NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ISIDRO CARASSO-GONZALEZ,                        No.    17-70105

                Petitioner,                     Agency No. A079-392-256

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 14, 2019
                              Pasadena, California
                            Vacated October 7, 2019
                          Resubmitted April 20, 2020

Before: CALLAHAN and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.***



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      ***
            Pursuant to Ninth Circuit General Order 3.2.h, Judge Hurwitz was
drawn by lot to replace our late colleague Judge Raymond T. Fisher. Judge
Hurwitz has reviewed the record and briefs in this case and listened to the oral
argument before the prior panel.
      Isidro Carasso-Gonzalez, a native and citizen of Mexico, petitions for review

of a final removal order issued by the Board of Immigration Appeals (BIA),

denying his application for withholding of removal and protection under the

Convention Against Torture (CAT). As the parties are familiar with the facts and

procedural history, we do not recount them here. We deny in part and grant in part

Carasso-Gonzalez’s petition for review.

      1. Carasso-Gonzalez argues he is eligible for withholding of removal

because (1) his proposed particular social group of “individuals with severe and

chronic mental illness in Mexico who exhibit erratic behavior” is cognizable, and

(2) it is more likely than not that his social group is “a reason” that his life or

freedom will be threatened in Mexico. As to the first argument, we conclude the

agency did not err in rejecting his proposed social group. Both the IJ and BIA

reasonably concluded that this proposed social group was insufficiently particular

because “the terms ‘severe’ and ‘chronic’ are general in nature without reference to

specific characteristics.” See Henriquez-Rivas v. Holder, 

, 1091 (9th

Cir. 2013) (en banc) (“The ‘particularity’ requirement . . . is relevant in

considering whether a group’s boundaries are so amorphous that, in practice, the

persecutor does not consider it a group.”).

      To the extent that Carasso-Gonzalez now argues that he belongs to a

particular social group of “individuals in Mexico with severe and chronic mental


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illness who exhibit erratic behavior,” we find this argument unexhausted because

the additional modifier (“who exhibit erratic behavior”) substantively changes the

boundaries of the group proposed by Carasso-Gonzalez. See Barron v. Ashcroft,

, 678 (9th Cir. 2004).

      Likewise, we also find that the BIA did not err by failing to apply the

standard under Barajas-Romero v. Lynch, 

, 358–60 (9th Cir. 2017).

Although the BIA’s decision summarily cited cases that relied on the “one central

reason” standard that this court rejected in Barajas-Romero, the agency’s denial of

Carasso-Gonzalez’s withholding claim did not turn on the difference between the

“one central reason” and “a reason” standards. Rather, the BIA denied the

withholding claim because it found that Carasso-Gonzalez failed to establish a

nexus to any protected ground, given that his proposed particular social group was

not cognizable. See also Singh v. Barr, 

, 827 (9th Cir. 2019) (per

curiam) (“Because the BIA adopted the IJ’s finding of no nexus between the harm

. . . and the alleged protected ground, neither the result nor the BIA’s basic

reasoning would change.”). Accordingly, we deny Carasso-Gonzalez’s petition for

review of his application for withholding of removal.

      2. We grant Carasso-Gonzalez’s petition for review of the denial of his

CAT claim and remand for an adequate explanation by the BIA. An applicant for

CAT relief bears “[t]he burden . . . to establish that it is more likely than not that he


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or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). “When evaluating an application for CAT relief, the IJ and the

BIA should consider ‘all evidence relevant to the possibility of future torture,

including . . . [e]vidence of past torture inflicted upon the applicant.’” Avendano-

Hernandez v. Lynch, 

, 1079 (9th Cir. 2015) (alterations in original)

(quoting 8 C.F.R. § 1208.16(c)(3)). “[T]he existence of past torture ‘is ordinarily

the principal factor on which [the court relies].’” Edu v. Holder, 

,

1145 (9th Cir. 2010) (quoting Nuru v. Gonzales, 

, 1218 (9th Cir.

2005)); see also 

(“Past torture is the first factor we

consider in evaluating the likelihood of future torture because past conduct

frequently tells us much about how an individual or a government will behave in

the future.”). “[I]f an individual has been tortured and has escaped to another

country, it is likely that he will be tortured again if returned to the site of his prior

suffering, unless circumstances or conditions have changed significantly, not just

in general, but with respect to the particular individual.” 

–

18.

       The BIA was unclear as to whether Carasso-Gonzalez established past

torture when it stated that “[t]he harm the applicant experienced was severe, and

contrary to the IJ’s determination, may rise to the level of torture.” To the extent

that the BIA found past torture, it did not appear to consider such past torture as a


                                            4
principal factor in its assessment of Carasso-Gonzalez’s likelihood of future

torture, or provide “an individualized analysis of how changed conditions” might

affect Carasso-Gonzalez’s CAT claim.

n.6 (quoting Garrovillas v. INS,

, 1017 (9th Cir. 1998)). Instead, the BIA simply concluded that

Carasso-Gonzalez failed to meet his burden. In doing so, we find that the BIA

failed to provide a reasoned explanation for its decision. See Delgado v. Holder,

, 1107 (9th Cir. 2011) (en banc) (“[T]he BIA must provide a

‘reasoned explanation for its actions.’” (quoting Movsisian v. Ashcroft, 

, 1098 (9th Cir. 2005))). Accordingly, we remand for the BIA to consider

these issues in the first instance. See INS v. Ventura, 

, 16 (2002) (per

curiam).

      3. Finally, we deny Carasso-Gonzalez’s request for compensation of his pro

bono counsel based on the reasons discussed in our opinion in Perez v. Barr, No.

16-71918, __ F.3d ___ (9th Cir. 2020).

      Petition for review GRANTED in part and DENIED in part.




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