Perfunctory BIA Briefing Does Not Exhaust CAT Theories; Underfunded/Neglectful Institutional Conditions in Mexico Lack “Specific Intent” for CAT Torture

Introduction

Case: Garcia-Botello v. Bondi, No. 24-9507 (10th Cir. Feb. 25, 2026) (published).
Parties: Javier Garcia-Botello (petitioner), a Mexican citizen; Pamela J. Bondi, U.S. Attorney General (respondent).
Posture: Petition for review of a Board of Immigration Appeals (“BIA”) order affirming an Immigration Judge’s (“IJ”) denial of protection under the Convention Against Torture (“CAT”).

Mr. Garcia-Botello entered the United States in 1998 on a tourist visa, overstayed, and remained unlawfully. After a severe 2009 car accident, he suffered permanent spinal injury and a traumatic brain injury (“TBI”) with significant cognitive and behavioral impairment. His post-accident conduct led to multiple arrests and convictions. DHS initiated removal proceedings for overstaying his visa under 8 U.S.C. § 1227(a)(1)(B). He conceded removability but sought CAT relief, arguing that his disabilities would likely result in detention or institutionalization in Mexico and that he would be tortured there.

The central issues on review were (1) whether the agency improperly ignored key testimony; (2) whether it misapplied the CAT “public official/consent/acquiescence” requirement; (3) whether substantial evidence supported the finding that any anticipated mistreatment would lack the CAT’s “specific intent” requirement; and (4) whether the agency applied an overly demanding standard for “government acquiescence.”

Summary of the Opinion

The Tenth Circuit denied the petition for review. It held that:

  • The petitioner failed to exhaust, before the BIA, any independent theory of torture by criminal organizations; two passing references were inadequate.
  • The BIA did not “wholesale” ignore petitioner’s or his mother’s testimony; and even if it had, petitioner could not show due-process prejudice because the “specific intent” element was dispositive.
  • The BIA applied the correct disjunctive CAT government-connection test (“by” a public official acting in an official capacity, or “with” official consent/acquiescence).
  • Substantial evidence supported the agency’s finding that any likely harm in Mexican prisons or mental-health institutions would stem from neglect, lack of resources, or insufficient training—not “specifically intended” torture as required by 8 C.F.R. § 1208.18(a)(5).
  • Although the IJ used an imprecise formulation (“effectively do nothing”) when discussing acquiescence, the BIA did not adopt that misstatement; and, in any event, acquiescence was immaterial absent “torture” (specific intent).

Analysis

Precedents Cited

1) Issue exhaustion before the BIA: perfunctory references are not enough

The court refused to consider an “independent risk of torture” theory from criminal organizations because it was not properly exhausted. The panel relied on:

  • Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991): failure to raise an issue to the BIA constitutes failure to exhaust.
  • Birhanu v. Wilkinson, 990 F.3d 1242, 1253-54 (10th Cir. 2021), vacated on unrelated grounds sub nom., Wolie Birhanu v. Garland, 142 S. Ct. 2862 (2022) (mem.): two undeveloped references that do not “fairly present” a theory to the BIA do not exhaust it.
  • Sister-circuit reinforcement: Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004), abrogated on unrelated grounds by, Santos-Zacaria v. Garland, 598 U.S. 411, 413-14, 416 (2023).
  • Contextual caution: Rangel-Fuentes v. Bondi, 155 F.4th 1138, 1147 (10th Cir. 2025) (“not turn a blind eye to the arguments plainly before it”), which the panel distinguished by concluding the criminal-organization theory was not “plainly before” the BIA given the minimal references.

The opinion also notes the court’s discretion to address exhaustion even when the government forfeits the objection, citing Miguel-Pena v. Garland, 94 F.4th 1145, 1158 (10th Cir. 2024), and Bonilla-Espinoza v. Bondi, 166 F.4th 51, 58 (10th Cir. 2026).

2) Scope and standard of judicial review of BIA decisions

The court reiterated the Tenth Circuit framework for reviewing BIA dispositions:

  • Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006): a single-member, brief BIA order is reviewed as the final agency determination.
  • Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016); Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011): scope of review is governed by the form of the BIA decision.
  • Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013); Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007); Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006): the court may consult the IJ’s reasoning to the extent the BIA relied on or incorporated it.
  • Legal questions are reviewed de novo (Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005)); factual findings for substantial evidence (Nasrallah v. Barr, 590 U.S. 573, 583-84 (2020); Escobar-Hernandez v. Barr, 940 F.3d 1358, 1361 (10th Cir. 2019)).

The panel also discussed deferential review for primarily factual mixed questions under Wilkinson v. Garland, 601 U.S. 209, 212, 225 (2004), and Martinez v. Garland, 98 F.4th 1018, 1021 (10th Cir. 2024), while noting (citing Hermosillo-Robles v. Bondi, 2025 WL 1576766, at *2 n.2 (10th Cir. June 4, 2025) (unpublished)) that the circuit has not elaborated the precise contours of that “deferential” standard.

3) Due process “wholesale failure to consider evidence” and prejudice

On petitioner’s claim that the BIA ignored testimony, the court treated “wholesale failure to consider evidence” as potentially implicating due process, citing:

  • Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009), abrogated on unrelated grounds by, Wilkinson v. Garland, 601 U.S. at 217.
  • Unpublished but persuasive applications: Zubia Escarcega v. Garland, 2024 WL 3688734, at *4 (10th Cir. Aug. 7, 2024) (unpublished); Espinosa v. Garland, 2023 WL 8539441, at *2, *4 (10th Cir. Dec. 11, 2023) (unpublished).
  • Prejudice requirement: Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1064 (10th Cir. 2004).

The court also observed (without deciding) a statutory issue of first impression in the circuit: whether 8 U.S.C. § 1229a’s credibility/weighing directives create a statutory bar on arbitrarily ignoring unrebutted, legally significant evidence, noting the Fourth Circuit’s approach in Cortes v. Garland, 105 F.4th 124, 135 (4th Cir. 2024).

4) CAT’s government-connection requirement is disjunctive

Responding to the claim that the BIA treated the government-connection requirement as conjunctive, the court reaffirmed the disjunctive structure: torture must be “by” an official acting in an official capacity or “with” official consent/acquiescence.

  • Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1145 (10th Cir. 2023) (quoting DeCarvalho v. Garland, 18 F.4th 66, 72 (1st Cir. 2021)), abrogated in part on unrelated grounds by, Riley v. Bondi, 606 U.S. 259, 263 (2025).
  • “Official capacity” equals “under color of law”: Matter of O-F-A-S-, 28 I. & N. Dec. 35, 39 (U.S. Att’y Gen. 2020), as used in Arostegui-Maldonado v. Garland.
  • Willful blindness suffices for acquiescence: Karki v. Holder, 715 F.3d at 806.
  • Correct-standard inference from BIA citations: Berdiev v. Garland, 13 F.4th 1125, 1132 (10th Cir. 2021).

5) “Specific intent” and institutional/prison conditions: the resource/neglect line

The opinion’s decisive substantive holding is that substantial evidence supported the agency’s “no specific intent” finding where anticipated harms stem from underfunding, neglect, inadequate training, and systemic deficiencies. The court aligned the case with:

  • Matter of J-R-G-P-, 27 I. & N. Dec. 482, 484-87 (BIA 2018): Mexico-specific CAT claim based on mental illness; “appalling conditions” attributed to “lack of resources and training,” not specific intent to torture.
  • The court’s sister-circuit discussion of intent (primarily to reject petitioner’s requested inference): Pierre v. Gonzales, 502 F.3d 109, 119 n.8 (2d Cir. 2007); Kang v. Attorney General of the United States, 611 F.3d 157, 167 (3d Cir. 2010); Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012) (standard-of-review error); Guerra v. Barr, 974 F.3d 909, 914-15 (9th Cir. 2020) (clear-error constraints, contrasted with Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008)); Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir. 2003), abrogated by Auguste v. Ridge, 395 F.3d 123, 143-46, 153-54 (3d Cir. 2005).
  • The “purpose (specific intent) vs knowledge (general intent)” distinction: Oxygene v. Lynch, 813 F.3d 541, 548-49 (4th Cir. 2016), abrogated in part on unrelated grounds by, Nasrallah v. Barr, 590 U.S. at 576, using United States v. Bailey, 444 U.S. 394, 405 (1980).
  • Analogous mental-health treatment context: Joshi v. Garland, 112 F.4th 181, 195 (4th Cir. 2024) (electroconvulsive therapy viewed as not administered for proscribed purposes).
  • Recent Mexico-institution cases reinforcing the same evidentiary logic: Fiddler v. Bondi, 147 F.4th 757, 759-60 (7th Cir. 2025); Andrade v. Garland, 94 F.4th 904, 915 (9th Cir. 2024).

6) Acquiescence standard: “regularly fails to take action” vs “effectively do nothing”

The court agreed that the IJ’s phrasing (“effectively do nothing to prevent acts of torture”) overstated the standard when compared to Karki v. Holder, 715 F.3d at 807 (“regularly fails to take action to prevent or punish”). But it found no reversible error because the BIA did not adopt the misstatement and itself cited and applied the correct willful-blindness framework.

The opinion also restated the regulatory and circuit definition of acquiescence: Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005), and 8 C.F.R. § 1208.18(a)(7).

Legal Reasoning

1) The court’s threshold gatekeeping: exhaustion narrows the case

The panel first removed from the merits any “criminal organizations” torture theory. The reasoning is doctrinally important: presenting country-conditions evidence to the IJ and mentioning “criminal organizations” twice “in passing” in a BIA brief—without developing a legal theory for relief—does not “fairly present” the issue and does not satisfy 8 U.S.C. § 1252(d)(1). This is a stringent but familiar administrative-law principle: the BIA must have a meaningful opportunity to rule on the claim, not just a fleeting reference.

2) The case turns on the CAT definition of “torture,” especially “specific intent”

The court framed the dispositive legal element as the regulatory “specific intent” requirement: 8 C.F.R. § 1208.18(a)(5) (“specifically intended”); and it accepted the agency’s factual finding that anticipated harms would more likely be the byproduct of systemic deficiencies (neglect, resource constraints, inadequate training) rather than an intent to inflict severe pain or suffering.

Critically, the court rejected petitioner’s effort to shortcut the intent inquiry by pointing to (a) the “proscribed purposes” listed in 8 C.F.R. § 1208.18(a)(1), or (b) the “nature and severity” of anticipated practices. The panel read the cited authorities as reinforcing that intent remains factbound and that institutional brutality may still fall short of “torture” where the record plausibly supports a non-purposeful explanation (resource scarcity, inadequate systems, misguided care).

3) Due process and statutory-evidence claims: no “wholesale ignoring,” and no prejudice

On the asserted failure to consider testimony, the court found the record showed the IJ credited the testimony and the BIA acknowledged and incorporated those credibility findings. Even assuming arguendo some oversight, the court found no prejudice under Alzainati v. Holder and Garcia-Marrufo v. Ashcroft because the BIA denied CAT relief “even assuming” petitioner would engage in erratic behavior that might lead to detention—i.e., the intent finding independently defeated the CAT claim.

4) Acquiescence arguments: correct law applied; and in any event, no torture to acquiesce in

The panel treated petitioner’s acquiescence arguments as legally non-dispositive given its affirmance of the “no torture” (no specific intent) finding. In other words, even perfect proof of state awareness and breach of duty cannot establish CAT eligibility if the anticipated harm does not satisfy the definitional requirements of “torture.”

Impact

  • Exhaustion in CAT litigation: The decision tightens practical expectations for BIA briefing. Minimal, undeveloped references—even if coupled with broad country-conditions evidence—risk forfeiting entire theories on judicial review. Practitioners must clearly separate (and argue) each “source of torture” theory to the BIA.
  • Disability-based CAT claims grounded in institutional conditions: The opinion reinforces a demanding evidentiary line: proof of severe abuse/neglect in prisons or mental institutions is not enough unless the applicant can show that severe pain/suffering will be specifically intended, not merely a foreseeable consequence of inadequate systems.
  • Harmlessness through “no torture” findings: Where “specific intent” fails, downstream disputes about acquiescence—and even some claimed procedural missteps—may not produce relief. The decision thus encourages litigants to build the intent record first, not treat it as an afterthought to conditions evidence.
  • Open question under 8 U.S.C. § 1229a: The panel highlighted, but declined to decide, whether § 1229a independently prohibits arbitrariness in ignoring unrebutted, legally significant evidence (as Cortes v. Garland suggests). Future petitioners may develop this statutory theory in the Tenth Circuit.

Complex Concepts Simplified

  • CAT “torture” vs. cruel/inhumane conditions: CAT relief requires “torture” as defined by regulation, not merely harsh, life-threatening, or degrading conditions.
  • “Specific intent” (8 C.F.R. § 1208.18(a)(5)): The perpetrator must act with the purpose of inflicting severe pain or suffering. If severe pain results from neglect, underfunding, lack of training, or systemic dysfunction—without a purpose to inflict it—the legal definition may not be met.
  • Government connection (8 C.F.R. § 1208.18(a)(1)): Torture must be either (a) inflicted by an official acting “in an official capacity” (i.e., “under color of law”), or (b) inflicted by others with official “consent or acquiescence.”
  • “Acquiescence” and “willful blindness” (8 C.F.R. § 1208.18(a)(7)): The applicant must show officials would be aware (actually or by willful blindness) and then breach a legal duty to intervene.
  • Issue exhaustion (8 U.S.C. § 1252(d)(1)): Courts generally will not review issues not meaningfully presented to the BIA. Brief, undeveloped mentions can be treated as no presentation at all.
  • Substantial evidence review: The court will uphold agency fact findings unless the record compels the opposite conclusion.

Conclusion

Garcia-Botello v. Bondi is a consequential published Tenth Circuit decision for CAT practice in two respects. First, it underscores that perfunctory BIA briefing does not exhaust an independent CAT torture theory, even when the record contains general country-conditions evidence. Second—and dispositively—it reaffirms that disability-related risks tied to Mexico’s prisons or mental health institutions must satisfy the CAT’s “specific intent” requirement; evidence of neglect, underfunding, and inadequate training may support denial because those conditions can be found not “specifically intended” to inflict severe pain or suffering.