In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1511 & 18-3196
RAFAEL GIOVANNI HERRERA-GARCIA,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Decisions of
the Board of Immigration Appeals.
No. A074-211-058
____________________
ARGUED SEPTEMBER 25, 2018 — DECIDED MARCH 18, 2019
____________________
Before KANNE, ROVNER, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Rafael Giovanni Herrera-Garcia
seeks to avoid removal to El Salvador because he says that he
will be tortured by gangs or corrupt government authorities
if he is forced to return there. An immigration judge found
that Herrera-Garcia had not shown that he, specifically,
would be in danger and denied his request for relief. The
judge also concluded that Herrera-Garcia had not established
2 Nos. 18-1511 & 18-3196
that the government would have inflicted or allowed the
alleged torture. The Board adopted and affirmed that
decision.
Because the administrative decisions are supported by
substantial evidence in the record, we deny Herrera-Garcia’s
petition for review of these decisions. We also reject his
second petition for review on the denial of his motion for
reconsideration because we agree with the Board that it was
untimely.
I.
Herrera-Garcia is a native and citizen of El Salvador. He
entered the United States illegally in 1990 and has remained
here for the past twenty-seven years. In 2016, the Department
of Homeland Security initiated removal proceedings against
him under 8 U.S.C. § 1229a.1 It alleged that he was removable
as an alien because he was (1) convicted of a crime of moral
turpitude and (2) present in the United States without being
admitted or paroled. In his removal proceedings before the
immigration judge (IJ), Herrera-Garcia denied both claims
and argued that he qualified for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT).
Herrera-Garcia’s argument for withholding centered on
his time growing up in El Salvador. He testified that when he
was nine years old, guerrillas stopped him and his friends to
get information about people in his neighborhood who might
be working for the military—because at that time, the
1 Herrera-Garcia had previously been in removal proceedings that are
not relevant to this appeal.
Nos. 18-1511 & 18-3196 3
guerillas and the El Salvadoran government were fighting a
civil war. Herrera-Garcia said that the guerrillas continued to
stop by every three weeks or so to ask similar questions. He
admitted, however, that he never saw any of the guerillas
with guns. He also said that during one encounter, the
guerrillas stopped him and a few friends and forced his
friend, Franklin, to smoke marijuana. He claimed that
although he escaped from the guerillas, they kidnapped
Franklin.
Herrera-Garcia also testified that several of his friends
were forced to join the military. He explained that he didn’t
want to be involved in the violence between the military and
the guerillas. Ultimately, out of fear of both the military and
the guerillas, he fled to the United States in 1990 and has
remained here illegally since then.
Herrera-Garcia testified that his fear of living in El
Salvador is worse today than it was twenty-seven years ago
because of the growing number of gangs and kidnappings
there. His parents also testified about the current state of gang
violence in the country. They said that they worry about El
Salvadoran gangs kidnapping him for ransom given his
American accent—because the gangs believe that Americans
are wealthy.
The IJ found Herrera-Garcia removable and denied his
applications for asylum, withholding of removal, and relief
under CAT. On his CAT claim, the IJ held that Herrera-Garcia
had failed to show that it was more likely than not that he
would be tortured if he returned to El Salvador. The IJ also
found “entirely speculative” his claims that he would be
tortured by gangs. Lastly, the IJ concluded that Herrera-
Garcia had failed to provide sufficient evidence that the El
4 Nos. 18-1511 & 18-3196
Salvadoran government would participate or acquiesce in the
alleged torture.
Herrera-Garcia appealed to the Board of Immigration
Appeals, which adopted and affirmed the IJ’s decision.
Herrera-Garcia’s petition for review makes only one
argument: he claims that he is entitled to relief under CAT.
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1990), 1465 U.N.T.S. 85.
While his petition was pending before us, he filed a
motion to reconsider with the Board, asserting that a new
Supreme Court decision, Pereira v. Sessions, 138 S. Ct. 2105
(2018), affected his case. Pereira held that a notice to appear
that fails to specify the time or place of a removal hearing does
not trigger the “stop-time rule” for purposes of cancellation
of removal. 138 S. Ct. at 2115. Herrera-Garcia argued that
Pereira should be extended outside the context of the stop-
time rule to preclude the agency’s jurisdiction over his
proceedings. The Board denied his motion, concluding that it
was both untimely and, in any event, failed on the merits.
Because he also filed a petition for review from that order, we
consolidated the two petitions but concluded that oral
argument was unnecessary for the second. See Khan v. Holder,
766 F.3d 689, 695 (7th Cir. 2014); FED. R. APP. P. 34(a)(2)(C).
II.
When the Board adopts and supplements an IJ’s decision,
we review the IJ’s decision as well as any additional reasoning
provided by the Board. Ndonyi v. Mukasey, 541 F.3d 702, 709
(7th Cir. 2008). We consider the decisions “under the
deferential substantial evidence standard, meaning that we
Nos. 18-1511 & 18-3196 5
may only reverse their factual findings if the facts compel an
opposite conclusion.” Minghai Tian v. Holder, 745 F.3d 822, 828
(7th Cir. 2014).
To qualify for relief under CAT, an alien must prove that
he would more likely than not be tortured if removed. 8 C.F.R.
§ 1208.16(c)(2); see Perez-Montes v. Sessions, 880 F.3d 849, 850
(7th Cir. 2018). Torture is defined as the intentional infliction
of “‘severe pain or suffering’ for the purpose of coercion,
punishment, or discrimination.” Borovsky v. Holder, 612 F.3d
917, 923 (7th Cir. 2010) (citing § 1208.18(a)(1)). We consider
several factors in assessing possible future torture: “evidence
of past torture; evidence that the applicant could relocate to a
different part of [his] home country; evidence of ‘gross,
flagrant or mass violations of human rights within the
country of removal’; and other relevant country conditions.”
Tchemkou v. Gonzales, 495 F.3d 785, 795 (7th Cir. 2007) (citing 8
C.F.R. § 208.16(c)(3)(i)–(iv)). To receive protection under CAT,
an alien must also prove that he would be tortured by the
government or with its acquiescence. Jabateh v. Lynch, 845 F.3d
332, 342 (7th Cir. 2017). We agree with both the Board and the
IJ that Herrera-Garcia failed to meet this standard.
For one, as the IJ pointed out, Herrera-Garcia provided no
evidence of past torture or persecution. See 8 C.F.R.
§ 1208.16(c)(3)(i). Though his interactions with guerillas when
he was a child may have been stressful, they do not rise to the
level of “severe pain or suffering.”
More importantly, we agree with the IJ that Herrera-
Garcia’s allegation of future torture is too speculative. He
argues that he fears both corrupt government authorities and
the growing number of gangs in El Salvador. But this has
nothing to do with his experience in El Salvador over twenty-
6 Nos. 18-1511 & 18-3196
seven years ago. His argument instead focuses on a general
fear of violence that any person moving to El Salvador might
have. And as we have said before, “[e]vidence of generalized
violence is not enough”; there must be “a substantial risk that
the petitioner will be targeted specifically.” Bernard v. Sessions,
881 F.3d 1042, 1047 (7th Cir. 2018) (emphasis added); see
Ramos-Braga v. Sessions, 900 F.3d 871, 882 (7th Cir. 2018)
(explaining that “fear of generalized violence is insufficient to
establish that [the petitioner] in particular is more likely than
not to be tortured”); Rashiah v. Ashcroft, 388 F.3d 1126, 1133
(7th Cir. 2004).
Herrera-Garcia does claim that gangs will target him
because of his American accent. And although there is some
evidence in the record showing that gangs have extorted
Americans, we agree with the IJ that this allegation is again
too speculative. There is insufficient evidence to show that it
is likely that Herrera-Garcia specifically will be extorted or that
any extortion would rise to the level of torture. See AR at 422,
441, 460, 501. And as the IJ also pointed out, no one in Herrera-
Garcia’s extended family has been harmed while living in El
Salvador. Nor have his parents, who are American citizens,
been harmed on any of their regular trips there.
Finally, Herrera-Garcia fails to tie his claims of future
torture to government action. To receive relief under CAT, the
government must inflict or acquiesce in the torture. 8 C.F.R
§ 1208.18(a)(1); id. § 1208.18(a)(8) (“Acquiescence of a public
official requires that the public official, prior to the activity
constituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to
prevent such activity.”) The IJ emphasized that the El
Salvadoran government recently put in place “extraordinary
Nos. 18-1511 & 18-3196 7
measures” to thwart the rising gang violence, including
focusing “on moving gang members to maximum security
prisons, putting up cell phone signal blockers around the
prisons, and conducting coordinated law enforcement
operations.” Although not dispositive of a lack of government
acquiescence, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134,
1139 (7th Cir. 2015), these efforts contradict Herrera-Garcia’s
claim that the El Salvadoran government is generally
complicit with the ongoing gang violence. And Herrera-
Garcia hasn’t provided any other evidence—besides broad
allegations that “gangs operate with impunity throughout El
Salvador”—that would indicate that it is likely that the
government would acquiesce in Herrera-Garcia’s torture. Cf.
id. at 1138–39 (finding acquiescence when petitioner provided
evidence that he had been previously tortured by Mexican
police).
In short, Herrera-Garcia fails to prove that if he returned
to El Salvador (1) he would be specifically targeted by gangs
or the military or (2) that the government would acquiesce in
any torture. There is thus substantial evidence to support the
IJ’s and Board’s decisions, and so we deny Herrera-Garcia’s
petition.
III.
Herrera-Garcia contends in his second petition that the
Board erred in denying his motion for reconsideration. We
review the Board’s decision under the deferential abuse of
discretion standard and “will uphold the BIA’s decision
unless it ‘was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination
against a particular race or group.’” Khan, 766 F.3d at 696
8 Nos. 18-1511 & 18-3196
(citation omitted). We agree with the Board that Herrera-
Garcia’s motion was untimely because it was filed over four
months after the due date. See 8 C.F.R. 1003.2(b)(2) (stating
that motions to reconsider a Board decision must be filed
within 30 days of that decision).
And Herrera-Garcia has not established that equitable
tolling excused this failure. See Holland v. Florida, 560 U.S. 631,
649 (2010) (explaining that to prove equitable tolling, one
must show diligence and extraordinary circumstances). He
has provided no evidence that he acted diligently in
preserving his rights over the initial 30 days or the four-
months after. See El-Gazawy v. Holder, 690 F.3d 852, 860 (7th
Cir. 2012) (“In light of his failure to offer any support for his
claim that he acted diligently to preserve his rights during
that time, we cannot say that the BIA abused its discretion in
finding that [the petitioner] failed to meet the standard for
due diligence.”). Nor has he shown that extraordinary
circumstances prevented him from filing. He implies that he
was prevented from filing as long as Pereira v. Sessions, 138 S.
Ct. 2105 (2018), remained pending. But Herrera-Garcia
ignores the fact that he could have raised the issue under
consideration in Pereira with the IJ or the Board earlier or at
least requested a stay until the case was decided. Cf. Gonzalez
v. Crosby, 545 U.S. 524, 536 (2005) (“It is hardly extraordinary
that subsequently, after petitioner’s case was no longer
pending, this Court arrived at a different interpretation.”).
In sum, we do not think that the Board abused its
discretion in concluding that Herrera-Garcia’s motion was
untimely and that no exception applied.
Nos. 18-1511 & 18-3196 9
***
We DENY both petitions for review.