FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIO ENRIQUE BENEDICTO, AKA 

Julio Enrique Garcia-Benedicto,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 18-73237

Agency No.

A021-389-277

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 13, 2021

Seattle, Washington

Filed September 9, 2021

Before: David M. Ebel,* Carlos T. Bea, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

* The Honorable David M. Ebel, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 BENEDICTO V. GARLAND

SUMMARY**

Immigration

Dismissing in part and denying in part Julio Enrique 

Benedicto’s petition for review of a decision of the Board of 

Immigration Appeals, the panel held that: 1) Benedicto, a 

U.S. lawful permanent resident who had been found 

mentally incompetent, received all possible safeguards in his 

removal proceedings; 2) he failed to exhaust his claim 

regarding the “particularly serious crime” determination; 

and 3) the denial of deferral of removal under the 

Convention Against Torture (CAT) was supported by 

substantial evidence. 

After finding Benedicto incompetent, an immigration 

judge appointed a qualified representative (QR), denied 

Benedicto’s motion to terminate, and found him removable 

for an aggravated felony. The IJ also concluded that his 

conviction was a particularly serious crime barring 

withholding of removal under CAT and the Immigration and 

Nationality Act, and denied deferral of removal under CAT. 

The BIA dismissed Benedicto’s appeal, and amicus counsel 

was appointed to support Benedicto before this court. 

Amicus counsel argued both that the IJ should have 

instituted additional safeguards to protect Benedicto’s due 

process rights, and ultimately, given insufficient protections, 

should have terminated proceedings. The panel concluded 

it lacked jurisdiction to consider the unexhausted claim 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BENEDICTO V. GARLAND 3

regarding additional safeguards. The panel also concluded 

that the IJ’s safeguards sufficed such that termination was 

not required, explaining that the IJ: (1) appointed a QR, 

(2) granted every continuance requested, (3) compelled 

document productions from the Department of Homeland 

Security, (4) ensured that Benedicto’s QRs were able to file 

written pleadings and applications for relief, (5) personally 

questioned Benedicto to further ensure a fulsome, developed 

record, and (6) reviewed record evidence submitted to 

support Benedicto’s claims for relief. Rejecting amicus 

counsel contention that proceedings should have been 

terminated because Benedicto was not able to obtain further 

information that might have helped him, the panel explained 

that the IJ’s safeguards enabled Benedicto to present 

sufficient relevant information, and that the potential further 

information that amicus counsel proposed did not meet the 

narrow set of reasons for which an IJ may terminate under 

8 C.F.R. § 1239.2(f). 

Next, the panel concluded that it could not review amicus 

counsel’s arguments regarding the particularly serious crime 

determination because the QR did not challenge that 

determination, which was the express reason the BIA relied 

on in finding no basis to disturb it. Were it able to review 

the unexhausted claim, the panel explained that amicus 

counsel’s argument was that Benedicto’s counsel was 

ineffective for failing to make specific arguments regarding 

the IJ’s weighing of the facts. The panel explained that a 

particularly serious crime determination is inherently 

discretionary and that jurisdiction to review such 

determinations exists only when the petitioner raises a 

constitutional or legal question, not simply where he asks for 

re-weighing of factors. 
4 BENEDICTO V. GARLAND

The panel also rejected the contention that the IJ erred, 

under Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 

2018), by not referencing Benedicto’s mental illness in 

making the particularly serious crime determination. The 

panel explained that Gomez-Sanchez does not require the IJ 

to always reference a petitioner’s mental health in this 

context; rather, consideration of mental illness is required 

only where the petitioner presents evidence directly 

attributing the crime to his mental illness. As that was not 

the case here, and the IJ did not explicitly exclude mental 

health from her analysis, but instead considered all reliable 

information, the panel was not convinced of any legal error.

Finally, the panel concluded that the evidence did not 

compel reversal of the denial of deferral of removal under 

CAT. Observing that the IJ and BIA agreed that Benedicto 

would more likely than not be arrested after he is deported, 

the panel explained that the record did not compel the 

conclusion Benedicto is more likely than not to suffer 

torture. As to police custody, the panel explained that the IJ 

and the BIA reasonably concluded that, while police in the 

Dominican Republic do injure detainees, the government 

does not demonstrate intentional complicity and the record 

does not compel the conclusion that any individual detainee 

is more likely than not to be tortured. As to prison 

conditions, the panel explained that the record demonstrated 

the Dominican Republic’s substantive attempts at prison 

reform, such that the record did not compel an inference of 

torturous intent. The panel also rejected the contention that 

the IJ failed to analyze Benedicto’s cumulative risk of 

torture.
BENEDICTO V. GARLAND 5

COUNSEL

Grace Leeper (argued), Jenya Godina, and Andrew Hellman, 

O’Melveny & Myers LLP, Washington, D.C.; Anton 

Metlitsky, O’Melveny & Myers LLP, New York, New York; 

Amicus Curiae Counsel on behalf of Petitioner.

Rachel L. Browning (argued), Trial Attorney; Keith I. 

McManus, Assistant Director; Brian Boynton, Acting 

Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

VANDYKE, Circuit Judge:

INTRODUCTION

Julio Enrique Benedicto (Petitioner or Benedicto) 

petitions for review of the Board of Immigration Appeals’ 

(BIA) dismissal of his due process claims, the denial of his 

motion to terminate, and the denial of his application for 

withholding or deferral of removal under the Convention 

Against Torture (CAT). For the reasons stated below, we 

dismiss Petitioner’s due process claims and deny his 

petition.

BACKGROUND AND PROCEDURAL HISTORY

I. FACTS

Petitioner is a native and citizen of the Dominican 

Republic who was admitted to the United States on a B-2 

visitor visa when he was about 16 or 17 years old. He 
6 BENEDICTO V. GARLAND

adjusted status to a lawful permanent resident on September 

9, 1980, when he was 22 years old. While living in New 

York, Benedicto was twice convicted for promoting 

gambling in 1983 and 1984, and convicted for disorderly 

conduct sometime around 1988. He testified that he used 

heroin daily for about two years from 1989–1991. After he 

moved to California, he was convicted of felony first degree 

burglary in 1991 and of burglary again in 1992.

On November 5, 2003, Benedicto was convicted in 

Washington State of two counts of domestic violence assault 

in the second degree (receiving 57 months for each offense) 

and one count of felony domestic violence harassment, for 

which he was sentenced to incarceration for 43 months. 

These sentences were to run concurrently with each other. 

DHS charged him as removable for being convicted of an 

aggravated felony for a term of imprisonment exceeding one 

year.

II. PROCEDURAL HISTORY

Benedicto appeared for his first hearing in July 2016, 

where the IJ found him incompetent and appointed him a 

qualified representative (QR). At a subsequent hearing two 

months later, Benedicto “act[ed] rather aggressively and 

hostilely toward” his QR such that the court “proceed[ed] 

without” Benedicto in that hearing, and granted the QR a 

continuance. And in the next hearing in November 2016, 

Benedicto again was not present due to “derogatory 

language toward” the QR. At that point, his QR filed a 

motion to terminate proceedings, arguing he could not 

adequately represent Benedicto, which DHS opposed. The 

IJ granted instead the QR’s motion to withdraw as counsel 

at the next hearing because Benedicto punched the QR in the 

face. But the IJ denied the motion to terminate and reset the 

hearing “for another [QR] to see if that is possible and to see 
BENEDICTO V. GARLAND 7

if perhaps [Benedicto] can be assisted with any type of 

treatment or medical assistance.”

In the hearing in February 2017, a new QR appeared 

telephonically and, although she had “review[ed] the entire 

physical record,” she requested a continuance because in her 

prior conversations with Benedicto he “indicate[d] that he 

[would] ... now sign” authorization so that the QR could 

obtain further records. The continuance was granted. The 

same QR appeared telephonically on March 9, 2017, while 

Benedicto appeared in person and provided the court with 

FOIA-requested results documenting his prior immigration 

proceedings in California in 1994. The QR stated she now 

intended to file a motion to terminate, because although she 

“spoke[] to [Benedicto] on various occasions” and that “[i]t 

seems that cooperation might be imminent,” he still refused 

to authorize the QR to obtain documents on his behalf. The 

IJ granted a further continuance.

On March 24, 2017, the IJ ordered DHS to produce 

documents requested by Benedicto relating both to his 

immigration status and prior proceedings and ordered the 

QR to file written pleadings and applications for relief. DHS 

made two document productions on March 27 and May 4 of 

2017, and another prior to the merits hearing in August. In 

May 2017, the QR requested a further continuance to 

“explor[e] a possible readjustment if ... [she could] locate 

adult U.S. citizen children,” which the IJ granted. The QR 

subsequently filed written pleadings contesting removability 

and an application for asylum, withholding of removal, and 

protection under CAT. In August 2017, the IJ took 

testimony on Benedicto’s application for asylum-related 
8 BENEDICTO V. GARLAND

relief. After further briefing, the IJ denied relief and ordered 

Benedicto removed.

1

A. IJ Decision

i. Removability 

The IJ determined that Benedicto was removable as an 

alien who “has been convicted of an aggravated felony ..., a 

crime of violence, for which a term of imprisonment ordered 

is at least one year.” The IJ determined that Benedicto’s 

conviction for felony harassment–domestic violence was 

divisible under the modified categorical approach and, based 

on the record of conviction, concluded “that the record 

necessarily establishes that [Benedicto] was ... convicted” 

under the portion of the statute that “requires a knowing 

threat of intent to kill another person.” The IJ concluded this 

conviction was “an aggravated felony crime of violence” 

sufficient to sustain removal.

ii. Testimony

Benedicto testified that he was subject to an immigration 

proceeding in California in 1994 and that the hearing 

transcript should show the IJ acknowledged that he has 

American citizenship “because of his father.” While the IJ 

1 In September 2017, DHS added to the charges in the NTA, 

claiming that other convictions in Benedicto’s record also demonstrated

removability under (1) INA § 237(a)(2)(A)(ii) for being convicted of two 

or more crimes involving moral turpitude (CIMT), and (2) INA 

§ 237(a)(2)(E)(i), as an alien who has been convicted of a crime of 

domestic violence or child abuse. The IJ found Benedicto removable for 

having been convicted of two or more CIMTs, but declined to find him 

removable under INA § 237(a)(2)(E)(i). The BIA ultimately relied only 

on DHS’s original removability charge for an aggravated felony crime 

of violence.
BENEDICTO V. GARLAND 9

“acknowledged [Benedicto] was in immigration proceedings 

in 1994 and his case was administratively closed pending 

state prosecution,” she concluded that Benedicto “was 

ineligible to derive citizenship from his father at the time 

because [he] had already turned eighteen years old on May 

25, 1976 prior to his father’s naturalization.”

Benedicto testified that he was afraid to return to the 

Dominican Republic because “his cousin [Freddy Garcia] 

has been running the government,” was “waiting for him,” 

and would “kill him ... in order to get all of the money” he 

inherited from his mother.

When asked about the circumstances underlying his 

felony domestic violence conviction, Benedicto testified he 

“was defending himself from his ex-girlfriend and her son 

who were jumping him,” and that they were working with 

the Washington State police, who “followed him for three 

years and tapped his phone.” Benedicto averred that he was 

competent, had no mental health problems, and did not need 

a lawyer.

iii. Competency

The IJ determined Benedicto was “not competent to 

represent himself.” The IJ decided that she must “implement 

appropriate safeguards to ensure that [his] rights are 

protected,” and that she had “discretion to determine which 

safeguards are appropriate.” The IJ catalogued that she had 

granted all continuance requests from Benedicto’s QR “to 

gather evidence and complete an application for relief,” 

provided two explanations of Benedicto’s rights and the 

charges in the Notice to Appear, “allowed counsel to appear 

telephonically, [and] independently questioned” Benedicto 

herself during the merits hearing. Notwithstanding these 

numerous safeguards, Benedicto’s QR moved for 
10 BENEDICTO V. GARLAND

termination because she felt Benedicto “was not afforded 

due process.”

The IJ denied the QR’s request for termination because 

she found that the court “implemented sufficient safeguards 

to ensure [Benedicto] receive[d] a fundamentally fair 

hearing.” The IJ noted she “can only terminate under a 

limited set of circumstances .... [n]one of which apply here.” 

The IJ found “the country conditions evidence ... sufficient 

for the Court to make a ruling on the merits” and determined 

DHS “met its burden of proving [Benedicto] is removable.”

iv. Credibility

Acknowledging that credibility for individuals with 

mental illness “should be addressed on a case-by-case 

basis,” the IJ “accept[ed] [Benedicto’s] testimony as an 

accurate depiction of his subjective understanding of his 

fears of future harm in the Dominican Republic.” But 

because some of his testimony may “be the result of 

[Benedicto’s] mental health difficulties .... [t]he Court 

look[ed] to the objective evidence in the record to determine 

whether or not [Benedicto] ... met his burden of proof for 

relief.”

v. Withholding of Removal under INA and 

CAT2

The IJ observed that Benedicto would be ineligible for 

withholding of removal under INA and CAT if the IJ 

determined, in her discretion, that his aggravated felony 

2 Because the IJ found Benedicto was convicted of an aggravated 

felony, she determined he was statutorily ineligible to apply for either 

cancellation of removal or asylum.
BENEDICTO V. GARLAND 11

qualified as a “particularly serious crime.” The IJ looked 

first to the elements of the crime, which “demonstrate[d] the 

serious nature of the offense.” The IJ then evaluated the 

“circumstances and underlying facts,” which involved “all 

reliable evidence in the record” including “the judgment of 

conviction and sentence, second amended information, 

certificate for determination of probable cause, and 

Prosecuting Attorney Case Summary and Request for Bail 

and/or Conditions of Release.” Testimony included in this 

information demonstrated that Benedicto threatened his 

partner with a handgun and “‘grabbed her by the shoulders 

and threw her to the ground.’ When [the son] tried to 

intervene to protect his mother, [Benedicto] struck him twice 

in the head with the gun causing him to bleed from the head 

and seek medical care.” This information combined with 

“the severity of [Benedicto’s] sentence” led the IJ to 

conclude that the conviction was for a particularly serious 

crime and deny Benedicto’s application for withholding of 

removal under INA and CAT.

vi. Deferral of Removal under CAT

The IJ “consider[ed] all evidence relevant to the 

likelihood of future torture,” given that Benedicto “never 

claimed he was harmed in the past in the Dominican 

Republic.” The IJ considered Benedicto’s testimony that his 

cousin, Freddy Garcia, was in charge of the Dominican 

Republic and “wants to kill him.” Although the IJ did “not 

dispute the sincerity and credibly [sic] of [Benedicto’s] 

testimony, .... none of the evidence in the record supports 

[Benedicto’s] belief[s].” The IJ observed the current 

president of the Dominican Republic was Danilo Medina, 

who was elected through a “generally free and orderly” 

process and “there is no indication that an individual by the 
12 BENEDICTO V. GARLAND

name of Freddy Garcia has the power ... over the national 

security forces to order such a targeted assassination.”

Evaluating torture by the police or prison system in the 

Dominican Republic, the IJ agreed that, given his past 

history, Benedicto was “more likely than not” to be arrested 

by “law enforcement following ... a crime.” But although 

police in the Dominican Republic at times use tactics that 

“would undoubtedly constitute torture,” the record did not 

demonstrate the regularity of such tactics or that the tactics 

target the mentally ill. Furthermore, “the Dominican 

government is actively monitoring prisoner treatment and 

responding to allegations of torture.” The IJ also observed 

that the prison system did not “demonstrate ... [a] specific 

intent to constitute torture.” The prison system had not 

worsened significantly, and it was “entirely possible that 

given [Benedicto’s] mental illness, he would be placed in 

one of the improved ‘model’ prisons, which ... includ[e] 

mental health treatment.”

The IJ concluded by noting it was not “more likely than 

not” that Benedicto would be institutionalized at the only 

mental health hospital in the country, both because he 

“refuse[s] treatment” and because “[t]here is no evidence in 

the record showing that law enforcement involuntarily 

commit mentally ill individuals.” For all those “foregoing 

reasons, the court [found] that [Benedicto] has not 

established he will more likely than not be tortured in the 

Dominican Republic with the consent ... of the Dominican 

government.”

B. BIA Decision

The BIA similarly denied the motion to terminate and 

dismissed Benedicto’s appeal. Reviewing for clear error, the 

BIA determined that despite Benedicto’s schizophrenia 
BENEDICTO V. GARLAND 13

diagnosis, refusal to cooperate with his QRs, and disruptive 

behavior in court, the IJ had provided sufficient safeguards 

and, moreover, had “no inherent authority to terminate.”

The safeguards regarding “the issue of alienage were 

sufficient” because the IJ “appoint[ed] a QR,” “requested 

that the DHS submit evidence ... relevant to [Benedicto’s] 

status,” and received “no evidence to substantiate” 

Benedicto’s citizenship claim. The safeguards provided 

regarding removability ensured Benedicto through his QR 

was able to deny the factual allegations and “fully brief the 

legal issues.” The safeguards regarding the applications for 

relief were also sufficient because the QR received 

“liberal[]” continuances and submitted an application for 

relief. The IJ personally asked Benedicto questions “during 

the merits hearing,” “credited [his] subjective beliefs” about 

persecution from his cousin, and compared it to the 

“objective evidence of record.” Because additional facts 

regarding Benedicto’s claims of future torture could “be 

developed without the need for [Benedicto’s] testimony,” 

the BIA concluded he “was afforded a fundamentally fair” 

process.

On the merits, the BIA affirmed that Benedicto was 

removable because his felony harassment–domestic 

violence conviction constituted “an aggravated felony under 

[INA] section 101(a)(43)(F).” The BIA observed Benedicto 

did “not challenge” the IJ’s determination that Benedicto’s 

aggravated felony constituted a particularly serious crime 

barring him from withholding of removal and “therefore 

[found] no basis to disturb it.”

The BIA concluded that Benedicto also failed to “set 

forth a valid claim for deferral of removal under” CAT. 

Agreeing that “it is more likely than not that [Benedicto] will 

enter police custody” after he is returned to the Dominican 
14 BENEDICTO V. GARLAND

Republic, the BIA observed that the instances of torture in 

the record do not “establish that [Benedicto] is more likely 

than not to be subjected to a torturous level of harm” while 

in custody. Even if Benedicto was imprisoned in an 

overcrowded prison, he did not “establish” that the 

Dominican government had a “specific intent to torture 

inmates” or those with mental illness.3 The BIA dismissed 

Benedicto’s appeal.

DISCUSSION

I. Benedicto Received Due Process.

Given Benedicto’s mental health issues, amicus counsel 

was appointed to support him in his proceedings before this 

court. Benedicto’s amicus counsel alleges that the IJ failed 

to provide adequate safeguards to ensure due process after 

deeming Benedicto not competent to represent himself. This 

court reviews due process allegations de novo, Cinapian v. 

Holder, 567 F.3d 1067, 1073 (9th Cir. 2009), the “critical 

question [being] ‘[w]hether the IJ’s actions prevented the 

introduction of significant testimony.’” Oshodi v. Holder, 

729 F.3d 883, 890 (9th Cir. 2013) (citation omitted). This 

court must determine whether, after the IJ’s mental 

incompetency finding, Benedicto received adequate 

“safeguards to protect [his] rights and privileges” during the 

proceedings, such that he could “have a reasonable 

opportunity to examine the evidence” and “to present 

evidence on [his] own behalf.” 8 U.S.C. § 1229a(b)(3), (4); 

see also Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 

3 The BIA agreed with the IJ that “there is insufficient evidence” 

that a man named Freddy Garcia would harm Benedicto or that 

Benedicto would “either voluntarily seek treatment or be involuntarily 

committed to a mental health facility.”
BENEDICTO V. GARLAND 15

2011). “[T]he ultimate determination of which safeguards 

to implement and whether they are adequate to ensure the 

fairness of proceedings is discretionary.” Matter of M-J-K-, 

26 I. & N. Dec. 773, 776 (BIA 2016).

Amicus counsel argues both that the IJ should have 

instituted additional safeguards, and ultimately, given the 

insufficient protections, should have terminated 

proceedings. This court lacks jurisdiction to consider the 

unexhausted claim that additional safeguards would have 

enhanced Benedicto’s proceedings.4 Given the record in this 

case, the IJ’s safeguards sufficed to provide Benedicto with 

due process such that termination was not required.

A. The IJ Provided Sufficient Safeguards.

The IJ instituted numerous safeguards to accommodate 

Benedicto’s mental illness and Benedicto’s proceedings 

were not “so fundamentally unfair that [he was] prevented 

from reasonably presenting [his] case.” Grigoryan v. Barr, 

959 F.3d 1233, 1240 (9th Cir. 2020). The IJ implemented 

several procedural safeguards: she (1) appointed a QR, (2) 

granted every continuance requested, (3) compelled 

document productions from DHS, (4) ensured that 

Benedicto’s QRs were able to file written pleadings and 

applications for relief, (5) personally questioned Benedicto 

to further ensure a fulsome, developed record, and 

4 Although amicus counsel argues that the IJ should have explored 

further safeguards, these claims were not raised to the BIA. Rather, 

Benedicto’s QR before the BIA explicitly argued that “the IJ exhausted 

all possible safeguards.” We lack jurisdiction to consider claims that

were never raised to the agency. See Arsdi v. Holder, 659 F.3d 925, 

928−29 (9th Cir. 2011).
16 BENEDICTO V. GARLAND

(6) reviewed record evidence submitted to support 

Benedicto’s claims for relief.

Benedicto’s amicus counsel counters that because during 

the immigration proceedings Benedicto did not retrieve 

further information from a newly-discovered A-file, and 

because his QR did not locate alleged family members who 

may have supported his claims of alleged persecution in the 

Dominican Republic or filed an I-130 petition on his behalf, 

the IJ should have terminated Benedicto’s proceedings. But 

the procedural safeguards discussed above enabled 

Benedicto and his QRs to present “sufficient relevant 

information” supporting his claims for relief and challenge 

his removability. Matter of M-J-K-, 26 I. & N. Dec. at 776. 

The avenues of potential further information that amicus 

counsel proposes do not meet the narrow set of reasons for 

which an IJ may terminate proceedings. See 8 C.F.R. 

§ 1239.2(f).

i. Alienage Claims

Benedicto provided the court information obtained 

through a FOIA request that listed a different A-number 

attached to his name than the one under which this current 

immigration case was proceeding. Amicus counsel argues 

that because Benedicto would not authorize his QR to 

“obtain further documents,” continuing without the potential 

information obtainable under that second A-file number 

violated due process because “the IJ lacked sufficient 

reliable information as to [his] citizenship” status. But based 

on the record, amicus counsel cannot articulate any possible 

way that Benedicto could have derived citizenship and thus 

cannot allege a due process violation on these grounds.

Benedicto consistently claims that, as a consequence of 

his father’s citizenship, he obtained citizenship in an 
BENEDICTO V. GARLAND 17

immigration hearing that occurred after he was arrested in 

California in 1994. Benedicto provided a July 15, 1994 

immigration court order to the IJ, which noted the 

proceeding concluded due to “Administrative Closing–

Other:” “pending state prosecution.”5 Amicus counsel 

argues that this information could demonstrate that 

Benedicto did receive citizenship, as “DHS apparently did 

not reinstate removal proceedings after [Benedicto] was 

released from state custody in the 1990s.”

But Benedicto’s testimony and other record evidence 

flatly contradict this argument. Benedicto’s father 

naturalized on March 8, 1977, when Benedicto was already 

eighteen years old, and Benedicto did not acquire lawful 

permanent resident status until he was twenty-one years old. 

Under the law at the time, he could not have derived 

citizenship at the time of his father’s naturalization. See 8 

U.S.C. § 1432(a) (repealed 2000)). Amicus counsel 

provides no response to this legal reality, and simply 

steadfastly argues that the records are “incomplete.” This 

reply does not provide any viable way that more 

documentary information could have justified Benedicto’s 

citizenship claims.

The IJ’s decision to continue with Benedicto’s hearing 

despite a lack of further information from this new Anumber did not deny Benedicto due process as both 

Benedicto’s QR conceded and the IJ confirmed that 

Benedicto “would not have been eligible to derive ... any 

citizenship” through his father in 1994. “Because none of 

the grounds [Benedicto] raises would have been a proper 

5 The “state prosecution” presumably referenced the conclusion of 

the state criminal proceedings following Benedicto’s felony theft charge 

in Los Angeles.
18 BENEDICTO V. GARLAND

basis for relief ..., he suffered no prejudice by being denied 

access to [documents that] could adjudicate facts that might 

support these claims.” Morales-Izquierdo v. Gonzales, 486 

F.3d 484, 496 (9th Cir. 2007) (en banc).

ii. Fear of Persecution

Amicus counsel posits that, were Benedicto’s QR able to 

have more substantive conversations with Benedicto, his 

family, or his friends, then the QR might have been able to 

present a viable claim of past or future persecution in the 

Dominican Republic. But the IJ implemented sufficient 

safeguards to ensure Benedicto had an opportunity to proffer 

testimony and the lack of participation from supportive 

family or friends does not demonstrate he was denied due 

process.6

The IJ “appl[ied] the safeguard of legal representation,” 

and even though Benedicto told his QR very little, “even

without assistance from the respondent, 

counsel ... provide[d] relevant objective documentation, 

such as background or country conditions evidence, to assist 

in adjudicating an application for relief.” Matter of M-J-K-, 

26 I. & N. Dec. at 777.7 While the continuances did not 

produce family members willing to testify on Benedicto’s 

behalf, that is not a requirement for due process. The IJ did 

not “refus[e] to permit family members to develop the 

record,” Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th 

6 It is worth noting Benedicto’s claims of persecution have changed. 

When interviewed at the beginning of his 2016 removal proceedings, he 

“expressed no fear if he is returned to his country of citizenship.”

7 Amicus counsel’s contention that the IJ’s continuances “did 

nothing to help develop the record,” is demonstrably incorrect as it 

allowed counsel to file briefs alleging eligibility for relief.
BENEDICTO V. GARLAND 19

Cir. 2005) (emphasis added), there simply were none that 

Benedicto or his QR could identify to either counsel or the 

IJ.8 In such situations, when family of the petitioner “cannot 

reasonably be found or fails or refuses to appear, the 

custodian of the respondent shall be requested to appear on 

behalf of the respondent.” Wong v. INS, 550 F.2d 521, 523 

(9th Cir. 1977) (citation omitted). Here, “[t]hroughout the 

hearing before the immigration judge petitioner was 

... accompanied by ... his counsel,” id., who provided 

fulsome written support for his claims for relief.

Given the difficulties in the relationship between 

Benedicto and his QR, the IJ determined that she would 

directly question Benedicto to “seek[] to have an informal 

dialogue with [Benedicto] through which the court can build 

rapport with [Benedicto] as well as gather additional 

information about” his claims of persecution. This direct 

questioning, rather than fail to “adduce meaningful 

testimony,” went on for pages of transcript, and culminated 

in the IJ’s conclusion that Benedicto’s testimony was 

consistent with his letters and other written statements and 

was “an accurate depiction of his subjective understanding 

of his fears of future harm in the Dominican Republic.” The 

IJ did not make an adverse credibility finding, but rather 

compared Benedicto’s testimony with the facts in the record 

and was unable to find factual support for his subjective 

beliefs. Given that the IJ “aid[ed] in the development of the 

8 Whether Benedicto actually has any children remains a mystery. 

In 1991 he told his probation officer he had no children from his previous 

marriage in 1988 and no children from his then-current year and a half 

relationship. In 1992 he claimed he did have children from his 1988 

marriage but did not know where they lived—he “believe[d] [his exwife] is living in Miami, Florida.” At the beginning of these proceedings 

in 2016, he stated he had no children.
20 BENEDICTO V. GARLAND

record,” and ensured Benedicto had “a reasonable 

opportunity to ... present evidence” and “consult with the 

attorney,” the IJ provided sufficient safeguards to allow 

Benedicto to present his case and did not violate due process. 

See Matter of M-A-M-, 25 I. & N. Dec. at 479, 482.

Amicus counsel’s speculation that more testimony from 

Benedicto or from family members could have provided 

more insight into his claims of persecution is not enough to 

establish “plausible scenarios in which the outcome of the 

proceedings would have been different if a more elaborate 

process were provided.” Tamayo-Tamayo v. Holder, 725 

F.3d 950, 954 (9th Cir. 2013) (citation omitted). There was 

no due process violation arising from the lack of additional 

testimony during Benedicto’s merits hearing.

iii. A Meaningful Opportunity to Adjust Status

Amicus counsel contends lastly that the IJ should have 

terminated proceedings because Benedicto may have been 

eligible to adjust status under INA § 212(h) or through an I130 petition filed by his U.S.-citizen son (if he has a U.S. 

citizen son). But all the caselaw cited by amicus counsel 

contemplates a “pending” adjustment application. See 

Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011) 

(addressing a pending visa petition); Kalilu v. Mukasey, 548 

F.3d 1215, 1218 (9th Cir. 2008) (addressing a pending I-130 

petition). At the time of Benedicto’s hearing, there was no 

evidence of a pending 212(h) or I-130 petition and amicus 

counsel could only hypothesize that, even if family exists 

and could be found, that they would be willing to help 

Benedicto (despite his violent temperament, criminal 

background, and apparent lack of a current relationship with 

them).
BENEDICTO V. GARLAND 21

But given that “[t]he [IJ] should not grant a 

continuance,” much less terminate proceedings, “merely 

because the respondent expresses the intention to file for 

collateral relief at some future date,” the IJ did not err in 

declining to terminate proceedings. Matter of L-A-B-R-, 27 

I. & N. Dec. 405, 415–16 (A.G. 2018) (emphasis added); see 

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 

2008) (per curiam). Amicus counsel again does not present 

a “plausible scenario” in which Benedicto would be granted 

relief if the IJ chose to terminate proceedings. MoralesIzquierdo, 486 F.3d at 495.

iv. Termination Was Not Required

Because Benedicto received due process through the IJ’s 

safeguards in his removal proceedings, there was no need for 

the IJ to terminate proceedings. A QR provided 

“background or country conditions evidence, to assist in 

adjudicating an application for relief,” and the IJ facilitated 

an opportunity for Benedicto to present his own testimony. 

Matter of M-J-K-, 26 I. & N. Dec. at 777. Ultimately, 

termination is appropriate only where “the alien has 

established prima facie eligibility for naturalization and the 

matter involves exceptionally appealing or humanitarian 

factors; in every other case, the removal hearing shall be 

completed as promptly as possible.” 8 C.F.R. § 1239.2(f). 

In a case like Benedicto’s, “Immigration Judges should be 

particularly reluctant to terminate proceedings where, as 

here, the alien has a history of serious criminal conduct and 

may pose a danger to himself or others upon his release into 

the community.” Matter of M-J-K-, 26 I. & N. Dec. at 777 

n.4. Termination was thus not warranted or appropriate in 

Benedicto’s case.

Furthermore, amicus counsel’s arguments implicitly boil 

down to a singular theme. Amicus counsel’s position would 
22 BENEDICTO V. GARLAND

require that when a mentally ill petitioner makes a statement, 

regardless of its plausibility, the IJ must require that any 

reasonable argument or possible facts tangentially related to 

that claim be entirely investigated with cooperation of the 

petitioner, or else proceedings must be terminated. But even 

when presented with a mentally ill petitioner, IJs confronted 

with fantastic testimony should not have to prove a 

negative—which would often be impossible to do—to avoid 

terminating proceedings. Instead of forcing QRs to go down 

every conceivable rabbit hole related to a mentally ill 

petitioner’s musings, no matter how implausible or 

unsupported by any other evidence, IJs should do just what 

the IJ did here: obtain available evidence from government 

records, appoint a QR, and evaluate the arguments and 

statements made against objective evidence. To demand 

otherwise would force IJs to operate inherently on 

speculation—as demonstrated by amicus counsel’s 

arguments that rely heavily on speculation about 

Benedicto’s family and childhood.9 Here, the IJ provided all 

safeguards necessary to ensure Benedicto due process.

II. Amicus Counsel’s Fact-Based Disagreements with 

the IJ’s Discretionary “Particularly Serious Crime” 

Determination are Unexhausted and Unreviewable.

A. Unexhausted

At the outset, this court may not review amicus counsel’s 

arguments regarding the IJ’s “particularly serious crime” 

decision because, before the BIA, appointed counsel did “not 

9 A rule requiring the IJ to terminate proceedings whenever the 

petitioner is uncooperative would also create perverse incentives. 

Petitioners should not be encouraged to obstruct the efforts of their QR 

in the hopes of terminating the entire proceeding.
BENEDICTO V. GARLAND 23

challenge this aspect of the Immigration Judge’s decision,” 

which is the express reason the BIA relied on in finding “no 

basis to disturb it.” While amicus counsel contends this was 

ineffective assistance from prior counsel, “[c]ounsel should 

not expect to resurrect hopelessly neglected points before 

this court by claiming that they involved due process and 

thus could not have been considered by the BIA.” Liu v. 

Waters, 55 F.3d 421, 426 (9th Cir. 1995); see Tall v. 

Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008) (due process 

claims “that can be remedied by the BIA are not exempted 

from the exhaustion requirement”).

The proper way to raise and exhaust an ineffective 

assistance of counsel claim in this situation is through a 

motion to reopen before the agency. Amicus counsel 

acknowledges this but claims “a motion to reopen is not a 

realistically available remedy.” But amicus counsel is not 

prevented from filing a motion to reopen with the agency on 

Benedicto’s behalf, and this court simply does not have 

jurisdiction to review claims not raised to the BIA. Ortiz v. 

INS, 179 F.3d 1148, 1152 (9th Cir. 1999) (“Because the 

Ortizes did not raise the issue ... before the BIA, we lack 

jurisdiction to consider that claim. The Ortizes are free, 

however, to raise this issue before the BIA in the form of a 

motion to reopen.”) (citation omitted); cf. Bare v. Barr, 975 

F.3d 952, 961 (9th Cir. 2020) (reviewing an unraised claim

only where the “BIA was sufficiently on notice” to pass on 

the argument and the BIA chose not to do so).

B. Unreviewable

Were the panel able to review the unexhausted claim, the 

crux of amicus counsel’s argument is that Benedicto’s 

counsel was ineffective for failing to make specific 

arguments regarding the IJ’s weighing of the facts in her 

“particularly serious crime” determination. But this court 
24 BENEDICTO V. GARLAND

has “decided that a ‘particularly serious crime’ 

determination is inherently discretionary.” Pechenkov v. 

Holder, 705 F.3d 444, 448 (9th Cir. 2012). Jurisdiction to 

review such determinations only exists in a very narrow 

circumstance: when the petitioner raises “a constitutional or 

legal question,” not simply where “he asks for a re-weighing 

of the factors.” Id.

Amicus counsel contends that the IJ legally erred in 

making her “particularly serious crime” determination 

without referencing Benedicto’s mental illness, because “the 

IJ must consider ‘all reliable, relevant 

information ... including the defendant’s mental condition 

at the time of the crime.’” (quoting Gomez-Sanchez v. 

Sessions, 892 F.3d 985, 996 (9th Cir. 2018)). But this 

argument extends Gomez-Sanchez beyond its context—the 

IJ here did not legally err by focusing on the record evidence 

in making her “particularly serious crime” determination.

Amicus counsel ask us to extend Gomez-Sanchez beyond 

the bounds our court has established. Gomez-Sanchez did 

not impose a new standard that the IJ must always reference 

a petitioner’s mental health in a “particularly serious crime” 

determination. Rather, as our court has previously 

explained, albeit in an unpublished decision, the 

consideration of mental illness anticipated by GomezSanchez is required only where the “[p]etitioner 

... present[s] ... evidence directly attributing the [crime] to 

his” mental illness. Galeana v. Rosen, 833 F. App’x 136, 

137 (9th Cir. 2021). Here, neither Benedicto nor his QR 

attributed his domestic violence felony to his mental illness. 

Because the IJ provided competent counsel and the

opportunity for Benedicto to testify freely, she “need not 

... guid[e] [the petitioner] in making [his] case” by 

prompting the petitioner or his QR to attribute his crime to 
BENEDICTO V. GARLAND 25

his mental illness. Hussain v. Rosen, 985 F.3d 634, 644 (9th 

Cir. 2021). Even if Benedicto’s mental illness contributed 

to his years-prior crime, neither he nor his QR raised the 

issue for the IJ, and this court does not have jurisdiction to 

raise and review the argument on appeal.10

While the IJ and BIA cannot “categorically bar[]” 

consideration of “relevant, reliable evidence of mental 

health” at the time of the crime, Gomez-Sanchez, 892 F.3d 

at 995, the IJ here did not explicitly exclude Benedicto’s 

mental health from her analysis of his felony domestic 

violence crime, but instead “consider[ed] ‘all reliable 

information.’” The IJ highlighted the documents in 

Benedicto’s “record of conviction” and reviewed related 

record evidence. Nothing in those documents indicated that 

Benedicto was suffering from mental illness at the time of 

his crime. Ultimately, amicus counsel has not convinced us 

that its arguments present a claim of legal error, and this 

court does not have jurisdiction over any claimed abuse-ofdiscretion. Pechenkov, 705 F.3d at 448–49 (explaining that 

“[8 U.S.C.] § 1252(a)(2)(D) cannot restore jurisdiction to 

review a ‘particularly serious crime’ determination where” 

the challenge is that the agency “incorrectly assessed the 

facts”).

10 Even if the IJ had erred and Benedicto’s crime was not particularly 

serious, he still could not demonstrate any prejudice from the IJ’s error, 

because any withholding of removal claim would be destined to fail for 

the same reason his CAT deferral claim fails. As with the discussion 

below observing that the record does not quantify Benedicto’s risk of 

torture, he does not demonstrate he has a risk of targeted persecution—

he can point only to examples of persecution in various reports in the 

record and claim similar persecution could happen to him, with no 

individualized assessment of his risk.
26 BENEDICTO V. GARLAND

III. The Evidence Does Not Compel Reversal of the 

BIA’s Denial of Deferral of Removal under CAT.

This court reviews for substantial evidence the BIA’s 

denial of deferral of removal upon its determination that a 

petitioner failed to demonstrate that he is more likely than 

not to face torture upon removal. Lemus-Galvan v. Mukasey, 

518 F.3d 1081, 1084 (9th Cir. 2008), overruled on other 

grounds by Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 

2015). This analysis “requires a two part analysis—first, is 

it more likely than not that the alien will be tortured upon 

return to his homeland; and second, is there sufficient state 

action involved in that torture.” Garcia-Milian v. Holder, 

755 F.3d 1026, 1033 (9th Cir. 2014) (internal quotation 

marks omitted). Amicus counsel argues that the IJ “erred in 

entirely discounting Mr. Benedicto’s testimony” when 

evaluating his claim for deferral of removal under CAT11

and claims the record compels the conclusion that the 

Dominican Republic’s government neglects oversight of its 

police and prisons to such an extent that it constitutes 

intentional torture. A review of the record demonstrates that 

documented improvements in the Dominican Republic’s 

police and prison operations do not compel the inference that 

the government would intentionally torture Benedicto were

he to be arrested after removal.

11 The IJ did not “entirely discount” Benedicto’s testimony detailing 

his fear of future torture if he were removed. The IJ expressly did “not 

dispute the sincerity and credibly of [Benedicto’s] testimony; the [IJ]

note[d] the difficulty of determining what portions of [Benedicto’s] 

testimony are literally true” and thus compared Benedicto’s subjective 

and frankly often-implausible testimony to the country evidence in the 

record.
BENEDICTO V. GARLAND 27

A. Police Custody

Amicus counsel contends that Benedicto will more likely 

than not be arrested due to his mental illness and criminal 

proclivities and then be tortured by Dominican police. 

While both the IJ and BIA agree that Benedicto would more 

likely than not be arrested after he is deported, the record 

does not compel the conclusion Benedicto is more likely 

than not to suffer torture at the hands of Dominican police. 

This court previously determined that “generalized evidence 

of violence and crime” in a country that “is not particular to 

[the] Petitioner[ ] . . . is insufficient to meet th[e] standard” 

for deferral of removal under CAT. Delgado-Ortiz v. 

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Instead, 

petitioners “must show that severe pain or suffering was 

specifically intended,” Villegas v. Mukasey, 523 F.3d 984, 

989 (9th Cir. 2008), which can be inferred from the 

“government’s complicity in creating those conditions.” 

Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012).

Here, the record excerpts that the BIA cited demonstrate 

that the Dominican Republic’s government is addressing, 

with varied success, torturous police practices. The 

Amnesty International report in the record documents that 

“[s]ignificant progress has been made in bringing to justice 

police officers responsible for human rights violations, 

especially since the abolition of separate police and military 

courts.” The Department of State country report observed 

that the Dominican “[a]uthorities fired or prosecuted police 

officers found to have acted outside of established police 

procedures,” and “[i]n July [2016] the government approved 

a police reform law to curb corruption, improve training, and 

increase transparency.” The IJ and the BIA reasonably 

concluded based on this information that, while police in the 

Dominican Republic can and do injure detainees, the 
28 BENEDICTO V. GARLAND

government does not demonstrate intentional complicity 

with those injuries, nor does the record compel the 

conclusion that any individual detainee is more likely than 

not to be tortured. Cf. Ridore, 696 F.3d at 917.

B. Prison Conditions

Amicus counsel contends that once Benedicto is arrested 

and imprisoned, he will more likely than not be tortured with 

the consent of the government due to the poor conditions in 

Dominican Republic prisons. But again, this court is “not 

compelled to reverse the underlying factual findings because 

we found nothing in the record that indicated specific intent 

where there was also evidence of the [Dominican] 

government’s desire to improve conditions.” Guerra v. 

Barr, 974 F.3d 909, 914–15 (9th Cir. 2020).12

The prison conditions in the Dominican Republic range 

from “from compliance with international standards in 

‘model’ prisons or correctional rehabilitation centers 

(CRCs), to harsh[er] ... ‘traditional’ prisons.” This 

decreases the likelihood by some unquantified amount that 

12 Amicus counsel points to the BIA’s affirmation of the IJ’s prison 

analysis, arguing that the IJ cited to improvements in police detainee

practices and that the BIA using that citation in its discussion of prison 

conditions is a mistake constituting legal error. Amicus counsel’s 

selective citation misses that the section of the report the IJ referenced

discusses “law[s] prohibiting torture ... of detainees and prisoners.” 

And while the sentences prior to the statement that “[t]he Attorney 

General’s Office ... did not receive any formal complaints of torture 

during the year” discuss detainees, the next sentence observes the 

“Attorney General’s Office officially instructed local prosecutors to 

monitor prisoner treatment and allegations of torture,” implying that the 

formal complaints could come from detainees or prisoners. The BIA did 

not legally err in referencing this section of the country report, which,

viewed in context, applied to both detainees and prisoners.
BENEDICTO V. GARLAND 29

Benedicto would be placed in a “traditional prison,” and the 

IJ observed that “it would call for too much speculation” that 

Benedicto would absolutely be placed in a “traditional 

prison.” Were Benedicto placed in a CRC after arrest, as a 

“prisoner[] with mental disabilities [he could] receive[] 

treatment, including therapy, for [his] condition[].” But 

even in the “traditional prisons,” “the Directorate of 

Prisons[] instituted a program” to improve the health of 

prisoners and “[t]he government permitted visits and 

monitoring by independently funded and operated ... NGO 

observers and media.” The record demonstrates the 

Dominican Republic’s substantive attempts to reform 

“traditional prisons” to “model prisons,” such that it does not 

compel an inference of torturous intent. Cf. Ridore, 696 F.3d 

at 917.

C. Aggregate Risk of Torture

Finally, amicus counsel contends that the IJ, despite 

analyzing each claim of future torture in-depth, failed to 

analyze Benedicto’s cumulative risk of torture. But the IJ 

explicitly noted it “must consider all evidence relevant to the 

likelihood of future torture,” and concluded that for all those 

“foregoing reasons, the court finds that Respondent has not 

established he will more likely than not be tortured.” 

Because there is no evidence that the IJ failed to “give 

reasoned consideration to potentially dispositive ...

evidence” or neglected to “address [an] argument,” there is 

no merit to amicus counsel’s claim that either the IJ or BIA 

failed to consider Benedicto’s aggregate risk based on the 

entire record. Cf. Cole, 659 F.3d at 775.

Ultimately, while both the IJ and the BIA acknowledge 

some torture occurs in the Dominican Republic, nothing in 

the record quantifies the risk of that torture or 

“demonstrate[s] ... any regularity” of such activity. Without 
30 BENEDICTO V. GARLAND

such information, there is no way to justify granting deferral 

of removal under CAT based on either of amicus counsel’s 

theories of possible torture. Simply pointing to evidence of 

instances of torture, without more, cannot establish that 

Benedicto himself would “more likely than not” be tortured 

on removal. Anecdotes—no matter how disturbing—can’t 

substitute for quantitative evidence, which is what CAT 

requires. The BIA’s denial of deferral of removal under 

CAT was supported by substantial evidence. Cf. Cole, 659 

F.3d at 773 (record evidence quantifying the risk of torture).

CONCLUSION

The IJ ensured that Benedicto received all possible 

safeguards in his removal proceedings, and Benedicto failed 

to exhaust his claim regarding the IJ’s “particularly serious 

crime” determination. And amicus counsel has not shown 

the evidence compels the conclusion that the agency erred 

when it rejected the argument that Benedicto would more 

likely than not be tortured upon removal. We accordingly 

dismiss his due process claims and deny the petition.

DISMISSED in part, DENIED in part.