NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

L.M.,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-241

Agency No.

A075-543-647

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 3, 2024

San Francisco, California

Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.

Dissent by Judge M. SMITH.

L.M.1, a native and citizen of Mexico, petitions for review of a decision of 

the Board of Immigration Appeals (“BIA”) dismissing his appeal of an order of an 

Immigration Judge (“IJ”) (collectively, the “Agency”) denying his applications for 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

1

 We grant L.M.’s unopposed motion to proceed under a pseudonym (Dkt. No. 49) 

and refer to petitioner by his initials. The Clerk’s office will update the docket and 

the parties shall use the initials in any future filings.

FILED

APR 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-241

adjustment of status under 8 U.S.C. § 1255 and for deferral of removal under the 

Convention Against Torture (“CAT”). Because the BIA streamlined the appeal, 8 

C.F.R. § 1003.1(e)(4), and affirmed without opinion, we review the IJ’s decision 

directly. Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003).

1. L.M. contends the IJ improperly rejected the opinion testimony of his 

expert witness, Dr. Slack, in assessing his application for CAT relief. An IJ is 

required to consider “all evidence relevant to the possibility of future torture,” 8 

C.F.R. § 208.16(c)(3), and “give reasoned consideration to the potentially 

dispositive testimony of” an expert witness, Cole v. Holder, 659 F.3d 762, 773 (9th 

Cir. 2011). However, an IJ is not required to accept an expert’s opinion. “If the 

[Agency] rejects expert testimony, it must state ‘in the record why the testimony is 

insufficient to establish the probability of torture.’” Castillo v. Barr, 980 F.3d 

1278, 1283 (9th Cir. 2020) (quoting Cole, 659 F.3d at 772). For example, “the 

Agency may reject credible testimony if it is contradicted or ‘outweighed by other 

more persuasive evidence.’” Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1157 

(9th Cir. 2022) (emphasis omitted) (quoting Garland v. Ming Dai, 593 U.S. 357, 

373 (2021)).

Velasquez-Samayoa and Castillo held that the Agency erred when it rejected 

testimony of qualified experts simply because the testimony was not corroborated 

by additional evidence in the record, specifically country condition reports. 
3 23-241

Velasquez-Samayoa, 49 F.4th at 1157 (“The mere fact that [the expert] testimony 

is not corroborated by country conditions evidence is not alone a valid reason for 

rejecting that testimony—expert testimony can itself provide evidence of country 

conditions.”); Castillo, 980 F.3d at 1284 (“If an expert’s opinion could only be 

relied upon if it were redundant with other evidence in the record, there would be 

no need for experts.”). However, if an “expert’s testimony rests on a specific 

premise that, if true, would be expected to be corroborated by” other record 

evidence but was not, an IJ may explain as much in rejecting the testimony. 

Velasquez-Samayoa, 49 F.4th at 1157.

Here, the IJ found Dr. Slack qualified as an expert on “country conditions in 

Mexico, violence in Mexico, and violence against deportees in Mexico.” He 

“accept[ed] the factual information [Dr. Slack] provided based on his research,” 

but gave no weight to “the probability assessments on issues such as the likelihood 

of harm or danger” or to his “opinion as to the likelihood of torture.” The IJ’s 

reason for doing so was because “there is no statistical information to place such 

predictions in context.” The IJ faulted the lack of “[a]ccurate quantitative statistics 

on outcomes, for example how many non-citizens that are returned to Mexico” are 

harmed and evidence on the “prevalence” of torture among removed non-citizens 

with the same type of criminal history as L.M. 
4 23-241

However, as Dr. Slack testified, those kinds of “accurate quantitative 

statistics” do not exist because of the very nature of the criminal activity at issue.

Dr. Slack used statistics that were available for his regression analysis, conducted 

empirical studies, and engaged in ethnographic research—the “principal research 

method” and “gold standard” for this area of study. He conducted the type of 

comparative analysis the IJ found was missing, assessing risk characteristics as 

compared to the broad group of removed non-citizens. This type of expert 

testimony is—according to this record— the best available information on these 

issues; the lack of quantitative statistics was perhaps a reason to discount the 

weight of Dr. Slack’s testimony, but not to reject it entirely. See Castillo, 980 F.3d 

at 1284.

The IJ’s rejection of Dr. Slack’s testimony was legal error under VelasquezSamayoa, 49 F.4th at 1156–57, and Castillo, 980 F.3d at 1283–84. We remand for 

further consideration of this testimony as it pertains to L.M.’s application for CAT 

protection. See Velasquez-Samayoa, 49 F.4th at 1157–58.

2. L.M. argues the IJ also erred in failing to consider other “evidence 

relevant to the possibility of future torture,” 8 C.F.R. § 208.16(c)(3), including 

various aspects of Dr. Slack’s factual testimony relevant to the likelihood of torture 

and L.M.’s ability to safely relocate, evidence about ongoing threats against L.M.,

and evidence of widespread corruption and human rights violations that increase 
5 23-241

the risk to L.M. He also contends the IJ erred in his aggregation analysis by failing 

to consider all sources of risk and their overlapping nature in the aggregate. See

Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015), abrogated on 

other grounds by Borden v. United States, 593 U.S. 420 (2021). Our consideration 

of those arguments would be premature in light of our remand for further 

consideration of Dr. Slack’s opinion testimony, because on remand, the Agency 

will be required to consider all relevant evidence in the aggregate. See 8 C.F.R. 

§ 208.16(c)(3); Velasquez-Samayoa, 49 F.4th at 1158.

2

3. Under 8 U.S.C § 1252(a)(2)(B)(i), we lack jurisdiction over the IJ’s 

discretionary denial of L.M.’s request for a waiver of inadmissibility. L.M. has not 

raised a cognizable legal or constitutional question over which we retain 

jurisdiction under § 1252(a)(2)(D). We dismiss that portion of the petition.

4. L.M. also challenges the BIA’s summary affirmance procedure. But we 

have previously held that the procedure does not violate due process. Falcon 

Carriche, 350 F.3d at 848; Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078-79 

(9th Cir. 2004). “To the extent that [the petitioner] challenges the BIA’s decision to 

streamline [his] particular case, that argument collapses into our review of the 

2 We agree with the IJ that absent Dr. Slack’s opinion testimony, the record does 

not compel the conclusion that L.M. suffered past torture by a private actor that the 

Mexican government was unwilling or unable to control. See Bringas-Rodriguez v. 

Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017).
6 23-241

merits of [his] case.” Ferreira v. Ashcroft, 390 F.3d 1091, 1100 (9th Cir. 2004).

PETITION DISMISSED IN PART, GRANTED IN PART, and

REMANDED.

3

3 Each party shall bear its own costs. See Fed. R. App. P. 39(a)(4). The motions to 

stay removal (Dkt. Nos. 4, 12) are denied as moot.
L.M. v. Garland, 23-241

M. SMITH, Circuit Judge, dissenting:

I concur in parts 3 and 4 of the majority’s reasoning. However, I respectfully 

dissent as to parts 1 and 2. In my view, even if the IJ did err in this case by failing 

to state certain magic words, remand would be futile. 

As the majority notes, an agency is required to consider expert testimony 

relevant to the possibility of future torture. Velasquez-Samayoa, 49 F.4th at 1156. 

However, it is not required to accept an expert’s opinion. Id. at 1156–57. For 

example, an agency may reject testimony if it is “outweighed by other more 

persuasive evidence.” Id. at 1157 (cleaned up).

The IJ here clearly considered Dr. Slack’s testimony, having discussed it at 

length in his order denying CAT relief. What he did not do was accept Dr. Slack’s 

conclusion that Petitioner was more likely than not to be tortured. That decision 

makes sense when considering the record as a whole, which is what the IJ was 

required to do when making the more-likely-than-not determination. See 8 C.F.R. § 

208.16(c)(3) (requiring consideration of “all evidence” relevant to torture in the 

record). And despite not saying so outright, it is apparent from the order that the IJ 

thought other evidence in the record outweighed certain of Dr. Slack’s opinions. 

At bottom, the IJ reviewed numerous pieces of evidence, including Dr. Slack’s 

testimony, and was entitled to conclude that some pieces of evidence outweighed 

others, and to reach a conclusion based on the record as a whole. On remand, I 

FILED

APR 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
suspect that the IJ will point to evidence in the record such as the above, use the 

magic words (“This evidence outweighs that evidence”), and ultimately deny relief. 

Because we are not required to “convert judicial review of agency action into a pingpong game,” Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 566 n.9 (9th Cir. 1985) 

(quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)), I would 

decline to remand in a case such as this, where remand would “be an idle and useless 

formality.” Id.