Josue Umana-Escobar v. Merrick Garland, 69 F.4th 544

Josue Umana-Escobar, a Salvadoran national, entered the U.S. unlawfully in 2012; DHS served an NTA that omitted the date/time (it listed hearing time as “to be determined”).
He conceded removability, participated in proceedings without ever objecting to the NTA defect, and pursued asylum, withholding, and CAT relief based on his father’s 2009 murder, his brother’s 2011 shooting, and a subsequent threat to the family.
The IJ found him credible but denied asylum and withholding for failure to show nexus between protected ground and harm, and denied CAT relief for lack of government involvement/acquiescence.
The BIA affirmed the IJ’s merits rulings, rejected the jurisdictional challenge to the defective NTA, and declined to administratively close the case under Matter of Castro-Tum.
While this appeal was pending the Attorney General issued Matter of Cruz‑Valdez, reinstating the BIA’s authority to administratively close; on appeal Umana‑Escobar advanced a new claim‑processing theory for NTA defects that he had not raised before the BIA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Defective NTA / claim‑processing violation	The defective NTA (missing time/place) amounted to a claim‑processing violation requiring termination.	The BIA was not put on notice of a claim‑processing theory; petitioner raised only a jurisdictional argument below.	Dismissed for lack of jurisdiction (failure to exhaust claim‑processing theory).
Administrative closure authority	BIA should administratively close so petitioner can seek a waiver.	BIA previously lacked authority under Castro‑Tum; but Cruz‑Valdez reinstated authority.	Remanded to the BIA for reconsideration in light of Cruz‑Valdez.
Nexus standard and standard of review	IJ/BIA wrongly applied nexus standard and BIA reviewed nexus for clear error instead of de novo.	Government argued the BIA’s clear‑error phrasing was proper because motives are factual.	Remanded: BIA applied wrong standard of review (must review nexus as a legal question de novo; factual findings for clear error).
CAT—government involvement/acquiescence	Government officials were involved or would acquiesce in torture.	Record shows investigations and prosecutions after the father’s murder and investigation of brother’s attack; no evidence mayor or officials would acquiesce.	Denied: substantial evidence supports BIA’s denial of CAT relief (no government involvement/acquiescence).

Bare v. Barr, 975 F.3d 952 (9th Cir. 2020) (exhaustion requires raising non‑constitutional claims below to give BIA notice)
Arsdi v. Holder, 659 F.3d 925 (9th Cir. 2011) (no precise legal terminology required to exhaust; BIA must have notice)
Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019) (claim‑processing rules may be forfeited if not timely raised)
Garcia v. Wilkinson, 988 F.3d 1136 (9th Cir. 2021) (standards of review: legal questions de novo; factual findings for clear error)
Barajas‑Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (nexus is required element for asylum/withholding)
Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (definition of "central reason" for asylum nexus)
Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (remand to BIA when wrong legal standard applied is appropriate)
Ornelas‑Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (when BIA applies wrong legal standard, court remands rather than conducting independent review)