FILED
NOT FOR PUBLICATION
JAN 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ARMANDO CHAVEZ, No. 15-70822
Petitioner, Agency No. A094-144-347
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 4, 2017
Pasadena, California
Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,** District Judge.
Edgar Armando Chavez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeal (“BIA”)’s decision dismissing his
appeal of an Immigration Judge (“IJ”)’s decision finding him removable and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
denying his applications for asylum, withholding of removal, and deferral of
removal under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and we dismiss in part and deny in part the petition for
review.
First, Chavez argues, for the first time, that the Agency erred in denying
withholding of removal because “it did not address the relevant framework” in
Matter of Y-L-, 23 I. & N. Dec. 270 (AG 2002), when it found that his aggravated
felony conviction was a particularly serious crime. We “may review a final order
of removal only if . . . the alien has exhausted all administrative remedies available
to the alien as of right.” 8 U.S.C. § 1252(d)(1). Moreover, “we may review any
issue addressed on the merits by the BIA, regardless whether it was raised to the
BIA by the petitioner.” Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th
Cir. 2013) (emphasis added). Here, the BIA did not address on the merits whether
Chavez overcame the presumption under Matter of Y-L- that he was convicted of a
particularly serious crime, but rather determined that Chavez did not meet his
burden of presenting evidence to rebut that presumption. Accordingly, Chavez
failed to exhaust his argument regarding the IJ’s particularly serious crime
determination to the Agency.
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Second, the Agency did not err by holding that Chavez failed to demonstrate
CAT deferral eligibility. Substantial evidence supports the Agency’s finding that
Chavez failed to demonstrate that he would “more likely than not” be tortured by
the Salvadoran police. See 8 C.F.R. § 1208.16(c)(2). Although Chavez may be
interrogated as part of the reception process when he returns to El Salvador, a wide
variety of interrogation techniques are employed, many of which are not torture.
The record does not compel the requisite “more likely than not” probability of
torture.
Moreover, substantial evidence supports the BIA’s determination that the
Salvadoran government would not consent or acquiesce to torture by gangs. 8
C.F.R. § 1208.18(a)(1) (applicant must show that the alleged torture will be
“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”). El Salvador has enacted
anti-gang laws, which “embrace a comprehensive approach to gang violence
prevention” and include several components aimed at youth prevention and
rehabilitation from gangs. Although some of these laws may be ineffective and the
social components under-funded, the government is nonetheless taking action by
enacting anti-gang laws. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th
Cir. 2014) (“[a] government does not acquiesce in the torture of its citizens merely
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because it is aware of torture but powerless to stop it” (internal quotation marks
omitted)).
In addition, substantial evidence supports the Agency’s determination that
Chavez failed to demonstrate that he would more likely than not be targeted and
tortured by gangs. Chavez’s claim that he will be targeted by gangs is premised on
being recognized as a former gang member. Chavez testified that he has two gang
tattoos. One tattoo has been covered up with other tattoos, and the other is in a
discrete location and can be hidden. Chavez testified that people cannot identify
him as a former gang member based on his appearance and how he presents
himself.
Even assuming gang members will be able to recognize Chavez as a former
member, the Agency properly found insufficient evidence to demonstrate that they
would torture him. Chavez left the gang while he was living in the United States
without incident, and he was not threatened or harmed in the eight years since
leaving. Moreover, no evidence was presented that the gang would view Chavez’s
departure as unsanctioned.
In addition, the Agency properly found that Chavez, who is now in his
forties, was unlikely to be targeted by gangs based upon his age. Dr. Harry
Vanden testified that the gangs target El Salvador’s youth and that gang members
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are usually between the ages of nine or ten and into their twenties. The
documentary evidence further supports that gangs target the youth of El Salvador,
not men who are over 40 years old. Additionally, Chavez testified that gang
members can earn “veterano” status for previous actions and avoid being harassed.
Finally, several of Chavez’s arguments—(1) that the Salvadoran government
would turn a blind eye to “death squads” of rogue police officers targeting gang
members, (2) that the BIA erred by not crediting Dr. Vanden’s testimony that
Chavez “appears rather young,” and (3) that the Agency erred by separately
considering various possible outcomes facing Chavez upon his arrival in El
Salvador, rather than addressing the aggregate risk of torture based on all possible
outcomes—were not exhausted to the BIA. Accordingly, this Court lacks
jurisdiction to consider them. 8 U.S.C. § 1252(d)(1); see Zara v. Ashcroft, 383
F.3d 927, 930 (9th Cir. 2004).
DISMISSED IN PART AND DENIED IN PART.
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