Oscar Gonzalez-Castillo v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSCAR OSWALDO GONZALEZ- No. 21-70112
CASTILLO,
Petitioner, Agency No.
A216-429-376
v.

MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted April 12, 2022
San Francisco, California

Filed August 31, 2022

Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit
Judges, and Christina Reiss, * District Judge.

Opinion by Judge Clifton

*
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
2 GONZALEZ-CASTILLO V. GARLAND

SUMMARY **

Immigration

Granting in part and dismissing in part Oscar Gonzalez-
Castillo’s petition for review of a decision of the Board of
Immigration Appeals, and remanding, the panel held that:
(1) substantial evidence did not support the agency’s
determination that Gonzalez-Castillo was ineligible for
withholding of removal based on the serious nonpolitical
crime bar; (2) the agency erred by failing to consider all of
Gonzalez-Castillo’s evidence for purposes of protection
under the Convention Against Torture; and (3) Gonzalez-
Castillo waived review of the agency’s application of the
one-year bar to asylum.

At Gonzalez-Castillo’s removal proceeding, the
government introduced into the record an INTERPOL Red
Notice as the only evidence that Gonzalez-Castillo had
committed a serious nonpolitical crime in El Salvador. The
Red Notice identified Gonzalez-Castillo by name, birthdate,
national identification number, and photograph, and alleged
that an incident occurred on January 1, 2015, described as:
“MS-13 TERRORIST, RESPONSIBLE FOR STRIKES
WITHIN THE CRIMINAL ORGANIZATION,
ACCORDING TO THE WITNESS IN THE PROTECTION
SCHEME, CODE NAME ‘SAULO’ CRIMINAL CASE,
47-02-18-6.” The crime classification was listed as
“TERRORIST ORGANIZATIONS,” and the penal
legislation or disposition that sanctioned the crime was
designated “Art. 13 LECAT,” a law which was not in the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 GONZALEZ-CASTILLO V. GARLAND 3

record. Gonzalez-Castillo admitted that the Red Notice
identified him, but claimed that the Red Notice was
fabricated because it was issued years after he left El
Salvador, and he was not a member of a gang.

The panel held that, in this case, the Red Notice did not,
by itself, establish probable cause that there were serious
reasons to believe that Gonzalez-Castillo committed a
serious nonpolitical crime in El Salvador. Explaining that
probable cause requires a “fair probability” that the
noncitizen committed a serious nonpolitical crime, the panel
concluded that the Red Notice in this case did not meet that
standard due to errors that cast doubt on its reliability, and
its failure to articulate any specific crime of which Gonzalez-
Castillo was accused. While the Red Notice here described
the structure and misdeeds of MS-13 in Usulutan generally,
the only allegation about Gonzalez-Castillo’s involvement
in the gang’s activities was that, according to an anonymous
witness, he was responsible for strikes within the criminal
organization. There was no further detail on what
constituted a strike, and the Red Notice lacked allegations
about the facts of Gonzalez-Castillo’s strikes, such as the
identity of any victim, or where he carried out a strike. The
“penal legislation” identified by the Red Notice also was not
in the record. All the Red Notice indicated was that the
crime was related to “terrorist organizations” and was
punishable by up to 15 years’ incarceration, but there was no
information on what, exactly, constituted the elements of the
crime. Moreover, the Red Notice identified the date of the
incident as January 1, 2015, but the immigration judge found
that Gonzalez-Castillo had entered the United States on July
7, 2014, before the alleged crime.

Addressing the reliability of Red Notices generally, the
panel wrote that it did not appear that a Red Notice alone
4 GONZALEZ-CASTILLO V. GARLAND

was ordinarily sufficient to establish probable cause that a
crime had occurred. The panel explained that because a Red
Notice is not independently vetted for factual and legal
justification, its reliability corresponds with that of the
foreign nation’s arrest warrant. The panel also observed that
the Department of Justice takes the position that a Red
Notice does not meet the requirements for arrest, i.e.,
probable cause, under the 4th Amendment to the
Constitution. And numerous other circuits have recognized
that a Red Notice alone is not enough to establish probable
cause. Agreeing with the government that a Red Notice
constitutes documentary evidence like any other that an IJ
should be entitled to give weight, the panel declined to adopt
a per se rule that a Red Notice is never sufficient to warrant
application of the bar. However, given the nature of a Red
Notice and the issues with the particular Red Notice in this
case, the panel concluded that the Red Notice lacked
sufficient probative value to support a probable cause
finding.

The panel rejected the government’s argument that by
presenting “some evidence” in the form of the Red Notice,
even if scant, it had shifted the burden to disprove the
existence of probable cause on to Gonzalez-Castillo. The
panel explained that the regulatory burden-shifting
framework could not override the statutory requirement that
there be “serious reasons” to believe that the bar applies.
Rather, to apply the bar, the agency must find that there are
serious reasons to believe that the petitioner committed a
serious nonpolitical crime, and to do so, there must be
evidence supporting a finding of probable cause.

Turning to Gonzalez-Castillo’s asylum claim, the panel
held that even applying the liberal construction standard for
petitioners appearing pro se before the agency, Gonzalez-
 GONZALEZ-CASTILLO V. GARLAND 5

Castillo never alerted the agency to the two possible grounds
for excusing the filing deadline that he raised in his briefing
to this court. Because Gonzalez-Castillo’s brief did not
challenge the agency’s conclusions regarding the grounds he
did raise before the agency, the panel deemed the asylum
one-year bar issue waived.

As to Gonzalez-Castillo’s CAT claim, the panel
concluded that the agency’s analysis evinced a failure to give
reasoned consideration to all potentially dispositive
testimony and documentary evidence related to Gonzalez-
Castillo’s claim of torture at the hands of El Salvadorian
police and military.

The panel remanded to the agency to consider the merits
of Gonzalez-Castillo’s withholding claim, and for resolution
of Gonzalez-Castillo’s CAT claim based on a more complete
review of the evidence.

COUNSEL

Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole
Conrad and Joya Manjur, Certified Law Students;
University of California, Berkeley School of Law, Berkeley,
California; for Petitioner.

Gregory D. Mack (argued), Senior Litigation Counsel;
Sabatino F. Leo, Assistant Director; Brian Boynton, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
6 GONZALEZ-CASTILLO V. GARLAND

John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold
& Porter Kaye Scholer LLP, Washington, D.C., for Amicus
Curiae Fair Trials Americas.

OPINION

CLIFTON, Circuit Judge:

Petitioner Oscar Gonzalez-Castillo was found to be
ineligible for withholding of removal by an Immigration
Judge (“IJ”) because there were “serious reasons to believe
that [he] committed a serious nonpolitical crime” in his
home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii).
The government only presented one piece of evidence
supporting application of the serious nonpolitical crime bar,
however. It was an INTERPOL Red Notice, described at
greater length below. The Red Notice accused Gonzalez-
Castillo of committing “strikes” on behalf of the gang MS-
13, allegedly committed on a date when Gonzalez-Castillo
was in the United States rather than in El Salvador, based on
the date of entry found by the IJ.

We conclude that substantial evidence does not support
the IJ’s finding, affirmed by the Board of Immigration
Appeals (“BIA”), that Gonzalez-Castillo is ineligible for
withholding of removal based on the serious nonpolitical
crime bar. This court has long interpreted “serious reasons
to believe,” the standard set by the statute for the serious
nonpolitical crime bar, as equivalent to probable cause. In
this case, the INTERPOL Red Notice cannot, by itself,
establish probable cause. The allocation of the burden of
proof in immigration proceedings does not change this
outcome. We accordingly grant Gonzalez-Castillo’s petition
for review in part and remand to the agency to consider
 GONZALEZ-CASTILLO V. GARLAND 7

whether Gonzalez-Castillo is eligible for withholding of
removal.

We also grant the petition as to his claim under the
Convention Against Torture (“CAT”), because the record
reflects that the agency failed to consider all of Gonzalez-
Castillo’s testimony and statements about the harms he
suffered in El Salvador at the hands of state actors, so we
remand for more complete consideration of the CAT claim.
We are not persuaded, however, by arguments in the petition
for review challenging the evaluation of evidence that was
discussed or by the argument that that the IJ failed
sufficiently to develop the record.

We dismiss the petition in part as to his claim for asylum,
because the arguments Gonzalez-Castillo raises on appeal
with respect to the one-year bar for asylum relief were not
exhausted before the BIA.

I. Background

Throughout his childhood and young adulthood,
Gonzalez-Castillo experienced multiple run-ins with gangs
and the police in his home community in El Salvador. He
testified before the IJ that in 2012, at the age of 17, he was
brutally beaten by police multiple times when he was
walking to school because they accused him of gang
affiliation. In 2013, he was stopped while on his way to
school by gang members who beat him and kidnapped him
for information about a man Gonzalez-Castillo did not
know. He was again beaten by MS-13 members when he
refused to help them collect rent that same year. Gonzalez-
Castillo denied any gang affiliation.
8 GONZALEZ-CASTILLO V. GARLAND

Gonzalez-Castillo left El Salvador in 2014 1 for the
United States due to his fear of gangs. He did not apply for
asylum. He testified that was because at the time he did not
know English, and he was not knowledgeable about the
immigration process. In February 2020, the government
initiated removal proceedings against Gonzalez-Castillo. He
applied for asylum, withholding, and CAT relief. Gonzalez-
Castillo appeared without a lawyer and represented himself
before the IJ and the BIA.

At the removal proceeding, the government introduced
an INTERPOL Red Notice into the record as the only
evidence that Gonzalez-Castillo had committed a serious
nonpolitical crime in El Salvador. INTERPOL issues Red
Notices pursuant to arrest warrants issued by member
countries, but the Red Notice itself is not enough to establish
probable cause in order to support an arrest in the United
States. Instead, as we discuss further below, according to the
Department of Justice, “the United States treats a foreign-
issued Red Notice only as a formalized request by the issuing
law enforcement authority to ‘be on the look-out’ for the
fugitive in question, and to advise if they are located.” About
INTERPOL Washington: Frequently Asked Questions, U.S.
Dep’t of Justice, https://www.justice.gov/interpol-
washington/frequently-asked-questions (last checked
August 22, 2022).

The Red Notice introduced here identified Gonzalez-
Castillo by name, birthdate, national identification number,
and photograph. The section titled “Description of the
incidents” reads as follows (all errors in original):

1
The record contains multiple dates for Gonzalez-Castillo’s entry
into the U.S., but the IJ found that he arrived on July 7, 2014.
 GONZALEZ-CASTILLO V. GARLAND 9

FOR SEVERAL YEARS IN THE
SETTLEMENTS AND CANTONS OF THE
MUNICIPALITIES OF OZATUIN,
TECAPAN, OF THE DEPARTMENT OF
USULUTAN, EL SALVADOR AND ITS
SURROUNDINGS, THE PRESENCE OF
THE MARA SALVATRUCHA MS-13 HAS
BEEN ESTABLISHED THROUGH A
HIERARCHICAL STRUCTURE FROM
WHICH VARIOUS CLIQUES HAVE
SPRUNG “WHAT IS RECOGNIZED AS A
PROGRAM” AMONGST THESE [ARE]
THE CLIQUE MOLINOS LOSOS
SALVATRUCHOS (MLS) OF THE
SHULTON PROGRAM, WHICH IS
COMPOSED OF MEMBERS WHO HAVE
A SPECIFIC COMMAND ROLE AND
OTHER SUBORDINATES WITHIN SAID
CRIMINAL STRUCTURE, WHICH 1S
DEDICATED TO COMMITTJNG ALL
KINDS OF ILLEGAL ACTIVITY,
INCLUDING HOMICIDES OF RIVAL
GANGS, ROBBERY, EXTORTION,
RAPE, SALES OF DRUGS, THREATS
AND OTHERS, WHO EXERCISE
CRIMINAL DOMAIN IN THE SECTOR
WHERE THE CRIMINAL STRUCTURE
OPERATES, CAUSING FEAR AND
TERROR TO CITIZENS IN GENERAL AS
A RESULT, THE AFOREMENTIONED
OSCAR OSWALDO GONZALEZ
CASTILLO, ALIAS “El OSWALDO OR
LOBO” BEING AN ACTIVE MEMBER OF
SAID ORGANIZATION.
10 GONZALEZ-CASTILLO V. GARLAND

The Red Notice alleges that the “incident” occurred on
January 1, 2015, in Usulutan, El Salvador. The section
“Additional information about the case” says: “MS-13
TERRORIST, RESPONSIBLE FOR STRIKES WITHIN
THE CRIMINAL ORGANIZATION, ACCORDING TO
THE WITNESS IN THE PROTECTION SCHEME, CODE
NAME ‘SAULO’ CRIMINAL CASE, 47-02-18-6.” The
“Crime classification” is listed as “TERRORIST
ORGANIZATIONS,” and the “penal legislation [or]
disposition that sanction[s] the crime” is designated “Art. 13
LECAT,” a law which is not in the record. Gonzalez-Castillo
admitted that the Red Notice identified him, but he claimed
that the Red Notice was fabricated because it was issued
years after he left El Salvador, and he denied gang
membership.

The IJ denied all relief. The IJ found Gonzalez-Castillo
largely credible except that the court did not credit
Gonzalez-Castillo’s denials of the allegations in the Red
Notice. The IJ held that Gonzalez-Castillo was ineligible for
asylum because he failed to file his application within one
year of arrival and he “d[id] not identify any exceptional
circumstances or material changed circumstances that would
excuse the late filing of his application,” explaining that
unfamiliarity with English and the worsening conditions in
El Salvador did not suffice. The IJ also held that Gonzalez-
Castillo was barred from both asylum and withholding of
removal based on the serious nonpolitical crime bar,
concluding that the Red Notice was sufficient evidence to
support the bar. The IJ determined that this case was on all
fours with the BIA’s published opinion in Matter of W-E-R-
B-, 27 I&N Dec. 795 (BIA 2020), which also applied the
serious nonpolitical crime bar based on a Red Notice alone.
Finally, the IJ held that Gonzalez-Castillo did not meet his
burden of establishing his entitlement to CAT relief.
 GONZALEZ-CASTILLO V. GARLAND 11

The BIA affirmed, citing Matter of Burbano, 20 I&N
Dec. 872, 874 (BIA 1994), with some added comments. 2

II. Discussion

We have jurisdiction over the petition’s exhausted
claims pursuant to 8 U.S.C. § 1252. “When the BIA adopts
the IJ’s decision with a citation to Matter of Burbano and
also adds its own comments, as it did here, we review the
decisions of both the BIA and the IJ.” Gonzaga-Ortega v.
Holder, 736 F.3d 795, 800 (9th Cir. 2013).

“We review the legal determinations of the BIA de novo
and the factual determinations for substantial evidence.
Substantial evidence review requires us to uphold the BIA’s
determination unless ‘the evidence compels a contrary
conclusion.’” Villalobos Sura v. Garland, 8 F.4th 1161,
1167 (9th Cir. 2021) (citations omitted).

A. The Serious Nonpolitical Crime Bar to Withholding
and Asylum

The BIA concluded that the serious nonpolitical crime
bar prevented Gonzalez-Castillo from receiving asylum and
withholding of removal based on the Red Notice. We
disagree.

The [Immigration and Nationality Act
(“INA”)] bars an applicant from obtaining
asylum and withholding relief when “there
are serious reasons” to believe that he or she

2
Gonzalez-Castillo filed several motions with the BIA while his
appeal was pending, asking for the BIA to “remand to afford him the
opportunity to apply for a U visa and cancellation of removal,” in
addition to filing “supplemental evidence.” The BIA denied all motions.
12 GONZALEZ-CASTILLO V. GARLAND

“committed a serious nonpolitical crime”
before arriving in the United States. 8 U.S.C.
§§ 1158(b)(2)(A)(iii) (asylum),
1231(b)(3)(B)(iii) (withholding). We
interpret “‘serious reasons’ to believe” as
being tantamount to probable cause.

Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011) (citation
omitted).

We considered the significance of a Red Notice to the
serious nonpolitical crime bar last year in Villabolos Sura,
where we noted that “we have never held that a Red Notice
alone is sufficient to constitute probable cause.” Villalobos
Sura, 8 F.4th at 1167. In that case, the Red Notice did not
stand alone. The evidence in Villalobos Sura consisted of the
Red Notice, an arrest warrant, 3 and the petitioner’s own
testimony, which, taken together, identified the petitioner
and described the crime of which he was accused, including
the specifics of the event and the names of the victims. Id.
at 1168. We explained that “[t]hough this [was] far from
concrete evidence of his guilt, the documents, combined
with Villalobos Sura’s testimony, [were] substantial
evidence supporting the BIA’s determination” that there was
probable cause that Villalobos Sura committed the crime. Id.

Here, we are faced with a case in which nothing more
than this Red Notice supported application of the serious
nonpolitical crime bar. This Red Notice does not suffice to
establish probable cause, both because of the contents of this

3
Although the arrest warrant in the record was not for the underlying
murder, the court concluded that “in conjunction with the Red Notice,
the arrest warrant for contempt of court [was] sufficient.” Villalobos
Sura, 8 F.4th at 1168.
 GONZALEZ-CASTILLO V. GARLAND 13

particular Red Notice and because of the features of Red
Notices generally. The Red Notice cannot constitute
substantial evidence in support of the finding that “there are
serious reasons for believing that the alien has committed a
serious nonpolitical crime outside the United States.”
8 U.S.C. § 1158(b)(2)(A)(iii).

The Red Notice in this case contains errors that cast
doubt on its reliability, and it fails to articulate any specific
crime of which Gonzalez-Castillo is accused. Probable cause
requires a “fair probability” that the noncitizen committed a
serious nonpolitical crime. Silva-Pereira v. Lynch, 827 F.3d
1176, 1189 (9th Cir. 2016). In Silva-Pereira, we held that a
Guatemalan indictment met that bar because “it alleges
specific facts connecting [the petitioner] to the crime.” Id.
at 1188. Likewise, in Villalobos Sura, the evidence
collectively established the specific crime (murder), the
location of the murders (“several miles” from where the
petitioner was stationed at the time), the names of the
victims, and that the crimes were gang related. 8 F.4th at
1168. In Go, the noncitizen “explicitly admitted under oath
to being involved in a scheme to finance ‘drug transactions’
while living in the Philippines,” which this court held to be
“sufficient to establish probable cause.” 640 F.3d at 1053.

By contrast, while the Red Notice here describes the
structure and misdeeds of MS-13 in Usulutan generally, the
only allegation about Gonzalez-Castillo’s involvement in
the gang’s activities is that he is “responsible for strikes
within the criminal organization” according to an
anonymous witness (capitalization altered). There is no
further detail on what is a “strike.” 4 Moreover, the Red

4
Indeed, the interpreter asked during the hearing, “And Your Honor,
this is the interpreter, how could I paraphrase strikes?” The court
14 GONZALEZ-CASTILLO V. GARLAND

Notice lacks allegations about the facts of Gonzalez-
Castillo’s “strikes,” such as the identity of any victim or
where he carried out a “strike.” The “penal legislation”
identified by the Red Notice, Art. 13 LECAT, is not in the
record. All the Notice indicates is that the crime is related to
“terrorist organizations” and is punishable by up to 15 years’
incarceration, but there is no information on what, exactly,
constitute the elements of the crime. In short, the Red Notice
does not “allege[] specific facts connecting [Gonzalez-
Castillo] to the crime,” or, for that matter, to any concretely
identifiable crime at all. Silva-Pereira, 827 F.3d at 1188.

Moreover, the date of the incident is identified in the Red
Notice as January 1, 2015, which is after Gonzalez-Castillo
had entered the U.S. Although the government argues that
Gonzalez-Castillo’s account of when he entered the U.S. is
“unreliab[le]” because “he claimed that he entered in 2013
and 2014,” the IJ found as a factual matter that Gonzalez-
Castillo entered the U.S. on July 7, 2014. The government
further argues that January 1, 2015 “appears simply a
placeholder for a pattern of criminal activity that Petitioner
participated in over a longer period of time.” Even assuming
such to be true, that the Red Notice itself uses a placeholder
further drives home that it lacks “specific facts” tying
Gonzalez-Castillo to a particular crime, id., for a placeholder
is, by definition, an indeterminate proxy used in lieu of a
specific fact.

Unlike in Go, 640 F.3d at 1053, and Villalobos Sura,
8 F.4th at 1168, Gonzalez-Castillo has not corroborated the
contents of the Red Notice with any of his testimony. See

responded, “You’re responsible for acts within the criminal
organization.” “Acts” is even vaguer than “strikes.” That the IJ could not
more specifically articulate what a “strike” meant is telling.
 GONZALEZ-CASTILLO V. GARLAND 15

also Guan v. Barr, 925 F.3d 1022, 1032 (9th Cir. 2019)
(relying on petitioner’s testimony to hold that there was
probable cause). He has denied gang membership and
contends that the Red Notice was falsified. Similarly,
although there is no dispute that the Red Notice was
generated pursuant to an arrest warrant issued by a
magistrate in El Salvador, the original arrest warrant itself is
not in the record. See Villalobos Sura, 8 F.4th at 1168. The
probable cause bar “can be met without an explicit
admission of guilt,” Silva-Pereira, 827 F.3d at 1189, but the
absence of any admission here, or any other corroborating
evidence, leaves only the flawed Red Notice.

Turning next to issues with Red Notices generally, it
does not appear to us a Red Notice alone is ordinarily
sufficient to establish probable cause that a crime has
occurred. “Since a Red Notice is not independently vetted
for factual and legal justification, its reliability corresponds
with that of the foreign nation’s arrest warrant.” Villalobos
Sura, 8 F.4th at 1168 (citation omitted). The Department of
Justice takes the position that a Red Notice “does not meet
the requirements for arrest under the 4th Amendment to the
Constitution.” About INTERPOL Washington: Frequently
Asked Questions, U.S. Dep’t of Justice, https://
www.justice.gov/interpol-washington/frequently-asked-que
stions (last checked August 22, 2022). That is, of course,
probable cause, the standard we have defined as analogous
to the “serious reason to believe” standard to support
application of the serious nonpolitical crime bar.

Other circuits have recognized that a Red Notice alone is
not enough to establish probable cause. See Radiowala v.
Att’y Gen. United States, 930 F.3d 577, 580 n.1 (3d Cir.
2019) (“Congress has not seen fit to prescribe that an
Interpol Red Notice alone is an independent basis for
16 GONZALEZ-CASTILLO V. GARLAND

removal. . . . Relatedly, the Department of Justice’s view is
that, by itself, a Red Notice is not a sufficient basis for
arresting someone, for its issuance often falls short of what
the Fourth Amendment requires.”); Hernandez Lara v. Barr,
962 F.3d 45, 48 n.3 (1st Cir. 2020) (“In the United States, an
INTERPOL Red Notice alone is not a sufficient basis to
arrest the ‘subject’ of the notice ‘because it does not meet the
requirements for arrest under the 4th Amendment to the
Constitution.’” (citation omitted)); see also Hernandez-Lara
v. Lyons, 10 F.4th 19, 24–25 (1st Cir. 2021) (same). In short,
“[t]he parties did not cite, and we could not find, a case in
which a court has found a Red Notice, alone, is sufficient to
meet this [probable cause] standard.” Barahona v. Garland,
993 F.3d 1024, 1028 (8th Cir. 2021).

Of course, as the government argues in its answering
brief, a Red Notice “constitutes documentary evidence like
any other, and an [IJ] should be entitled to give it weight.”
An IJ is certainly so entitled, as we held in Villalobos Sura.
We do not adopt a per se rule that a Red Notice is never
sufficient to warrant application of the bar. But given the
nature of a Red Notice and the issues with this particular Red
Notice, we conclude that the Red Notice in this case lacks
sufficient probative value to support a probable cause
finding.

The government also argues that we must affirm the BIA
because of the burden-shifting framework of the INA and its
implementing regulations. All the government needs to
show, it contends, is “some evidence” that the serious
nonpolitical crime bar might apply, at which point it is
Gonzalez-Castillo’s burden to prove “by a preponderance of
the evidence that such grounds do not apply.” Matter of W-
E-R-B-, 27 I&N Dec. at 797 (citing 8 C.F.R. § 1240.8(d)). In
essence, the government argues that by presenting “some
 GONZALEZ-CASTILLO V. GARLAND 17

evidence” in the form of the Red Notice, even if scant, it has
shifted the burden to disprove the existence of probable
cause on to Gonzalez-Castillo.

The Eighth Circuit addressed, and rejected, this
reasoning in Barahona v. Garland, in which it granted the
noncitizen’s petition on direct review of the published
W-E-R-B- decision. The Barahona court reasoned that the
statute itself, which states that there must be “serious reasons
for believing” the noncitizen committed a crime, requires
something more than merely “some evidence” supporting
application of the bar. 993 F.3d at 1027–28. Accordingly,
“[t]he BIA erred in this case when it failed to make a
probable cause finding.” Id. at 1028.

We agree with the Eighth Circuit. The burden-shifting
framework of 8 C.F.R. § 1240.8(d) cannot override the
statutory requirement that there be “serious reasons” to
believe that the bar applies. 8 U.S.C. §§ 1158(b)(2)(A)(iii),
1231(b)(3)(B)(iii). To apply the bar, the agency must find
that there are serious reasons to believe that the petitioner
committed a serious nonpolitical crime, and to do so, there
must be evidence supporting a finding of probable cause.

This is consistent with our decision in Villalobos Sura.
Although we acknowledged in that case that the burden
shifting framework applied, we did not suggest that the
agency could find the bar applied based on only “some
evidence,” as W-E-R-B- had held. Indeed, we said, “Thus,
the government need show only that there are ‘serious
reasons to believe’ [the petitioner] committed the murders,”
and evaluated whether the evidence in the record sufficed to
meet that bar, i.e., to “establish the requisite probable cause.”
Id. at 1167. Nothing about Villalobos Sura suggests that
something less than probable cause can warrant application
18 GONZALEZ-CASTILLO V. GARLAND

of the bar, even if it is ultimately the petitioner’s task to
persuade the agency that “serious reasons” do not exist.

Substantial evidence does not support the finding that
there are serious reasons to believe Gonzalez-Castillo
committed a serious nonpolitical crime. We grant Gonzalez-
Castillo’s petition, in part, as to his application for
withholding of removal.

B. The One-Year Bar to Asylum

The BIA also concluded that Gonzalez-Castillo was
independently barred from receiving asylum relief by reason
of his untimely asylum application, which was filed more
than five years after he arrived, long after the one-year
deadline under the INA. 8 U.S.C. § 1158(a)(2)(B).

A late asylum application may be entertained if the
applicant shows “changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.”
8 U.S.C. § 1158(a)(2)(D). The agency considered whether
the reasons Gonzalez-Castillo gave to the IJ for his untimely
application, his lack of English proficiency and worsening
conditions in El Salvador, met this standard, concluding they
did not. Before this court, Gonzalez-Castillo does not
challenge those conclusions.

Instead, he argues that the IJ failed to consider two
different reasons that might have excused the one-year bar:
(1) the Red Notice was itself a changed circumstance and
(2) the IJ failed to develop the record as to whether
Gonzalez-Castillo’s sexual identity might excuse the late
filing. We agree with the government that both of these
possible grounds for excusing the one-year deadline are
waived.
 GONZALEZ-CASTILLO V. GARLAND 19

Gonzalez-Castillo was pro se before the agency, which
means this court must “construe [the claims] liberally.” Ren
v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011). Although
exhaustion requires that the petitioner raise claims before the
agency before this court may review them, “especially where
the petitioner is pro se, general contentions can suffice as
long as they put the BIA on notice of the contested issues.”
Id. (citations and quotation marks omitted). Even applying
the liberal construction standard, however, Gonzalez-
Castillo never alerted the agency to the two possible grounds
for excusing the filing deadline that are now raised in his
briefing to this court. Gonzalez-Castillo’s BIA brief argued
only that the conditions in El Salvador or his mental health
concerns warranted application of the changed
circumstances exception. It made no mention of the Red
Notice or of his sexual identity (an issue which was raised
elsewhere in the brief) with respect to the one-year bar.

Gonzalez-Castillo contends that simply challenging
application of the one-year bar, which his BIA brief
undeniably does, was enough to exhaust these arguments
because “the petitioner may raise a general argument in the
administrative proceeding and then raise a more specific
legal issue on appeal.” Bare v. Barr, 975 F.3d 952, 960 (9th
Cir. 2020). He particularly points to Zhang v. Ashcroft,
388 F.3d 713 (9th Cir. 2004) (per curiam), in support of his
position. In that case, we held that mentioning CAT was
enough to preserve a challenge to the denial of CAT relief.
Id. at 721. But there, the petitioner was raising the
straightforward question of whether the denial of CAT relief
was erroneous based on the reasoning employed by the
agency. See id. “[Petitioner] was challenging the IJ’s
Convention determination, and the agency had an
opportunity to pass on this issue.” Id.
20 GONZALEZ-CASTILLO V. GARLAND

Here, by contrast, Gonzalez-Castillo raises new grounds
altogether to excuse the untimely asylum application. This is
not a case in which the petitioner described the substance of
the argument in his brief without using the correct legalese,
which would suffice for purposes of exhaustion. E.g.,
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th
Cir. 2007) (issue was exhausted when the petitioner did not
make “this precise statutory argument” that his
grandchildren met the statutory definition of child but did
generally argue that he had “a de facto parent-child
relationship with his grandchildren”); Diaz-Jimenez v.
Sessions, 902 F.3d 955, 960 (9th Cir. 2018) (issue was
exhausted where the brief invoked the statutory text that
furnished the argument without “mak[ing] the precise
argument we now consider”). Instead, nothing in the BIA
brief suggested these alternative reasons for excusing the
one-year bar or afforded the agency the opportunity to “pass
on [these] issue[s]” before they reached this court. Zhang,
388 F.3d at 721.

Gonzalez-Castillo also argues that the following
language in his BIA brief exhausted the arguments he now
raises: “I argue that the Immigration Judge erred in not
considering the entirety and totality of my testimony, the
evidence provided, all the relevant factors and all the
evidence of record even if not specifically mentioned as well
as the issue of judgment and decision.” Pointing to “the
entirety” of the testimony does not, however, “‘put the BIA
on notice’ as to the specific issues so that the BIA has ‘an
opportunity to pass on those issues.’” Figueroa v. Mukasey,
543 F.3d 487, 492 (9th Cir. 2008) (brackets omitted)
(quoting Zhang, 388 F.3d at 721).
 GONZALEZ-CASTILLO V. GARLAND 21

The arguments Gonzalez-Castillo now raises in support
of excusing the one-year bar to asylum are waived, and we
dismiss the petition in part.

C. Convention Against Torture

Gonzalez-Castillo also challenges the agency’s denial of
his torture claim. “To prevail under the CAT, an applicant
must show that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.”
Go, 640 F.3d at 1053 (quotation marks and citation omitted).
“Torture is an extreme form of cruel and inhuman treatment
and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to
torture.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020) (quoting 8 C.F.R. § 1208.18(a)(2)). “The
applicant must also demonstrate that the torture will be
inflicted by or at the instigation of or with the consent or
acquiescence of a public official.” Go, 640 F.3d at 1053
(quotation marks and citation omitted). Here, the BIA
affirmed and adopted the IJ’s determination that the harm
Gonzalez-Castillo suffered at the hands of state actors did
not rise to the level of torture, and even if his injuries by gang
members did, that harm was not inflicted with the consent or
acquiescence of a state actor.

We grant the petition as to CAT relief because the
agency’s analysis of this claim evinces a failure to give
“reasoned consideration” to all “potentially dispositive
testimony and documentary evidence” related to Gonzalez-
Castillo’s claim of torture at the hands of El Salvadorian
police and military. 5 Cole v. Holder, 659 F.3d 762, 772 (9th

We find no error, however, in the BIA’s conclusion that the harm
5

Gonzalez-Castillo suffered by gang violence, if it did rise to the level of
22 GONZALEZ-CASTILLO V. GARLAND

Cir. 2011). Although we do not require the agency to
“discuss each piece of evidence submitted,” here, the
agency’s analysis of the evidence indicates “that something
is amiss” for two reasons. Martinez v. Clark, 36 F.4th 1219,
1231 (9th Cir. 2022) (citation omitted).

First, the agency “misstat[ed] the record,” id. (citation
omitted), when it concluded that Gonzalez-Castillo was
“never arrested or detained.” This finding conflicts with
Gonzalez-Castillo’s testimony, which the IJ found credible.
Gonzalez-Castillo testified at the hearing before the IJ that
“the detectives and the police, they would detain me,” and
he stated in his written account that the police took him into

torture, was not done with the acquiescence of a public official. The IJ
asked Gonzalez-Castillo if he had reported the gang violence “to the
police or any authorities.” He responded that he had not “because we live
at the edge of a volcano and it’s very difficult for us to go to the city to
report any kind of crime. And also, because of fear about the gangs that
if they find out that we go and report, that they would kill my family.”
At most, the evidence shows “a general ineffectiveness on the
government’s part to investigate and prevent crime,” which “will not
suffice to show acquiescence.” Xochihua-Jaimes, 962 F.3d at 1184
(citation omitted).

Finally, Gonzalez-Castillo argues that the IJ failed to consider his
increased risk of torture based on the Red Notice, which identifies him
as a gang member, his status as a deportee, and his sexual identity. The
brief points to the documentary country conditions evidence in support
of these arguments. While “country conditions alone can play a decisive
role in granting relief under the Convention,” the record evidence here
“does not meet the high threshold of establishing that it is more likely
than not that [the petitioner] will be tortured by or with the consent or
acquiescence of a public official.” Mukulumbutu v. Barr, 977 F.3d 924,
927 (9th Cir. 2020) (citation omitted). Nor does the IJ’s decision suggest
he failed to consider this evidence. The decision explicitly addressed the
relevant evidence of violence and concluded that it “does not on its own
compel a finding that such harm is more likely than not to occur in the
Respondent’s specific case.”
 GONZALEZ-CASTILLO V. GARLAND 23

custody, beat him, and threatened to kill him. See Arrey v.
Barr, 916 F.3d 1149, 1161 (9th Cir. 2019) (remanding to the
agency where unrebutted, credible testimony ran counter to
the agency’s factual finding).

Second, the agency “fail[ed] to mention highly probative
or potentially dispositive evidence” about the severity of the
mistreatment, and the seriousness of the injuries, Gonzalez-
Castillo suffered. Martinez, 36 F.4th at 1231 (citation
omitted). The IJ concluded, and the BIA affirmed, that
Gonzalez-Castillo was subject to “inhumane treatment”
because “he was regularly beaten by the military on his way
to school, and that as a result, he suffered bruises and
inflammation.” And the IJ stated, “The police also
interrogated the Respondent in connection with a gang
murder the Respondent had witnessed. He explained that the
police were aggressive and threatened him during the
interrogation.” But Gonzalez-Castillo’s written statement
documented considerably more serious harm. He said that
officers would “take [Gonzalez-Castillo] into custody, cover
their faces and torture [him] and ask [him] to give names and
the amount of members involved in ‘MS-13.’” He also wrote
that police held him at gunpoint and threatened to turn him
in to an organized crime death squad. And Gonzalez-Castillo
claimed that officials also would “raid [his] house at odd
hours of the night” and “aggressively hit [him] with their
[r]ifles, which left a scar on the left side of [his] face.”

Past torture is a principal factor in deciding the
likelihood of future torture. Nuru v. Gonzales, 404 F.3d
1207, 1218 (9th Cir. 2005). But in concluding there was no
past torture here, the agency “mischaracterized the record,”
and accordingly, “it failed to give reasoned consideration to
the potentially dispositive testimony . . . . We must therefore
remand for the agency to reconsider [the] CAT claim in light
24 GONZALEZ-CASTILLO V. GARLAND

of [that evidence.]” Cole, 659 F.3d at 773. Accordingly, we
grant the petition as to CAT relief and remand to the agency
for further proceedings.

D. The IJ’s Duty to Develop the Record

Gonzalez-Castillo contends that the agency failed to
adequately develop the record. 6 “[W]hen the alien appears
pro se, it is the IJ’s duty to fully develop the record.”
Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)
(quotation marks and citation omitted). This means that “the
IJ must scrupulously and conscientiously probe into, inquire
of, and explore for all the relevant facts.” Zamorano v.
Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (quotation
marks and citation omitted).

In Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000), for
instance, we held that the petitioner was denied a full and
fair adjudication when the IJ’s questioning appeared hostile
and did not allow the petitioner to “present her own []
narrated statement that might have added support to her
claim.” Id. at 734.

In Zamorano, by contrast, we held that the IJ made no
error where “the IJ asked pertinent questions directed to
determining whether [the petitioner] was eligible for [] relief
based on a fear of persecution upon return to Mexico.”
2 F.4th at 1226. The petitioner’s answers gave the IJ

6
The government contends Gonzalez-Castillo also waived this
argument by failing to raise it before the BIA. Construing his filings
liberally, the BIA was sufficiently on notice of the argument that the IJ
failed to consider all relevant evidence, and we have jurisdiction to
consider its merits. Ren, 648 F.3d at 1083–84.
 GONZALEZ-CASTILLO V. GARLAND 25

“nothing left . . . to do, because [the petitioner’s] own
testimony established there was no basis for [relief].” Id.

Gonzalez-Castillo points to three areas of testimony that
the IJ allegedly failed to probe: first, “the nature of his
physical injuries inflicted by Salvadoran military and
police,” second, the mental harm he suffered, and third, “the
government’s acquiescence in gang violence.” 7 Our review
of the record confirms that the IJ’s questioning gave
Gonzalez-Castillo sufficient opportunities to address these
issues. First, the IJ asked “what injury did you suffer” during
his encounters with the military and whether he sought
medical care for those injuries. The IJ also asked whether
Gonzalez-Castillo reported his encounters with gangs to the
police. Gonzalez-Castillo could have answered that doing so
would have been fruitless, as he now argues, but he answered
instead that he lived too far from the city and feared gang
retaliation. And at the end of the hearing, the IJ gave him the
opportunity to “tell [the IJ] anything more you would like
[the IJ] to know that perhaps was not asked of you.”

The IJ asked “pertinent questions directed to determining
whether [the petitioner] was eligible for [] relief.”
Zamorano, 2 F.4th at 1226. The IJ also gave Gonzalez-
Castillo the opportunity to provide, in his own words, any
further information. See Jacinto, 208 F.3d at 734. An IJ’s
duties to develop the record do not “detract from the alien’s
statutory burden of proof” or “transform IJs into attorneys
for aliens appearing pro se.” Zamorano, 2 F.4th at 1226

7
Gonzalez-Castillo also suggests that the IJ should have developed
the record further with respect to other possible bases for excusal of the
one-year bar. When the IJ asked Gonzalez-Castillo to speak to his failure
to apply for asylum when he first arrived in the U.S., he did not mention
any of those additional reasons.
26 GONZALEZ-CASTILLO V. GARLAND

(citation omitted). The IJ sufficiently developed the record
here.

III. Conclusion

For the foregoing reasons, the petition is dismissed in
part, as to asylum, because Gonzalez-Castillo’s arguments
as to the one-year bar are waived.

The BIA’s conclusion that there are serious reasons to
believe that Gonzalez-Castillo committed a serious
nonpolitical crime is not supported by substantial evidence,
however. The petition for review is granted in part, and this
matter is remanded to the agency to consider the merits of
Gonzalez-Castillo’s withholding claim. The petition is also
granted in part as to the claim for relief under CAT, and we
remand to the BIA for resolution of that claim based on a
more complete review of the evidence.

PETITION GRANTED IN PART, DISMISSED IN
PART; REMANDED FOR FURTHER
PROCEEDINGS.8

8
Costs are taxed against the government.