FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GILBERT MICHEL VILLEGAS, 

Petitioner, No. 04-74162

v. Agency No. 

M A92-351-558 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 10, 2008—Pasadena, California

Filed April 23, 2008

Before: Cynthia Holcomb Hall, Thomas G. Nelson, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Hall

4257
COUNSEL

Venu Alagh and Marie Johnson, Korenberg, Abramowitz &

Feldun, Sherman Oaks, California, for the petitioner. 

Blair T. O’Connor, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

VILLEGAS v. MUKASEY 4259
OPINION

HALL, Circuit Judge:

I.

INTRODUCTION

Petitioner Gilbert Michel Villegas is a citizen of Mexico

with severe bipolar disorder, who was lawfully admitted to

the United States. In 1996, he committed second degree robbery in violation of California Penal Code § 211. The government initiated removal proceedings because of this offense.

Villegas conceded removability and sought withholding of

removal and relief under the Convention Against Torture

(“CAT”). His theory was that if removed to Mexico, he would

be unable to afford medications to control his disorder and

likely wind up confined indefinitely in a Mexican mental

institution, where conditions are deplorable. 

The IJ denied relief. He held that the robbery conviction

was a “particularly serious crime” that precluded withholding

of removal. As to CAT relief, the IJ ruled that although Villegas testified credibly and presented uncontested evidence of

inhuman conditions in Mexican mental institutions, those conditions did not amount to “torture” because nothing indicated

that they were created with the specific intent to harm the

mentally disabled. The BIA summarily affirmed. 

As we explain below, we lack jurisdiction to address the

withholding claim. As to the CAT claim, we hold that the IJ

correctly construed “torture” to require specific intent to

inflict harm — intent which is not present on this record.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Villegas was born in Mexico in 1968 and came to the

United States when he was five years old. He was admitted

4260 VILLEGAS v. MUKASEY
as a permanent resident in June 1990. Shortly thereafter, officials with Los Angeles County diagnosed Villegas with bipolar disorder. He now controls his symptoms through three

forms of medication, which he pays for with benefits he

receives through Medi-Cal and Social Security and with

money he earns working as a handyman. Unmedicated, however, the disorder causes recurring emotional problems and

makes Villegas “lose touch with reality.” 

During a time in 1996 when he was off his normal medication, Villegas robbed a man by using a screwdriver, which

“nicked” the victim’s hand during a struggle. Because of this

incident, Villegas was charged with second degree robbery in

violation of California Penal Code § 211.1 He pled guilty on

January 22, 1997, and was sentenced to two years in prison.

Based on this conviction, the government charged that Villegas was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an

alien convicted of an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(F) (defining “aggravated felony” to include “a

crime of violence . . . for which the term of imprisonment [is]

at least one year”). After failing to convince the government

to drop the case as a matter of prosecutorial discretion, Villegas conceded removability and sought relief in the forms of

withholding of removal and protection under the CAT. He

testified that if he were removed, he would be unable to afford

his medications and that without them, his bipolar disorder

would “take[ ] over.” Therefore, Villegas claimed, he was

likely to wind up confined by the Mexican government in a

mental institution, where conditions are deplorable. 

The IJ admitted substantial evidence about the conditions

in Mexican mental institutions, including (1) the sworn testi1The statute provides: “Robbery is the felonious taking of personal

property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal.

Penal Code § 211. 

VILLEGAS v. MUKASEY 4261
mony of a Dr. Robert Okin from another immigration matter,

(2) the transcript of a “20/20” television program entitled

“The Abandoned Ones,” and (3) the transcript of an NPR

radio address. Dr. Okin’s testimony indicated that no judicial

review exists when a patient is involuntarily committed in a

Mexican mental institution, and that once admitted, the

patient becomes a ward of the hospital. According to Dr.

Okin, this meant that once admitted, the person is “going to

stay there for life by and large.” 

The “20/20” report included stories of terrible squalor

inside the facilities:

Feces and urine are everywhere. The men walk

through it all day, often with their bare feet. There is

no toilet paper. The tap water runs only sporadically.

There’s no soap and there’s no towels. It’s nauseating. The smell is . . . unbearable. 

The report also found that patients in the children’s ward were

consistently tied to their beds or otherwise restrained, resulting in weakened limbs and, in some cases, amputations. The

NPR report was similar, describing conditions where “the

mentally ill and mentally retarded are lumped together, sometimes chained, ill-clothed, abused, and otherwise dehumanized.” It also noted that even according to Mexican officials,

the majority of people in the institutions did not need to be

there. The NPR story summarized the conditions in Mexican

facilities as “rock bottom” when compared to other countries.

The IJ admitted this evidence and deemed Villegas to have

testified credibly, but he ultimately denied relief. He deemed

Villegas’ robbery conviction a “particularly serious crime”

that precluded withholding of removal. As to the CAT, the IJ

expressed some uncertainty about whether Villegas had demonstrated a likelihood that he would actually end up confined

in a Mexican mental institution. The IJ made no explicit finding on this issue, however, as he ruled that Villegas’ request

4262 VILLEGAS v. MUKASEY
for CAT protection “turn[ed] on whether he has demonstrated

that the authorities in Mexico have a specific intent to torture

person[s] similarly situated.” Citing In re J-E-, 23 I. & N.

Dec. 291 (BIA 2002) (en banc), which denied CAT relief to

a petitioner who risked incarceration in similarly horrible conditions in Haitian prison, the IJ ruled that CAT relief required

specific intent to inflict harm, and that without such intent,

indefinite confinement under subhuman conditions in a Mexican mental facility did not amount to torture. He therefore

denied CAT relief as well.2 The BIA summarily affirmed.

III.

DISCUSSION

Villegas does not contest the classification of his robbery

conviction as an aggravated felony and does not dispute that

he is removable. He only attacks the IJ’s conclusions concerning withholding of removal and relief under the CAT. 

A. Withholding of Removal 

[1] We lack jurisdiction over Villegas’ claims concerning

withholding of removal. “Withholding of removal” refers to

relief under the rule that the Attorney General may not

remove an alien to a country where the alien’s life or freedom

would be threatened because of his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Withholding is not available,

however, if “the Attorney General decides” that the alien

“having been convicted . . . of a particularly serious crime is

a danger to the community of the United States.” Id.

§ 1231(b)(3)(B)(ii). Crimes resulting in imprisonment for at

least five years are “particularly serious” per se, while the

2The IJ also denied Villegas’ requests for asylum and a discretionary

waiver of removal under former INA § 212(c). Villegas does not challenge

these rulings here. 

VILLEGAS v. MUKASEY 4263
Attorney General can determine that any aggravated felony,

regardless of the sentence imposed, is particularly serious. See

id.; Singh v. Ashcroft, 351 F.3d 435, 439 (9th Cir. 2003). 

[2] Here, even though Villegas’ robbery conviction carried

a sentence of only two years, the IJ characterized it as “particularly serious” and an indication that Villegas was a danger

to the community. This determination is committed by statute

to the Attorney General’s discretion, so this court lacks jurisdiction to review it. Matsuk v. INS, 247 F.3d 999, 1002 (9th

Cir. 2001); see 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding judicial review of any decision “the authority for which is specified . . . to be in the discretion of the Attorney General”).

Moreover, since the determination is not a “question[ ] of

law” within the court’s jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(2)(D), the court also lacks jurisdiction because Villegas is removable for having committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); id. § 1227(a)(2)(A)(iii). 

B. CAT 

Villegas levels two main attacks against the IJ’s denial of

CAT relief. First, he argues that the IJ should not have

required him to demonstrate that Mexican officials had a

“specific intent” to harm mentally disabled people, and that it

should be enough that officials’ actions concerning mental

institutions had the foreseeable result of inflicting harm. Second, he contends that even if specific intent is the proper standard, his evidence was adequate and the IJ erred in

concluding otherwise. We have jurisdiction to address both

arguments because where, as here, “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.”

Morales v. Gonzales, 478 F.3d 972, 980-81 (9th Cir. 2007)

(citing Unuakhaulu v. Gonzales, 416 F.3d 931, 936-37 (9th

Cir. 2005)). Both arguments lack merit, however. 

4264 VILLEGAS v. MUKASEY
[3] Congress implemented the CAT in 1998 when it passed

the Foreign Affairs Reform and Restructuring Act

(“FARRA”). Pub. L. No. 105-277, Div. G, Title XXII,

§ 2242, 112 Stat. 2681-822 (codified as a note to 8 U.S.C.

§ 1231). This implementing legislation provides that the

United States will not “expel, extradite, or otherwise effect

the involuntary return of any person to a country in which

there are substantial grounds for believing the person would

be in danger of being subjected to torture.” Id. § 2242(a). An

applicant for CAT relief has the burden “to establish that it is

more likely than not that he . . . would be tortured if

removed.” Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.

2001) (quoting 8 C.F.R. § 208.16(c)(2)) (alteration in original). 

Villegas argues that the IJ should have expansively construed “torture” to include “general intent” — that is,

instances where an intentional action has the foreseeable

result of inflicting severe harm on disabled people. To determine whether Villegas is correct, we look to the Convention’s

implementing regulations, which are “subject to” the “reservations, understandings, declarations, and provisos contained

in the United States Senate resolution of ratification of the

Convention.” Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th

Cir. 2003) (citing § 2242(b) of the FARRA). 

[4] When these sources are consulted, Villegas’ argument

fails quickly. The regulations define torture as:

any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her

or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or

a third person, or for any reason based on discrimination of any kind, when such pain or suffering is

VILLEGAS v. MUKASEY 4265
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. § 1208.18(a)(1) (emphasis added). The regulations

further provide that “to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or

suffering.” 8 C.F.R. § 1208.18(a)(5) (emphasis added). This

squares exactly with the Senate ratification resolution, which

provided: “[T]he United States understands that, in order to

constitute torture, an act must be specifically intended to

inflict severe physical or mental pain or suffering . . . .” 136

Cong. Rec. S17,486-01, S17,491 (1990) (emphasis added). 

Moreover, the IJ here relied upon In re J-E-, 23 I. & N.

Dec. 291, 298 (BIA 2002) (en banc), which construed the

CAT’s implementing regulations to require specific intent.

The BIA’s decision in J-E- is not lightly disregarded.

“[J]udicial deference to the Executive Branch is especially

appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate

questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (citation omitted). 

[5] Every other circuit to consider the question has concluded that “torture” under the CAT requires specific intent to

inflict harm. See Pierre v. Gonzales, 502 F.3d 109, 113-119

(2d Cir. 2007); Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir.

2005); see also Majd v. Gonzales, 446 F.3d 590, 597 (5th Cir.

2006) (rejecting a CAT claim because “[m]ost of the suffering

[the petitioner] described was inflicted without any specific

intent”). The only case to the contrary, which Villegas relies

on here, is Zubeda v. Ashcroft, 333 F.3d 463, 474 (3d Cir.

2002). But the Third Circuit later repudiated this portion of

Zubeda as dicta and reached a contrary result, Auguste, 395

F.3d at 147-48, and the Second Circuit has rejected Zubeda as

unpersuasive, Pierre, 502 F.3d at 117-18. We also decline to

follow it. 

4266 VILLEGAS v. MUKASEY
Finally, we note that defining “torture” to require specific

intent to inflict harm does not conflict with our holding in

Zheng. In that case, we held that for a government official to

“acquiesce” in acts of torture by a private party within the

meaning of 8 C.F.R. § 1208.18(a)(1), the public official need

not have actual knowledge of, or willfully accept, the torture.

See 332 F.3d at 1194-97. Rather, “acquiescence” requires

only that a public official have an awareness of private torture, which includes willful blindness to the act. See id. But

Zheng specifically addressed official acquiescence in torture

by private parties, so it should not be read to hold that the torture itself can exist without specific intent of someone —

either the government official or the private party to whom

the official acquiesces — to inflict severe harm. See Pierre,

502 F.3d at 118 (“A private actor’s behavior can constitute

torture under the CAT without a government’s specific intent

to inflict it if a government official is aware of the persecutor’s conduct and intent and acquiesces in violation of the

official’s duty to intervene . . . . But in that scenario, there is

specific intent — the intent of the private actor.”). 

[6] Accordingly, we hold that to establish a likelihood of

torture for purposes of the CAT, a petitioner must show that

severe pain or suffering was specifically intended — that is,

that the actor intend the actual consequences of his conduct,

as distinguished from the act that causes these consequences.

Id.; cf. Black’s Law Dictionary 825 (8th ed. 2004) (defining

“general intent” as “[t]he intent to perform an act even though

the actor does not desire the consequences that result”). 

[7] Applying this standard is relatively simple here. Villegas cites nothing in the record that indicates specific intent,

and we find nothing. While Villegas is correct that a variety

of evidence showed that Mexican mental patients are housed

in terrible squalor, nothing indicates that Mexican officials (or

private actors to whom officials have acquiesced) created

these conditions for the specific purpose of inflicting suffering

upon the patients. Moreover, the record indicates that the

VILLEGAS v. MUKASEY 4267
Mexican government has given human rights organizations

free access to its mental institutions, and is taking steps to

improve conditions. We agree with Villegas that we must

assess the conditions as they currently exist. But the evidence

of a desire to improve confirms the conclusion that, currently,

the conditions in the Mexican mental health system exist not

out of a deliberate intent to inflict harm, but merely because

of officials’ historical gross negligence and misunderstanding

of the nature of psychiatric illness. Therefore, though certainly deplorable, the conditions do not amount to torture

within the meaning of the CAT. This defeats the CAT claim.3

IV.

CONCLUSION

The petition is DISMISSED as to the claim for withholding

of removal and DENIED as to the CAT. 

3We do not decide whether the record compels the conclusion that Villegas would even end up in a Mexican mental institution. The IJ avoided

making a finding on this topic, and “this court cannot affirm the BIA on

a ground upon which it did not rely.” Navas v. INS, 217 F.3d 646, 658

n.16 (9th Cir. 2000). 

4268 VILLEGAS v. MUKASEY