FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUSTAVO LEMUS-GALVAN, 

Petitioner, No. 04-72651

v. Agency No. 

M A37-542-695 ICHAEL B. MUKASEY,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 18, 2007—Pasadena, California

Filed March 11, 2008

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima

and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

2361
COUNSEL

David B. Landry, San Diego, California, for the petitioner. 

Peter D. Keisler, Assistant Attorney General, Civil Division,

Department of Justice, Washington, D.C.; Linda S. Wendtland, Assistant Director, Donald A. Couvillon, Office of

Immigration Litigation, Department of Justice, Washington,

D.C., for the respondent. 

LEMUS-GALVAN v. MUKASEY 2363
OPINION

McKEOWN, Circuit Judge: 

Gustavo Lemus-Galvan seeks review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of deferral of removal under the

Convention Against Torture (“CAT”).1 Notwithstanding that

Lemus-Galvan was ordered removed on the basis of an aggravated felony, we have jurisdiction over his deferral of removal

claim under the CAT. See Morales v. Gonzales, 478 F.3d 972

(9th Cir. 2007).

BACKGROUND

Lemus-Galvan is a native and citizen of Mexico who has

been a legal permanent resident of the United States since

1982. He was convicted of attempted second degree murder.

On the basis of that conviction, he was denied relief under

§ 212(c) of the Immigration and Nationality Act and ordered

deported in 1996. 

After the BIA dismissed his appeal of that order, LemusGalvan moved to reopen proceedings to apply for deferral of

removal under the CAT. He alleged that if he were returned

to Mexico, it was more likely than not that he would be tortured by the Pimental family, a drug cartel that had been

involved in a violent turf war with members of LemusGalvan’s extended family in the northern border regions of

Mexico. 

In 1999, an IJ granted reopening but denied deferral of

removal under the CAT, finding that it was more likely than

not that Lemus-Galvan could safely relocate to another part of

1Where the BIA summarily affirms the IJ’s decision, we review the IJ’s

decision. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1063 n.1 (9th Cir.

2003). 

2364 LEMUS-GALVAN v. MUKASEY
Mexico. Lemus-Galvan appealed the IJ’s denial of deferral of

removal, and the BIA, without ruling on the merits of his

CAT claim, remanded on the basis of a change in the law concerning eligibility for § 212(c) waivers. See 8 C.F.R.

§ 212.3(g) (allowing aliens whose deportation proceedings

began before April 24, 1996, to apply for § 212(c) relief). 

On remand, the IJ denied Lemus-Galvan’s request for a

§ 212(c) waiver. Expressly incorporating his reasoning from

the 1999 decision, the IJ again denied Lemus-Galvan’s

request for deferral of removal under the CAT and ordered

removal on the basis of his aggravated felony conviction. The

BIA summarily affirmed the IJ’s opinion. Lemus-Galvan now

seeks review of the BIA’s denial of his deferral of removal

claim.

ANALYSIS

[1] We must first decide whether we are barred from

reviewing Lemus-Galvan’s petition by 8 U.S.C.

§ 1252(a)(2)(C), which states that we may not review “any

final order of removal against an alien who is removable by

reason of having committed” certain criminal offenses,

including aggravated felonies. Attempted second degree murder, the offense for which Lemus-Galvan was convicted, is an

aggravated felony. See id. § 1227(a)(2)(A)(iii). Because the IJ

expressly premised removal on this conviction, the government argues that we are precluded from reviewing LemusGalvan’s petition. We disagree. The jurisdiction-stripping

provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive us of

jurisdiction over denials of deferral of removal under the

CAT, which are always decisions on the merits. See Morales,

478 F.3d at 980. 

[2] It is significant that Lemus-Galvan seeks review only of

the IJ’s denial of deferral of removal. There are two forms of

relief under the CAT: withholding of removal and deferral of

removal. See 8 C.F.R. §§ 208.16(c), 208.17(a). If an IJ deterLEMUS-GALVAN v. MUKASEY 2365
mines that an aggravated felony constitutes a “particularly

serious crime,” and denies withholding of removal under the

CAT on the basis of the conviction, § 1252(a)(2)(C) bars our

review of the denial of withholding. See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir. 2005) (holding that where

denial of withholding of removal is not predicated on petitioner’s aggravated felony conviction, we have jurisdiction to

review). However, even if an alien has been convicted of a

“particularly serious crime,” and is ineligible for withholding

of removal under the CAT, an IJ is required to grant deferral

of removal if the alien can establish the likelihood of torture

upon return. See 8 C.F.R. § 208.17(a). 

[3] The jurisdictional wrinkle here is that although the IJ

ordered removal on the basis of Lemus-Galvan’s felony conviction, he denied Lemus-Galvan’s request for deferral of

removal under the CAT because Lemus-Galvan failed to

establish that internal relocation within Mexico was impossible. Morales provides helpful guidance on this point: Absent

a procedural defect, because the determination of the likelihood of torture is a decision on the merits, we have jurisdiction over petitions seeking review of such decisions. Morales,

478 F.3d 972. 

In Morales, the IJ ordered Morales’s removal on the basis

of a crime involving moral turpitude, and denied her applications for asylum and withholding of removal on the basis that

her offense was a “particularly serious crime.” Id. at 975. The

IJ also denied Morales’s request for deferral of removal2

under the CAT because she had not shown that it was more

likely than not that she would be tortured if she returned to

Mexico. The BIA affirmed. 

2Although we did not make explicit in Morales that the petitioner

sought deferral of removal under the CAT, it is apparent that she did. The

IJ ordered Morales’s removal on the basis that she had committed a “particularly serious crime.” 8 C.F.R. § 208.16(d)(2). Thus, the “only relief for

which Morales was possibly eligible was” deferral of removal under the

CAT. Morales, 972 F.3d at 977; see also 8 C.F.R. § 208.17(a). 

2366 LEMUS-GALVAN v. MUKASEY
On appeal, we concluded that we had jurisdiction over

Morales’s claim for CAT relief: “[W]hen an IJ does not rely

on an alien’s conviction in denying CAT relief and instead

denies relief on the merits, none of the jurisdiction-stripping

provisions — § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or

§ 1252(a)(2)(C) — apply to divest this court of jurisdiction.”

Id. at 980. Because the IJ denied Lemus-Galvan’s request for

deferral of removal on the merits, we have jurisdiction over

his petition.3Id.

[4] Lemus-Galvan failed to establish that internal relocation

within Mexico was impossible. See 8 C.F.R. § 208.16(c)

(3)(ii); see also Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th

Cir. 2004). Substantial evidence therefore supports the IJ’s

decision to deny deferral of removal under the CAT. See

Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003). 

PETITION DENIED.

3Our decision in Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir.

2004), is not to the contrary. In Ruiz-Morales, we dismissed for lack of

jurisdiction over all of the claims, including a request for CAT relief,

because the alien had been removed on the basis of an aggravated felony.

Id. at 1222. We did not state in Ruiz-Morales whether the petitioner sought

withholding or deferral of removal under the CAT. As we note earlier in

this opinion, § 1252(a)(2)(C) may deprive us of jurisdiction over some

CAT withholding of removal claims. 8 U.S.C. § 1252(a)(2)(C); see

Unuakhaulu, 416 F.3d at 936. Therefore, Ruiz-Morales does not conflict

with Morales, nor does it foreclose the result that we reach here. 

LEMUS-GALVAN v. MUKASEY 2367