NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS GUILLERMO-AVILAR, No. 18-72686
Petitioner, Agency No. A077-167-148
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2021**
San Francisco, California
Before: WARDLAW and BEA, Circuit Judges, and ROSENTHAL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
Carlos Guillermo-Avilar,1 a native and citizen of El Salvador, petitions for
review of the denial of relief under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252.2 We review de novo whether the Board of
Immigration Appeals (BIA) violated due process. Chavez-Reyes v. Holder, 741 F.3d
1, 3 (9th Cir. 2014) (citing Ramirez–Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th
Cir. 2003) (en banc)). We review the BIA’s factual findings for substantial evidence
and will uphold those findings unless the record compels us to conclude differently.
Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019) (citing Doe v. Holder,
736 F.3d 871, 877 (9th Cir. 2013)). We deny the petition.
Guillermo-Avilar’s claim is primarily based on his gang tattoos, which he
alleges will make him a target for torture in El Salvador. In his declaration in support
of his application for relief, Guillermo-Avilar stated that, although he received MS-
13 gang tattoos for self-protection while he was incarcerated in the United States, he
1
Petitioner states that his real name is Jose Rafael Ortiz. Because the charging
documents and Board of Immigration Appeals refer to him as Guillermo-Avilar, we
do so here.
2
Section 1252 provides that “[n]otwithstanding any other provision of law . . . no
court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed” certain criminal offenses, but it
preserves jurisdiction over “constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals.” 8 U.S.C.
§ 1252(a)(2)(C)-(D). In Nasrallah v. Barr, 140 S. Ct. 1683 (2020), the Supreme
Court held that Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a
noncitizen's factual challenges to a CAT order. Id. at 1692–94. We therefore have
jurisdiction to hear Guillermo-Avilar’s petition.
2
was not a gang member or participant in gang activities. Guillermo-Avilar stated
that after his removal to El Salvador in 2004, Salvadorian police officers threatened
to send a “death squad” to kill him, and that when he was deported from the United
States to El Salvador in 2006 and again in 2008, police officers in El Salvador
accused him of looking like a gang member and beat him. Guillermo-Avilar’s
brother testified that he witnessed the 2008 beating and that he was also beaten when
he intervened to protect Guillermo-Avilar.
The Immigration Judge (IJ) also considered the State Department’s 2016
Human Rights Report for El Salvador, a State Department paper on gangs in El
Salvador, and other background reports and evidence. Roberto Lovato, a reporter
and historian, testified about violence and extrajudicial killings in El Salvador.
Guillermo-Avilar first argues that under Pereira v. Sessions, 138 S. Ct. 2105
(2018), the IJ lacked jurisdiction because the notice to appear did not state a time,
date, or location for appearance. We rejected this argument in Aguilar Fermin v.
Barr, 958 F.3d 887, 895 (9th Cir. 2020), cert. denied sub nom. Fermin v. Barr, No.
20-53, 2020 WL 6385795 (U.S. Nov. 2, 2020) and Karingithi v. Whitaker, 913 F.3d
1158, 1160–61 (9th Cir. 2019), cert. denied sub nom. Karingithi v. Barr, 140 S. Ct.
1106 (2020).
Guillermo-Avilar’s contention that the IJ and the BIA denied him due process
by failing to appropriately weigh Lovato’s testimony about country conditions is
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unsupported by the record. The IJ specifically discussed Lovato’s testimony,
deemed it credible, and afforded it full evidentiary weight. Because this claim has
no “possible validity,” we lack jurisdiction to address it. Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (quoting Torres-Aguilar v. INS, 246
F.3d 1267, 1271 (9th Cir. 2001)).
Guillermo-Avilar’s challenge to the adverse credibility determination also
lacks merit. The BIA and IJ identified specific instances of evasive, nonresponsive,
and implausible testimony. See Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th
Cir. 2014) (“[T]he BIA must have a legitimate articulable basis to question the
petitioner's credibility, and must offer a specific, cogent reason for any stated
disbelief.” (quotation marks omitted)). Guillermo-Avilar gave “evasive and
nonresponsive” testimony about whether he had expressed a fear of returning to El
Salvador when he was removed in 2006 and 2008, and about when he reentered the
United States and his whereabouts from 2004 to 2006. The IJ and the BIA also
found it implausible that Guillermo-Avilar was always afraid of returning to El
Salvador, given his failure to apply for relief in 2006 or 2008. Finally, the testimony
that Guillermo-Avilar’s brother witnessed his 2008 beating in El Salvador was
implausible because his brother was incarcerated in the United States at that time.
Given the substantial evidence supporting the adverse credibility determination, we
are not “compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
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Substantial evidence also supports the denial of relief under CAT. “To be
eligible for relief under CAT, an applicant bears the burden of establishing that she
will more likely than not be tortured with the consent or acquiescence of a public
official if removed to her native country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1183 (9th Cir. 2020). The BIA found that Guillermo-Avilar’s past beatings by
police, while serious, did not rise to the level of torture under CAT. The BIA also
relied on record evidence that Guillermo-Avilar was able to successfully hide his
tattoos by wearing a shirt, and that his brother, who also has gang tattoos, remained
in El Salvador “relatively unharmed.”
Guillermo-Avilar argues that the IJ and BIA did not adequately consider the
country condition reports and Lovato’s testimony about violence in El Salvador, and
that this evidence mandates deferral of removal. The IJ admitted the reports and
Lovato’s testimony into evidence and considered both. The agency gave the
material the consideration required. Manes v. Sessions, 875 F.3d 1261, 1265 (9th
Cir. 2017); see also Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004). The
IJ and BIA found that the record did not establish that it was more likely than not
that Guillermo-Avilar would be tortured by gangs or the police. The record does not
compel a contrary finding.
PETITION DISMISSED IN PART, DENIED IN PART.
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