NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE DE JESUS GONZALEZALVARADO, AKA Ruben Ayon Cruz, 

AKA Apollinaire Jimenez, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 17-72780 

18-70854 

Agency No. A097-764-811 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 4, 2019

Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District 

Judge.

Jose de Jesus Gonzalez-Alvarado, a native and citizen of Mexico, petitions 

for review of decisions by the Board of Immigration Appeals (“BIA”) dismissing 

his appeal from an immigration judge’s (“IJ”) denial of deferred removal under the 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Raner C. Collins, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

NOV 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Convention Against Torture (“CAT”) and denying his motion to reopen. We have 

jurisdiction under 8 U.S.C. § 1252. See Agonafer v. Sessions, 859 F.3d 1198, 

1202–03 (9th Cir. 2017). We review the BIA’s legal determinations de novo, its 

factual findings for substantial evidence, and its denial of a motion to reopen for 

abuse of discretion. See Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016). We 

deny the petition as to the denial of the motion to reopen, grant the petition as to 

the denial of deferred removal under the CAT, and remand for further proceedings.

1. In his motion to reopen, Gonzalez-Alvarado presented no new evidence 

to undermine the agency’s finding that he failed to show a likelihood of 

government acquiescence in torture. A motion to reopen “is purely fact-based, 

seeking to present newly discovered facts or changed circumstances since a 

petitioner’s hearing,” and “is not a means by which the BIA can correct its own 

legal error.” Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008). While 

the BIA can construe a motion to reopen as a motion for reconsideration, see

Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005), Gonzalez-Alvarado 

did not address government acquiescence. Because the agency’s finding regarding 

acquiescence was an independent basis to deny CAT relief, the BIA did not abuse 

its discretion in denying the motion to reopen. See INS v. Abudu, 485 U.S. 94, 104 

(1988) (explaining that “the BIA may deny a motion to reopen” if “the movant has 

not established a prima facie case for the underlying substantive relief sought”).
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2. In affirming the IJ’s denial of deferred removal under the CAT, the BIA 

largely adopted the IJ’s decision.1 In particular, the BIA found that the IJ did not 

clearly err in making three findings that are independent grounds to deny relief: (a)

there is insufficient corroboration that Gonzalez-Alvarado’s “feared persecutor,” 

Chuy, “is a high-ranking . . . member” of the Cartel Jalisco New Generation 

(“CJNG”) who “remains affiliated with the cartel with the power and influence to 

direct its members to locate and torture [Gonzalez-Alvarado]”; (b) “the 

government of Mexico does not collaborate or acquiesce in cartel violence”; and 

(c) there is insufficient evidence that the CJNG “remains . . . interested [in]

target[ing]” Gonzalez-Alvarado. Each of these findings is unsupported by the 

record.

 (a) When an IJ requires an otherwise credible applicant for relief from 

removal to provide corroboration for his or her claim, the IJ must give the 

applicant notice and an opportunity to provide such evidence. See Ren v. Holder, 

648 F.3d 1079, 1093 (9th Cir. 2011). The IJ failed to do so. There is no material 

1 Although the BIA “adopt[ed] and affirm[ed] the [IJ’s] . . . decision that 

[Gonzalez-Alvarado] has not met his burden of establishing eligibility for deferral 

of removal,” the BIA appears not to have relied on the IJ’s specific finding that 

Gonzalez-Alvarado could relocate within Mexico. The BIA acknowledged that 

Gonzalez-Alvarado “contests [this] determination” but did not address its merits. 

The BIA merely noted “that the ability to relocate is one of many relevant factors 

that could be considered in establishing whether it is more likely than not that 

torture will occur.”
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difference between the asylum statute at issue in Ren and the statute governing 

CAT relief, compare 8 U.S.C. § 1158(b)(1)(B)(ii) (asylum), with 8 U.S.C. 

§ 1229a(c)(4)(B) (CAT relief), and the due process concerns that animated Ren

apply with equal force here. Moreover, the IJ failed to explain why the statements 

to Gonzalez-Alvarado by his uncle Juan were insufficiently corroborative. Juan 

was “involved really deeply” in a cartel, and he confirmed Chuy’s potentially selfserving statements about being a cartel member. Finally, the IJ failed to explain 

why Chuy in particular—rather than CJNG members generally—needed to have 

the intent and means to torture Gonzalez-Alvarado upon his return to Mexico. 

Gonzalez-Alvarado testified that cartels torture police informants “to intimidate 

others” and presented corroborating expert evidence. The risk of torture claimed 

by Gonzalez-Alvarado is not simply that Chuy will torture him out of revenge, but 

that the CJNG has an organizational interest in torturing him to deter others from 

becoming informants.

 (b) In concluding that Gonzalez-Alvarado failed to show that the 

Mexican government would acquiesce in torture by the CJNG, the IJ improperly 

focused solely on actions taken by the federal government and not by local 

officials. See Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013). The IJ also 

improperly considered only governmental efforts to combat cartels without 

considering their effectiveness. See id. at 509. Here, as in Madrigal, the IJ failed 
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to consider “[v]oluminous evidence,” including country and expert reports, “that 

corruption of public officials in Mexico remains a problem, particularly at the state 

and local levels of government, with police officers . . . frequently working directly 

on behalf of drug cartels.” Id. at 510.

The BIA concluded that the evidence of human rights violations in Mexico 

was “not particular to [Gonzalez-Alvarado]” and was “insufficient to establish” 

government acquiescence. Yet Gonzalez-Alvarado presented just this type of 

particularized evidence in an expert report, which concluded that GonzalezAlvarado personally “would face a high risk of being tortured and killed by 

members of the CJNG” if he returned to Mexico because the CJNG “has a high 

capacity to confront armed forces of the state” and “[t]he Mexican government is 

overwhelmed.” And Gonzalez-Alvarado stated that Jalisco “police officers . . . 

warned [his uncle] not to continue his investigation” into the disappearance of 

Gonzalez-Alvarado’s cousin Francisco, who was also an informant. Before 

Francisco disappeared, Chuy’s nephews and gang members expressed their intent

to murder Francisco and Gonzalez-Alvarado “at the same time.” The BIA did not 

discuss this evidence or explain why it was insufficiently particularized.

The BIA misconstrued the record in stating that Gonzalez-Alvarado testified

that “he felt protected against any attempts by the CJNG when he ventured out into 

public areas with military presence.” Rather, he stated that the military presence 
6 

merely “made it harder for the cartels to carry out their crimes with impunity.” 

Gonzalez-Alvarado testified that in Tijuana he was receiving multiple “threats” on 

the phone each day from the CJNG and that the cartel had “many government 

people bought”—“local people, federal, all types of government.” When he was in 

Tijuana, he escaped capture by the cartel by hiding. He “locked [him]self into a 

hotel” and later stayed at a relative’s house and “didn’t go out . . . all that time.” 

He stayed in an area near the border where “there was [a] military presence” to 

prevent being kidnapped “on the streets,” but the only time he testified to being on 

the streets was during his frequent moves to avoid capture.

 (c) Gonzalez-Alvarado presented new evidence in his motion to reopen,

including recent threats from Chuy and an explanation for the lack of threats while 

he was in federal prison, to support his argument that the CJNG remains interested 

in targeting him. Because the agency has not yet addressed this evidence and its 

decision is not otherwise supported on independent grounds, we remand to the BIA 

to consider the evidence. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per 

curiam).

PETITION GRANTED in part and DENIED in part; REMANDED.

Costs on appeal are awarded to Gonzalez-Alvarado.