Josue Umana-Escobar v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE UMANA-ESCOBAR, No. 19-70964
Petitioner, Agency No.
A205-474-027
v.
MERRICK B. GARLAND, Attorney ORDER AND
General, AMENDED
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2023
Pasadena, California
Filed March 17, 2023
Amended May 23, 2023
Before: Paul J. Watford, Michelle T. Friedland, and Mark
J. Bennett, Circuit Judges.
Order;
Opinion by Judge Bennett
2 UMANA-ESCOBAR V. GARLAND
SUMMARY *
Immigration
The panel filed: 1) an order withdrawing the opinion
filed March 17, 2023, and reported at 62 F.4th 1223 (9th Cir.
2023), replacing that opinion with a concurrently filed
amended opinion and, with these amendments, denying the
government’s motion to amend; and 2) an amended opinion
denying in part and granting in part Josue Umana-Escobar’s
petition for review of a decision of the Board of Immigration
Appeals, and remanding.
In the amended opinion, the panel: (1) denied the petition
as to Umana-Escobar’s unexhausted argument that the
omission of required time and place information in his
Notice to Appear (“NTA”) amounted to a claim-processing
error; (2) remanded Umana-Escobar’s administrative
closure claim for further consideration in light of intervening
precedent; and (3) remanded Umana-Escobar’s asylum and
withholding claims because the BIA erroneously reviewed
the immigration judge’s nexus determination for clear error,
rather than de novo.
Before the agency, Umana-Escobar argued that because
his NTA omitted required time and place information the IJ
lacked jurisdiction. Before this court, however, Umana-
Escobar raised a different argument, contending the BIA
should have terminated his proceedings because the
defective NTA amounted to a claim-processing
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UMANA-ESCOBAR V. GARLAND 3
violation. The panel observed that in his counseled brief on
appeal to the BIA, Umana-Escobar argued exclusively that
an NTA that lacks either the time or place of a removal
proceeding cannot vest an immigration court with
jurisdiction. Umana-Escobar also told the BIA that it did not
have to consider whether his claim had been waived because
“jurisdiction cannot be waived.” The panel wrote that it was
therefore clear that Umana-Escobar’s NTA argument
sounded exclusively in jurisdiction and that the BIA thus had
no reason to consider whether the NTA’s defects could
constitute some other type of violation which might be
subject to waiver, such as a claim-processing
violation. Because the panel agreed with the government
that Umana-Escobar failed to exhaust the alleged claim-
processing violation as required under 8 U.S.C.
§ 1252(d)(1), the panel denied this portion of the petition. In
doing so, the panel cited the Supreme Court’s recent opinion
in Santos-Zacaria v. Garland, 598 U.S. ----, 2023 WL
3356525 (2023), which held that 8 U.S.C. § 1252(d)(1)’s
exhaustion requirement is a claim-processing rule.
The BIA denied Umana-Escobar administrative closure
after concluding that it had no authority to grant such relief
under Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G.
2018). However, while this petition was pending, the
Attorney General issued Matter of Cruz-Valdez, 28 I. & N.
Dec. 326 (A.G. 2021), which overruled Matter of Castro-
Tum and reinstated the BIA’s authority to grant
administrative closure pending the Department of Justice’s
review of a regulation concerning the issue. Given this
change, the panel agreed with the government’s unopposed
recommendation to remand the administrative closure issue
to the BIA for further consideration.
4 UMANA-ESCOBAR V. GARLAND
The BIA upheld the immigration judge’s denial of
asylum and withholding of removal solely based on Umana-
Escobar’s failure to establish the required nexus between a
protected ground and past or future harm. Umana-Escobar
first argued that the IJ applied the wrong nexus standard to
his withholding of removal claim because, rather than
determine whether a protected ground was a reason for the
harm, the IJ stated that the evidence was insufficient to show
that family was the reason for any threats. The panel
rejected Umana-Escobar’s contention, concluding that the
IJ’s allegedly problematic statement, when read in context
with other statements in the decision, demonstrated that the
IJ knew and applied the correct a reason nexus standard to
the withholding of removal claim.
Umana-Escobar additionally argued that the BIA erred
by reviewing the IJ’s nexus determination for clear error,
rather than de novo. The panel agreed. The panel explained
that in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008),
the BIA stated that the nexus determination was a legal
determination subject to de novo review. As support for its
statement, Matter of S-E-G-cited among other authorities:
(1) 8 C.F.R. § 1003.1(d)(3), the regulation setting forth the
BIA’s standards for reviewing an IJ’s decision, and (2) the
Department of Justice’s commentary on the regulation,
which discusses the interplay between the clearly erroneous
standard of review applicable to an IJ’s factual findings and
the BIA’s de novo authority. The DOJ Guidance explains
that the nexus determination is not a factual determination
subject to clear error review. Thus, the panel explained that
the BIA reviews the IJ’s underlying factual findings, such as
what a persecutor’s motive may be, for clear error. But the
BIA must review de novo whether a persecutor’s motives
meet the nexus legal standards, i.e., whether a protected
UMANA-ESCOBAR V. GARLAND 5
ground was “one central reason” (for asylum) or “a reason”
(for withholding of removal) for the past or feared harm.
Here, the BIA stated: “[T]here is no clear error in the
Immigration Judge’s determination that [Umana-Escobar]
did not establish the requisite nexus between a protected
ground . . . and the harm he fears in El Salvador.” The panel
found significant that the BIA expressly conflated the clear
error standard with its review of the IJ’s nexus
determination. The panel explained that while this statement
from the BIA must be read in context, there was insufficient
indication from the rest of the BIA decision that the BIA’s
clear error review pertained to the IJ’s factual determinations
relating to the lack of persecutory motive, as opposed to the
ultimate nexus determination. Thus, the panel remanded
Umana-Escobar’s asylum and withholding of removal
claims for application of the proper standard.
Finally, the panel concluded that substantial evidence
supported the agency’s determination that Umana-Escobar
failed to establish the requisite government involvement, or
government acquiescence to, any torture.
COUNSEL
Sabrina R. Damast (argued) and Jose Medrano, Law Office
of Sabrina Damast Inc., Los Angeles, California; for
Petitioner.
Krishana Patel (argued), Trial Attorney; Brett F. Kinney,
Attorney; Emily A. Radford and Holly M. Smith, Assistant
Directors; Brian M. Boynton, Principal Deputy Assistant
Attorney General; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
6 UMANA-ESCOBAR V. GARLAND
United States Department of Justice, Washington, D.C.; for
Respondent.
ORDER
The Opinion filed March 17, 2023, and reported at 62
F.4th 1223 (9th Cir. 2023), is withdrawn and replaced by the
Amended Opinion filed concurrently with this order.
With these amendments, the panel votes to deny the
government’s motion to amend the opinion. Dkt. 69.
The mandate shall issue forthwith.
OPINION
BENNETT, Circuit Judge:
Josue Umana-Escobar petitions for review of the Board
of Immigration Appeals (“BIA”) order upholding the
immigration judge’s (“IJ”) denial of asylum, withholding of
removal, and protection under the Convention Against
Torture (“CAT”). He also challenges the BIA’s
determinations that defects in the Notice to Appear (“NTA”)
did not require termination of his proceedings and that the
BIA lacked authority to administratively close his case.
We have jurisdiction under 8 U.S.C. § 1252. We deny
the petition as to the defective NTA claim and the CAT
claim. We grant the petition and remand as to the
administrative closure issue, given the government’s
UMANA-ESCOBAR V. GARLAND 7
recommendation that we should do so based on an
intervening decision by the Attorney General. We also grant
the petition and remand as to the asylum and withholding of
removal claims because the BIA applied the wrong standard
in reviewing the IJ’s determination that the evidence failed
to establish the requisite nexus between a protected ground
and past or future harm.
I
A
Umana-Escobar, a native and citizen of El Salvador,
unlawfully entered the United States in May 2012.
Following a credible fear interview, in which an asylum
officer determined that Umana-Escobar had demonstrated
credible fear, the Department of Homeland Security
(“DHS”) initiated removal proceedings against him. DHS
served Umana-Escobar with an NTA, charging him as
removable for being present in the United States without
being admitted or paroled by an immigration officer. The
NTA ordered Umana-Escobar to appear before an IJ at a date
and time “to be determined.”
Subsequently, the immigration court sent Umana-
Escobar a Notice of Hearing, scheduling his hearing for
January 23, 2013. He appeared at the hearing, and the IJ
continued his case so that he could obtain counsel. The next
hearing occurred on June 28, 2013. At that hearing, Umana-
Escobar, represented by counsel, admitted to the allegations
in the NTA and conceded removability. He also conceded
that he had been properly served with the NTA, and he made
no argument that his case should be terminated based on a
defective NTA. From 2013 to 2017, Umana-Escobar
appeared at multiple hearings until his merits hearing, which
was held on July 28, 2017. He never objected to the
8 UMANA-ESCOBAR V. GARLAND
omission of date and time information from his NTA during
his proceedings before the IJ.
Before the IJ, Umana-Escobar sought CAT relief as well
as asylum and withholding of removal on account of an
imputed political opinion and membership in two particular
social groups: “immediate relatives of his father” and
“children of civil servants.” His claims were based on the
February 2009 murder of his father; the January 2011
attempted murder of his brother, Carlos Alonso Umana-
Escobar (“Carlos”); and a threat against his family, which
was made shortly after the attack on Carlos.
Umana-Escobar’s father was a municipal councilman;
he also owned a jewelry business. Carlos operated the
family’s jewelry business. Around January 2009, people
with masks robbed the business and threatened Carlos. One
month later, in February 2009, gang members shot and killed
Umana-Escobar’s father. The police arrested three people
for the murder—all three were prosecuted and incarcerated.
Umana-Escobar testified before the IJ that, according to the
investigation, the town mayor ordered his father’s killing.1
His father and the mayor belonged to the same political
party. According to Umana-Escobar, shortly before his
father was shot, a woman told him that “a gang member was
going to hurt [his] father as ordered by the [mayor],” and that
“[a]pparently the [mayor] . . . was no longer on good terms
with [his] father.” But Umana-Escobar admitted that he did
not know why the mayor would want his father dead or why
they were no longer on good terms. And although the mayor
and his father disagreed over a project, Umana-Escobar
1
Umana-Escobar provided no details about how he knew the
investigation implicated the mayor.
UMANA-ESCOBAR V. GARLAND 9
testified that he did not know if his father’s death was due to
that disagreement.
About two years after his father’s death, in January 2011,
gang members shot at Carlos while he was driving to work.
Umana-Escobar claimed that the gang members thought that
he, his mom, and his nephew were also inside the vehicle.
Umana-Escobar believed that the gang behind Carlos’s
attack was the same gang that killed his father. Umana-
Escobar initially testified before the IJ that the shooting
could have been an attempted robbery, but later testified that
the shooters wanted to kill Carlos rather than rob him. The
police investigated the shooting. But other than a threat
against the family (discussed below), Carlos did not disclose
any details related to the investigation. Carlos decided to sell
the jewelry business after the shooting.
Umana-Escobar testified before the IJ that, while Carlos
was recovering in the hospital, “somebody called [his]
mother, and they told her that they wanted to kill us all.”
Carlos also told him that the detectives reiterated that the
gang wanted to kill their family. But Umana-Escobar did
not know how the detectives obtained that information, nor
did he know the conclusions of the police investigation.
Carlos told Umana-Escobar to leave the country, and
Umana-Escobar left El Salvador around March 2012. He
had never been harmed in El Salvador. And the only threat
against him was the one communicated to his mother around
January 2011, after the attack on Carlos. Carlos and Umana-
Escobar’s mother are still living in El Salvador, although in
hiding, and Umana-Escobar does not dispute the IJ’s finding
that they have faced no further threats in El Salvador.
10 UMANA-ESCOBAR V. GARLAND
B
The IJ found Umana-Escobar credible but denied all
relief. Umana-Escobar appealed to the BIA, challenging the
IJ’s denial of relief. He also moved to terminate the
proceedings, arguing that the IJ lacked jurisdiction because
the NTA omitted the required date and time information. He
also requested administrative closure so that he could seek a
waiver of his unlawful presence from the U.S. Citizenship
and Immigration Services. See 8 C.F.R. § 212.7(e)(4)(iii)
(an alien is ineligible for a provisional unlawful presence
waiver if “[t]he alien is in removal proceedings, in which no
final order has been entered, unless the removal proceedings
are administratively closed” (emphasis added)).
The BIA dismissed the appeal. It rejected the
jurisdictional argument based on the defective NTA because
the omitted information did not give rise to a jurisdictional
defect under BIA and Ninth Circuit precedent. The BIA also
declined to administratively close the case, including
because it lacked the authority to do so under Matter of
Castro-Tum, 27 I. & N. Dec. 271, 287 n.9 (A.G. 2018).
On the merits, the BIA determined that the IJ properly
denied asylum and withholding of removal because Umana-
Escobar failed to establish the required nexus between a
protected ground and any feared harm: “[T]here [was] no
clear error in the Immigration Judge’s determination that
[Umana-Escobar] did not establish the requisite nexus
between a protected ground in the [Immigration and
Nationality] Act and the harm he fears in El Salvador.” The
BIA also affirmed the denial of CAT relief because the
evidence was insufficient to establish the requisite
government involvement.
UMANA-ESCOBAR V. GARLAND 11
Umana-Escobar timely petitioned for review of the
BIA’s decision.
II
We review the BIA’s decision and those parts of the IJ’s
decision that the BIA expressly adopted. See Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). We review
the BIA’s legal determinations de novo, including whether
the BIA applied the wrong legal standard. Id. at 1142, 1146.
We review the BIA’s factual determinations for substantial
evidence, meaning we may reverse only if the evidence
compels a conclusion contrary to the BIA’s. Id. at 1142.
III
A
Before the BIA, Umana-Escobar argued that it should
terminate the proceedings because the NTA omitted required
information and thus deprived the IJ of jurisdiction. On
appeal, however, he presents a different justification for his
argument that his NTA did not include all of the required
information. He now argues that the BIA should have
terminated his proceedings because the defective NTA
amounted to a claim-processing violation. But Umana-
Escobar failed to exhaust this alleged claim-processing
violation. See 8 U.S.C. § 1252(d)(1).
“Exhaustion requires a non-constitutional legal claim to
the court on appeal to have first been raised in the
administrative proceedings below, and to have been
sufficient to put the BIA on notice of what was being
challenged.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020)
(citation omitted). A petitioner “need not use precise legal
terminology to exhaust his claim. Nor must he provide a
well developed argument.” Arsdi v. Holder, 659 F.3d 925,
12 UMANA-ESCOBAR V. GARLAND
929 (9th Cir. 2011) (citation omitted). “What matters is that
the BIA was sufficiently on notice so that it ‘had an
opportunity to pass on th[e] issue.’” Bare, 975 F.3d at 960
(quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004)).
Umana-Escobar’s counseled BIA brief raised the defects
in the NTA but made only a jurisdictional argument based
on such defects, arguing exclusively that an NTA that lacks
either the time or place of a removal proceeding cannot vest
an immigration court with jurisdiction. Umana-Escobar also
told the BIA that it did not have to consider whether his
claim had been waived because “jurisdiction cannot be
waived.” It is therefore clear that Umana-Escobar’s NTA
argument sounded exclusively in jurisdiction and that the
BIA thus had no reason to consider whether the NTA’s
defects could constitute some other type of violation which
might be subject to waiver, such as a claim-processing
violation. See Fort Bend County, Texas v. Davis, 139 S. Ct.
1843, 1849 (2019) (“[A]n objection based on a mandatory
claim-processing rule may be forfeited if the party asserting
the rule waits too long to raise the point.” (quotation marks
and citation omitted)). Because we agree with the
government that Umana-Escobar failed to exhaust the
alleged claim-processing violation as required under 8
U.S.C. § 1252(d)(1), we deny this portion of the petition.
See Santos-Zacaria v. Garland, 598 U.S. ----, 2023 WL
3356525, at *5 (2023) (holding that 8 U.S.C. § 1252(d)(1) is
a claim-processing rule); Fort Bend, 139 S. Ct. at 1849 (“A
claim-processing rule may be ‘mandatory’ in the sense that
a court must enforce the rule if a party ‘properly raises’ it.”
(alterations omitted) (quoting Eberhart v. United States, 546
U.S. 12, 19 (2005) (per curiam))).
UMANA-ESCOBAR V. GARLAND 13
B
Umana-Escobar challenges the BIA’s refusal to
administratively close his case. The BIA held that it had no
authority to grant administrative closure under Matter of
Castro-Tum, 27 I. & N. Dec. at 287 n.9. But while this
appeal was pending, the Attorney General issued Matter of
Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 2021), which
overruled Matter of Castro-Tum and reinstated the BIA’s
authority to grant administrative closure pending the
Department of Justice’s review of a regulation concerning
the issue. Given this change, we agree with the
government’s unopposed recommendation to remand the
administrative closure issue to the BIA for further
consideration.
C
The BIA upheld the IJ’s denial of asylum and
withholding of removal solely based on Umana-Escobar’s
failure to establish the required nexus between a protected
ground and past or future harm. Umana-Escobar challenges
that determination, arguing that the IJ applied the wrong
nexus standard to his withholding of removal claim because,
rather than determine whether a protected ground was a
reason for the harm, the IJ stated that the evidence was
insufficient to show that “family was the reason for [the]
threats.” (emphasis added).
A nexus between the harm and a protected ground is a
necessary element of asylum and withholding of removal.
Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir.
2017). But the nexus standards for asylum and withholding
of removal differ. For asylum, “the protected characteristic
must be ‘a central reason’ for the past or feared harm.”
Garcia, 988 F.3d at 1143. “[A] motive is a ‘central reason’
14 UMANA-ESCOBAR V. GARLAND
if that motive, standing alone, would have led the persecutor
to harm the applicant.” Parussimova v. Mukasey, 555 F.3d
734, 741 (9th Cir. 2009). For withholding of removal, an
applicant must show only that a “protected ground is ‘a
reason’ for future persecution.” Garcia, 988 F.3d at 1146
(quoting Barajas-Romero, 846 F.3d at 359).
Umana-Escobar fails to read the IJ’s allegedly
problematic statement in context. Just before stating that the
evidence was insufficient to show that “family was the
reason for [the] threats,” the IJ stated that he had to
determine whether a protected ground was “a reason for the
harm” and that the evidence was insufficient under “this
broader nexus” standard. Additionally, earlier in his
decision, the IJ recited the proper nexus standards for asylum
and withholding of removal, noting that “the nexus for
withholding has been clarified to be not a central reason, but
a reason only.” The IJ knew and applied the correct nexus
standard to the withholding of removal claim.
D
Umana-Escobar also argues that the BIA should have
reviewed the IJ’s nexus determination de novo, not for clear
error. We agree. 2
In Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), the
BIA stated that the
2
The government initially argued that the correct standard was clear
error. But after we ordered supplemental briefing, the government
conceded that whether a protected ground meets the required nexus
standard is a legal determination that the BIA is required to review de
novo.
UMANA-ESCOBAR V. GARLAND 15
nexus determination is a legal determination subject to
de novo review. Id. at 588 n.5 (“The record before us is
adequate to allow us to perform de novo review of the legal
issues presented, specifically, whether the respondents
established that they were persecuted ‘on account of’ a
protected ground.”). As support for its statement, the BIA
cited among other authorities: (1) 8 C.F.R. § 1003.1(d)(3),
the regulation setting forth the BIA’s standards for reviewing
an IJ’s decision 3; and (2) the Department of Justice’s
commentary on the regulation, which discusses the interplay
between the clearly erroneous standard of review applicable
to an IJ’s factual findings and the BIA’s de novo authority.
Id. (citing Board of Immigration Appeals: Procedural
Reforms To Improve Case Management (“DOJ Guidance”),
67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)). 4
3
The regulation provides, in relevant part:
(3) Scope of review.
(i) The Board will not engage in de novo review of
findings of fact determined by an immigration judge.
Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.
(ii) The Board may review questions of law,
discretion, and judgment and all other issues in appeals
from decisions of immigration judges de novo.
8 C.F.R. § 1003.1(d)(3)(i)–(ii).
4
In Matter of S-E-G-, 24 I. & N. Dec. at 588 n.5, the BIA also cited
Matter of V-K-, 24 I. & N. Dec. 500 (BIA 2008), and Matter of A-S-B-,
24 I. & N. Dec. 493 (BIA 2008). Those cases have been overruled only
to the extent that they held that “predictive findings of what may or may
not occur in the future” are not factual findings. Matter of Z-Z-O-, 26 I.
16 UMANA-ESCOBAR V. GARLAND
The DOJ Guidance explains that the nexus determination
is not a factual determination subject to clear error review:
The immigration judge’s determination of
“what happened” to the individual is a factual
determination that will be reviewed under the
clearly erroneous standard. The immigration
judge’s determinations of whether these facts
demonstrate harm that rises to the level of
“persecution,” and whether the harm inflicted
was “on account of” a protected ground, are
questions that will not be limited by the
“clearly erroneous” standard.
DOJ Guidance, 67 Fed. Reg. at 54,890.
Thus, the BIA reviews the IJ’s underlying factual
findings, such as what a persecutor’s motive may be, for
clear error. See, e.g., Matter of N-M-, 25 I. & N. Dec. 526,
532 (BIA 2011) (“A persecutor’s actual motive is a matter
of fact to be determined by the Immigration Judge and
reviewed by [the BIA] for clear error.”). But the BIA must
review de novo whether a persecutor’s motives meet the
nexus legal standards, i.e., whether a protected ground was
“one central reason” (for asylum) or “a reason” (for
withholding of removal) for the past or feared harm. Garcia,
988 F.3d at 1146 (quoting 8 U.S.C. § 1158(b)(1)(B)(i) and
Barajas-Romero, 846 F.3d at 359).
Here, the BIA stated that it reviewed the IJ’s nexus
determination for clear error: “[T]here is no clear error in the
& N. Dec. 586, 590 (BIA 2015). Thus, Matter of V-K- and Matter of A-
S-B- remain good law for the proposition that the IJ’s nexus
determination is a legal question subject to de novo review by the BIA.
UMANA-ESCOBAR V. GARLAND 17
Immigration Judge’s determination that [Umana-Escobar]
did not establish the requisite nexus between a protected
ground . . . and the harm he fears in El Salvador.” We find
significant that the BIA expressly conflated the clear error
standard with its review of the IJ’s nexus
determination. And while this statement from the BIA must
be read in context, here, there is insufficient indication from
the rest of the BIA decision that the BIA’s clear error review
pertained to the IJ’s factual determinations relating to the
lack of persecutory motive, as opposed to the ultimate nexus
determination. 5 Thus, we remand the asylum and
withholding of removal claims so that the BIA can apply the
proper standard. See Ridore v. Holder, 696 F.3d 907, 909
(9th Cir. 2012) (remanding to the BIA when it applied the
wrong legal standard under the agency’s regulations);
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006) (“[W]here the BIA applies the wrong legal standard to
an applicant’s claim, the appropriate relief from this court is
remand for reconsideration under the correct standard, not
independent review of the evidence.”). In reviewing the IJ’s
nexus determination de novo, the BIA should consider
whether the IJ improperly disregarded Umana-Escobar’s
testimony that his family members were in hiding and
5
The government’s supplemental brief argues that the BIA applied the
correct standard of review because a persecutor’s motive is reviewed for
clear error and the BIA limited its clear error review to the IJ’s factual
determination that there was no evidence about what motive drove
Umana-Escobar’s persecutors. The government’s argument is
unpersuasive because it fails to reconcile its position with the BIA’s
express statement that it applied clear error review to the nexus
determination more broadly. Moreover, the government argued in its
answering brief that the BIA had properly reviewed the nexus
determination for clear error. And the government maintained that
position at oral argument. Oral Arg. at 12:11–13:32.
18 UMANA-ESCOBAR V. GARLAND
whether considering that changes the likelihood that he
would be persecuted if returned to El Salvador. See Akosung
v. Barr, 970 F.3d 1095, 1105 (9th Cir. 2020).
E
Umana-Escobar argues that the BIA erred in denying
CAT relief. For CAT relief, an applicant must prove “that it
is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). The applicant must also prove that the
torture would be “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. § 1208.18(a)(1). Acquiescence occurs
when “‘prior to the activity constituting torture,’ the
officials: (1) have awareness of the activity (or consciously
close their eyes to the fact it is going on); and (2) breach their
legal responsibility to intervene to prevent the activity
because they are unable or unwilling to oppose it.” Garcia-
Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)
(quoting Ornelas-Chavez, 458 F.3d at 1059).
The BIA denied CAT relief because the evidence failed
to prove the required government involvement. The BIA’s
determination is supported by substantial evidence. See id.
at 1031. The record supports that the El Salvadoran
government would not acquiesce in torture against Umana-
Escobar. The authorities investigated his father’s murder
and prosecuted three men. The men were convicted and
sentenced to prison. Authorities also investigated the attack
on Carlos. Umana-Escobar points to a news article
supporting that many authorities collude with criminals. But
given the evidence supporting that the government would
not acquiesce in torture against him, this article does not
UMANA-ESCOBAR V. GARLAND 19
compel the conclusion that the government would acquiesce
in torture against him. See id. at 1034.
The record also supports that there was insufficient
evidence to show that any torture would be inflicted by or at
the instigation of or with the consent of a government
official. Although Umana-Escobar testified that he was told
that the mayor was involved in his father’s murder, he never
claimed that the mayor participated in the attack on Carlos
or the threat against his family. Nor did he offer any
evidence to support that the mayor had a motive to harm him.
Given the lack of evidence showing that the mayor had any
desire to harm Umana-Escobar, the BIA reasonably
concluded that he did not show the requisite government
involvement for CAT relief.
IV
We grant the petition and remand as to the administrative
closure issue and the asylum and withholding of removal
claims. We deny the petition as to the alleged claim-
processing violation based on the defective NTA and the
CAT claim.
PETITION GRANTED IN PART, DENIED IN
PART, and REMANDED. 6
6
The parties shall bear their own costs on appeal.