United States Court of Appeals

For the Eighth Circuit 

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No. 22-2474

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Sergio Rosas-Martinez

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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No. 21-3880

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Sergio Rosas-Martinez

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: October 17, 2023

Filed: May 3, 2024 

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Before SMITH, Chief Judge,1 LOKEN and COLLOTON,2 Circuit Judges. 

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SMITH, Chief Judge. 

Police arrested Sergio Rosas-Martinez for possessing illegal drugs, and 

shortly after his conviction the Department of Homeland Security (DHS) initiated 

removal proceedings. Those proceedings resulted in Rosas-Martinez filing an 

application for deferral of removal under the Convention Against Torture (CAT). 

An immigration judge (IJ) granted his CAT application, but the Board of 

Immigration Appeals (Board) reversed the IJ’s decision. Rosas-Martinez then filed 

a motion for reconsideration with the Board that was also denied. He then petitioned 

this court to review the Board’s reversal of the IJ’s decision and its denial of his 

motion for reconsideration. We deny both petitions for review.

I. Background

In 1996, nine-year-old Rosas-Martinez crossed the United States-Mexico 

border with his mother and sister. In 2014, he met Erasmo Martinez-Salazar

(Erasmo). Erasmo asked Rosas-Martinez to assist him with drug-trafficking 

activities. In 2019, police arrested Rosas-Martinez for possessing illegal drugs and 

charged him with six felonies. Those drugs were in route to Erasmo. Once informed

about the arrest, Erasmo instructed Rosas-Martinez to keep quiet and not reveal 

Erasmo’s identity to the authorities. Because Erasmo was engaged to RosasMartinez’s cousin, Erasmo was able to—and did—instruct Rosas-Martinez’s aunt to 

call Rosas-Martinez’s mother. Rosas-Martinez’s aunt called his mother three times, 

and each time his aunt attempted to gather details about his detention and release 

date. Rosas-Martinez and Erasmo last conversed in 2020. 

1

Judge Smith completed his term as chief judge of the circuit on March 10, 

2024. See 28 U.S.C. § 45(a)(3)(A). 

2

Judge Colloton became chief judge of the circuit on March 11, 2024. See 

28 U.S.C. § 45(a)(1). 
-3- 

After Rosas-Martinez’s conviction, DHS initiated removal proceedings, and 

an IJ ordered his removal. Rosas-Martinez then filed a CAT application for deferral 

of removal. He argued that if he returned to Mexico, the Sinaloa Cartel would kill or 

capture him because he lost their drugs when police arrested him. An IJ agreed with 

his argument and granted his CAT application. 

DHS appealed the IJ’s decision, and the Board reversed. Rosas-Martinez then 

filed a motion for reconsideration, and the Board denied the motion. Next, RosasMartinez filed two petitions for review in this court challenging the Board’s reversal 

of the IJ’s decision and its denial of his motion for reconsideration. He contends that 

the Board failed to properly apply its standard of review, engaged in independent 

factfinding, provided insufficient justification for its decision, and abused its 

discretion when it denied his motion for reconsideration. We consolidated the two 

petitions for review. See Lasu v. Barr, 970 F.3d 960, 964–65 (8th Cir. 2020). 

II. Discussion 

We have previously explained the complex standard of review employed

when we review the Board’s reversal of an IJ’s grant of a CAT application: 

[T]he Board may review questions of law, discretion, and judgment de

novo, and it will review an IJ’s findings of facts to determine whether 

they are clearly erroneous. The Board will not engage in its own 

factfinding, except for taking notice of commonly known facts. 

Whether the Board followed its regulations, refrained from 

independent factfinding, and applied the correct standard of review are 

legal questions that we review de novo. When the Board does apply the 

clear error standard, however, we do not review de novo whether the 

immigration judge’s findings were clearly erroneous. Instead, we 

consider whether the Board provided sufficient justification for its 

determination. This means that the Board must adequately explain why 

it rejected the IJ’s finding and identify reasons grounded in the record 

that are sufficient to satisfy a reasonable mind that there was clear error.
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Abdi Omar v. Barr, 962 F.3d 1061, 1064 (8th Cir. 2020) (emphasis omitted)

(citations omitted). Therefore, we review de novo the first issue of whether the Board 

properly applied clear error review and refrained from independent factfinding. 

We hold that the Board correctly applied its standard of review and did not 

independently find facts. The Board said that it reviews “findings of fact determined 

by an Immigration Judge, including credibility findings, under a ‘clearly erroneous’ 

standard.” A.R. at 3 (citing 8 C.F.R. § 1003.1(d)(3)(i) (2021)). Next, the Board 

explained that it discerned “clear error in the Immigration Judge’s predictive 

findings, and legal error in the Immigration Judge’s application of the law.” Id. The 

Board then acknowledged the IJ’s factual findings and noted them in its decision. 

Those noted facts were that

[t]he drug dealer for whom [Rosas-Martinez] worked (“drug dealer”) 

threatened [Rosas-Martinez] several times after he was arrested, 

instructing [Rosas-Martinez] “not to say anything,” not to give anyone 

any names, and reminding [Rosas-Martinez] that he knows where 

[Rosas-Martinez] and his family members live. The drug dealer had 

another relative contact [Rosas-Martinez]’s mother three times to ask 

questions regarding [Rosas-Martinez]’s detention and release date. 

[Rosas-Martinez] has lived in the United States for 25 years, has never 

been physically harmed, and has suffered no past torture.

A.R. at 4 (citations omitted). The Board then used these factual findings to show that 

the IJ clearly erred in its predictive finding that Rosas-Martinez would be tortured if 

he returned to Mexico. Thus, the Board correctly applied its standard of review and 

refrained from independent fact finding.

3

 

3

Rosas-Martinez points to Ramirez-Peyro v. Gonzales, 477 F.3d 637, 641 (8th 

Cir. 2007), and Waldron v. Holder, 688 F.3d 354, 360 (8th Cir. 2012), to support his 

argument that the Board engaged in independent fact finding. Ramirez-Peyro and 

Waldron are distinguishable because, unlike in those cases, here the Board cited 

evidence in the record and relied on the IJ’s findings to support its determinations. 
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“[W]e [now] consider whether the Board provided sufficient justification for 

its determination.” Abdi Omar, 962 F.3d at 1064. The Board determined that the IJ 

erred in holding that (1) “[t]he events in the United States . . . support the attenuated 

determination of hypothetical torture if [Rosas-Martinez] is removed from the 

United States,” and (2) “that the government of Mexico would acquiesce to or be 

directly involved in” the torture of Rosas-Martinez. A.R. at 4.

The Board provided sufficient justification for its first holding. To support its 

decision, the Board pointed out that Erasmo’s limited inquiries could not support a 

conclusion of probable future torture. The Board highlighted that the calls to RosasMartinez’s mother stopped after her request; no one from the cartel contacted RosasMartinez’s father or sister; only Erasmo contacted Rosas-Martinez; and the last time 

Erasmo reached out to Rosas-Martinez was in 2020. These facts sufficiently justify 

the Board’s decision that Erasmo’s few actions do not support a finding of probable 

future torture should Rosas-Martinez return to Mexico.

Next, the Board sufficiently justified its holding that, if Rosas-Martinez is 

tortured, the Mexican government would not acquiesce to or be directly involved in 

it. Relying on country condition evidence in the record, the Board said that “those 

engaged in corruption[—]from police officers to high-ranking officials[—]have 

been arrested, prosecuted, and imprisoned, and affected police departments have 

been purged.” Id. The Board permissibly used record evidence to support its decision

that the IJ’s determination that Mexican authorities would acquiesce to torture was 

clearly erroneous. Cf. Bautista-Bautista v. Garland, 3 F.4th 1048, 1054 (8th Cir. 

2021) (upholding the Board’s decision that the Guatemalan government would not 

acquiesce to torture because “the record show[ed] that the government has taken 

steps to attempt to control the country and reduce corruption”). 

We further conclude that Rosas-Martinez’s other arguments challenging the 

Board’s decision lack merit. 
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First, Rosas-Martinez argues that the Board misapplied Matter of J-F-F-, 23 

I. & N. Dec. 912 (A.G.2006). J-F-F- states that to obtain CAT relief based on a chain 

of hypothetical events, each link in the chain must be more likely than not to occur.

Id. at 917–18, 918 n.4; Mohamed v. Garland, 9 F.4th 638, 641 (8th Cir. 2021); Deng

v. Garland, 80 F.4th 859, 863 (8th Cir. 2023). 

The Board’s application of J-F-F- was not erroneous. In Jima v. Barr, we 

analyzed the assumptions that the IJ made and the Board rejected. 942 F.3d 468, 473 

(8th Cir. 2019). Doing the same here, we note that the IJ assumed that (1) the cartel 

would find out about Rosas-Martinez’s return to Mexico; (2) it would blame him for 

the seized drugs and attempt to capture, kill, or otherwise torture him; and (3) the 

Mexican government would acquiesce to his torture. For reasons already discussed, 

the Board sufficiently justified its decision that the IJ erred when it determined that 

the second and third assumptions were more likely than not to occur. Therefore, the 

Board correctly applied J-F-F-. 

Second, Rosas-Martinez argues that the Board erred because it treated internal 

relocation as a bar to CAT deferral. Whether an applicant can relocate to avoid 

torture is one of four factors used when deciding whether to grant CAT protection. 

Those four factors are: 

(i) Evidence of past torture inflicted upon the applicant; 

(ii) Evidence that the applicant could relocate to a part of the country 

of removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of human rights 

within the country of removal, where applicable; and 

(iv) Other relevant information regarding conditions in the country of 

removal. 

8 C.F.R. § 1208.16(c)(3) (2021). 
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The Board considered all the relevant factors outlined in the regulation. First, 

there is no evidence that Rosas-Martinez was previously tortured in Mexico. Second, 

the Board justifiably held that Rosas-Martinez could “live in a metropolitan area 

instead of his hometown.” A.R. at 5. Third, the record does not show that “[s]pecific 

grounds . . . exist that indicate [that Rosas-Martinez] would be personally at risk” of 

human rights violations. Lasu, 970 F.3d at 966 (first alteration in original) (quoting 

Ademo v. Lynch, 795 F.3d 823, 831 (8th Cir. 2015)). And fourth, the Board agreed 

with the IJ’s findings that corruption exists in Mexico, but then cited to record 

evidence that explained Mexico’s recent efforts to purge bad actors from its ranks. 

We find no error in the Board’s handling of these factors. See Bautista-Bautista, 

3 F.4th at 1053–54; Abdi Omar, 962 F.3d at 1065–64. 

Relatedly, Rosas-Martinez contends that he cannot return to Mexico because 

he would live with his mother and harm would come to her. We first note that the 

CAT factors do not consider whether someone else would be harmed if an applicant 

returns to their country. Instead, the second factor focuses the inquiry on whether 

the applicant can move to a part of the country where they are “not likely to be 

tortured.” 8 C.F.R. § 1208.16(c)(3)(ii) (2021). But even if this was not the case, the 

Board adequately addressed Rosas-Martinez’s argument. The Board appropriately

observed that Erasmo “never harmed or threatened [Rosas-Martinez]’s family even 

though he knew where they lived,” and “no one in [Rosas-Martinez]’s family has 

been contacted or threatened by any [of Erasmo’s] criminal associates” A.R. at 5. 

The only person to contact Rosas-Martinez’s family was a relative, and that relative 

does not appear to be a cartel member. Thus, the record does not support RosasMartinez’s contention that he cannot live with his mother.

Third, Rosas-Martinez argues that the Board’s decision conflicts with two of 

its other cases, and thus the Board applied the law inconsistently. The Third Circuit

has stated that “[w]hen an administrative agency’s decisions are inconsistent, a court 

cannot pick one of the inconsistent lines and defer to that one, unless only one is 

within the scope of the agency’s discretion to interpret the statutes it enforces or to 

make policy as Congress’s delegate.” Valdiviezo-Galdamez v. Att’y. Gen. of the U.S.,
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663 F.3d 582, 606 (3d Cir. 2011) (quoting Gatimi v. Holder, 578 F.3d 611, 616 (7th 

Cir. 2009)). Given the changes in the Mexican government, we do not think it

surprising that the Board’s view about that government has changed. The variability

seen in the Board’s decisions is not outside of the agency’s discretion, and we will 

not pick one line of the Board’s cases over the other. 

Turning to the Board’s denial of Rosas-Martinez’s motion for reconsideration, 

we must decide whether the Board abused its discretion when it denied the motion.

“The [Board] abuses its discretion if its decision is without rational explanation, 

departs from established policies, invidiously discriminates against a particular race 

or group, or where [it] fails to consider all factors presented by the alien or distorts 

important aspects of the claim.” Camarillo-Jose v. Holder, 676 F.3d 1140, 1143 (8th 

Cir. 2012) (second alteration in original) (quoting Averianova v. Holder, 592 F.3d 

931, 936 (8th Cir. 2010)). Additionally, “[m]otions to reconsider are disfavored, and 

the [Board] does not abuse its discretion in summarily refusing to reconsider

arguments it has already rejected.” Rodriguez de Henriquez v. Barr, 942 F.3d 444, 

447 (8th Cir. 2019). 

Rosas-Martinez acknowledges that his abuse-of-discretion arguments overlap 

with his arguments that the Board’s initial decision is erroneous. Because we do not 

find the Board’s initial decision erroneous, we hold that the Board did not abuse its 

discretion when it denied Rosas-Martinez’s motion for reconsideration. 

III. Conclusion

For the foregoing reasons, we deny both petitions for review. 

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