Edgar Chavez v. Jefferson Sessions
15-70822
| 9th Cir. | Jan 10, 2018Background
- Chavez, a Salvadoran national, appeals the BIA’s dismissal of his challenge to an IJ order finding him removable and denying asylum, withholding of removal, and CAT relief.
- The BIA found Chavez’s aggravated-felony conviction rendered him ineligible for withholding because it was a "particularly serious crime," and concluded Chavez failed to rebut the presumption under Matter of Y‑L‑.
- For CAT relief the BIA concluded Chavez failed to show he would more likely than not be tortured by Salvadoran police or that the government would consent or acquiesce to gang-perpetrated torture.
- Evidence: Chavez has two former gang tattoos (one covered, one in a discrete location), left the gang years earlier, was not harmed in eight years after leaving, and is now in his forties; expert and documentary evidence showed gangs predominantly target youths and El Salvador has enacted anti-gang laws.
- Several arguments Chavez now raises (e.g., government turning a blind eye to rogue police, aggregate-risk assessment, crediting expert testimony about perceived youthfulness) were not raised to the BIA and thus were unexhausted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner may raise for the first time that the Agency failed to apply Matter of Y‑L‑ framework to the particularly-serious-crime determination for withholding | Chavez: Agency erred by not addressing Y‑L‑ framework when finding his conviction particularly serious | Government: Argument not exhausted before the BIA; BIA addressed petitioner’s failure to present evidence to rebut presumption | Dismissed for lack of exhaustion; court lacked jurisdiction to review that new Y‑L‑ argument |
| Whether substantial evidence supports denial of CAT relief based on torture by police | Chavez: More likely than not he would be tortured by Salvadoran police upon return | Government: Record shows interrogation practices vary and do not compel probability of torture; substantial evidence supports denial | Denied — substantial evidence supports BIA’s conclusion petitioner failed to meet "more likely than not" standard |
| Whether the Salvadoran government would consent or acquiesce to gang torture | Chavez: Government effectively acquiesces or is powerless; laws are ineffective | Government: El Salvador has enacted anti‑gang laws and taken steps; awareness of torture alone ≠ acquiescence | Denied — substantial evidence supports BIA that government would not consent or acquiesce |
| Whether Chavez would more likely than not be targeted/tortured by gangs (based on tattoos, past membership, age, and expert testimony) | Chavez: Former membership and tattoos make him recognizable and at risk despite age | Government: Tattoos can be hidden; Chavez left without incident and was unharmed for years; gangs target youth and older men less likely targeted | Denied — substantial evidence supports BIA that risk of torture by gangs is not "more likely than not"; several related arguments unexhausted |
Key Cases Cited
- Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) (court may review issues the BIA addressed on the merits even if petitioner did not raise them to the BIA)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (government does not acquiesce in torture merely because it is aware of abuses but lacks power to stop them)
- Zara v. Ashcroft, 383 F.3d 927 (9th Cir. 2004) (failure to exhaust administrative remedies bars judicial review)