SANTOS RAFAEL IRAHETA-MARTINEZ, AKA “Jose Benigno,” AKA “Santos Climaco,” Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 18-72692
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 7, 2021
Agency No. A098-912-596
Before: Andrew D. Hurwitz
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 11, 2021 San Francisco, California
Filed September 7, 2021
Opinion by Judge Feinerman
* The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.
SUMMARY**
Immigration
Denying Santos Iraheta-Martinez‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) because Iraheta‘s prior removal order was reinstated, he had no right under the Immigration and Nationality Act (“INA“) to seek asylum, and no constitutional right to have the Department of Homeland Security consider whether as a discretionary matter to decline to reinstate that removal order; and (2) the Board applied the correct frameworks governing the denial of withholding and protection under the Convention Against Torture, and its factual basis for denying such relief was supported by the record.
Iraheta raised a statutory and constitutional claim concerning his eligibility for asylum relief in reinstatement proceedings. As an initial matter, the panel concluded that there was no need to decide whether Iraheta had exhausted these arguments because doing so would have been futile, given regulatory limitations on reinstatement proceedings, and circuit precedent holding that the agency lacks authority to disregard those regulations.
Iraheta‘s statutory claim rested on the interplay of several INA provisions providing and limiting the right to apply for asylum. Under
The panel observed that Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), left open the question, at issue here, of how
The panel also rejected Iraheta‘s argument that because the INA allows noncitizens with reinstated removal orders to seek withholding and CAT relief despite
Relying on Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) (noting that nothing in
Turning to Iraheta‘s claims for withholding of removal and CAT protection, the panel concluded that the evidentiary record supported the denial of relief. Both the Board and IJ assumed that the abuse Iraheta faced in his youth by his father qualified as persecution due to his perceived sexual orientation, thus creating a presumption that he would be persecuted in the future as well. The panel concluded that the agency properly applied the burden-shifting framework in determining that the government had rebutted the presumption of future persecution with evidence that circumstances have changed now that Iraheta is a grown man who no longer needs to live with his father.
The panel also held that the evidence did not compel the conclusion that Iraheta would more likely than not be persecuted by anyone else on account of his perceived sexual orientation, or by gang members or his brother based on his anti-gang beliefs. The panel concluded that the Board also adequately considered the aggregate risk of torture in denying CAT protection.
COUNSEL
Mona Maria Yousif (argued), Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
FEINERMAN, District Judge:
Santos Rafael Iraheta-Martinez petitions for review of a Board of Immigration Appeals (“BIA“) order denying his application for withholding of removal and relief under the Convention Against Torture (“CAT“). We find no error in the BIA‘s denial of that relief. Iraheta also challenges the BIA‘s refusal to allow him to seek asylum in light of the reinstatement of his prior order of removal, arguing that he had a right to seek asylum under the Immigration and Nationality Act (“INA“),
I
A
Iraheta grew up in El Salvador as one of eleven children. His father, Victor, was physically and emotionally abusive toward all his children, and was especially harsh with Iraheta because he believed that Iraheta was gay. In addition to subjecting Iraheta to beatings, Victor routinely berated him with homophobic slurs.
When Iraheta was about 18 years old, he suffered a particularly severe public beating from his father and felt he could no longer return home. In 2005, Iraheta fled El Salvador, entered the United States unlawfully, and was apprehended. He did not appear at his April 2006 removal hearing, and the immigration judge (“IJ“) entered a removal order against him in absentia. Iraheta ultimately was apprehended and removed in 2009, but reentered the United States days later. Over the next two years, Iraheta reentered the United States twice more and was removed both times.
After his latest removal in September 2010, Iraheta returned to his parents’ home in El Salvador. Victor became outraged when he saw that Iraheta was wearing an earring, “yelling something like, ‘I never thought I‘d have a fucking faggot in my house.‘” Victor ripped the earring out of Iraheta‘s ear and told him he never wanted to see Iraheta in his home again. Iraheta fled once again to the United States, where he now resides with his wife and their two sons.
In 2016, Iraheta‘s brother Valentin, who still lives in El Salvador, informed Iraheta that he had become involved with the MS-13 gang. Iraheta expressed disapproval and urged his brother to stop associating with the gang. Valentin became angry and told Iraheta that if he were to return to El Salvador and continue to criticize Valentin‘s
B
1
In May 2017, Iraheta was taken back into custody, and DHS reinstated his prior removal order. See
Iraheta expressed a reasonable fear of returning to El Salvador, so an asylum officer referred his case to an IJ for “withholding-only” removal proceedings to determine his eligibility for withholding of removal and relief under CAT. See
Before the IJ, Iraheta filed a “motion to preserve his right to apply for asylum,” purporting to “preserve the argument that he remains eligible for asylum even though he is in withholding-only proceedings” and asking that the “record . . . reflect that [he] does not concede that he is not eligible for asylum.” Iraheta conceded that he was asylum-ineligible under Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), but argued that he might become eligible if his prior removal order were reopened or if the Supreme Court reversed Perez-Guzman.
The IJ denied Iraheta‘s motion, stating that he “is not eligible for asylum because he is in ‘withholding only’ proceedings,” and noting that he “has presented the legal issue . . . should there be a change in the law.” The IJ then addressed whether Iraheta was entitled to withholding of removal or CAT relief. As to Iraheta‘s claim for withholding based on persecution by Victor for being perceived as gay, the IJ observed that “[i]f an alien demonstrates that he suffered past persecution in the proposed country of removal, the burden shifts to [DHS] to demonstrate that a fundamental change in circumstances has occurred in that country, or that [he] could safely relocate to another area in the proposed country of removal.” See
As to Iraheta‘s claim that he was likely to face persecution from his brother Valentin on account of his anti-gang political
Turning to CAT relief, the IJ held that Iraheta “ha[d] failed to demonstrate that he is likely to be harmed by his father, his brother, or members of MS-13 upon removal to El Salvador,” and that he therefore “is not likely to be harmed for purposes of the [CAT].” The IJ further found that Iraheta “ha[d] failed to establish the acquiescence piece of his [CAT] claim.” See
2
Iraheta appealed. The BIA dismissed the appeal, reasoning as to Iraheta‘s withholding claim that the IJ did not clearly err in finding a fundamental change of circumstances sufficient to rebut the presumption of future persecution, and discerning no clear error in the IJ‘s finding that he could relocate within El Salvador. See
As for Iraheta‘s CAT claim, the BIA agreed with the IJ that “the single, unfulfilled threat by his brother approximately 2 years ago is [in]sufficient to establish that he will more likely than not be tortured upon return to El Salvador by his brother or the MS-13.” The BIA also agreed with the IJ that the evidence of past abuse by Iraheta‘s father was not enough to show a likelihood of torture on account of his perceived sexual orientation. The BIA therefore rejected Iraheta‘s CAT claim without addressing the acquiescence issue.
The BIA said nothing about asylum. In a footnote in his BIA brief, Iraheta argued that he was eligible for asylum and that he wished to “preserve[] the argument that [he] should be considered for asylum.” As he did before the IJ, Iraheta acknowledged “the controlling precedent [Perez-Guzman] holding that individuals with reinstated removal orders are ineligible for asylum,” but asserted that it “was wrongly decided.”
II
The BIA had jurisdiction to review Iraheta‘s removal order under
III
After DHS reinstated Iraheta‘s removal order in May 2017, Iraheta expressed a fear of persecution, and an asylum officer assigned his case to an IJ for a “withholding-only” proceeding, in which Iraheta was given the opportunity to seek withholding
A
The fact that the BIA did not expressly address Iraheta‘s eligibility for asylum does not by itself raise jurisdictional concerns, as the BIA cannot preclude judicial review of a properly raised issue by not mentioning it. But given the BIA‘s silence, we must ensure either that Iraheta exhausted the asylum issue or that exhaustion is excused, for if he did not exhaust and exhaustion is not excused, we lack jurisdiction to consider the issue. See Alvarado v. Holder, 759 F.3d 1121, 1127 & n.5 (9th Cir. 2014) (“Generally,
Iraheta presents two claims regarding asylum, one being that the INA allowed him to seek asylum given the circumstances that arose after his prior order of removal was entered, and the other, stated in the alternative, being that he had a procedural due process right to DHS‘s consideration of whether, given those changed circumstances, his prior order of removal should have been reinstated. These are analytically distinct claims. If Iraheta is correct on his statutory argument, then he may apply for asylum, period. But if he is correct only on his due process argument, then he wins only the right to have DHS consider whether to give him fresh removal proceedings rather than reinstating his prior removal order.
There is no need to decide whether Iraheta exhausted his statutory claim because the futility exception would excuse any failure to do so. The governing regulation provides that noncitizens with reinstated removal orders who express a reasonable fear of persecution or torture if returned to their country of removal may pursue before the IJ “withholding of removal only.”
A possible fly in the ointment is that Iraheta conceded before the IJ and the
The futility exception likewise excuses Iraheta‘s failure to press his due process claim before the IJ or the BIA. “An exception to the exhaustion requirement has been carved for constitutional challenges to [DHS] procedures.” Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (first alteration in original) (quoting Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994)). As to due process claims in particular, “[t]he key is to distinguish the procedural errors, constitutional or otherwise, that are correctable by the administrative tribunal from those that lie outside the BIA‘s ken.” Id. (quoting Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995)). Thus, the question here is whether the BIA could have granted Iraheta relief on his due process claim had he raised it in his agency appeal.
The answer is no. The governing regulation provides that “[t]he scope of review in [withholding of removal] proceedings . . . shall be limited to a determination of whether the alien is eligible for withholding or deferral of removal,” and that, “[d]uring such proceedings, all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.”
B
1
Iraheta‘s statutory argument rests on the interplay of several INA provisions, some giving the right to apply for asylum and others limiting or taking away that right. The question is which of these provisions has the last word where, as here, the noncitizen has a prior order of removal reinstated after unlawfully reentering the United States.
Section 1158(a), which governs “[a]uthority to apply for asylum,” reads in pertinent part as follows:
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated
port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien‘s status, may apply for asylum in accordance with this section or, where applicable, [ 8 U.S.C. § 1225(b) ].
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien‘s nationality or, in the case of an alien having no nationality, the country of the alien‘s last habitual residence) in which the alien‘s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.
(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien‘s arrival in the United States.
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.
(D) Changed circumstances
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant‘s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
(E) Applicability
Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in [
6 U.S.C. § 279(g) ].
Subparagraph (a)(1) broadly grants the right to apply for asylum: “Any alien who is physically present in the United States or who arrives in the United States . . . , irrespective of such alien‘s status, may apply for asylum . . . .”
indicates “that Congress intended the statute‘s reach to be broad“). That broad authorization, however, is subject to several “[e]xceptions” in the next subparagraph,
Another provision,
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
Because Iraheta‘s current removal proceedings arose out of the reinstatement of his prior removal order, if
We touched on the interplay between
claimant” who “allege[d] no circumstances that materially changed between his removal from the United States and his subsequent reentry,” we had “no opportunity . . . to determine how
That question is now before us. Two textual clues convince us that the changed-circumstances rule of
The first clue is
The second textual clue is the phrase “[s]ubject to subparagraph (D)” at the beginning of both
Granted, a “notwithstanding” clause preceding a statutory rule does not necessarily limit the rule‘s application to situations where the rule clashes with the provisions referenced by the clause. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (“A ‘notwithstanding’ clause . . . just shows which of two or more provisions prevails in the event of a conflict. Such a clause confirms rather than constrains breadth. Singling out one potential conflict might suggest that Congress thought the conflict was particularly difficult to resolve, or was quite likely to arise. But doing so generally does not imply anything about other, unaddressed conflicts, much less that they should be resolved in the opposite manner.“). So Iraheta is correct in arguing that
Pressing the opposite result, Iraheta invokes the general-specific canon, arguing that
Iraheta next argues that because the INA allows noncitizens with reinstated removal orders to seek withholding and CAT relief despite the broad bar imposed by
Iraheta next invokes several presumptions we sometimes apply when encountering ambiguous statutes. For example, he argues that we should adopt his reading of
2
Iraheta claims in the alternative that even if the INA did not afford him a statutory right to seek asylum, due process required DHS to consider whether to let him do so anyway. Iraheta observes that DHS has the discretion to overlook a
Iraheta reads Villa-Anguiano too broadly. Our due process discussion there concerned only a noncitizen‘s right to contest the factual predicates for reinstating a prior removal order—i.e., whether the noncitizen in fact was subject to the removal order and whether his reentry in fact was unlawful—not the right to present arguments why the immigration officer should, as a discretionary matter, decline to reinstate a prior removal order whose factual predicates are clear. See id. at 877–81. The immigration officer in Villa-Anguiano reinstated a noncitizen‘s prior removal order, but instead of removing him, the government criminally charged him with illegal reentry under
Here, by contrast, Iraheta does not dispute the predicates rendering him lawfully subject to reinstatement. Rather, he contends that due process required DHS to consider whether to forego reinstatement of his prior removal order in light of the facts supporting what he hoped would be his new asylum claim. But Villa-Anguiano does not give a noncitizen a due process right to present an argument that may sway DHS in the exercise of its purely discretionary authority to overlook a prior removal order. Indeed, recognizing such a right would undermine the agency‘s plenary discretion over when to exercise that form of leniency. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“This Court has recognized on several occasions over many years that an agency‘s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency‘s absolute discretion.“) (citing cases). The fact of DHS‘s discretion does not mean that every noncitizen with a prior removal order has a
* * *
In sum, Iraheta does not have the right to seek asylum under the INA, and he did not have a constitutional right to have DHS consider whether, as a discretionary matter, to overlook his prior removal order and thereby allow him to seek asylum. Iraheta is ineligible for asylum, and the BIA did not err in declining to allow him to seek asylum.
IV
We turn next to our review of what the BIA did address on the merits: Iraheta‘s claims for statutory withholding of removal and CAT relief.
A
A noncitizen in removal proceedings may seek withholding of removal under
Iraheta sought withholding of removal on account of (1) his perceived or imputed membership in the social group of Salvadoran gay men and (2) his anti-gang political opinion.
1
Iraheta first challenges the BIA‘s conclusion that he is not likely to face persecution in El Salvador on account of his imputed sexual orientation. Both the IJ and the BIA assumed that the abuse Iraheta faced in his youth by his father qualifies as persecution due to his perceived sexual orientation, creating a “presumption” that he would be persecuted in the future as well.
Once the presumption of future persecution arises, DHS bears the burden to rebut it by demonstrating that either: (1) due to a “fundamental change of circumstances,” the noncitizen would not be persecuted on account of a protected ground; or (2) the noncitizen could avoid future persecution by relocating to another part of the country, and it would be reasonable to expect the noncitizen to relocate.
The IJ correctly stated the governing framework, noting that “[i]f an alien demonstrates that he suffered past persecution in the proposed country of removal, the burden shifts to [DHS] to demonstrate that a fundamental change in circumstances has occurred in that country, or that the applicant could safely relocate to another area in the proposed country of removal.” See
Iraheta‘s attempts to poke holes in the BIA‘s reasoning are unavailing. First, he contends that the IJ did not properly apply the burden-shifting framework, and thus never actually made a finding of changed circumstances to which the BIA could defer. We disagree. True enough, at one point in her opinion, the IJ referred to “[Iraheta‘s] burden of demonstrating that he is likely to suffer persecution by his father in the future.” That statement‘s overall context, however, makes clear that the IJ was referring to Iraheta‘s ultimate burden of showing his entitlement to statutory withholding, and further that she properly understood and held DHS to its burden of showing a change in circumstances. She then made a factual finding that DHS met its burden, and the BIA was within its rights to defer to that finding.
Iraheta next argues that even if the IJ found changed circumstances that could rebut the presumption of future persecution, the BIA “misapplied its own standard of review,” since “[w]hether DHS met its burden to show a fundamental change by a preponderance of the evidence is a mixed question of law and fact subject to de novo, not clear error, review.” But the BIA set forth the correct standard of review at the outset of its opinion, citing
Next, Iraheta argues that the agency could not possibly have carried its burden to show changed circumstances because it was “obligated to introduce evidence” but did not do so. In support, Iraheta cites Rios v. Ashcroft, 287 F.3d 895 (9th Cir. 2002), which holds that the agency, to defeat the presumption of future persecution, must “introduce evidence that, on an individualized basis, rebuts a particular applicant‘s specific grounds for his well-founded fear of future persecution.” Id. at 901 (quoting Ernesto Navas v. INS, 217 F.3d 646, 662 (9th Cir. 2000)). Iraheta interprets Rios to establish that DHS can demonstrate changed circumstances only by introducing new evidence of its own, as opposed to drawing inferences from evidence already in the record. But there is no reason why DHS cannot use evidence introduced by the noncitizen to rebut the presumption. DHS did so here by pointing to Iraheta‘s and Victor‘s respective ages and life circumstances.
Iraheta also attempts to cast doubt on the BIA‘s ultimate factual finding that there has been a fundamental change in his circumstances, arguing that it “misconstrued the evidence.” Whether there has been a change in circumstances is a question of fact that we review for substantial evidence. See Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014). Under that deferential standard, we reject Iraheta‘s argument, as the record does not compel a conclusion different from the one the IJ reached and to which the BIA deferred. See Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam); Jie Shi Liu v. Sessions, 891 F.3d 834, 837 (9th Cir. 2018).
Iraheta first contends that the IJ erred in treating Victor‘s advanced age as a relevant change in circumstances. He points out that his father has continued to call him “faggot” over the phone since he last left El Salvador, and that there was evidence in the record (an affidavit from one of Iraheta‘s brothers) that Victor would beat Iraheta if he returned to El Salvador. In so arguing, Iraheta misconstrues the reasoning behind the IJ‘s finding of changed circumstances. That finding was based only in part on Victor having aged, making him less able to exert physical dominion over Iraheta. The finding was based as well on the fact that Iraheta
To undermine the conclusion that the passage of time is a relevant changed circumstance, Iraheta points out that his father assaulted him when he was last in El Salvador, in 2010, when he was about 24 years old. The IJ discounted that incident as falling short of persecution “because at the time of the incident [Iraheta] was an adult man, free to go about his business, free to relocate to wherever he chooses in El Salvador.” The IJ‘s broader logic holds, as there was no evidence that Iraheta was compelled to visit his father when he was last in El Salvador, that he would be compelled to visit his father if removed to El Salvador, or that his father would seek him out and abuse him. We thus have no basis for disturbing the BIA‘s agreement with the IJ that Iraheta‘s age is a material changed circumstance.
Iraheta maintains that the 2010 incident with his father “demonstrates that [his] family status has not changed his father‘s will and ability to harm him.” The question, though, is not whether Iraheta‘s father has the desire to harm him; rather, it is whether Iraheta is more likely than not to be abused by him if returned to El Salvador. Even if Iraheta were likely to face abuse if he visited his father‘s house, that would not compel the more general conclusion that he is likely to face abuse if removed to El Salvador.
Finally, Iraheta contends that even if the BIA were correct that DHS rebutted the presumption of future persecution from his father, the BIA failed to apply that presumption to other Salvadoran actors who might also persecute him for being or appearing to be gay. In Iraheta‘s view, “[b]ecause the BIA assumed Mr. Iraheta established past persecution on the basis of his imputed homosexuality, it should have required [the government] to show a change in circumstances such that Mr. Iraheta would not be harmed by his father or others for this reason.”
Iraheta invokes Hanna v. Keisler to support his position, but he misreads that decision. Hanna involved an Iraqi national who had been persecuted in his home country, before the Iraq War, by forces loyal to Saddam Hussein. See 506 F.3d at 936–37. The BIA assumed past persecution, shifting the burden to DHS, but found that the regime change following Saddam‘s ouster effected a fundamental change of circumstances that rebutted the presumption of future persecution. Id. at 938. We disagreed, noting that the regime change “alone d[id] not satisfy the government‘s burden to show that circumstances have changed.” Id. We held, rather, that “the government[‘s] show[ing] . . . that Hanna would not be persecuted on account of his religion by a government led by Saddam Hussein” did not establish that he would not be persecuted by others on that basis. Id.; see id. at 938 n.1 (“If anything, the changed circumstances in Iraq would seem to make it more likely, not less likely, that Hanna would suffer persecution in Iraq on account of his religion.“).
Hanna does not stand for the proposition that whenever an applicant for withholding of removal shows past persecution, DHS can defeat the presumption of future persecution only by affirmatively proving that no one else will persecute the applicant on the same basis. Rather, Hanna is a straightforward application of the burden-shifting framework: to rebut the presumption,
Iraheta also argues that the country-conditions evidence showed that violence against LGBT individuals in El Salvador is rampant, and thus that substantial evidence did not support the BIA‘s conclusion that he would not be persecuted by others on account of his perceived sexual orientation. But the record does not compel Iraheta‘s view of the evidence, particularly since it supports a finding that others in El Salvador did not perceive Iraheta to be gay. The same rationale sinks Iraheta‘s argument that he is likely to be persecuted if he returned to his hometown because “[c]ommunity assumptions about sexuality are informed by a person‘s family, and Mr. Iraheta‘s treatment by his father was well-known.” The fact remains that there was no evidence of anyone else perceiving Iraheta as gay in all his years in El Salvador.
Because the BIA‘s finding of changed circumstances was sound and sufficient to rebut the presumption of future persecution on account of Iraheta‘s perceived sexual orientation, there is no need to address the BIA‘s finding that Iraheta could safely relocate within El Salvador.
2
Iraheta‘s claim of persecution based on political opinion rests on a telephonic threat made by his brother Valentin when Iraheta was in the United States. Iraheta does not claim that he faced persecution on this basis in the past, so there is no presumption of future persecution. He therefore bears the burden of showing that he is more likely than not to be persecuted on the basis of his anti-gang beliefs if removed to El Salvador.
The IJ concluded, after considering the phone call and country-conditions evidence, that it was not more likely than not that MS-13 or Valentin would harm Iraheta if he returned to El Salvador. The BIA found no clear error in this factual determination. The record does not compel a different conclusion.
In pressing the opposite result, Iraheta focuses on one aspect of the BIA‘s reasoning: that “[t]here is no evidence in the record that his brother has tried to harm [Iraheta] while in the United States.” Iraheta correctly suggests that this point is not compelling, as there is no reason to think Valentin has either the will or capacity to harm Iraheta outside of El Salvador. But that one possible misstep does not doom the BIA‘s ultimate finding, for the record as a whole offers sufficient support for the IJ‘s conclusion that Valentin‘s threat does not demonstrate that he or MS-13 is more likely than not to harm Iraheta. It certainly does not compel the conclusion that if Iraheta is removed to El
Iraheta responds with evidence showing how dangerous it can be for those who vocally oppose MS-13. Perhaps Iraheta is right that “return to El Salvador is a death sentence for those willing to vocally oppose the MS-13.” But Iraheta is far from a vocal opponent of Salvadoran gangs. Rather, the evidence shows only that he once tried to convince his brother to leave the gang. Absent more, we will not “substitute our view of the matter for that of the [agency].” Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995).
3
Iraheta also argued in the agency proceedings that he would be persecuted in El Salvador on account of his membership in several other social groups—as someone who attends a Pentecostal church, as a brother of Valentin, as a son of his parents, and as a “Salvadoran son[] viewed as property by virtue of [his] position within the domestic relationship.” Before the BIA, however, Iraheta addressed only the latter two groups, and the BIA rejected his claims, finding that he was not persecuted on the basis of being a son of his parents and that “Salvadoran sons viewed as property by virtue of their position within the domestic relationship” is not a cognizable social group.
In a footnote in his briefing before us, Iraheta explains that he “does not concede the correctness of the BIA‘s determination on these issues,” apparently because he disagrees with an Attorney General opinion on which the BIA relied. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). But by failing to develop the argument in his opening brief, Iraheta forfeited it. See Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 606 (9th Cir. 2018); WildEarth Guardians v. U.S. EPA, 759 F.3d 1064, 1072 n.3 (9th Cir. 2014).
* * *
In sum, there is no basis for upsetting the BIA‘s denial of Iraheta‘s application for withholding of removal.
B
In denying Iraheta‘s request for CAT relief, the IJ found that Iraheta was not likely to face torture in El Salvador for “the same reasons” he was not likely to face persecution for withholding purposes. The BIA “discern[ed] no clear error” in that determination. The IJ also found that Iraheta had not demonstrated that any torture would occur with the acquiescence of the Salvadoran government, but the BIA declined to reach the acquiescence issue given its agreement with the IJ that Iraheta had failed to show a likelihood of torture. We find no fault with the BIA‘s decision.
To obtain CAT relief, the applicant must show that it is more likely than not that he will face torture in the country of removal. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). “In considering a CAT application, the IJ and BIA must consider ‘all evidence relevant to the possibility of future torture,’ and must ‘consider the aggregate risk that [the applicant] would face.‘” Guerra v. Barr, 951 F.3d 1128, 1133 (9th Cir. 2020) (alteration in original) (citations omitted) (quoting Cole v. Holder, 659 F.3d 762, 770, 775 (9th Cir. 2011)), amended in other part, 974 F.3d 909 (9th Cir. 2020); see also Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015) (“CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims.“).
The BIA bookended its CAT analysis with generalized statements about the overall risk of torture. At the outset, the BIA explained that it “discern[ed] no clear error in the Immigration Judge‘s factual finding that [Iraheta] has not shown that he will more likely than not be tortured by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.” That summary is fairly read as approving the IJ‘s finding that the probability of torture is less than 50% in the aggregate. The BIA proceeded to analyze the possibilities of torture by MS-13 and Victor separately, but its main point remained in focus: Iraheta failed to establish an overall likelihood of torture of greater than 50%. And that becomes clear again at the end of its analysis, when the BIA summed things up as follows: “[Iraheta] has not demonstrated that he is more likely than not to be tortured in El Salvador . . . .” The BIA did enough here for its analysis to survive review. See Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021) (“[A] reviewing court must ‘uphold’ even ‘a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.‘“) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
V
Because Iraheta‘s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, to decline to reinstate that order. The BIA correctly applied the frameworks governing Iraheta‘s requests for withholding of removal and CAT relief, and the factual basis for the BIA‘s decisions finds support in the evidentiary record.
PETITION FOR REVIEW DENIED.