such activity.” Karki, 715 F.3d at 806 (quoting

Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005)); accord 8 C.F.R.

45 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 46

§ 1208.18(a)(7). “This standard does not require ‘actual knowledge, or willful

acceptance’ by the government. . . . ‘Rather, willful blindness suffices to prove

acquiescence.’” Karki, 715 F.3d at 806 (quoting Cruz-Funez, 406 F.3d at 1192).

The basis for Mr. Garcia-Botello’s argument is the IJ’s statement regarding the

willful blindness standard for government acquiescence that “[a]n applicant can establish

willful blindness by showing that government officials are generally aware of, and yet

effectively do nothing to prevent acts of torture.” R. at 208 (emphasis added). As support

for this proposition, the IJ cited Karki. Mr. Garcia-Botello contends that Karki does not

set such a high bar for government acquiescence, and it was error to read it as doing so.

We agree with Mr. Garcia-Botello that Karki (along with the rest of our caselaw)

does not establish a government acquiescence standard under which a petitioner needs to

show that government officials “effectively do nothing” to prevent torture. In Karki, we

found government acquiescence because of “Petitioner’s evidence that the government

regularly fails to take action to prevent or punish . . . acts of torture.” 715 F.3d at 807

(emphasis added). There is significant daylight between a government effectively doing

nothing and a government regularly failing to take action. The latter suffices to prove

acquiescence.

But the IJ’s misstatement does not require us to grant Mr. Garcia-Botello’s

petition. First, the BIA did not endorse that framing of the legal standard, and the

basis of our review is the BIA’s opinion, not the IJ’s. See Htun, 818 F.3d at 1118

(“On appeal of a BIA order, ‘[t]he scope of our review is governed by the form of the

BIA decision.’” (alteration in original) (quoting Ritonga, 633 F.3d at 974)); Karki,

46 Appellate Case: 24-9507 Document: 71-1 Date Filed: 02/25/2026 Page: 47

715 F.3d at 800 (“[W]e review the BIA’s decision, not the IJ’s . . . .”). True, we

“may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated

it.” Karki, 715 F.3d at 800 (emphases added) (quoting Sarr, 474 F.3d at 790). Put

another way, “when seeking to understand the grounds provided by the BIA, we are

not precluded from consulting the IJ’s more complete explanation of those same

grounds.” Htun, 818 F.3d at 1118 (emphases added) (quoting Uanreroro, 443 F.3d

at 1204). But we do not assume that the BIA adopted as its own every statement the

IJ made. Rather, when the BIA explicitly endorses the IJ’s findings, we may consult

the IJ’s statements as more complete or detailed explanations of the BIA’s reasoning.

Here, we do not understand the BIA to have endorsed the IJ’s misstatement about the

standard for government acquiescence. Indeed, the BIA stated and applied the

correct legal standard. See R. at 5 (stating the government acquiescence standard as

“including the concept of willful blindness” and citing Karki). Therefore, we discern

no error in the BIA’s opinion.

Additionally, even if it could be shown (but it cannot) that there was an error

in the BIA’s articulation or application of the government acquiescence standard,

such an error would be without legal effect since the BIA correctly found no torture

to which the government could or could not acquiesce. The core finding that bars

Mr. Garcia-Botello from obtaining CAT protection is that none of the mistreatment

he alleges that he will experience has been shown to be animated by an actor’s

specific intent to cause him “severe pain or suffering, whether physical or mental.” 8

C.F.R. § 1208.18(a)(1). We affirmed this finding supra in IV.C. Without a showing

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of the perpetrators’ specific intent, none of the acts Mr. Garcia-Botello fears qualify

as torture under the CAT. Accordingly, whether the government acquiesces to those

acts is an irrelevant inquiry, because even if it did, it would not be acquiescing to

torture.

In conclusion, Mr. Garcia-Botello has not shown that the BIA erred in

conducting its analysis of government acquiescence.

V

Based on the foregoing, we deny Mr. Garcia-Botello’s petition for review.