Santos Iraheta-Martinez v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTOS RAFAEL IRAHETA- No. 18-72692
MARTINEZ, AKA “Jose Benigno,”
AKA “Santos Climaco,” Agency No.
Petitioner, A098-912-596
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
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
Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit
Judges, and Gary Feinerman, * District Judge.
Opinion by Judge Feinerman
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 IRAHETA-MARTINEZ V. GARLAND
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 8 U.S.C § 1158(a): “Any alien who
is physically present in the United States or who arrives in
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IRAHETA-MARTINEZ V. GARLAND 3
the United States . . . , irrespective of such alien’s status, may
apply for asylum.” That broad authorization, however, is
subject to exceptions set forth in §§ 1158(a)(2)(B) & (C)—
the one-year and previous denial bars. Those bars in turn are
subject to their own exception in § 1158(a)(2)(D), upon a
showing of material “changed circumstances.” For
noncitizens subject to reinstatement of a prior removal order,
§ 1231(a)(5) provides that they are not eligible and may not
apply for “any relief” under this chapter. Iraheta argued that
notwithstanding § 1231(a)(5), he was eligible to seek asylum
under § 1158(a)(2)(D)’s exception if he could show changed
circumstances.
The panel observed that Perez-Guzman v. Lynch, 835
F.3d 1066 (9th Cir. 2016), left open the question, at issue
here, of how § 1158(a)(2)(D) might affect § 1231(a)(5),
where a noncitizen asserts changed circumstances. Looking
to the statutory language and various textual clues, the panel
concluded that the INA makes clear that noncitizens with
reinstated removal orders, while eligible to seek withholding
and CAT relief, are not eligible to seek asylum. The panel
rejected Iraheta’s invocation of the general-specific canon,
under which he argued that § 1158(a)(2)(D) more
specifically governs his asylum eligibility than does
§ 1231(a)(5). The panel explained that the determining
which statute is “general” and which is “specific” is an
unilluminating exercise, rendering the canon inapplicable,
and a close reading of both provisions reveals that there is
no conflict, also rendering the canon inapplicable.
The panel also rejected Iraheta’s argument that because
the INA allows noncitizens with reinstated removal orders
to seek withholding and CAT relief despite § 1231(a)(5),
asylum should be available, as well. The panel explained
that the availability of certain relief notwithstanding
4 IRAHETA-MARTINEZ V. GARLAND
§ 1231(a)(5) only underscores that the INA and its
implementing regulations offer a comprehensive set of rules
governing which noncitizens are eligible for what forms of
relief, and the INA makes clear that noncitizens with
reinstated removal orders are not eligible for asylum. The
panel also rejected Iraheta’s contentions that his reading of
the statutes was required under the constitutional avoidance
canon and to avoid running afoul of the United States’s
treaty obligations, explaining that neither principle came into
play here, because there is no ambiguity in the relationship
between §§ 1158(a)(2)(D) and 1231(a)(5).
Relying on Villa-Anguiano v. Holder, 727 F.3d 873 (9th
Cir. 2013) (noting that nothing in 8 U.S.C. § 1231(a)(5) or
its implementing regulations deprives the agency of
discretion to afford a new plenary removal hearing), Iraheta
argued in the alternative that even if the INA did not afford
him a statutory right to seek asylum, because DHS has the
discretion to overlook a prior removal order rather than
reinstate it, due process required DHS to consider his
changed circumstances before deciding whether to reinstate
the order or place him in ordinary removal proceedings. The
panel rejected that argument, explaining that Villa-Anguiano
did not create 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, and that
recognizing such a right would undermine the agency’s
plenary discretion over when to exercise that form of
leniency.
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
IRAHETA-MARTINEZ V. GARLAND 5
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
Etan Newman (argued), Pangea Legal Services, San
Francisco, California, for Petitioner.
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.
6 IRAHETA-MARTINEZ V. GARLAND
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”), 8 U.S.C. § 1101 et seq., and in the
alternative that he had a procedural due process right to
reasoned consideration by the Department of Homeland
Security (“DHS”) of whether to forego reinstating his prior
removal order and thereby allow him to seek asylum. We
disagree and hold that a noncitizen in Iraheta’s
circumstances enjoys neither right. We therefore deny his
petition for review.
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
IRAHETA-MARTINEZ V. GARLAND 7
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 membership in
MS-13, Valentin would “do whatever he wanted” to Iraheta.
Iraheta asked if Valentin would murder his own brother, and
Valentin responded that if Iraheta returned to El Salvador,
Valentin would “‘either kill you myself or send my homies
to kill you.’”
B
1
In May 2017, Iraheta was taken back into custody, and
DHS reinstated his prior removal order. See 8 U.S.C.
§ 1231(a)(5) (authorizing reinstatement of a prior removal
order “[i]f the Attorney General finds that an alien has
8 IRAHETA-MARTINEZ V. GARLAND
reentered the United States illegally after having been
removed”); 8 C.F.R. § 1241.8(a) (“An alien who illegally
reenters the United States after having been removed, or
having departed voluntarily, while under an order of
exclusion, deportation, or removal shall be removed from the
United States by reinstating the prior order. The alien has no
right to a hearing before an immigration judge in such
circumstances.”).
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 8 C.F.R. § 208.31(e); Alvarado-Herrera v. Garland,
993 F.3d 1187, 1190 (9th Cir. 2021) (“If the asylum officer
determines that the non-citizen [with a reinstated removal
order] has established a reasonable fear, the non-citizen is
placed in ‘withholding only’ proceedings before an
immigration judge, during which the judge will hold a
hearing on whether to grant the non-citizen withholding of
removal or protection under CAT.”) (citing 8 C.F.R.
§ 208.2(c)(2)–(3)).
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’
IRAHETA-MARTINEZ V. GARLAND 9
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 8 C.F.R.
§ 1208.16(b)(1). Applying that standard, the IJ found that
even if Iraheta had suffered past persecution, “circumstances
have changed” because, while Victor had abused Iraheta
when he was a youth, Iraheta was now “a grown man” who
was “not required to live in his father’s house.” The IJ added
that Victor “is an aging man” and that Iraheta’s brothers,
including one still living with Victor, no longer faced abuse.
As to Iraheta’s claim that he was likely to face
persecution from his brother Valentin on account of his anti-
gang political opinion, the IJ found that “a singular threat
from his brother is insufficient to sustain his burden of
demonstrating that he is likely to be persecuted or harmed in
any way by his brother upon return to El Salvador.”
Concluding that Iraheta had not shown that he was likely to
be persecuted by either his father or his brother, the IJ denied
withholding of removal.
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
10 IRAHETA-MARTINEZ V. GARLAND
that Iraheta “ha[d] failed to establish the acquiescence piece
of his [CAT] claim.” See 8 C.F.R. § 208.18(a)(1).
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 8 C.F.R.
§ 1003.1(d)(3)(i). In particular, the BIA held that the IJ “did
not clearly err in finding that the applicant’s father has aged,
the applicant is now an independent adult man with a family
of his own, and the applicant need not live with or associate
with his father upon return to El Salvador.” The BIA thus
concluded that, “even assuming, as the Immigration Judge
did, that [Iraheta] suffered past persecution by his father on
account of a protected ground, [DHS] has rebutted the
presumption that [his] life or freedom will be threatened in
the future on the basis of the original claim.”
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
IRAHETA-MARTINEZ V. GARLAND 11
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 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have
jurisdiction over this petition for review under 8 U.S.C.
§ 1252(a)(5). We review de novo the BIA’s conclusions on
pure questions of law. See Conde Quevedo v. Barr, 947 F.3d
1238, 1241 (9th Cir. 2020). We review the BIA’s factual
findings for substantial evidence. See Medina-Rodriguez v.
Barr, 979 F.3d 738, 744 (9th Cir. 2020).
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 of removal and CAT relief, but not asylum.
See 8 C.F.R. § 1208.31(e) (limiting such proceedings to
“consideration of the request for withholding of removal
only”). Iraheta claims that the agency’s refusal to consider
whether he was entitled to asylum in light of circumstances
that arose after the removal order was first issued violated
both the INA and the Constitution.
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
12 IRAHETA-MARTINEZ V. GARLAND
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,
8 U.S.C. § 1252(d)(1) ‘mandates exhaustion and therefore
. . . bars us, for lack of subject-matter jurisdiction, from
reaching the merits of a legal claim not presented in
administrative proceedings below.’”) (alteration in original)
(quoting Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004)); Vasquez-Rodriguez v. Garland, —F.4th —, 2021
WL 3413164, at *5 (9th Cir. Aug. 5, 2021) (“[A]liens need
not exhaust in cases ‘where resort to the agency would be
futile.’”) (quoting Sun v. Ashcroft, 370 F.3d 932, 943 (9th
Cir. 2004)).
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
IRAHETA-MARTINEZ V. GARLAND 13
reasonable fear of persecution or torture if returned to their
country of removal may pursue before the IJ “withholding
of removal only.” 8 C.F.R. § 1208.31(e) (emphasis added).
As we explained in Perez-Guzman, “the BIA ha[s] no
authority to disregard this regulation.” 835 F.3d at 1073.
Accordingly, it would have been futile for Iraheta to urge the
BIA (or the IJ) to disregard the regulation, and allow him to
seek asylum, on the ground that the INA allows noncitizens
with reinstated removal orders to seek asylum if they can
show a change in pertinent circumstances since entry of the
prior removal order. See Coyt v. Holder, 593 F.3d 902, 905
(9th Cir. 2010) (“Because the BIA has no authority to
declare a regulation invalid, ‘the exhaustion doctrine does
not bar review of a question concerning the validity of an
INS regulation because of a conflict with a statute.’”)
(quoting Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273
(9th Cir. 1996)); see also Perez-Guzman, 835 F.3d at 1073
(citing Coyt in holding that “exhaustion would have been
futile” for a noncitizen with a reinstated removal order to
urge the BIA to disregard § 1208.31(e) and allow him to seek
asylum).
A possible fly in the ointment is that Iraheta conceded
before the IJ and the BIA that his statutory claim was
foreclosed by Perez-Guzman, while here he effectively
withdraws that concession, arguing that he is eligible for
asylum notwithstanding Perez-Guzman. But the
government does not press a waiver argument, so we need
not decide whether Iraheta’s concession before the agency
that Perez-Guzman forecloses his asylum eligibility waived
his right to argue here that Perez-Guzman does no such
thing. See United States v. Tercero, 734 F.3d 979, 981 (9th
Cir. 2013) (“It is well-established that the government can
waive waiver implicitly by failing to assert it.”) (quoting
Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010)).
14 IRAHETA-MARTINEZ V. GARLAND
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.” 8 C.F.R. § 1208.2(c)(3)(i) (emphasis
added). Fairly read, this regulation would have precluded
the IJ or the BIA from correcting what Iraheta now contends
is the constitutional error, i.e., DHS’s failure to consider
whether, in light of his particular circumstances, it should
overlook rather than reinstate the prior removal order. See
Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2283 (2021)
(holding that reasonable fear proceedings for a noncitizen
with a reinstated order of removal “are ‘limited to a
determination of whether the alien is eligible for withholding
or deferral of removal,’ and as such, ‘all parties are
prohibited from raising or considering any other issues,
IRAHETA-MARTINEZ V. GARLAND 15
including but not limited to issues of admissibility,
deportability, eligibility for waivers, and eligibility for any
other form of relief’”) (quoting 8 C.F.R. §§ 208.2(c)(3)(i),
1208.2(c)(3)(i)). We therefore are not deprived of
jurisdiction to consider Iraheta’s due process claim.
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)].
16 IRAHETA-MARTINEZ V. GARLAND
(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.
IRAHETA-MARTINEZ V. GARLAND 17
(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)].
8 U.S.C. § 1158(a).
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 . . . .” Id.§ 1158(a)(1); see United States v. Shill, 740 F.3d 1347, 1352
(9th Cir. 2014) (holding that the statutory term “any”
18 IRAHETA-MARTINEZ V. GARLAND
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,
§ 1158(a)(2). Most relevant here, asylum applications may
not be filed more than one year after a noncitizen’s arrival in
the United States, see 8 U.S.C. § 1158(a)(2)(B), and a
noncitizen may not seek asylum if a prior application had
been denied, see id. § 1158(a)(2)(C). Those two exceptions
are subject to an exception of their own, providing that a
noncitizen may apply for asylum, “notwithstanding” the
one-year and previous-denial bars, upon a showing of
material “changed circumstances.” Id. § 1158(a)(2)(D).
Another provision, § 1231(a)(5), addresses what
happens upon the reinstatement of a prior removal order
upon a noncitizen’s unlawful reentry to the United States:
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.
Id. § 1231(a)(5); see Perez-Guzman, 835 F.3d at 1073
(noting that asylum is a form of “relief under this chapter”
for § 1231(a)(5) purposes). Section 1231(a)(5) thus takes
away what otherwise would be the right under § 1158(a)(1)
to apply for asylum by precluding a noncitizen with a
reinstated removal order from applying.
IRAHETA-MARTINEZ V. GARLAND 19
Because Iraheta’s current removal proceedings arose out
of the reinstatement of his prior removal order, if
§ 1231(a)(5) governs, he is barred from seeking asylum.
However, if § 1158(a)(2)(D) governs, then he is eligible to
seek asylum so long as he can demonstrate “changed
circumstances” since the prior removal order. The pertinent
question, then, is this: if a noncitizen has a prior removal
order reinstated after unlawfully reentering the United
States, but can show changed circumstances since the prior
order was issued, is he eligible to seek asylum? Iraheta says
yes, arguing that § 1158(a)(2)(D) controls, while the
government says no, arguing that § 1231(a)(5) controls. The
government is correct.
We touched on the interplay between §§ 1158(a) and
1231(a)(5) in Perez-Guzman. That case did not involve
changed circumstances, so we had no reason to examine
§ 1158(a)(2)(D) in detail. Instead, we addressed the
dissonance between § 1158(a)(1)’s rule that “[a]ny” alien
can apply for asylum and § 1231(a)(5)’s bar on asylum
applications by noncitizens with reinstated removal orders.
See Perez-Guzman, 835 F.3d at 1071. Unable to resolve the
conflict with ordinary tools of statutory construction, we
gave Chevron deference to the Attorney General’s
interpretation, reflected in 8 C.F.R. § 1208.31(e), that when
a noncitizen with a reinstated removal order expresses a
credible fear of persecution, his hearing before an IJ is
limited “to consideration of the request for withholding of
removal only.” Perez-Guzman, 835 F.3d at 1074–82. We
held that § 1231(a)(5) takes precedence over § 1158(a)(1),
and thus that a noncitizen “is not eligible to apply for asylum
under § 1158 as long as he is subject to a reinstated removal
order.” Id. at 1082. We bracketed, however, noncitizens
potentially covered by § 1158(a)(2)(D). Because the
applicant in Perez-Guzman was “a first-time asylum
20 IRAHETA-MARTINEZ V. GARLAND
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 § 1158(a)(2)(D) might affect § 1231(a)(5) in
a case where those two provisions are actually in conflict.”
Id. at 1082 & n.10.
That question is now before us. Two textual clues
convince us that the changed-circumstances rule of
§ 1158(a)(2)(D) applies only within the closed universe of
§ 1158(a)(2)(B)–(D); that is, § 1158(a)(2)(D)’s grant of the
right to apply for asylum comes into play only when that
right would otherwise be revoked by § 1158(a)(2)(B) or (C),
and not when the revocation is effected by § 1231(a)(5) or
any other INA provision.
The first clue is § 1158(a)(2)(D)’s placement within the
INA generally and within § 1158(a) in particular. Recall that
§ 1158(a) begins with a broad permissive rule—any
noncitizen in the United States may apply for asylum.
Section 1158(a)(2) cuts back on that rule by carving
exceptions, including those in § 1158(a)(2)(B) and (C). But
then § 1158(a)(2) adds the changed-circumstances
provision, § 1158(a)(2)(D), another permissive rule. If
Congress meant § 1158(a)(2)(D) to apply broadly—
overriding not just the asylum-eligibility bars imposed by
§ 1158(a)(2)(B) and (C), but other restrictive provisions in
the INA as well—why did it place § 1158(a)(2)(D) within
§ 1158(a)(2)? See Pub. L. 104-208, § 604, 110 Stat. 3009,
690–91 (1996) (enacting the language codified at
§ 1158(a)(2)). Iraheta provides no answer, and none is
apparent to us, particularly given the “notwithstanding
subparagraphs (B) and (C)” clause of § 1158(a)(2)(D),
which confirms its limited scope.
IRAHETA-MARTINEZ V. GARLAND 21
The second textual clue is the phrase “[s]ubject to
subparagraph (D)” at the beginning of both § 1158(a)(2)(B)
and (C). That phrase is the mirror image of the
“notwithstanding” clause in § 1158(a)(2)(D), creating a
closed loop of exceptions (to § 1158(a)(1)’s broad grant of
asylum eligibility) and an exception-to-the-exceptions. The
“subject to” clauses in § 1158(a)(2)(B) and (C) confirm that
those two prohibitions are absolute except for the
changed-circumstances exception-to-the-exceptions in
§ 1158(a)(2)(D), and the “notwithstanding” clause in
§ 1158(a)(2)(D) confirms that it carves only a narrow
exception to the exceptions that appear above it in
§ 1158(a)(2)(B) and (C). If Iraheta’s broad reading of
§ 1158(a)(2)(D)—that it carves exceptions to all limitations
in the INA on the right to apply for asylum, and not just those
in § 1158(a)(2)(B) and (C)—were correct, what purpose
would the “subject to” clauses in § 1158(a)(2)(B) and (C)
serve? If Iraheta were right, why does § 1231(a)(5) not have
a clause that reads, “subject to subparagraph (a)(2)(D) of
section 1158”? And if Iraheta were right, why does
§ 1158(a)(2)(D) begin with “notwithstanding subparagraphs
(B) and (C)” rather than “notwithstanding any other
provision of this chapter”? Again, Iraheta provides no
answer, and none is apparent to us.
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
22 IRAHETA-MARTINEZ V. GARLAND
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
§ 1158(a)(2)(D)’s notwithstanding clause must be read in
context. But the context of § 1158(a)(2)(D)—specifically,
its placement within § 1158(a)(2) and its mutually
reinforcing cross-references with § 1158(a)(2)(B) and (C)—
shows that it does not override asylum-restrictive provisions
in the INA other than § 1158(a)(2)(B) and (C). See Lara-
Aguilar v. Sessions, 889 F.3d 134, 140–43 (4th Cir. 2018)
(reaching the same conclusion).
Pressing the opposite result, Iraheta invokes the general-
specific canon, arguing that § 1158(a)(2)(D) more
specifically governs his asylum eligibility than does
§ 1231(a)(5). See In re Border Infrastructure Env’t Litig.,
915 F.3d 1213, 1225 (9th Cir. 2019) (“The ‘general/specific
canon’ of statutory construction . . . provides that when two
conflicting provisions cannot be reconciled, the more
specific provision should be treated as an exception to the
general rule.”). The argument is unpersuasive. As is often
the case, determining which of §§ 1158(a)(2)(D) and
1231(a)(5) is “general” and which is “specific” is an
unilluminating exercise, rendering the canon inapplicable.
See Perez-Guzman, 835 F.3d at 1075 (“As Scalia and Garner
acknowledge, . . . it is ‘[s]ometimes . . . difficult to
determine whether a provision is a general or a specific one.’
Here, the difficulty is that each subsection is specific in
certain respects and general in others.”) (second and third
alterations in original) (citation omitted). In any event, a
close reading of both provisions reveals that there is no
conflict, rendering the canon inapplicable on that ground as
well. See Lara-Aguilar, 889 F.3d at 141–43 (holding that
“there is no irremediable conflict [between §§ 1158(a)(2)(D)
IRAHETA-MARTINEZ V. GARLAND 23
and 1231(a)(5)] requiring us to invoke the general-specific
rule of interpretation”).
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 § 1231(a)(5), see Perez-Guzman, 835 F.3d at 1075
(“[O]ur well-settled interpretation of § 1231(a)(5)
recognizes that, notwithstanding the prohibition on ‘any
relief,’ withholding of removal and CAT protection are
available to individuals in reinstatement proceedings.”),
asylum should be available as well. But the availability of
certain relief notwithstanding § 1231(a)(5) only underscores
that the INA and its implementing regulations offer a
comprehensive set of rules governing which noncitizens are
eligible for what forms of relief. See 8 C.F.R. § 1208.31(e)
(allowing an alien with a reinstated removal order to apply
for withholding of removal); 8 C.F.R. § 1208.16(c)(4)
(allowing applications for CAT protection). The INA makes
clear that noncitizens with reinstated removal orders, while
eligible to seek withholding and CAT relief, are not eligible
to seek asylum.
Iraheta next invokes several presumptions we sometimes
apply when encountering ambiguous statutes. For example,
he argues that we should adopt his reading of
§ 1158(a)(2)(D) to avoid running afoul of the United States’s
treaty obligations. See Trans World Airlines, Inc. v.
Franklin Mint Corp., 466 U.S. 243, 252 (1984) (“A treaty
will not be deemed to have been abrogated or modified by a
later statute unless such purpose on the part of Congress has
been clearly expressed.”) (citation omitted). He also argues
that his reading is necessary to avoid serious due process
questions. See Jennings v. Rodriguez, 138 S. Ct. 830, 836
(2018) (“Under the constitutional-avoidance canon, when
24 IRAHETA-MARTINEZ V. GARLAND
statutory language is susceptible of multiple interpretations,
a court may shun an interpretation that raises serious
constitutional doubts and instead may adopt an alternative
that avoids those problems.”). Neither principle comes into
play here, because, as explained, there is no ambiguity in the
relationship between §§ 1158(a)(2)(D) and 1231(a)(5). See
Jennings, 138 S. Ct. at 836 (“[A] court relying on th[e]
[constitutional-avoidance] canon still must interpret the
statute, not rewrite it.”); Swinomish Indian Tribal Cmty. v.
BNSF Ry. Co., 951 F.3d 1142, 1160 (9th Cir. 2020) (holding
that a statute’s “unambiguous language” overcomes the
presumption against abrogating treaty rights).
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
noncitizen’s prior removal order rather than reinstate it,
which results in the noncitizen entering ordinary removal
proceedings, where he can apply for asylum, rather than
withholding-only proceedings, where he cannot. See Perez-
Guzman, 835 F.3d at 1081 (“[T]he government has
discretion to forgo reinstatement and instead place an
individual in ordinary removal proceedings. Once in
ordinary proceedings, the individual can raise an asylum
application without implicating § 1231(a)(5)’s bar.”); Villa-
Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013)
(“Even though an alien is not entitled to a hearing before an
immigration judge on the issue of reinstatement of a prior
removal order, nothing in 8 U.S.C. § 1231(a)(5) or its
implementing regulations deprives the agency of discretion
to afford an alien a new plenary removal hearing.”). And as
Iraheta notes, we held in Villa-Anguiano that “[d]ue process
IRAHETA-MARTINEZ V. GARLAND 25
. . . entitles an unlawfully present alien to consideration of
issues relevant to the exercise of an immigration officer’s
discretion” in deciding whether to reinstate a prior removal
order. 727 F.3d at 881. Invoking Villa-Anguiano, Iraheta
argues that by failing to consider his changed circumstances
before reinstating his removal order and thereby depriving
him of the ability to seek asylum, DHS violated his
procedural due process rights.
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 8 U.S.C.
§ 1326. See id. at 876–77. During the criminal proceedings,
the noncitizen lodged a successful collateral challenge to the
prior removal order, resulting in its invalidation and the
dismissal of his criminal charges. See id. Nonetheless, the
noncitizen was later removed without being given the
opportunity to argue that, because his prior removal order
had been invalidated, it was not subject to reinstatement. See
id. at 877. We held that the noncitizen’s due process rights
were violated because he was not given a chance to
challenge an essential predicate for placing him into
reinstatement proceedings—the existence of a valid, prior
order of removal. See id. at 877–81.
26 IRAHETA-MARTINEZ V. GARLAND
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 due process right to make his case to
DHS for why its discretion should be exercised in his favor.
* * *
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.
IRAHETA-MARTINEZ V. GARLAND 27
A
A noncitizen in removal proceedings may seek
withholding of removal under § 1231(b)(3), which prohibits
removal to a country where the noncitizen’s “life or freedom
would be threatened” on account of his “race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); see Bare v.
Barr, 975 F.3d 952, 961 (9th Cir. 2020); Diaz-Reynoso v.
Barr, 968 F.3d 1070, 1084–85 (9th Cir. 2020). To prevail,
the noncitizen must show, by a preponderance of the
evidence, that he will face persecution on account of a
protected ground if removed. See 8 C.F.R. § 1208.16(b);
Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013).
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. 8 C.F.R. § 1208.16(b)(1)(i).
Because the agency assumed that Iraheta faced past
persecution, we do so as well. See Hanna v. Keisler,
506 F.3d 933, 938 (9th Cir. 2007).
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
28 IRAHETA-MARTINEZ V. GARLAND
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. 8 C.F.R.
§ 1208.16(b)(1)(i)–(ii); see Vitug v. Holder, 723 F.3d 1056,
1065 (9th Cir. 2013). Iraheta argues that the agency did not
properly recognize the presumption of future persecution.
We disagree.
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 8 C.F.R.
§ 1208.16(b)(1)). The IJ then found, as a factual matter, that
“circumstances have changed,” as Iraheta was now “a grown
man” who had no need to live with his father. Given that
finding, the IJ concluded that Iraheta was not likely to face
persecution by his father in the future. The BIA adopted that
factual conclusion, discerning no clear error.
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
IRAHETA-MARTINEZ V. GARLAND 29
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 8 C.F.R.
§ 1003.1(d)(3), and Iraheta does not point to, and we cannot
find, any portion of the opinion that strayed from this
standard.
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
30 IRAHETA-MARTINEZ V. GARLAND
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 himself had aged—specifically, that he had become
a “grown man” who was no longer “required to live on his
father’s property.” Iraheta does not point to record evidence
suggesting that he will be required to live with his father if
removed to El Salvador, so we cannot find fault with the IJ’s
conclusion that Iraheta, having become an adult, faces
materially changed circumstances.
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
IRAHETA-MARTINEZ V. GARLAND 31
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,
32 IRAHETA-MARTINEZ V. GARLAND
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, DHS must show not
just any change of circumstances, but a change of
circumstances “such that the applicant’s life or freedom
would not be threatened on account of any of the five
[protected] grounds.” 8 C.F.R. § 1208.16(b)(1)(i)(A). Here,
DHS did just that, showing that the only person who had ever
persecuted Iraheta on account of his imputed sexual
orientation—in fact, the only person in El Salvador who
even perceived him to be gay—would no longer able to do
so because Iraheta was no longer compelled to live in his
father’s home. In the BIA’s view, that change in
circumstances made it unlikely that Iraheta would face
further persecution on that ground. As the IJ explained in
the portion of her opinion denying CAT relief: “There is not
IRAHETA-MARTINEZ V. GARLAND 33
sufficient evidence in the record to indicate or to conclude
that a community would even perceive [Iraheta] to be gay.
It seems that only two people may have perceived him as
such, his father, and a man he got into an argument with in
the United States.”
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
34 IRAHETA-MARTINEZ V. GARLAND
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
Salvador, the threat is likely to be carried out.
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).
IRAHETA-MARTINEZ V. GARLAND 35
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
36 IRAHETA-MARTINEZ V. GARLAND
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.”).
Iraheta argues that the BIA’s factual finding that he was
not likely to be tortured in El Salvador was flawed because
it “erroneously failed to undertake an aggregate analysis” of
all potential sources of torture. True enough, the BIA did
not make it perfectly clear that it was performing an
aggregate analysis. On balance, though, the BIA said
enough to convince us that it did, in fact, find that there is
less than a 50% chance that Iraheta will be tortured by all
potential sources of torture (Victor and MS-13) in the
aggregate.
IRAHETA-MARTINEZ V. GARLAND 37
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.