FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANCY ARABILLAS MORALES,  No. 05-70672

Petitioner, Agency No.

v. A77-840-127

ALBERTO R. GONZALES, Attorney  ORDER

General, AMENDING

Respondent. OPINION AND

AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 17, 2006—Seattle, Washington

Filed January 3, 2007

Amended February 28, 2007

Before: Dorothy W. Nelson, David R. Thompson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Thompson

2427
COUNSEL

Antonio Salazar, Seattle, Washington, for the petitioner. 

Peter D. Keisler, Emily Anne Radford, Molly L. Debusschere,

U.S. Department of Justice, Washington, D.C., for the respondent. 

ORDER

The Respondent’s Motion to Amend Decision, which

motion was filed February 14, 2007, is granted in part. 

The first sentence of the first paragraph of Section II.A.2 of

the Opinion filed January 3, 2007, and published at 472 F.3d

689, 695 (9th Cir. 2007), is amended by deleting therefrom

the following language: 

Although we lack jurisdiction to review the IJ’s

finding that Morales was removable, we have jurisdiction to review the IJ’s denial of Morales’s applications for asylum and withholding of removal. 

The following sentence is inserted in place of the deleted

sentence: 

Although we lack jurisdiction to review the IJ’s

finding that Morales was removable, we have jurisdiction to review the IJ’s denial of Morales’s application for asylum, pursuant to 8 U.S.C. § 1252(a)(2)

(B)(ii), and to review the IJ’s denial of Morales’s

application for withholding of removal to the extent

that Morales raises questions of law, including

mixed questions of law and fact, or constitutional

claims. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v.

Gonzales, No. 03-74351, ___ F.3d ___, ___ 2007

MORALES v. GONZALES 2431
U.S. App. LEXIS 3803, at *2, 9 (9th Cir. Feb. 22,

2007).

OPINION

THOMPSON, Senior Circuit Judge: 

Nancy Arabillas Morales, a.k.a. Juan Manuel Arabillas

Morales, a male-to-female transsexual, petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision summarily affirming an Immigration Judge’s (“IJ”) removal order

and denial of her applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). 

The IJ concluded that Morales was removable both because

she was an alien present in the United States without admission or parole and because she had been convicted of a crime

involving moral turpitude — communication with a minor for

immoral purposes under section 9.68A.090 of the Revised

Code of Washington. The IJ further found Morales would

have been eligible for asylum but for her conviction, which

the IJ determined was a particularly serious crime. Having

made that decision, the IJ denied Morales’s applications for

asylum and for withholding of removal. The IJ also denied

Morales’s application for CAT relief on the merits, holding

that Morales had not shown it was more likely than not she

would be tortured if she were returned to Mexico. 

We conclude that we lack jurisdiction to review the IJ’s

finding that Morales was removable because Morales had

been convicted of a crime of moral turpitude. See 8 U.S.C.A.

§ 1252(a)(2)(C) (West 2005). Nevertheless, we have jurisdiction to review the denial of Morales’s applications for asylum,

withholding of removal, and CAT relief. See 8 U.S.C.A.

§ 1252(a)(1), (4) (West 2005). We grant Morales’s petition

2432 MORALES v. GONZALES
for review of these claims. We conclude the IJ improperly

relied on a recitation of facts in the Washington appellate

court’s opinion affirming Morales’s conviction. Relying on

those facts, the IJ determined that Morales’s conviction was

for a particularly serious crime. A substantial portion of the

facts the IJ relied upon, however, applied to offenses for

which Morales had not been convicted. Therefore, we remand

to the BIA with instructions to remand to the IJ for a redetermination of the “particularly serious crime” issue. 

We also conclude the IJ applied an incorrect legal standard

to Morales’s application for CAT relief, and we remand for

a redetermination of that issue as well.

I. BACKGROUND

Nancy Arabillas Morales was born Juan Manuel Arabillas

Morales on June 24, 1968. She began using the name Nancy

when she was fourteen years old because she always felt that

she was more of a female than a male. 

At the age of fifteen, Morales began working at a bar and

dressing as a woman. Around the same time, Morales moved

out of her family’s home because her father beat her and

would not allow her to dress as a woman. At the administrative hearing, Morales testified that at the age of eight she was

raped by her brother, and when she began working at the bar,

she was raped by one of her customers. Morales was arrested

twice and jailed for being a minor working in a bar. She was

raped by several men in jail, and her cries were ignored by the

prison officials. Morales also suffered at least one beating at

the hands of a policeman in her hometown. 

When Morales was sixteen, she moved from her hometown

of San Luis Potosi to Matamoros, Mexico, to be closer to the

United States. On one occasion, Morales attempted to enter

the United States from Matamoros. She was picked up by

seven men who attacked and raped her. Morales did not report

MORALES v. GONZALES 2433
the incident because she believed the police would only arrest

her. Morales was arrested several times in Matamoros for

dressing as a woman, but she was never charged or convicted

of any crime. The police often refrained from arresting her or

released her soon after her arrest if she gave them money. 

In 1986, Morales came to the United States. She has lived

here since then and has returned to visit Mexico on only a

couple of occasions — once to receive breast implants and

once when her mother died. At the administrative hearing,

Morales had difficulty remembering the dates of her visits to

Mexico and whether she returned a third time. Morales testified that she wants to remain in the United States because she

has never been assaulted here, and she is afraid that, because

she is “more of a woman” now, she is more likely to be

assaulted in Mexico. 

In April 2002, following a jury trial, Morales was convicted

of communication with a minor for immoral purposes under

section 9.68A.090 of the Revised Code of Washington. State

v. Morales, No. 50397-9-I, 2003 WL 22384696, at *1 (Wash.

Ct. App. Oct. 20, 2003). She had also been charged with third

degree rape of a child and third degree child molestation, but

the jury was unable to reach a verdict on the rape charge and

acquitted Morales of the child molestation charge. Id.

On November 19, 2003, the Department of Homeland

Security (“DHS”) charged Morales under section

212(a)(6)(A)(i) of the INA, 8 U.S.C.A. § 1182(a)(6)(A)(i)

(West 2005), with being an alien present in the United States

who had not been admitted or paroled. The DHS also charged

Morales with being removable under section 212(a)(2)(A)

(i)(I) of the INA, 8 U.S.C.A. § 1182(a)(2)(A)(i)(I) (West

2005), because she had been convicted of a crime involving

moral turpitude. 

At her hearing before the IJ, Morales was the only witness.

The IJ found Morales removable on both charges and denied

2434 MORALES v. GONZALES
her applications for asylum, withholding of removal, and

CAT relief. The IJ stated that but for Morales’s conviction for

communication with a minor for immoral purposes, he would

have found her eligible for asylum under Hernandez-Montiel

v. INS, 225 F.3d 1084 (9th Cir. 2000). With regard to her conviction for communication with a minor for immoral purposes, the IJ relied on facts recited in the Washington

appellate court’s opinion affirming that conviction and determined she had been convicted of a particularly serious crime;

for that reason, the IJ concluded Morales was ineligible for a

grant of asylum or withholding of removal. 

The IJ determined the only relief for which Morales was

possibly eligible was relief under the CAT, but he found

Morales had failed to demonstrate it was more likely than not

she would be tortured if she were to return to Mexico. He

based his denial on Morales’s “very general” testimony, her

return visits to Mexico, the mention of a Mexico City gay

pride parade in the 2002 country report for Mexico, and the

respect Morales’s siblings living in Mexico had gained for her

since she had moved to the United States and started sending

them money. 

In analyzing the specific incidents of abuse suffered by

Morales, the IJ focused on Morales’s interactions with the

police and other government officials in Mexico. The IJ found

it especially significant that these incidents had occurred some

substantial period of time in the past, all prior to 1986. The

IJ also found it significant that Morales could not remember

the dates of her return visits to Mexico, including the date of

her mother’s death. Nevertheless, the IJ made no adverse

credibility finding. 

Morales appealed to the BIA, which summarily affirmed

the IJ’s decision, and this petition for review followed.

II. DISCUSSION

When, as here, the BIA affirms the decision of an IJ without opinion, this court reviews the IJ’s ruling as the final

MORALES v. GONZALES 2435
agency decision. Acosta v. Gonzales, 439 F.3d 550, 552 (9th

Cir. 2006). We review de novo the IJ’s legal determinations.

Id. The IJ’s findings of fact are reviewed for substantial evidence and are treated as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)

(quoting 8 U.S.C.A. § 1252(b)(4)(B) (West 2005)). 

A. Jurisdiction 

1. Order of Removal 

[1] Under 8 U.S.C. § 1252(a)(2)(C), this court lacks “jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed a criminal

offense covered in section 1182(a)(2) . . . .” 8 U.S.C.

§ 1252(a)(2)(C). The offenses covered in § 1182(a)(2) include

crimes involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)

(i)(I). 

This court has “jurisdiction ‘to determine whether jurisdiction exists.’ ” Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir.

2001) (quoting Flores-Miramontes v. INS, 212 F.3d 1133,

1135 (9th Cir. 2000)). This jurisdiction includes determining

threshold issues, which in this case involves whether Morales

is an alien who has committed an act that constitutes the

essential elements of a crime involving moral turpitude. See

id. at 1001; 8 U.S.C. §§ 1182(a)(2)(A)(i), 1252(a)(2)(C). 

Morales admits she is a native and citizen of Mexico, but

she does not admit committing a crime involving moral turpitude. We nevertheless conclude that her conviction for communication with a minor for immoral purposes is such a

crime. 

“To determine whether a specific crime falls within a particular category of grounds for removability, we apply the categorical and modified categorical approaches set forth in

2436 MORALES v. GONZALES
Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109

L.Ed.2d 607 (1990).” Cuevas-Gaspar v. Gonzales, 430 F.3d

1013, 1017 (9th Cir. 2005). Under the categorical approach,

we ask “whether the full range of conduct encompassed by

the [criminal] statute constitutes a crime of moral turpitude.”

Id. 

Section 9.68A.090 of the Revised Code of Washington provides that “a person who communicates with a minor for

immoral purposes, or a person who communicates with someone the person believes to be a minor for immoral purposes,

is guilty of a gross misdemeanor.” Wash. Rev. Code

§ 9.68A.090(1). The essential elements of this state crime are

(1) communication (through words or conduct) (2) with a

minor or someone the defendant believes to be a minor (3) for

immoral purposes of a sexual nature. See State v. Hosier, 133

P.3d 936, 941 (Wash. 2006) (stating that “communication”

includes “conduct as well as words” and “immoral purpose”

refers to “sexual misconduct”) (citations and internal quotation marks omitted). Thus, immorality is one of the elements

of the crime under Washington law. 

[2] Moral turpitude refers generally to conduct that is “inherently base, vile, or depraved, and contrary to accepted

rules of morality.” Fernandez-Ruiz v. Gonzales, 468 F.3d

1159, 1169 (9th Cir. 2006) (quoting Tseung Chu v. Cornell,

247 F.2d 929, 934 (9th Cir.1957)); see also Knapik v. Ashcroft, 384 F.3d 84, 89 (3rd Cir. 2004) (defining moral turpitude as “conduct that is inherently base, vile, or depraved,

contrary to the accepted rules of morality and the duties owed

other persons, either individually or to society in general”).

Sexual communication with a minor is inherently wrong and

contrary to the accepted rules of morality and the duties owed

between persons. The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude. Therefore,

without proceeding to the modified categorical approach, we

conclude that Morales has been convicted of a crime involvMORALES v. GONZALES 2437
ing moral turpitude, and this court lacks jurisdiction to review

the IJ’s final order of removal. See 8 U.S.C. §§ 1182(a)(2),

1252(a)(2)(C)-(D) (West 2005). 

2. Denial of Asylum and Withholding of Removal 

Although we lack jurisdiction to review the IJ’s finding that

Morales was removable, we have jurisdiction to review the

IJ’s denial of Morales’s application for asylum, pursuant to 8

U.S.C. § 1252(a)(2)(B)(ii), and to review the IJ’s denial of

Morales’s application for withholding of removal to the extent

that Morales raises questions of law, including mixed questions of law and fact, or constitutional claims. See 8 U.S.C.

§ 1252(a)(2)(D); Ramadan v. Gonzales, No. 03-74351, ___

F.3d ___, ___ 2007 U.S. App. LEXIS 3803, at *2, 9 (9th Cir.

Feb. 22, 2007). The INA provides that “no court shall have

jurisdiction to review . . . [a] decision or action of the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this subchapter to be in

the discretion of the Attorney General or the Secretary of

Homeland Security, other than the granting of relief under

section 1158(a) of this title.” 8 U.S.C.A. § 1252(a)(2)(B)(ii)

(West 2005). 

Section 1158(a) governs asylum applications. 8 U.S.C.A.

§ 1158(a) (West 2005). Thus, because decisions whether to

grant asylum are exempted from § 1252(a)(2)(B)(ii)’s

jurisdiction-stripping mandate, we have jurisdiction to review

the IJ’s denial of Morales’s asylum application. See Hosseini

v. Gonzales, 464 F.3d 1018, 1021 (9th Cir. 2006) (“We . . .

have jurisdiction to review the BIA’s discretionary denial of

Hosseini’s application for asylum.”) (citing § 1252(a)(2)

(B)(ii)).1

1Section 1252(a)(2)(B)(ii) only applies to discretionary decisions. The

IJ’s determination that Morales was statutorily ineligible for asylum was

arguably not a “decision . . . the authority for which is specified . . . to be

in the discretion of the Attorney General,” 8 U.S.C. § 1252(a)(2)(B)(ii),

2438 MORALES v. GONZALES
With regard to withholding of removal, if the decision to

deny Morales that form of relief was based on the Attorney

General’s discretion exercised pursuant to a statute granting

him discretion to make that decision, we would lack jurisdiction to review the denial. Matsuk, 247 F.3d at 1002. In Matsuk, the BIA exercised its discretion, “pursuant to Section

1231(b)(3)(B)(ii), ‘to determine whether an aggravated felony

conviction resulting in a sentence of less than 5 years is a particularly serious crime.’ ” Id. (citation omitted). This court

was therefore jurisdictionally barred from reviewing the

denial of withholding of removal. Id.

In denying Morales’s application for withholding of

removal, the IJ did not make the same determination the BIA

made in Matsuk. Morales’s conviction was for a gross misdemeanor under state law, and the IJ never determined that it

constituted an aggravated felony. Cf. Afridi v. Gonzales, 442

F.3d 1212, 1217-18 (9th Cir. 2006) (determining first that

Afridi was convicted of an aggravated felony and then considering whether the conviction, although it did not result in a

sentence of at least five years, was for a particularly serious

crime); Singh v. Ashcroft, 351 F.3d 435, 439-40 (9th Cir.

2003) (involving only a challenge to the “particularly serious

crime” determination and not challenging categorization of

the crime as an aggravated felony). Here, the IJ determined

that Morales’s non-aggravated felony conviction resulting in

a sentence of less than five years was for a particularly serious

crime. The question is whether the IJ was statutorily granted

discretion to make that decision. 

The government argues that 8 U.S.C. § 1231(b)(3)(B)(ii)

gives the Attorney General absolute discretion to make the

because the asylum statute states that an alien “shall not” be found eligible

for asylum if the Attorney General determines she has been convicted of

a particularly serious crime. See 8 U.S.C.A. § 1158(b)(2)(A) (West 2005).

In either case, we are not divested of jurisdiction to review the IJ’s denial

of Morales’s asylum application. 

MORALES v. GONZALES 2439
determination whether any crime is a particularly serious

crime, and therefore, we lack jurisdiction to review the IJ’s

decision related to withholding of removal. That interpretation

broadens the discretion we have previously determined

§ 1231(b)(3)(B)(ii) grants to the Attorney General. See Afridi,

442 F.3d at 1217 (stating § 1231(b)(3)(B)(ii) gives the Attorney General “discretion to determine whether an aggravated

felony conviction resulting in a sentence of less than five

years is a particularly serious crime”) (citation omitted,

emphasis added); Unuakhaulu v. Gonzales, 416 F.3d at 931,

935 (9th Cir. 2005) (same); Singh, 351 F.3d at 439 (same);

Matsuk, 247 F.3d at 1002 (same). 

Whether the Attorney General’s discretion should be

broadened need not be determined in this case, however,

because Morales presents a question of law over which this

court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).

See Afridi, 442 F.3d at 1218 (discussing appellate court’s

jurisdiction to consider legal questions related to the determination of whether a crime is particularly serious). Morales’s

appeal raises a legal question regarding what an IJ may consider in determining whether a crime is particularly serious.

[3] We, therefore, have jurisdiction to consider Morales’s

petition for review on both the asylum and withholding of

removal questions. The denial of asylum is reviewable

because it is specifically exempted from § 1252(a)(2)(B)(ii)’s

jurisdiction-stripping provisions. The denial of withholding of

removal is reviewable because Morales raises a legal question

pertaining to what an IJ may refer to in deciding whether a

prior offense is a particularly serious crime. 

3. Denial of CAT Protection 

The government also argues we lack jurisdiction to review

the IJ’s denial of Morales’s application for CAT relief. The

government cites no specific statutory provision barring our

jurisdiction to review applications for CAT relief, but instead

2440 MORALES v. GONZALES
relies on 8 U.S.C. § 1252(a)(2)(C)-(D), which divests courts

of appeal of jurisdiction to review orders of removal unless

the petition for review presents a constitutional issue or question of law. 

The government argues Morales’s petition for review of the

IJ’s denial of her CAT claim presents only factual issues

regarding whether she is more likely than not to be tortured

if she is returned to Mexico, and therefore, this court does not

have jurisdiction to consider her petition for CAT relief. We

disagree. 

First, without regard to whether Morales’s CAT claim presents only factual issues, the IJ applied the wrong legal standard in denying her CAT application. See infra Part II.C. We

have jurisdiction under 8 U.S.C. § 1252(a) to determine the

proper legal standard for CAT relief. See Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1053 (9th Cir. 2006). Second, as to

our resolution of factual issues, when 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.

See Unuakhaulu, 416 F.3d at 936-37. 

The government argues Unuakhaulu is not controlling

because this court previously decided in Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1220 (9th Cir. 2004), that we lacked

jurisdiction to review an alien’s CAT claim where the alien

was found removable and denied CAT relief because he had

been convicted of an aggravated felony. There is no conflict,

however, between Unuakhaulu and Ruiz-Morales. The IJ in

Ruiz-Morales found that Ruiz-Morales had committed an

aggravated felony and ordered him removed on that basis.

Ruiz-Morales, 361 F.3d at 1220-21. In contrast, the IJ in

Unuakhaulu “found that Unuakhaulu was removable based on

his aggravated felony conviction, but neither ordered him

removed on that basis nor relied on the aggravated felony

MORALES v. GONZALES 2441
conviction in denying Unuakhaulu’s application for withholding of removal and for relief under CAT.” Unuakhaulu, 416

F.3d at 933. 

[4] The present case is similar to Unuakhaulu in that the IJ

did not rely on Morales’s conviction in denying her relief

under the CAT. Instead, the IJ concluded Morales had not

shown it was more likely than not that she would be tortured

if she were returned to Mexico. Therefore, the IJ’s denial of

CAT relief was on the merits and under Unuakhaulu is

reviewable by this court. See id. at 936-37. 

In sum, we have jurisdiction to review Morales’s applications for asylum, withholding of removal and relief under the

CAT. We now consider those applications. 

B. The IJ’s Particularly Serious Crime Determination 

The IJ concluded Morales would have been eligible for

asylum and withholding of removal but for his finding that

she had been convicted of a particularly serious crime. 

[5] The IJ, however, improperly relied on a recitation of

facts contained in the Washington appellate court’s opinion

affirming Morales’s conviction. The IJ used that recitation of

facts to determine that Morales had been convicted of a particularly serious crime. Morales contends those facts should

not have been part of the IJ’s consideration because they

related to charges of which she was not convicted. We agree.

Morales was charged with rape of a child, child molestation,

and communication with a minor for immoral purposes, but

she was only convicted of communication with a minor for

immoral purposes. Morales, 2003 WL 22384696, at *1. She

was acquitted of the child molestation charge, and there was

a hung jury on the charge of child rape. Id.

[6] The facts recited in the Washington appellate court’s

opinion on which the IJ relied included evidence that Morales

2442 MORALES v. GONZALES
exposed her breasts to a fifteen-year-old boy, fondled the genitals of the fifteen-year-old boy and his fourteen-year-old

friend, and performed fellatio on the fifteen-year-old boy. See

id. These facts applied to crimes of which Morales was not

convicted. The IJ should not have relied on them in determining that the crime of which Morales was convicted was a particularly serious crime. 

Morales also argues the IJ should not have relied on facts

stated in the Washington appellate court’s opinion because

that opinion is not within the list of “judicially noticeable documents” described in Parrilla v. Gonzales, 414 F.3d 1038 (9th

Cir. 2005). In Parrilla, we applied the modified categorical

approach to determine whether the alien’s conviction was for

an aggravated felony. Id. at 1043. The modified categorical

approach is not generally employed, however, in determining

whether a petitioner has been convicted of a particularly serious crime. Instead, courts proceed directly to an analysis of

the factors developed by the BIA in its In re Frentescu decision. See Afridi, 442 F.3d at 1219 (citing In re Frentescu, 18

I. & N. Dec. 244, 247 (BIA 1982)). These include “ ‘the

nature of the conviction, the circumstances and underlying

facts of the conviction, the type of sentence imposed, and,

most importantly, whether the type and circumstances of the

crime indicate that the alien will be a danger to the community.’ ” Id. (quoting In re Frentescu, 18 I. & N. Dec. at 247). 

[7] The same record of conviction is used in making both

the aggravated felony and the particularly serious crime determinations. According to the BIA, in consulting that record of

conviction to determine the facts and circumstances underlying the alien’s conviction, it is permissible to “look to the conviction records and sentencing information . . . [but] . . . not

[to] engage in a retrial of the alien’s criminal case or go

behind the record of conviction to redetermine the alien’s

innocence or guilt.” In re L-S-, 22 I. & N. Dec. 645, 651 (BIA

1999). 

MORALES v. GONZALES 2443
[8] We defer to the BIA’s statutory interpretation that only

the record of conviction and sentencing information may be

considered in determining whether Morales’s conviction was

for a particularly serious crime. The BIA’s interpretation is

entitled to deference under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837 (1984), and INS v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999), because the applicable statutes here are both silent regarding the basis for

determining whether a conviction is for a particularly

serious crime, see 8 U.S.C. §§ 1158(b)(2)(A)(ii) and

1231(b)(3)(B)(ii) (West 2005), and the BIA’s interpretation is

based on a reasonable — and therefore permissible — construction of the statute. See Simeonov v. Ashcroft, 371 F.3d

532, 535 (9th Cir. 2004) (stating deference is owed to the

BIA’s interpretation of the INA “unless that interpretation is

contrary to the plain and sensible meaning of the statute”).

Therefore, we defer to the BIA’s interpretation in In re L-Sthat the particularly serious crime determination, which we

must consider in this case, may be made by looking only to

the record of conviction and sentencing information. 

We have previously defined what constitutes the record of

conviction, stating it “consists of a narrow, specified set of

documents that includes ‘the state charging document, a

signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.” Ferreira v.

Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (quoting

Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th

Cir. 2003)). The record of conviction may also include “ ‘any

explicit factual finding by the trial judge to which the defendant assented.’ ” Parrilla, 414 F.3d at 1043 (quoting Shepard

v. United States, 544 U.S. 13, 16 (2005)). 

Although the Washington appellate court opinion recites

the evidence presented at Morales’s trial, see Morales, 2003

WL 22384696, at *1, 3, neither it nor the trial court made any

factual findings regarding the conduct for which Morales was

2444 MORALES v. GONZALES
acquitted or on which the jury was unable to reach a verdict.2

The Washington appellate court considered the evidence in

the context of Morales’s appeal challenging the sufficiency of

the evidence for her conviction. Id. at *1-3. 

“For purposes of a challenge to the sufficiency of the evidence, the appellant admits the truth of the State’s evidence

and all inferences that a trier of fact can reasonably draw from

it.” State v. Silva, 24 P.3d 477, 482-83 (Wash. Ct. App. 2001);

see State v. Myers, 941 P.2d 1102, 1107 (Wash. 1997). In this

context, the evidence is viewed in the light most favorable to

the prosecution. Myers, 941 P.2d at 1107; Silva, 24 P.3d at

482. No factual findings are actually made, and no admissions

are entered into by the defendant. Instead, for the sole purpose

of determining the sufficiency of the evidence, the evidence

is presumed true. 

[9] It was from this isolated context that the IJ drew the

facts and circumstances of Morales’s conviction. This is far

different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant

admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See LaraChacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).

Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the

State’s evidence for the purpose of her challenge to its sufficiency. And a substantial portion of that evidence, as recited

by the Washington appellate court, applied to crimes of which

she was not convicted. 

[10] The IJ thus erred in relying on the facts recited in the

2

In considering the recitation of evidence in the state appellate court’s

opinion as part of the “record of conviction,” the IJ referred to the recitation of factual matters in that opinion as “the factual findings” of the Court

of Appeals of Washington. This is not actually the case. 

MORALES v. GONZALES 2445
Washington appellate court’s opinion because those facts

were not admitted or established as “the circumstances and

underlying facts of conviction.” See In re Frentescu, 18 I. &

N. Dec. at 247. On remand, the BIA shall remand to the IJ for

a redetermination — based on the record of conviction as

defined in Ferreira, Parrilla, and In re L-S-, as well as information relied on in Morales’s sentencing proceeding — to

determine whether Morales’s conviction was for a particularly

serious crime. The IJ shall also consider the remaining In re

Frentescu factors, including the type of sentence imposed and

whether the type and circumstances of the crime indicate that

Morales will be a danger to the community. See In re

Frentescu, 18 I. & N. Dec. at 247. 

C. Protection Under the CAT 

[11] To be entitled to relief under the CAT, an alien must

show “ ‘he is more likely than not to suffer intentionallyinflicted cruel and unusual treatment’ ” in the country to

which he is removed. Nuru v. Gonzales, 404 F.3d 1207, 1221

(9th Cir. 2005) (quoting Wang v. Ashcroft, 320 F.3d 130, 134

(2d Cir. 2003)). The IJ’s factual findings in connection with

a denial of CAT relief are reviewed for substantial evidence.

Ornelas-Chavez, 458 F.3d at 1055-56. “The ‘substantial evidence’ standard requires us to uphold the BIA’s determination

if supported by ‘reasonable, substantial, and probative evidence on the record.’ ” Id. at 1056 (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). The IJ’s application of

legal standards, however, is reviewed de novo. Id. at 1055. 

The IJ found Morales had not shown she was more likely

than not to be tortured if she were returned to Mexico. The IJ

also noted that pertinent regulations define torture as “pain or

suffering . . . inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 208.18(a)(1) (2006).

The IJ quoted from the regulation that defines “acquiescence

of a public official” as requiring “that the public official, prior

2446 MORALES v. GONZALES
to the activity constituting torture, have awareness of such

activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.” Id. § 208.18(a)(7). Government acquiescence is not restricted to actual control or

knowledge, willful acceptance, or even an agency relationship; it includes “willful acceptance” or “willful blindness” on

the part of government officials toward abuse inflicted exclusively by private individuals. Reyes-Reyes v. Ashcroft, 384

F.3d 782, 787 88 (9th Cir. 2004) (citing Zheng v. Ashcroft,

332 F.3d 1186, 1194-95 (9th Cir. 2003)). 

Although the IJ quoted the correct legal standard for assessing CAT claims, his decision and the record show that he did

not actually apply that standard. At the administrative hearing,

the IJ asked Morales several questions about her interaction

with police officers in Mexico. In his decision, the IJ mentioned briefly that Morales had been raped by men, but this

was immediately followed by the IJ’s discussion regarding

Morales’s contact with the Mexican police. During the administrative hearing, the IJ focused on whether the men who

attacked Morales had any connection with the Mexican government and what position the Mexican government took

toward transgender people. 

After Morales testified that men other than police officers

beat her up on the streets, the IJ stated that he was only concerned with government misconduct: “Well, I understand, but

the men who did the egregious things to you, — and I’m, by

that I’m referring to the rapes — they didn’t have any connection to the Mexican government, did they?” In his decision,

the IJ had only this to say as to the history of Morales’s torture:

[Morales] has reported lamentable incidents of her

being “raped” by men. She was asked a number of

times about interaction with government officials in

Mexico such as the police. She gave very general

testimony of perhaps being arrested approximately

MORALES v. GONZALES 2447
eight times. The respondent does not have a very

good memory at all for dates or the particulars of a

given incident. With regard to any misconduct by the

police directed at her, she states that there were occasions that she was “slapped,” and that the police “harassed” her for dressing as a woman. 

IJ Decision at 5-6 (Feb. 27, 2004). 

The IJ did not mention the majority of Morales’s testimony,

which she contends established her past torture. Most notably,

the IJ’s opinion included no reference to prison officers

laughing and ignoring Morales’s screams and cries while she

was repeatedly raped by fellow inmates. The IJ discussed only

direct government action, and apparently afforded no weight

to the instances of violence and rape that Morales was subjected to but which she did not report because of “willful

blindness” if not outright acceptance by police officers who

would only throw her in jail or extort bribes from her if she

attempted to report the incidents. 

[12] The IJ did not state specifically that he was denying

Morales’s application for CAT relief based on her failure to

allege a connection between her attackers and the Mexican

government. Cf. Ornelas-Chavez, 458 F.3d at 1055; ReyesReyes, 384 F.3d at 785; Zheng, 332 F.3d at 1188. Nevertheless, it appears that by focusing on direct government involvement or connection with Morales’s attackers, the IJ implicitly

ignored this court’s precedent regarding whether there was

“willful blindness” on the part of government officials. ReyesReyes, 384 F.3d at 787 (citing Zheng, 332 F.3d at 1194-95).3

3The IJ also cited In re J-E-, 23 I. & N. Dec. 291 (BIA 2002), in concluding that Morales had not made out a claim for relief under the CAT.

In re J-E- stands, in part, for the proposition that a petitioner must have

been in the custody or control of a public official at the time of torture.

Ornelas-Chavez, 458 F.3d at 1059. This court has previously concluded

that this is an incorrect interpretation of the regulations defining torture.

Id. (citing Azanor v. Ashcroft, 364 F.3d 1013, 1020 (9th Cir. 2004)). 

2448 MORALES v. GONZALES
[13] Because the IJ applied an erroneous legal standard

regarding government conduct in connection with Morales’s

application for CAT relief, we remand for a determination

pursuant to the proper legal standard as set forth in ReyesReyes and Zheng. 

III. CONCLUSION

The IJ properly found that Morales was removable because

she was an alien present in the United States without admission or parole. The IJ also properly found that Morales was

removable because she had been convicted of a crime involving moral turpitude. 

The IJ erred, however, in denying Morales’s applications

for asylum and withholding of removal by relying on facts

recited in the Washington appellate court’s opinion, which

that court assumed to be true in its consideration of Morales’s

sufficiency of the evidence argument. The IJ used that statement of facts to determine that Morales’s conviction was for

a particularly serious crime, but a substantial portion of those

facts related to crimes for which Morales had not been convicted. The IJ also applied an incorrect legal standard to determine that Morales was ineligible for CAT relief. 

Petition for Review GRANTED in part. Case

REMANDED for further proceedings consistent with this

opinion. 

MORALES v. GONZALES 2449