Karla Monika Gilbertson v. Merrick B. Garland, Attorney General of the United States; Alejandro Mayorkas, U.S. Department of Homeland Security

St. Louis - Immigration lawyer represented Petitioner with appealing a

Board of Immigration Appeals order denying her removal relief.

n 1992, at age thirteen, Gilbertson illegally entered the United States. Since

then, she has mainly lived in Minnesota. In 2016, she became a lawful permanent

resident via the Violence Against Women Act.

In 2011, Gilbertson began an eight-year relationship with "El Chino,” a drug

dealer who introduced her to methamphetamine and heroin. Soon, she became

involved in El Chino's drug deals.

Around that time, Gilbertson also met "Archie”—another drug dealer—who,

according to Gilbertson, belonged to Los Zetas, a Mexican drug cartel which traffics

drugs between Mexico and the northern United States. Archie gave Gilbertson

money and meth for her personal use. Gilbertson learned about the tunnels that Los

Zetas used to smuggle drugs into the United States. In time, she also got involved

in Archie's drug deals by acting as an intermediary between Archie and El Chino.

In 2017, a drug deal went bad. As Gilbertson tells it, El Chino gave her a car

to transport a $50,000 load of meth. Unbeknownst to her, the vehicle was stolen.

Later, police stopped the car, arrested the drivers, and seized the meth. Soon after,

two males attacked Gilbertson in her home. And at least ten times after that, drug

users broke into her house to try to steal her drug stash. Archie also made threatening

phone calls to Gilbertson and sent her videos of masked Los Zetas members carrying

out executions.

In 2018, police searched Gilbertson's house and discovered drugs and

weapons. After Gilbertson was charged with various state crimes, she pled guilty to

selling controlled substances, see Minn. Stat. § 152.023, subd.1(1), a felony in

Minnesota. She was sentenced to 21 months of imprisonment. Gilbertson concedes

that this offense constitutes an aggravated felony making her statutorily ineligible to

seek asylum.

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The Department of Homeland Security ("DHS”) then commenced removal

proceedings. At her removal hearing, Gilbertson testified about her mental health

history—which includes diagnoses of bipolar disorder, depression, anxiety,

borderline multiple personality disorder, impulse control problems, and repeated

attempts to end her own life.

Because Gilbertson conceded her state drug offense constituted an aggravated

felony, the Immigration Judge ("IJ”) concluded that Gilbertson had been convicted

of a per se "particularly serious crime” ("PSC”), was ineligible to seek asylum, and

was barred from withholding of removal. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i);

8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also concluded that Gilbertson did not meet her

burden of proof to establish eligibility for deferral of removal under the Convention

Against Torture ("CAT”). The BIA adopted and affirmed the IJ's decision, and

Gilbertson, seeking to remain in the United States, now petitions us for review.

II. Analysis

"When the BIA adopts and affirms an IJ's decision, . . . [we review] both

decisions together.” Bhosale v. Mukasey, 549 F.3d 732, 735 (8th Cir. 2008). "We

review constitutional claims and questions of law de novo.” Lasu v. Barr, 970 F.3d

960, 964 (8th Cir. 2020). "We review factual determinations under the substantial

evidence standard, reversing only if 'the evidence is so compelling that no

reasonable factfinder could fail to find in favor of the petitioner.'” Zheng v. Holder,

698 F.3d 710, 713 (8th Cir. 2012) (quoting Bernal-Rendon v. Gonzales, 419 F.3d

877, 880 (8th Cir. 2005)).

When the petitioner is a criminal alien under 8 U.S.C. § 1252(a)(2)(C), our

jurisdiction to review final orders of removal "is limited to constitutional claims and

questions of law.” Sharif v. Barr, 965 F.3d 612, 618 (8thCir. 2020) (quoting Hanan

v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008)); see 8 U.S.C. § 1252(a)(2)(D). But,

"[o]ur jurisdiction to review [Gilbertson's] arguments pertaining to [her] CAT claim

is broader[.]” Sharif, 965 F.3d at 621 (citing Nasrallah v. Barr, 140 S. Ct. 1683,

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1694 (2020) ("A CAT order is distinct from a final order of removal. . . . Therefore,

[the criminal alien review bar does] not preclude judicial review of a noncitizen's

factual challenges to a CAT order.”)).

Gilbertson raises two main arguments on appeal. First, that the BIA erred in

excluding her mental health issues from the PSC analysis. Second, that there is not

substantial support for the IJ's determination, affirmed by the BIA, that she is not

likely to be tortured with the consent or acquiescence of the Mexican government if

she returns to Mexico. We address each argument in turn.

A. Mental Health

Gilbertson argues that the BIA erred in excluding her mental health issues

from the PSC analysis. Specifically, she argues that the BIA erred in relying on

Matter of G-G-S- because that case has been subsequently overruled. Matter of GG-S-, I. & N. Dec. 339, 345 (BIA 2014) (holding that an alien's mental health is not

a factor to be considered in a PSC analysis).

After the BIA's decision in Gilbertson's case, we held in Shazi v. Wilkinson

that Matter of G-G-S- represented an "arbitrary and capricious construction of

8 U.S.C. § 1231 [statutory withholding of removal], and we reject[ed] such a

categorical evidentiary bar in the particularly serious crime analysis.” Shazi v.

Wilkinson, 988 F.3d 441, 450 (8th Cir. 2021). Gilbertson now claims that the BIA

relied squarely on Matter of G-G-S- and that remand is required in light of Shazi.

We disagree.

Here, the IJ's decision to not consider mental health in the PSC analysis—

which the BIA adopted and affirmed—relied exclusively on In re Y-L-, 23 I. & N.

Dec. 270, 274 (A.G. 2002), rather than Matter of G-G-S-. In In re Y-L- the Attorney

General stated that "aggravated felonies involving unlawful trafficking in controlled

substances presumptively constitute 'particularly serious crimes[.]'” In re Y-L-, 23

I. & N. Dec. at 274. The Attorney General also added "[o]nly under the most

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extenuating circumstances that are both extraordinary and compelling would

departure from this interpretation be warranted or permissible.” Id. (emphasis

added). The Attorney General established the In re Y-L- framework specifically for

drug trafficking convictions given the offenses' dangerous nature and severity. Id.

at 275. That framework applies in removal cases involving aggravated felonies

related to drug trafficking—like Gilbertson's. So, we therefore conclude that the IJ

properly applied and relied on In re Y-L- to reject Gilbertson's arguments.1



By applying the In re Y-L- framework to the present case—involving the

trafficking of controlled substances—the IJ properly held that Gilbertson had been

convicted of a PSC and thus could not receive withholding of removal. Under In re

Y-L-, we apply a strong presumption that an aggravated-felony conviction that

relates to drug trafficking will constitute a PSC. Id. To overcome that presumption

for her conviction, Gilbertson needed to show, at a minimum, that the offense

involved only: (1) a very small quantity of controlled substance; (2) a very modest

amount of money paid for the drugs; (3) her peripheral involvement in the criminal

activity, transaction, or conspiracy; (4) no implied or actual violence; (5) no

connection to organized crime or a terrorist organization; and (6) no harmful effect

on juveniles. Id. at 276–77. She did not do so here. Gilbertson possessed more than

1

Shazi concerned the BIA's general PSC analysis, under which the BIA has a

policy of considering "all reliable information” including "information outside of

the confines of a record of conviction.” 988 F.3d at 449 (emphasis omitted) (citation

omitted). Accordingly, we found that such a categorical bar to mental health

evidence was an arbitrary and capricious construction of 8 U.S.C. § 1231. Id. at 450.

Gilbertson's conviction is not subject to this general framework. Instead, the

Attorney General, in its discretion under 8 U.S.C. § 1231(b)(3)(B), determined that

"aggravated felonies involving unlawful trafficking in controlled substances

presumptively constitute 'particularly serious crimes'” and established a separate

framework, not at issue in Shazi, by which a petitioner could overcome the

presumption. See In re Y-L-, 23 I. & N. Dec. at 274, 276–77. Gilbertson challenges

neither the Attorney General's decision in In re Y-L- nor the Attorney General's

authority to designate a certain conviction as a PSC. Because the framework in In

re Y-L- does not contemplate the consideration of "all reliable evidence,” the

application of Shazi to the present case is misplaced.

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50 grams of methamphetamine, had illegal weapons, and was involved with Los

Zetas' drug deals.

2

Because Gilbertson failed to rebut the In re Y-L- presumption, the IJ did not

err in not considering mental health as a factor in the PSC analysis.

B. Convention Against Torture

Gilbertson next challenges the IJ's finding, affirmed by the BIA, that she is

not entitled to CAT relief. As an applicant for deferral of removal, Gilbertson's CAT

eligibility would require her to show "it is more likely than not,”

8 C.F.R. § 1208.16(c)(2), that she would be tortured if removed to Mexico "by, or

at the instigation of, or with the consent or acquiescence of, a public official . . . or

other person acting in an official capacity[.]” Id. § 1208.18(a)(1).

The IJ found that while cartel violence continues in Mexico, that alone cannot

show a more-likely-than-not chance that the Mexican government would acquiesce

in Gilbertson's torture. We agree. "A government does not acquiesce in the torture

of its citizens merely because it is aware of torture but powerless to stop it[.]”

Hassan v. Rosen, 985 F.3d 587, 590 (8th Cir. 2021) (quoting Ramirez-Peyro v.

Holder, 574 F.3d 893, 899 (8th Cir. 2009)). In fact, some country-condition reports

2

The BIA adopted and affirmed the IJ's decision, which relied exclusively on

the In re Y-L- framework. To the extent that the BIA relied on Matter of G-G-S-,

such reliance was harmless error. "Harmless errors no more justify reversal in a

deportation case than in a criminal case.” See Maashio v. I.N.S., 45 F.3d 1235, 1240

(8th Cir. 1995) (quoting Ortiz-Salas v. I.N.S., 992 F.2d 105, 106 (7th Cir. 1993));

see also Campos Julio v. Barr, 953 F.3d 550, 552 (8th Cir. 2020) ("Harmless error

determinations are a universally recognized aspect of appellate review.”).

Therefore, because In re Y-L- is the correct legal standard, and it alone defeats

Gilbertson's argument, any error that the BIA made in relying on Matter of G-G-Sdid not affect the outcome of the present case. See Reyes-Morales v. Gonzales, 435

F.3d 937, 943 (8th Cir. 2006) (concluding that a BIA error was purely ministerial

and therefore harmless).

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show that the Mexican government is actively combating drug cartels and taking

steps to counter the torture and ill-treatment of its citizens.



The IJ's fact-findings "must be upheld unless the alien demonstrates that the

evidence [s]he presented not only supports a contrary conclusion but compels it.”

Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016). Gilbertson's evidence falls

short of that standard. The IJ determined that Archie's threats toward Gilbertson

were not sufficient to support her claims:



(1) that Los Zetas is aware of her perceived cooperation with

U.S. law enforcement; (2) that Los Zetas is interested enough in

punishing [Gilbertson] that they will seek her out anywhere in

Mexico and kill her (despite her actual, low-level involvement);

[and] (3) that Los Zetas would be able to rely on its government

informants and alliances to know when [Gilbertson] returns to

Mexico, find [her] anywhere in Mexico, and detain her.

Gilbertson's CAT application rests on a "hypothetical chain of events”; thus, she

needed to show that it was more likely than not that each link in the chain would

occur. See Matter of J-F-F-, 23 I. & N. Dec. 912, 917 (A.G. 2006); see Lasu, 970

F.3d at 967. But here, there is nothing in the record to rebut the IJ's findings.

Because the record does not compel the conclusion that the Mexican

government would, more likely than not, acquiesce in Gilbertson's torture, we affirm

the denial of CAT relief to Gilbertson.

3

For the foregoing reasons, we deny the petition for review