B. R. v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
B.R., No. 19-70386
Petitioner,
Agency No.
v. A200-822-829
MERRICK B. GARLAND, Attorney
General, ORDER AND
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2021
San Francisco, California
Filed February 23, 2022
Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
Judges, and Lee H. Rosenthal, * District Judge.
Order;
Opinion by Judge Bea
*
The Honorable Lee H. Rosenthal, Chief United States District
Judge for the Southern District of Texas, sitting by designation.
2 B.R. V. GARLAND
SUMMARY **
Immigration
The panel filed: 1) an order granting Respondent’s
petition for panel rehearing, withdrawing the opinion filed
July 12, 2021, replacing that opinion with a superseding
opinion, and denying as moot the petition for rehearing en
banc; and 2) a superseding opinion denying in part and
granting in part B.R’s petition for review of a decision of the
Board of Immigration Appeals, and remanding. In the
superseding opinion, the panel held that 1) substantial
evidence supported the agency’s conclusion that B.R. was
properly served a copy of his Notice to Appear (“NTA”);
2) the Department of Homeland Security (”DHS”) later
cured its initial failure to serve the NTA on B.R.’s custodian
when he was released from detention as a minor; 3) the
agency erred by failing to credit or discredit B.R.’s specific
evidence that the government’s evidence of alienage was
tainted by violations of his rights; and 4) the evidence did
not compel reversal of the agency’s denial of protection
under the Convention Against Torture.
As to the issue of personal service, the panel concluded
that B.R.’s declaration stating that he did not remember
receiving a copy of the NTA fell far short of the evidence
needed to rebut the presumption of proper personal service.
As to the issue of service on B.R’s custodian (his mother),
B.R. relied Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th
Cir. 2004), which held that DHS must provide service of an
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
B.R. V. GARLAND 3
NTA on the custodians of juvenile aliens released from
custody. The parties agreed that, after releasing B.R. from
its custody, DHS never served the NTA on his custodian and
that, under Flores-Chavez, DHS’s original NTA service was
thus insufficient. However, the parties disputed whether the
error was fatal to DHS’s efforts to remove B.R.
As a general matter, the panel held that, absent a showing
of prejudice, improper service of an NTA can be cured. The
panel explained that the statute does not require notice at a
particular moment and that nothing in the statute or
regulations requires termination in this context. The panel
also considered Aguilar Fermin v. Barr, 958 F.3d 887 (9th
Cir. 2020), where the court addressed the similar issue of the
service of a defective NTA. There, the court held that the
remedy is to provide DHS an opportunity to cure the defect
in the NTA rather than to order termination. The panel
concluded that it logically proceeds that the remedy for
improper service of an NTA is for proper service to be
provided at a later time, provided the alien is not prejudiced.
B.R. argued that a different rule exists for minors released
from DHS custody. The panel rejected that contention,
explaining that Flores-Chavez does not require DHS to serve
an NTA upon a minor alien’s custodian at the very moment
the alien is released from its custody. Here, the panel held
that DHS cured the defective service by later properly
serving a copy of the NTA on B.R.’s counsel, after B.R.
became an adult, and before substantive proceedings had
commenced. Therefore, the panel concluded that regardless
whether DHS’s improper service failed to vest the
immigration court with jurisdiction initially, the immigration
court had jurisdiction throughout all of B.R.’s substantive
removal proceedings subsequent to DHS’s perfection of
service on B.R.
4 B.R. V. GARLAND
B.R. also argued that DHS’s failure to serve B.R.’s
mother and the seven-year gap between that initial failure
and its perfection were egregious regulatory violations
requiring termination. Because the agency failed to address
this argument below, the panel remanded to the agency to
consider whether DHS committed an egregious regulatory
violation and whether the violation prejudiced B.R.
As to the question of alienage, the panel explained that
DHS initially submitted three I-213 (Record of
Deportable/Inadmissible Alien) forms to meet its burden of
establishing alienage. B.R. moved to suppress, claiming the
forms had been created using his juvenile court records, in
violation of California privacy laws and his constitutional
rights. DHS then submitted supplemental evidence of
alienage: a Mexican birth certificate and a presentence
investigation report. The IJ assumed that B.R. made out a
prima facie case of a violation of federal regulations or his
constitutional rights, but rather than following the normal
burden shifting framework, the IJ addressed whether the
supplemental evidence was obtained independently of the
claimed unlawful act or of the I-213s, before B.R. moved to
suppress the supplemental evidence based on taint.
The panel observed that the decision preemptively to
find evidence to be independent of a suppressible violation
may be a valid course in some circumstances, but not in these
circumstances. Here, B.R. subsequently presented specific
evidence that at least the birth certificate was itself the
product of tainted evidence. However, the panel concluded
that nothing in the record indicated that the agency seriously
considered B.R.’s evidence of taint; instead, it appeared that
the agency arbitrarily ignored it and found the government’s
evidence free from taint. The panel concluded that this was
error and an abuse of discretion. Therefore, the panel
B.R. V. GARLAND 5
remanded with instructions to afford DHS the opportunity to
rebut B.R.’s evidence of taint.
The panel noted that B.R. never submitted specific
evidence that DHS’s presentence investigation report was
tainted. Even so, the panel wrote that it had serious
misgivings as to the propriety of the admission of the
presentence investigation report that should be addressed on
remand, including how DHS obtained the report when it was
placed under seal by the federal district court.
Finally, the panel held that nothing in the record
compelled the conclusion that the Mexican government
would torture B.R. or acquiesce in his torture for purposes of
CAT relief.
COUNSEL
Kristen Jackson (argued), Public Counsel, Los Angeles,
California; Hayley Upshaw, San Francisco Public
Defender’s Office, San Francisco, California; for Petitioner.
Jennifer A. Bowen (argued), Trial Attorney; Andrew C.
Maclachlan, Senior Litigation Counsel; Anthony C. Payne
and John W. Blakeley, Assistant Directors; Brian M.
Boynton, Acting Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Mark T. Roche, Baker & McKenzie LLP, San Francisco,
California, for Amici Curiae Legal Services for Children,
Children’s Law Center of California, Law Foundation of
Silicon Valley, and Pacific Juvenile Defender Center.
6 B.R. V. GARLAND
Nareeneh Sohbatian and Nimalka Wickramasekera,
Winston & Strawn LLP, Los Angeles, California; Ashley A.
Chung, Winston & Strawn LLP, Chicago, Illinois; Eimeric
Reig-Plessis, Winston & Strawn LLP, San Francisco,
California; for Amicus Curiae Catholic Legal Immigration
Network, Inc. (Clinic).
Thomas R. Kreller, Linda Dakin-Grimm, and Mohammad
Tehrani, Milbank LLP, Los Angeles, California, for Amicus
Curiae Immigrant Legal Resource Center.
ORDER
Respondent’s petition for panel rehearing, Docket No.
81, is GRANTED without further oral argument. The
Opinion filed July 12, 2021, and reported at 4 F.4th 783, is
hereby WITHDRAWN and replaced with a superseding
Opinion filed concurrently with this Order. The petition for
rehearing en banc, Docket No. 81, is DENIED AS MOOT.
Future petitions for rehearing will be permitted under the
deadlines outlined in Federal Rules of Appellate Procedure
35(c) and 40(a)(1).
OPINION
BEA, Circuit Judge:
As a minor, petitioner B.R. had multiple run-ins with the
law and accumulated a lengthy juvenile court record with the
State of California—a record that states he was born in
Mexico. B.R. soon came to the attention of the Department
B.R. V. GARLAND 7
of Homeland Security (“DHS”), which suspected he was not
lawfully present in the United States. DHS took B.R. into
custody while he was still a minor, issued him a Notice to
Appear (“NTA”), and initiated removal proceedings against
him. After he was released and while those proceedings
were ongoing, B.R. sold methamphetamine to an undercover
federal officer. He was incarcerated, and, in 2018, he was
ordered removed.
B.R. now seeks review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal from the
Immigration Judge’s (“IJ”) final order of removal and denial
of his application for deferral of removal under the
Convention Against Torture (“CAT”). He presents three
main arguments. First, he claims DHS effected improper
service of the NTA, thereby failing to vest the immigration
court with jurisdiction, and that DHS should not have been
permitted to cure that service violation. We reject and deny
the claim with one small exception. The IJ is permitted to
allow DHS to cure defective service without terminating
proceedings, provided that the alien does not demonstrate
that DHS’s defective service prejudiced the alien’s interests.
Here, DHS cured its defective service prior to any
substantive removal proceedings and B.R. demonstrated no
prejudice from the delay. Our holding in Flores-Chavez v.
Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require
DHS to serve an NTA upon a minor alien’s custodian at the
very moment the alien is released from its custody. We do
remand, however, on B.R.’s argument that DHS
nevertheless committed an egregious regulatory violation
under Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018), by
failing promptly to serve B.R.’s custodian. Because the
agency failed properly to address that claim in its rulings,
and without expressing any opinion on that claim’s merits,
8 B.R. V. GARLAND
we remand so the agency can consider the claim properly,
including whether the violation prejudiced B.R.
Second, B.R. contends the evidence DHS submitted to
support its charge that B.R. was born in Mexico should be
suppressed because DHS did not obtain the evidence
independently of B.R.’s confidential juvenile court records
(records which he alleges DHS obtained in violation of
California privacy laws and his constitutional rights). The
exclusionary rule is generally not available in immigration
proceedings, but we hold that once an alien makes a prima
facie showing of an egregious regulatory or Fourth
Amendment violation warranting suppression and submits
specific evidence that the government’s evidence is tainted,
the government has the burden and opportunity to rebut that
claim of taint. The IJ erred in failing to credit or discredit
B.R.’s specific evidence of taint. We grant B.R.’s petition
for review on this issue and remand for further development
of the record.
Finally, B.R. argues the BIA erred in concluding he is
not entitled to deferral of removal under CAT. In the interest
of judicial economy, in the event DHS is able to prove B.R.’s
alienage on remand, we reject now his assignments of error
as to his CAT claim. The generalized country reports upon
which he exclusively relies would not compel any
reasonable adjudicator to conclude that the Mexican
government would torture or acquiesce in his torture from
the various actors he identifies.
I. BACKGROUND
B.R., now twenty-six years old, has lived since
childhood in California with his mother and siblings. As a
juvenile, B.R. was arrested multiple times and accumulated
a juvenile criminal record with the State of California, a
B.R. V. GARLAND 9
record which relates that B.R. was born in Mexico. In 2010,
while sixteen-year-old B.R. was detained on charges of
possession of a concealed firearm as a minor, an
Immigration and Customs Enforcement (“ICE”) agent
interviewed him. The agent determined B.R. was a native
and citizen of Mexico, memorializing that determination in
a Form I-213 (Record of Deportable/Inadmissible Alien),
which DHS used to initiate deportation proceedings. 1 B.R.
insists now that he never told the ICE agent that he was born
in Mexico.
On October 19, 2010, DHS detained sixteen-year-old
B.R. and charged him with removability as an alien who is
present in the U.S. without lawful admission or parole,
pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). That same day,
DHS served B.R. with an NTA. B.R. signed the certificate
of service but has since stated that he does not “remember”
being given a copy of the NTA. On October 20, 2010, DHS
filed the NTA with the Executive Office for Immigration
Review (“EOIR”). B.R. was deemed an unaccompanied
minor and remained in custody until he was eventually
released to his mother in March 2011. Upon his release,
DHS failed to serve a copy of the NTA on B.R.’s mother. In
fact, DHS has never served B.R.’s mother with his NTA.
Nevertheless, in compliance with the NTA, B.R.
appeared at his first removal hearing in October 2011 at the
age of seventeen. It was the only removal hearing B.R.
attended as a minor, and it was continued so B.R. could find
counsel. Twice more, in 2012 (after he turned eighteen),
B.R. appeared at removal hearings without a lawyer. Both
times he was granted continuances to find counsel. No
1
DHS created three separate I-213s related to B.R., dated 2010,
2011, and 2017.
10 B.R. V. GARLAND
pleadings were filed, no substantive issues were addressed,
and no orders of removal were entered at these hearings.
In 2013, while immigration proceedings were still
ongoing, B.R. (then nineteen) sold methamphetamine to an
undercover federal officer. He was indicted on six federal
charges of possession with intent to distribute but pleaded
guilty to and was convicted only of one count of conspiracy
to possess with intent to distribute methamphetamine and
received a sixty-month sentence. While B.R. was in prison,
he failed to appear at his removal hearing and was ordered
removed in absentia. But in 2017, after learning B.R. had
failed to appear because he was incarcerated, the IJ granted
DHS’s motion to reopen the proceedings.
In January 2018, B.R. (now represented by an attorney)
moved to terminate proceedings on the ground that DHS
failed to effectuate proper service in 2011 by failing to serve
a copy of his NTA on B.R.’s custodian (his mother) when he
was released to her custody, which he argued was required
for minor aliens pursuant to Flores-Chavez v. Ashcroft,
362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that
DHS’s 2011 NTA service was improper under our Flores-
Chavez rule, but denied the motion after concluding that
DHS was permitted to perfect service by re-serving the NTA
on then-adult B.R. The IJ noted DHS had done so by re-
serving the NTA by mail on B.R.’s counsel as an attachment
to the agency’s response to B.R.’s motion.
In March 2018, B.R. filed a motion to suppress evidence
and to terminate proceedings, in which he argued that the
three I-213s that DHS had assembled and submitted as
evidence of B.R.’s alienage improperly relied on B.R.’s
confidential juvenile records—an act B.R. argued was a
violation of his Fourth and Fifth Amendment rights and an
egregious regulatory violation—and that these forms should
B.R. V. GARLAND 11
be suppressed. B.R. argued that without the I-213s, DHS,
which at that point had submitted no other evidence of his
alienage, failed to meet its burden of establishing that B.R.
was born in Mexico. In response to the motion, DHS
submitted two additional pieces of evidence of alienage:
(1) B.R.’s Mexican birth certificate, and (2) a district court
presentence investigation report which stated that B.R. was
born in Mexico. 2
On April 6, 2018, the IJ denied the motion to suppress
evidence and to terminate proceedings. The IJ refrained
from deciding whether DHS had acted unlawfully with
respect to B.R.’s juvenile records in the preparation of the I-
213s but assumed for purposes of analysis that DHS had
indeed obtained information for the I-213s unlawfully.
Sidestepping the merits, the IJ held that DHS’s supplemental
evidence (the Mexican birth certificate and the district court
presentence report) was obtained based on B.R.’s identity
alone, which, regardless of any alleged constitutional or
regulatory violation, cannot be suppressed. Thus, the IJ
found the supplementary evidence not suppressible and
determined that DHS had proved B.R.’s Mexican alienage
by clear, unequivocal, and convincing evidence, even
without the I-213s. The IJ then dismissed B.R.’s motion to
suppress the I-213s and to terminate removal proceedings as
moot.
B.R. moved for reconsideration of that order, arguing
that: (a) his due process rights were violated because the IJ
admitted DHS’s supplemental evidence without giving him
adequate time to review and respond; (b) the supplemental
evidence was not obtained independently of the I-213s or his
2
The presentence investigation report was prepared by a probation
officer in connection with B.R.’s 2013 methamphetamine conviction.
12 B.R. V. GARLAND
state juvenile records and accordingly are tainted by the
alleged constitutional violations; (c) the evidence was
improperly authenticated; and (d) the presentence
investigation report was sealed by the district court and
improperly obtained and submitted by DHS. The IJ
considered the motion as a form of reply to DHS’s response
and evidence, but denied the motion to reconsider and
sustained the charge of removability against B.R.
As to relief from removal, B.R. conceded he was not
eligible for asylum or withholding of removal. B.R.’s only
application for relief was for deferral of removal under CAT.
B.R. testified before the IJ (who did not make an adverse
credibility finding) that he is likely to experience future
torture from a number of sources if removed to Mexico.
B.R. fears that his mother’s uncle, who murdered B.R.’s
father over a land dispute in Jalisco, Mexico before he was
born, might torture B.R. if he returns to Mexico. B.R. also
has a number of tattoos, including one visible tattoo on his
neck honoring his deceased father. He claims he fears that
Mexican authorities might torture him based on the
erroneous assumption that these tattoos are gang related.
B.R. also fears that he may be tortured in reprisal for his
sister’s testimony at his cousin’s criminal trial. In 2009,
B.R.’s sister provided information to the police after she
witnessed B.R.’s cousin commit sexual assault. The cousin
avoided arrest by fleeing to Mexico where he became
involved with the New Generation Jalisco Cartel, a notable
drug cartel located in Jalisco, Mexico. While in Mexico, the
cousin sent threatening messages to B.R. and his sister. The
cousin later returned to the U.S., where he was arrested and
convicted of the 2009 sexual assault, for which B.R.’s sister
appeared as a witness for the prosecution. B.R. did not
B.R. V. GARLAND 13
witness the 2009 assault and did not testify. B.R.’s cousin
remains incarcerated in California state prison.
Finally, B.R. fears retribution from the drug supplier he
had identified to the Drug Enforcement Agency. B.R.’s drug
supplier had bragged that his (the supplier’s) father was
involved in the La Familia Michoacána drug cartel in
Mexico.
On August 21, 2018, the IJ denied B.R.’s application for
CAT relief and ordered B.R. removed to Mexico. 3 The IJ
found that B.R. failed to establish a likelihood that he would
be tortured from the identified sources and that B.R. had also
failed to show that any torture would occur by or with the
consent or acquiescence of the Mexican government.
On appeal, the BIA affirmed and adopted the IJ’s
decisions. 4 B.R. timely petitioned us for review of the BIA’s
order affirming the IJ’s: (1) March 6, 2018 denial of B.R.’s
motion to terminate; (2) April 6, 2018 denial of B.R.’s
motion to suppress and terminate proceedings; (3) April 17,
2018 denial of B.R.’s motion to reconsider and objection to
DHS’s supplemental alienage evidence; and (4) August 21,
2018 denial of B.R.’s CAT claim. We have jurisdiction to
3
The IJ also denied B.R.’s motion to terminate in which he argued
that the IJ lacked jurisdiction because the NTA failed to specify a time
or place of the proceedings, citing Pereira v. Sessions, 138 S. Ct. 2105(2018). B.R. does not appeal this finding.
4
Because the BIA adopted the IJ’s decisions, we review not only
the decision of the BIA, but those of the IJ as well. Matter of Burbano,
20 I. & N. Dec. 872, 876 (BIA 1994). Henceforth, we refer to the BIA
and the IJ collectively as “the agency.”
14 B.R. V. GARLAND
review the final order of removal under 8 U.S.C.
§ 1252(a)(1). 5
II. STANDARD OF REVIEW
This court reviews the agency’s “purely legal
determinations de novo.” Flores-Chavez, 362 F.3d at 1155.
“We review the agency’s factual findings under the
‘extremely deferential’ substantial-evidence standard, under
which we treat such findings as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.’” Velasquez-Gaspar v. Barr, 976 F.3d 1062,
1064 (9th Cir. 2020) (quoting Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003); 8 U.S.C. § 1252(b)(4)(B)).
We review the denial of a motion to reconsider for abuse
of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972
(9th Cir. 2004). “The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to the law, and when it
fails to provide a reasoned explanation for its actions.”
Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.
2014) (internal quotation marks and citations omitted).
III. DISCUSSION
A. NTA Service
B.R.’s first set of arguments relate to DHS’s service of
the NTA. He argues that: (1) DHS failed to effect proper
personal service of the NTA in 2010; (2) DHS failed to effect
proper service on his mother as Flores-Chavez requires; and
(3) DHS’s improper service was an egregious regulatory
5
B.R.’s unopposed motion to supplement the record (Dkt. No. 17)
and motion to take judicial notice (Dkt. No. 44) are GRANTED.
B.R. V. GARLAND 15
violation requiring termination of removal proceedings. We
reject the first two arguments and remand on the third.
1. Personal Service
B.R. claims that, despite his signature on the NTA
certificate of service, DHS did not effect personal service on
him in accordance with 8 U.S.C. § 1229(a)(1) because,
although he was shown the NTA, he was not given a copy of
it. He further argues that an immigration court’s jurisdiction
over removal proceedings vests only if DHS personally
serves the NTA on the alien before DHS files the NTA with
the EOIR. Therefore, he argues, his proceeding should be
terminated for lack of jurisdiction because DHS filed his
NTA with EOIR before effecting proper personal service.
We find substantial evidence supports the BIA’s conclusion
that DHS personally served B.R. with the NTA prior to filing
it with the EOIR. We need not address his follow-on
jurisdictional argument.
This court applies a presumption of regularity to the
service of an NTA and will presume “[i]n the absence of
clear evidence to the contrary . . . that public officers
properly discharge their duties.” Kohli v. Gonzales,
473 F.3d 1061, 1068 (9th Cir. 2007) (quotation marks and
citation omitted). B.R. signed the NTA’s certificate of
service, and we may presume the officer then provided him
with a copy. B.R. supplied no evidence to rebut this
presumption beyond his own declaration, which states that
he does not “remember” receiving a copy. On its own, a
declaration simply refuting personal service is insufficient to
overcome the presumption of regularity. See Sembiring v.
Gonzales, 499 F.3d 981, 988–89 (9th Cir. 2007) (relying on
corroborating circumstantial evidence beyond the alien’s
own statements to find the alien had overcome the
presumption of regularity).
16 B.R. V. GARLAND
B.R. suggests his “unrefuted” declaration amounts to
clear evidence rebutting the presumption because the
government did not supply any evidence contradicting his
version of events. That is not how presumptions work. The
burden is on B.R. to provide “clear evidence” that
contradicts a properly invoked presumption of regularity;
DHS need not respond unless or until he has done so. B.R.’s
declaration falls far short of the evidence needed to rebut the
presumption of regularity, and DHS’s decision to rest on the
presumption does not elevate an insufficient declaration to
“clear evidence.” Substantial evidence supports the
conclusion that B.R. was properly served a copy of the NTA.
2. Defective Service and Cure Under Flores-Chavez
In Flores-Chavez, we construed DHS detention and
release regulations to require that DHS provide additional
service of an NTA on the custodians of all juvenile aliens
who are released from DHS custody. 362 F.3d at 1163. In
that case, DHS had served an NTA on Flores-Chavez, a
fifteen-year-old alien in its custody but did not serve the
NTA on the adult to whom he was later released. Id. at 1153.
Subsequently, Flores-Chavez failed to appear at his removal
proceedings and was ordered removed in absentia. Id. at
1154. The agency denied Flores-Chavez’s motion to reopen
proceedings based on improper service because DHS’s
general notice provisions required additional service only on
adult custodians of minor aliens fourteen-years-old or
younger. Id. (citing 8 C.F.R. 103.5a(c)(2)(ii) (2004),
redesignated as 8 CFR § 103.8(c)(2)(ii)). We reversed,
holding that even for minor aliens between the ages of fifteen
and seventeen, if they are released from DHS to an adult’s
custody, DHS regulations “require[] notice to the adult to
whom the juvenile is released from custody.” Id. at 1163.
We based our decision not on the general notice provisions,
B.R. V. GARLAND 17
but on DHS’s detention and release provisions, 8 C.F.R.
§ 242.24 (2004), redesignated as 8 C.F.R. § 236.3, which
make the adult to whom a minor alien is released responsible
for the alien’s appearance before the immigration court. Id.On the basis that the adult custodian is the caretaker of the
minor alien, the regulation, reviewed in the light of the canon
of constitutional avoidance (to avoid potential due process
violations), must also require notice be served on that
custodian. Id. at 1160–63.
Here, the parties agree that, after releasing B.R. from its
custody, DHS never served the NTA on B.R.’s custodian
(his mother) and that, under Flores-Chavez, DHS’s original
NTA service was thus insufficient. The dispute lies in
whether this error is fatal to DHS’s efforts to remove B.R.
The agency deemed DHS’s initial service improper but
permitted DHS to re-serve the NTA on the then-adult B.R.’s
attorney, curing the violation by perfecting service before
any hearings were held at which substantive matters were
treated. B.R. argues that the agency erred because, under
Flores-Chavez, DHS’s failure to serve B.R.’s mother at the
moment he was released to her is an error that cannot be
cured and permanently deprives the immigration court of
jurisdiction over B.R.’s removal proceedings. Thus, he
suggests, we should order the BIA “to dismiss removal
proceedings for lack of jurisdiction.”
Reviewing the matter de novo, we hold that improper
service of an NTA on a minor alien released from DHS
custody can be cured if DHS later perfects service before
substantive removal proceedings begin. Therefore,
regardless whether DHS’s improper service in 2010 failed to
vest the immigration court with jurisdiction initially, the
immigration court had jurisdiction throughout all of B.R.’s
18 B.R. V. GARLAND
substantive removal proceedings subsequent to DHS’s
perfection of service on B.R. in 2018.
Before addressing B.R.’s Flores-Chavez argument, we
hold as a general matter that, absent a showing of prejudice,
improper service of an NTA can be cured and is not fatal.
The statute does not require notice to be provided at any
particular moment. Instead, the statute states only that: “In
removal proceedings under section 1229a of this title,
written notice (in this section referred to as a ‘notice to
appear’) shall be given in person to the alien . . . .” 8 U.S.C.
§ 1229(a)(1). The regulations also require service on the
alien. 8 C.F.R. § 1003.14(a) (When DHS files an NTA with
the EOIR, it is required to “include a certificate showing
service on the opposing party pursuant to § 1003.32.”).
Section 1003.32(a) does require “simultaneous[]” service for
documents filed with the immigration court, including the
NTA. But nothing in the statute or regulations requires
termination of removal proceedings solely because the initial
service was found to be defective.
B.R. concedes as well that we have “not yet held that
improper NTA service requires termination of removal
proceedings.” Indeed, we have not. But we have considered
the similar issue of the service of a defective NTA (as
opposed to improper service of an otherwise valid NTA) and
came to a conclusion opposite to the one B.R. proposes here.
In Aguilar Fermin v. Barr, we held that the remedy for
service of a defective NTA is to provide DHS an opportunity
to cure the defect in the NTA rather than to order termination
of removal proceedings. 958 F.3d 887 (9th Cir. 2020).
There, DHS had served the petitioner with an NTA that was
missing the location where her proceedings were to take
place—information required for the NTA to be valid under
8 C.F.R. §1003.15(b)(6). Id. at 893–94. We agreed with the
B.R. V. GARLAND 19
BIA’s interpretation of the regulation and concluded that the
“appropriate remedy” for service of the defective NTA was
for DHS to provide the alien “with the complete notice at a
later time.” Id. at 895. In other words, service of a defective
NTA “can be cured and is not fatal.” Id. Given no statutory
or regulatory provision requires otherwise, we think it
logically proceeds that the remedy for improper service of
an NTA is for proper service to be provided at a later time,
provided the alien is not prejudiced by the delay.
In holding that defective service may be cured absent
prejudice, we align ourselves with the BIA, which has
already concluded that the remedy for improper service of
an NTA is generally to postpone proceedings until DHS is
able to perfect and cure defective service. In Matter of
W-A-F-C-, the IJ terminated proceedings after DHS had
failed to serve the NTA on the person with whom the minor
alien resided in accordance with the regulatory requirements
for serving minors under the age of fourteen. 26 I. & N. Dec.
880, 880 (BIA 2016). The BIA reversed, holding that when
DHS makes an effort to re-serve, “DHS should be given an
opportunity to effect proper service” without termination of
proceedings. 6 Id. at 882. Matter of W-A-F-C- built on a
prior BIA holding in Matter of E-S-I-, where, despite indicia
that the alien was incompetent, DHS failed to serve the alien
in accordance with the regulatory requirements for
incompetents. 26 I. & N. Dec. 136, 145–46 (BIA 2013).
6
In so holding, the BIA distinguished one of its earlier cases, Matter
of Mejia-Andino, where it affirmed an IJ’s termination of proceedings
after DHS never attempted to cure service of a seven-year-old who had
failed to appear at two hearings. Id. at 882 (citing Matter of Mejia-
Andino, 23 I. & N. Dec. 533, 535–37 (BIA 2002)). B.R.’s reliance on
Matter of Mejia-Andino is misplaced because here, as in Matter of W-A-
F-C-, DHS did attempt and did complete a cure of service, and B.R. did
appear at his hearings. Id.20 B.R. V. GARLAND
Rather than require termination of proceedings, the BIA
remanded and ordered that the IJ “grant a continuance to
give . . . DHS time to effect proper service.” Id.We look to the statute and regulations to determine
DHS’s obligations. We see no reason to burden the
government’s efforts in enforcing immigration laws by
judicially mandating service of charging documents on all
aliens be perfect on the very first attempt absent statutory or
regulatory language so requiring. As written, the function of
the service requirement is to provide notice to the alien of
his removal proceedings, not to delay interminably
proceedings with unnecessary, do-or-die procedural hurdles.
The service requirement performs that function so long as
the government properly served notice on the alien before a
hearing on substantive matters, regardless whether service
occurs on the first attempt or by subsequent cure.
But regardless whether service may be cured generally,
B.R. argues a different rule exists for minors released from
DHS custody. B.R. claims that under our holding in Flores-
Chavez, DHS is required to effect proper service at the time
a minor is released and may not cure defective service at
some later time or date. To support that contention, B.R.
relies on this phrase from our opinion:
[W]hen [DHS] releases a minor alien to an
adult’s custody pursuant to 8 C.F.R.
§ [236.3], thereby making that adult
responsible for the minor’s future appearance
at immigration proceedings, the agency must
serve notice of the minor’s rights and
responsibilities upon that adult if the minor is
under eighteen.
B.R. V. GARLAND 21
Flores-Chavez, 362 F.3d at 1163 (emphasis added). Thus,
he argues, we established a temporal limitation that requires
proper service the moment the minor is released, and that a
failure to do so cannot ever be cured.
B.R. misreads our opinion. In that passage we used the
word “when” as a preface to a condition, not as a temporal
requirement on service. Our analysis in Flores-Chavez
spends considerable time differentiating the general service
requirements for minor aliens under § 103.8 from the
specific provision discussing the release of minors from
custody under § 236.3, concluding: “§ [236.3] pertains
specifically to the protections afforded a juvenile who is
taken into [DHS] custody and the responsibilities of the adult
to whom he is released.” Id. at 1158. “[W]hen,” in the
context we used it in Flores-Chavez, means “if” or “on the
occasion of.” The opinion distinguished between minors
generally and those minors released to an adult’s custody. In
other words, service on a minor alien’s guardian is required
only “if” the minor alien is released from DHS custody, not
“upon the moment” of his being released. See Cruz Pleitez
v. Barr, 938 F.3d 1141, 1146 (9th Cir. 2019) (distinguishing
Flores-Chavez in holding that DHS need not serve an NTA
on the guardian of a minor over the age of fourteen when
DHS never detained or released the minor from custody).
Flores-Chavez requires DHS to serve the NTA on the
custodian of a minor alien after he is released. It does not
create a bizarre rule where, if service on the custodian is not
made the instant the minor is released, DHS is barred from
pursuing removal.
B.R. also forwards a public policy argument: that unless
we require DHS to serve the guardian at the moment of
release, DHS could strategically delay service to the
guardian to circumvent the special protections for minors
22 B.R. V. GARLAND
described in Flores-Chavez. We are not persuaded. These
notice protections exist to place minors on equal footing with
adults. See Flores-Chavez, 362 F.3d at 1157, 1160. Once
an adult, an alien no longer needs such protections. Indeed,
absent some type of disability, physical or mental, an adult
alien is in a better situation to protect his own interests than
a minor alien, who must rely on third parties or guardians.
Even if we were swayed by B.R.’s public policy arguments,
DHS could simply delay service of an NTA and commence
removal proceedings once the alien turns eighteen. See
Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir. 2001)
(DHS has unreviewable “discretion regarding when and
whether to initiate deportation proceedings.). In contrast, we
are much more wary of following B.R.’s reasoning, where
even a day’s delay in service would grant the minor alien
permanent immunity from removal.
To cure defective service, DHS re-served the NTA on
then-adult B.R., but B.R. here complains that DHS again did
not serve notice on B.R.’s mother. We hold that DHS need
not have served B.R.’s mother after he turned eighteen and
that DHS properly perfected service by mailing the NTA to
B.R.’s attorney. 7 Once B.R. turned eighteen, he was no
longer entitled to the protections of Flores-Chavez, which
are premised on the idea that “no minor alien under age
eighteen should be presumed responsible for understanding
his rights and responsibilities in preparing for and appearing
at final immigration proceedings.” 362 F.3d at 1157. Re-
service should conform to DHS regulations that apply to the
alien at the time of the service. Here, DHS re-served the
7
Service by mail on an adult alien’s attorney qualifies as proper
service. 8 C.F.R. § 103.8(a)(1)(i).
B.R. V. GARLAND 23
NTA on B.R. prior to any substantive proceedings before the
IJ and so corrected its prior improper service.
In sum, we hold that IJs do have authority to allow DHS
to cure improper service of an NTA without requiring
termination of proceedings, that Flores-Chavez did not
create a temporal requirement that DHS serve a minor
alien’s custodian immediately upon release, and that DHS
did properly perfect service on B.R. here. The immigration
court had jurisdiction over B.R.’s removal proceedings.
3. Whether B.R. Is Entitled to Termination of
Proceedings as a Result of a Prejudicial Regulatory
Violation
In holding that DHS may cure defective service to avoid
violating § 1229 and related regulations, we do not suggest
that there is no remedy when improper service amounts to
an egregious regulatory violation which works to prejudice
an alien’s interests. Our test from Sanchez v. Sessions
provides adequate remedy of such instances: “[A] petitioner
is entitled to termination of their [sic] proceedings without
prejudice as long as the following requirements are satisfied:
(1) the agency violated a regulation; (2) the regulation was
promulgated for the benefit of petitioners; and (3) the
violation was egregious, meaning that it involved
conscience-shocking conduct, deprived the petitioner of
fundamental rights, or prejudiced the petitioner.” 904 F.3d
643, 655 (9th Cir. 2018).
B.R. argues that, even if DHS is permitted to cure
defective service, its initial failure to serve B.R.’s mother in
accordance with Flores-Chavez’s interpretation of 8 C.F.R.
§ 236.3 and the seven-year gap between its initial failure and
its perfection in 2018 were egregious regulatory violations
24 B.R. V. GARLAND
because they prejudiced his interests, requiring termination
of his removal proceedings.
The agency, however, did not address B.R.’s egregious
regulatory violation argument below. To be sure, the agency
did address B.R.’s claims that DHS failed personally to serve
him and that DHS violated Flores-Chavez by failing to serve
an adult responsible for B.R. when B.R. was released from
custody. But whether DHS “cured” its violation of Flores-
Chavez or “perfected service” upon B.R. after originally
serving him improperly simply does not answer the question
that Sanchez sets out: whether DHS committed a regulatory
violation that was conscious-shocking, deprived B.R. of
fundamental rights, or otherwise prejudiced him. Sanchez,
904 F.3d at 655. Indeed, B.R. argues that DHS’s Flores-
Chavez violation prejudiced him even though DHS
eventually served him properly. “[I]t goes without saying
that IJs and the BIA are not free to ignore arguments raised
by a petitioner,” Sagaydak v. Gonzales, 405 F.3d 1035, 1040
(9th Cir. 2005), so because the agency did not address B.R.’s
egregious regulatory violation argument, we grant B.R.’s
petition and remand to the agency for it to consider that
particular argument. We leave the determination of whether
DHS did in fact commit an egregious regulatory violation,
including whether DHS prejudiced B.R., for the agency to
determine in the first instance on remand.
B. Evidence of Alienage
B.R.’s second main argument is levied against the
evidence that DHS submitted to prove B.R.’s alienage. DHS
has the burden of proving alienage by “clear and convincing
evidence.” 8 C.F.R. § 1240.8(a). To meet that burden here,
DHS initially submitted three I-213 forms to establish B.R.’s
alienage. But before the IJ, B.R. moved to suppress these
forms, claiming DHS had created them using B.R.’s juvenile
B.R. V. GARLAND 25
court records, in violation of California privacy laws and
B.R.’s constitutional rights. In response, rather than join
issue on the provenance of the birth and citizenship facts
contained in the I-213s by submission of evidence as to how
DHS had procured such information, DHS submitted two
pieces of supplemental evidence of B.R.’s alienage. The
first item was B.R.’s Mexican birth certificate indicating he
was born in Jalisco, Mexico. Alongside the birth certificate,
DHS submitted a certification signed by an ICE agent stating
he had obtained B.R.’s birth certificate “through the publicly
available archives portal on the Consulate General of
Mexico website by inputting [B.R.]’s biographical
information.” The second item was a presentence
investigation report created after B.R.’s 2014 federal
methamphetamine conviction at age nineteen. Unlike with
the birth certificate, DHS provided no explanation for how it
obtained the presentence investigation report.
To resolve this motion to suppress, the IJ first assumed
B.R. made out a prima facie case that the three I-213s were
suppressible due to DHS’s alleged unlawful actions. The IJ
then observed that “identity evidence is never suppressible
in civil removal proceedings.” Finally, the IJ concluded that,
even under the assumption that the I-213s were suppressible,
DHS had located and submitted B.R.’s birth certificate and
presentence investigation report using only B.R.’s identity
information, making the documents independent evidence of
B.R.’s alienage.
B.R. filed a motion to reconsider and objected to the new
evidence, claiming that he was not granted sufficient time to
review and respond and that DHS did not demonstrate that
the supplemental alienage evidence was obtained
independently of the alleged violation. B.R. presented new
uncontested evidence that suggested that more than just his
26 B.R. V. GARLAND
name was necessary to obtain a certified copy of his Mexican
birth certificate—the ICE agent would also have needed his
date of birth, names of his parents, or a unique population
identification code. The IJ stated it would consider the
motion to reconsider “to be a form of response” to the
underlying motion to suppress, but denied the motion,
finding the original order did not contain any errors of law
or fact.
Because the IJ treated the motion to reconsider as part of
the original briefing, we are presented with a somewhat
murky question as to our standard of review. We could
arguably review de novo the IJ’s order denying
reconsideration alongside the order permitting DHS’s
supplemental evidence. See Martinez-Medina v. Holder,
673 F.3d 1029, 1033 (9th Cir. 2011) (“We review de novo
the denial of a motion to suppress.”). We could also review
under the abuse of discretion standard proper for motions to
reconsider. Lara-Torres, 383 F.3d at 972. Here, since we
find against the government under either standard, we will
employ the abuse of discretion standard, which is more
favorable to its position.
“As a general matter, the Fourth Amendment’s
exclusionary rule does not apply to immigration
proceedings.” Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th
Cir. 2019). “There are, however, two critical exceptions to
this rule: (1) when the agency violates a regulation
promulgated for the benefit of petitioners and that violation
prejudices the petitioner’s protected interests; and (2) when
the agency egregiously violates a petitioner’s Fourth
Amendment rights.” Sanchez, 904 F.3d at 649 (internal
citations omitted).
Under the Supreme Court’s ruling in INS v. Lopez-
Mendoza, evidence of alienage is admissible if it is obtained
B.R. V. GARLAND 27
independently of, or sufficiently attenuated from
suppressible evidence. See INS v. Lopez-Mendoza, 468 U.S.
1032, 1043 (1984); Sanchez, 904 F.3d at 653 & n.12. An
alien’s identity is not suppressible. Lopez-Rodriguez v.
Mukasey, 536 F.3d 1012, 1015 n.5 (9th Cir. 2008). Alienage
evidence obtained using only an alien’s identity is severed
from any violation that may otherwise justify exclusion.
When reviewing whether evidence is tainted by a
suppressible violation in the criminal sphere, we employ a
burden-shifting framework. In that context, “[i]nitially, the
defendant who shows that he was the victim of an
unconstitutional search must go forward with specific
evidence demonstrating taint. The burden then shifts to the
government to show that it acquired its evidence from an
independent source.” United States v. Cella, 568 F.2d 1266,
1284–85 (9th Cir. 1977) (citations omitted). We adapt that
framework for our purposes here. Applied to the limited
instances in which we recognize the availability of the
exclusionary rule in immigration proceedings, if an alien
establishes a prima facie case of an egregious regulatory or
Fourth Amendment violation warranting suppression, the
alien is then charged with providing specific evidence that
each piece of allegedly suppressible government evidence is
tainted by that unlawful act. Upon that showing, the burden
then shifts to the government to contest the alien’s specific
evidence of taint or otherwise show the government’s
allegedly tainted evidence is immune from suppression,
including a demonstration that the evidence was obtained
independently of or is sufficiently attenuated from the
underlying unlawful act or evidence obtained therefrom.
Here, the IJ assumed for purposes of analysis that the
information in the I-213s was obtained in violation of federal
regulations or B.R.’s constitutional rights. But DHS
28 B.R. V. GARLAND
submitted supplemental evidence of alienage not at issue in
B.R.’s motion to suppress the I-213s. To suppress DHS’s
supplemental evidence, B.R. had the initial burden to
demonstrate it was tainted by DHS’s unlawful act. But the
IJ acted out of turn. The IJ addressed whether the
supplemental alienage evidence was obtained independently
of the claimed unlawful act or of the I-213s before B.R.
moved to suppress the supplemental evidence based on taint.
The decision preemptively to find evidence to be
independent of an alleged suppressible violation may be a
valid course of action in some circumstances, but if the IJ is
later presented with information contrary to IJ’s
assumptions, the IJ is required to give that evidence reasoned
consideration.
B.R. subsequently presented specific evidence in his
motion to reconsider that tended to prove that at least the
birth certificate was not obtained independently of tainted
evidence but was itself the product of tainted evidence.
According to B.R.’s evidence, DHS could not have obtained
the birth certificate without using at least some of the
information available to DHS only in B.R.’s confidential
juvenile court record, to wit his date of birth, the Mexican
state in which he was born, his parents’ names, etc. That is
specific evidence of taint, yet nothing in the record indicates
that the agency seriously considered this evidence. Instead,
it appears the agency arbitrarily ignored it and found the
government’s evidence free from taint. That is error and an
abuse of discretion. Cole v. Holder, 659 F.3d 762, 772 (9th
Cir. 2011) (“[W]here potentially dispositive testimony and
documentary evidence is submitted, the [agency] must give
reasoned consideration to that evidence.”).
We are unable to conclude, based on the existing record
evidence, that DHS obtained the birth certificate based on
B.R. V. GARLAND 29
B.R.’s identity evidence alone. 8 DHS’s certified account as
to how it obtained B.R.’s birth certificate—stating that the
ICE officer obtained it by inputting B.R.’s “biographical
information” into the Consulate General of Mexico
website—is insufficient to rebut B.R.’s evidence of taint.
The ICE officer’s certificate did not reveal which
biographical information he used or where and how that
information was obtained. If ICE located the birth certificate
by using information gleaned from B.R.’s juvenile records
or his I-213s, it would not be free from the taint of that
alleged suppressible violation. If ICE used only his name,
or used information obtained in its interview with B.R., then
DHS has the burden on remand to so demonstrate, and to so
demonstrate with sufficient detail to allow the IJ to verify
that the evidence does not constitute fruit of unlawful
government conduct.
Because “[a] successful prima facie showing of a
regulatory violation for evidentiary suppression purposes . . .
normally entitle[s] the petitioner to a remand for the
government to rebut the petitioner’s showing,” Sanchez,
904 F.3d at 653, we remand with instructions to afford DHS
the opportunity to rebut B.R.’s evidence of taint. 9 We
8
We do not fault DHS. In supplementing its alienage evidence,
DHS was responding to B.R.’s motion to suppress the I-213s. At that
point, there was as yet no contention that the birth certificate and
presentence investigation report were tainted. DHS’s statements
accompanying the supplemental documents are taciturn and concerned
primarily with authenticating the documents, not with establishing that
they were obtained independently of B.R.’s juvenile court records.
9
Because we remand on the merits, we need not resolve B.R.’s
contention that he was deprived of a reasonable time to review DHS’s
supplemental evidence and was denied due process. See Lo v. Ashcroft,
341 F.3d 934, 937 & n.3 (9th Cir. 2003) (abstaining from addressing
petitioner’s due process argument after granting petition on the merits).
30 B.R. V. GARLAND
recognize that we have yet to plot out precisely what
information about a person qualifies as his “identity.”
Certainly, at least, the person’s name. But certainly not his
place of birth. Perez Cruz, 926 F.3d at 1136. To the extent
necessary, the agency may examine in the first instance the
finer grains of this issue as it relates to DHS’s supplemental
evidence.
We note, however, that B.R. never satisfied his burden
to submit specific evidence that DHS’s presentence
investigation report was tainted. The presentence
investigation report was created by a probation officer
following B.R.’s methamphetamine conviction and appears
to be attenuated from any alleged unlawful act on the part of
ICE or DHS. “The law of this Circuit is that there is no
sanction to be applied when an illegal arrest only leads to
discovery of the man’s identity and that merely leads to the
official file or other independent evidence. The file can be
used so far as relevant.” United States v. Orozco-Rico,
589 F.2d 433, 435 (9th Cir. 1978) (internal quotation marks
and citation omitted). B.R.’s conviction is a matter of public
record and information contained within that official file is
per se independent of any suppressible violation committed
pursuant to unrelated immigration proceedings. B.R. has not
provided any evidence that DHS uncovered his federal
conviction by using information obtained from B.R.’s
unrelated California state juvenile criminal record.
Even so, we have serious misgivings as to the propriety
of the admission of the presentence investigation report that
should be addressed on remand, including how DHS
obtained the presentence investigation report when it was
placed under seal by the federal district court. Given these
misgivings and the fact that the agency relied on both the
birth certificate and the presentence investigation report in
B.R. V. GARLAND 31
determining that DHS’s evidence was sufficient to establish
alienage, we refrain from concluding in the first instance that
the presentence investigation report alone is sufficient to
establish B.R.’s alienage. INS v. Ventura, 537 U.S. 12, 16
(2002) (per curiam).
We grant the petition for review and remand for the
agency to reopen proceedings consistent with this opinion,
including, if necessary, examining the merits of B.R.’s
motion to suppress the I-213s. 10
C. Convention Against Torture
Finally, in the interest of judicial economy, we examine
the agency’s denial of B.R.’s application for protection
under CAT in the event the government is able to prove
B.R.’s alienage on remand. B.R. attacks a number of the
agency’s legal and factual findings including, most crucially,
the finding that B.R. failed to demonstrate any torture he is
likely to suffer would occur with the acquiescence of the
Mexican government or its officials. We conclude
substantial evidence supported the agency’s finding and
deny the petition as to relief from removal.
In denying B.R. deferral of removal under CAT, the
agency found that B.R. “failed to show that the Mexican
government would acquiesce to the torture he fears,” an
essential element to obtaining CAT relief. B.R. argues that
10
B.R. also argues that termination under Sanchez is required due to
DHS’s unlawful treatment of his confidential juvenile records and that
the agency ignored this argument. B.R. has not yet proven DHS
committed any egregious regulatory violation or abridgment of his
fundamental rights and he is not entitled to termination at this juncture.
Sanchez, 904 F.3d at 655–56. He may renew this argument on remand
if he so desires.
32 B.R. V. GARLAND
this factual conclusion lacked substantial evidence for two
main reasons. First, he argues that because American law
enforcement officers have profiled B.R. as a gang member
due to his tattoos (although B.R. stated he was profiled
primarily “based on the people [he would] hang out with”),
Mexican law enforcement might similarly profile him as a
gang member and might torture him as a result. Second, he
argues that the Mexican government sometimes colludes
with cartels and is generally ineffective in deterring and
prosecuting crime.
CAT protection cannot be granted unless an applicant
shows a likelihood of torture that “is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official acting in an official capacity or other person acting
in an official capacity.” 8 C.F.R. § 208.18; Arrey v. Barr,
916 F.3d 1149, 1160 (9th Cir. 2019). “[A] government does
not acquiesce in the torture of its citizens merely because it
is aware of torture but powerless to stop it.” Garcia-Milian
v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (citation
omitted). Evidence of future acquiescence by public
officials should be sufficiently related to the sources of
petitioner’s likely torture. Parada v. Sessions, 902 F.3d 901,
916 (9th Cir. 2018) (“[T]he acquiescence standard is met
where the record demonstrates that public officials . . .
would acquiesce in torture the petitioner is likely to suffer.”).
For example, if the torture is likely to arise from violence by
the Mara Salvatrucha (“MS-13”) gang, the evidence must
show public officials acquiesce in gang or specifically MS-
13 torture. See id. at 915–16. If torture is likely to arise from
an alien’s uncle over a prior land dispute, then evidence of
acquiescence must show public officials acquiesce in their
citizens torturing or killing each other over personal grudges
or property disputes. Generalized evidence of violence in a
country is itself insufficient to establish that anyone in the
B.R. V. GARLAND 33
government would acquiesce to a petitioner’s torture. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010).
First, B.R.’s assertion that Mexican authorities
themselves might torture him because they might believe his
tattoos are gang related—despite the fact that he testified that
his tattoos are not gang related—is, on this record, pure
speculation. Blandino-Medina v. Holder, 712 F.3d 1338,
1348 (9th Cir. 2013). Second, he makes no effort to provide
evidence that Mexican authorities would acquiesce to his
torture at the hands of his uncle.
Finally, the agency’s conclusion that B.R. failed to prove
that the Mexican government would acquiesce in his torture
at the hands of either the La Familia Michoacána drug cartel
or the New Generation Jalisco Cartel is supported by
substantial evidence. B.R. did not cite any direct evidence
that the Mexican government or local Mexican officials are
aware of and have acquiesced in any cartel plan to torture
B.R. See Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th
Cir. 2003). Instead, he relies only on generalized country
reports and news clippings. The agency examined these
reports and reasonably concluded that they do not establish
that anyone in the Mexican government would acquiesce to
B.R.’s torture. Indeed, upon our own inspection, these
reports suggest that, while on occasion some corrupt
officials may turn a blind eye to cartel activity, the Mexican
government, rather than being willfully blind to cartel
violence and torture, actively combats and prosecutes cartel
activity. While these troubling reports describe senseless,
abhorrent violence throughout Mexico and a demoralizing
ineffectiveness on the part of the Mexican government’s
genuine efforts to free its citizens from this terror, they do
not prove that the Mexican government would acquiesce in
34 B.R. V. GARLAND
the torture of its citizens at the hands of cartels. See
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016)
(“[A] general ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show
acquiescence.”).
Nothing in the record would compel a reasonable
adjudicator to conclude that the Mexican government would
acquiesce in B.R.’s torture. Because B.R. failed to satisfy
this essential element, he is ineligible for CAT protection,
and we need not address his remaining assignments of error.
His petition for review as to his application for CAT
protection is denied.
IV. CONCLUSION
For the reasons outlined above, the petition for review is
GRANTED in part; DENIED in part; and REMANDED
for further proceedings consistent with this opinion.