Escobar Larin v. Garland

• Court: Court of Appeals for the First Circuit
• Decided: December 5, 2024
• Docket: 24-1428
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 23-2088, 24-1428

JOSE RODOLFO ESCOBAR LARIN,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

SangYeob Kim, with whom Gilles Bissonnette and the American Civil Liberties Union of New Hampshire were on brief, for petitioner. Lynda A. Do, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Stephen J. Flynn, Senior Litigation Counsel, Office of Immigration Litigation, and Anna Juarez, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

December 5, 2024 BARRON, Chief Judge. Jose Rodolfo Escobar Larin

("Escobar"), a native and citizen of El Salvador, petitions for

review of a decision by the Board of Immigration Appeals ("BIA")

that affirmed the denial of his claims for asylum, withholding of

removal, and protection under the Convention Against Torture

("CAT").1 He also petitions for review of a separate BIA ruling

that denied his motion to reopen his removal proceedings. We deny

the latter petition but grant the former and therefore vacate and

remand the BIA's ruling denying his claims for asylum and

withholding of removal, as well as his CAT claim, for further

proceedings consistent with this decision.

I.

A.

On February 24, 2022, the U.S. Department of Homeland

Security ("DHS") issued Escobar a Notice to Appear. The Notice to

Appear charged Escobar with removability for being present in the

United States without being admitted or paroled in violation of

the Immigration and Nationality Act ("INA"), 8 U.S.C.

§ 1182(a)(6)(A)(i). The DHS thereafter detained Escobar.

On April 22, 2022, Escobar filed a pro se Form I-589

"Application for Asylum and for Withholding of Removal." The

1This convention is formally known as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for the United States Nov. 20, 1994).

- 2 - Immigration Judge ("IJ") assigned to Escobar's case held a

competency hearing pursuant to Matter of M-A-M-, 25 I. & N. Dec.

474 (BIA 2011). The IJ determined that Escobar was not competent

to represent himself in immigration proceedings. Escobar was then

appointed counsel, and the counsel filed an amended Form I-589

application on Escobar's behalf on August 2, 2022.2

B.

Individuals seeking asylum must demonstrate that they

are "unable to go back to [the country of removal] due to '[past]

persecution or a well-founded fear of [future] persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.'" Lobo v. Holder, 684 F.3d

11, 16 (1st Cir. 2012) (second and third alterations in original)

(quoting Hasan v. Holder, 673 F.3d 26, 30 (1st Cir. 2012)); see 8

U.S.C. § 1101(a)(42)(A) (providing that persons who are "unable or

unwilling to return to" their country of origin "because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion" are refugees for the purposes of

asylum); 8 U.S.C. § 1158 (setting out general procedures for grants

2 In the alternative to his claims for asylum, withholding of removal, and CAT protection, Escobar requested that he be allowed to voluntarily depart the United States pursuant to 8 U.S.C. § 1229c(b). Both the IJ and the BIA denied this request, and Escobar does not ask us to review that denial.

- 3 - of asylum); 8 C.F.R. § 1208.13(b) (providing eligibility criteria

for asylum, including requirements for establishing a well-founded

fear of future persecution).3 Individuals seeking withholding of

removal bear the heavier burden of showing "that it is more likely

than not that [they] would be subject to persecution on account of

an enumerated ground if [they] were repatriated."

Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st Cir. 2018);

see 8 U.S.C. § 1231(b)(3)(A) (providing that "the Attorney General

may not remove an alien to a country if the Attorney General

decides that the alien's life or freedom would be threatened in

that country because of the alien's race, religion, nationality,

membership in a particular social group, or political opinion");

8 C.F.R. § 1208.16(b) (providing eligibility standards for

withholding of removal). Individuals seeking protection under the

CAT must "show that it is 'more likely than not that

[they] . . . would be tortured if removed to the proposed country

of removal.'" DeCarvalho v. Garland, 18 F.4th 66, 72 (1st Cir.

2021) (second alteration in original) (quoting 8 C.F.R.

§ 1208.16(c)(2)).

"So-called 'humanitarian asylum' provides that an applicant 3

who has shown past persecution but failed to show a well-founded fear of future persecution can still be granted asylum if . . . '[t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal . . . .'" Martínez-Pérez v. Sessions, 897 F.3d 33, 42 (1st Cir. 2018) (second and third alterations in original) (quoting 8 C.F.R. § 1208.13(b)(1)(iii)(B)).

- 4 - C.

Escobar claimed in his amended asylum application a

"well-founded fear of future persecution" in El Salvador "on

account of" his membership in various particular social groups

("PSGs"). The asserted PSGs on which Escobar premised his fear of

future persecution fell into one of two broader categories:

(1) mental illness-based PSGs, which were "Salvadorans with

unspecified schizophrenia spectrum and other psychotic disorders

who exhibit erratic behavior" and "Salvadorans with disabilities";

and (2) a gang-based PSG defined as "persons who take concrete

steps to oppose gang authority." Escobar additionally claimed

that he was entitled to humanitarian asylum based on past

persecution and a risk of "other serious harm" in relation to

several family-based PSGs, which included "grandchildren of [his

grandmother]," "members of [his grandmother's] nuclear family,"

and "familial members of [his grandmother's] household."

Escobar also claimed in his amended asylum application

a "well-founded fear of future persecution" in El Salvador on

account of "political opinion." He identified the targeted

political opinion as an "imputed, anti-gang political opinion" due

to his refusal to join the notorious transnational gang, MS-13.

In a brief supporting his amended application for

asylum, Escobar acknowledged that he had not applied for asylum,

as 8 U.S.C. § 1158(a)(2)(B) generally requires, within one year of

- 5 - his last arrival in the United States, which occurred in 2004.

However, per § 1158(a)(2)(D), claims for asylum that otherwise

would be untimely under § 1158(a)(2)(B) are considered timely if

the asylum applicant can show either "extraordinary circumstances

relating to the delay in filing an application within the [one-year

period after arrival]" or "changed circumstances which materially

affect the applicant's eligibility for asylum." 8 U.S.C.

§ 1158(a)(2)(D).

"[E]xtraordinary circumstances" are defined in 8 C.F.R.

§ 1208.4(a)(5) as "events or factors directly related to the

failure to meet the 1-year deadline." 8 C.F.R. § 1208.4(a)(5).

The regulation provides that such circumstances "may excuse the

failure to file within the 1-year period as long as the alien filed

the application within a reasonable period given those

circumstances." Id. Section 1208.4(a)(5) further provides that

"extraordinary circumstances" may include an applicant's

"[s]erious illness or mental . . . disability . . . during the 1-

year period after arrival," or a "[l]egal disability . . . during

the 1-year period after arrival," such as the applicant's "mental

impairment" or status as "an unaccompanied minor." Id.

§ 1208.4(a)(5)(i)-(ii).

"[C]hanged circumstances" are defined in 8 C.F.R.

§ 1208.4(a)(4) as "circumstances materially affecting the

applicant's eligibility for asylum." 8 C.F.R. § 1208.4(a)(4)(i).

- 6 - Section 1208.4(a)(4) further provides that such circumstances "may

include, but are not limited to: . . . [c]hanges in conditions in

the applicant's country of nationality . . . [and c]hanges in the

applicant's circumstances that materially affect the applicant's

eligibility for asylum." Id. Additionally, the applicant must

"file an asylum application within a reasonable period given those

'changed circumstances.'" Id. § 1208.4(a)(4)(ii). However,

§ 1208.4(a)(4) indicates that "[i]f the applicant can establish

that he or she did not become aware of the changed circumstances

until after they occurred, such delayed awareness shall be taken

into account in determining what constitutes a 'reasonable

period.'" Id.

Escobar contended that he could satisfy the

extraordinary-circumstance exception based on his status as a

minor at the time of his arrival in the United States in 2004 in

combination with his subsequent development of "serious mental

health problems." Escobar contended that he could satisfy the

changed-circumstance exception based on the development of his

mental health problems, including his diagnosis of schizophrenia

in 2022. He argued that was so because the development of these

mental health problems gave rise to a new ground for asylum not

available to him until after one year had passed from the date of

his last arrival in this country.

- 7 - To support the showing of changed circumstances, Escobar

submitted a report prepared by a psychiatrist who had evaluated

him on August 31, 2022. The psychiatrist concluded in the report

that Escobar "most likely suffers from Post-Traumatic Stress

Disorder[,] Major Depressive Disorder[,] Unspecified Schizophrenia

Spectrum and Other Psychotic Disorder[,] Stimulant Use Disorder[,]

and Opiate Use Disorder."

Escobar contended that the 2022 schizophrenia diagnosis

and the associated mental health problems demonstrated that there

would be a reasonable possibility that he would suffer persecution

perpetrated by gang members, by law enforcement, or by hospital

staff on account of his mental illness if he were removed to El

Salvador. In attempting to make the changed-circumstance showing,

Escobar also relied on a United Nations Committee on the Rights of

Persons with Disabilities report. Escobar argued that the report

provided further support for his assertion that his membership in

the claimed mental illness-based PSGs put him at "high risk of

physical harm and murder by criminal gangs," "ill-treatment and

the use of physical restraints" in "psychiatric and other

institutions," and "mistreat[ment]" and "human rights violations"

by police and in prisons.

D.

Unlike his asylum claims, Escobar's claims for

withholding of removal and his claim for protection under the CAT

- 8 - were not subject to 8 U.S.C. § 1158(a)(2)(B)'s one-year time bar.

Escobar based his withholding-of-removal claims on the contention

that "given [his] serious mental health conditions and his

[political opinion], it is more likely than not that he would be

persecuted if removed to El Salvador." Escobar rested his CAT

claim on the contention that he could show that "it is more likely

than not that he will be tortured" if he were removed to El Salvador

because "the harm he will face from gang members, from police, and

in a psychiatric facility" on account of his mental illness and

his opposition to MS-13 "will all rise to the level of torture."

E.

On October 18, 2022, Escobar appeared before the IJ for

a removal hearing. Escobar testified at the hearing, and the IJ

found him to be a credible witness. The IJ nonetheless denied

Escobar's claims for asylum and withholding of removal, as well as

his claim for CAT protection.

The IJ determined with respect to Escobar's asylum

claims that Escobar had failed to satisfy either the

extraordinary-circumstance exception or the changed-circumstance

exception to the one-year time bar set forth in 8 U.S.C.

§ 1158(a)(2)(B). The IJ went on to hold that Escobar's claims for

asylum would fail even assuming that they were not time-barred.

The IJ also denied Escobar's withholding of removal claims as well

as his CAT claim.

- 9 - F.

Escobar appealed the IJ's decision to the BIA. For

reasons independent of the one-year time bar, the BIA affirmed the

IJ's denial of Escobar's asylum claim predicated on the PSG of

"persons who take concrete steps to oppose gang authority." The

BIA did the same as to his asylum claim predicated on his imputed

"'anti-gang' political opinion." In consequence of those rulings,

the BIA also affirmed the denial of Escobar's withholding of

removal claims that were based on those same grounds.

As to Escobar's other claims for asylum, as well as his

contention that he "demonstrated an exception to the one-year

filing deadline for his asylum application," the BIA remanded to

the IJ for additional fact-finding and analysis. The BIA similarly

remanded Escobar's remaining withholding of removal claims and his

CAT claim.

G.

On remand, the IJ addressed whether the one-year time

bar set forth in 8 U.S.C. § 1158(a)(2)(B) rendered Escobar's asylum

claims untimely. Once again, the IJ determined that the time bar

rendered the claims untimely. In accordance with the BIA's

instruction, the IJ went on to address the merits of Escobar's

family-based and mental illness-based asylum claims. The IJ

determined that those claims would fail even if they were not

time-barred. The IJ therefore also denied Escobar's related

- 10 - withholding of removal claims, which rested on the same

contentions. The IJ concluded his analysis on remand by denying

Escobar's claim for CAT protection.

H.

Escobar once again appealed the IJ's decision to the

BIA. The BIA affirmed the IJ's ruling in full. Escobar then

timely filed a petition for review of the BIA's decision.

While that petition for review was pending, Escobar

timely moved the BIA to reopen his proceedings before the agency

as to his asylum and withholding of removal claims, as well as to

his CAT claim. To prevail on his motion to reopen, Escobar was

required to show that the "evidence sought to be offered [on

remand] is material and was not available and could not have been

discovered or presented at the former hearing." Rivera-Medrano v.

Garland, 47 F.4th 29, 35 (1st Cir. 2022) (alteration in original)

(quoting Matter of Coelho, 20 I. & N. Dec. 464, 471 n.3 (BIA

1992)). He was also required to show that "the new evidence

[offered] would likely change the result in the case" and that,

with the new evidence, he could demonstrate prima facie eligibility

for the relief sought in the removal proceedings. Id. (alteration

in original) (quoting Matter of Coelho, 20 I. & N. Dec. at 473).

The motion to reopen requested that the BIA remand

Escobar's case to the IJ so that the IJ could consider the

declaration of proposed expert witness Mneesha Gellman, PhD.

- 11 - Escobar asserted that he could make the required showing for a

motion to reopen because Dr. Gellman's declaration "was not

available at the time of [his] merits hearing[,] . . . is

material[,] and makes out a prima facie case of eligibility" for

his claims. Escobar argued that, if this evidence were considered,

he could meet the requirements of the changed-circumstance

exception, such that the time bar would not apply, and his claims

for asylum, withholding of removal, and protection under the CAT

would succeed on the merits.

In her declaration, Dr. Gellman discussed the history of

gang violence in El Salvador, the Salvadoran government's response

to that violence, the high rates of incarceration, and other

country conditions. Dr. Gellman also stated that, during research

conducted in El Salvador between December 2023 and January 2024,

she found evidence that some Salvadoran citizens were fabricating

criminal claims in exchange for cash rewards, and that police and

other groups faced pressure to fulfill arrest quotas. Dr. Gellman

opined that "it is entirely possible that someone would report"

Escobar either for erratic behavior related to his mental illness

or to obtain a potential cash reward.

Before the BIA had ruled on Escobar's motion to reopen,

Escobar filed a supplement in support of the motion. The

supplemental filing related to the declaration of Samuel V.

Nickels, PhD. Escobar argued that Dr. Nickels's declaration

- 12 - constituted "new evidence that alters the outcome of [his] case"

and would "confirm[ his] eligibility for asylum, withholding of

removal, and protection under the [CAT]."

While Escobar's petition for review was still pending

before us, the BIA ruled on Escobar's motion to reopen and denied

it. Following the BIA's denial of the motion to reopen, Escobar

petitioned for our review of that denial. We consolidated this

petition with his pending petition for review of the BIA's ruling

affirming the denial of his asylum and withholding of removal

claims, as well as his CAT claim.

II.

Where, as here, the BIA "adopts portions of the IJ's

findings while adding its own gloss, we review both the IJ's and

the BIA's decisions as a unit." Paiz-Morales v. Lynch, 795 F.3d

238, 242 (1st Cir. 2015) (quoting Renaut v. Lynch, 791 F.3d 163,

166 (1st Cir. 2015)). We apply a substantial-evidence standard to

findings of fact by the BIA and the IJ (collectively, the

"agency"). Lin v. Mukasey, 521 F.3d 22, 25 (1st Cir. 2008). Under

that standard, "the agency's findings are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary of the finding." Id. In undertaking our review, "[w]e

review the agency's legal conclusions de novo." Espinoza-Ochoa v.

Garland, 89 F.4th 222, 230 (1st Cir. 2023). We review the BIA's

denial of a motion to reopen under the "highly deferential

- 13 - abuse-of-discretion standard." Tay-Chan v. Barr, 918 F.3d 209,

212 (1st Cir. 2019) (quoting Pineda v. Whitaker, 908 F.3d 836, 840

(1st Cir. 2018)). The BIA is given "a fair amount of latitude" in

its grant or denial of a reopening request because "a motion to

reopen removal proceedings is a disfavored tool, given the threat

it poses to finality." Mazariegos v. Lynch, 790 F.3d 280, 285

(1st Cir. 2015). Accordingly, we will uphold the BIA's decision

unless it "committed a material error of law or exercised its

authority arbitrarily, capriciously, or irrationally." Tay-Chan,

918 F.3d at 212 (quoting Gyamfi v. Whitaker, 913 F.3d 168, 172

(1st Cir. 2019)).

III.

Escobar filed his motion to reopen with the BIA after he

petitioned for review of the BIA's decision that affirmed the

denial of his claims for asylum and withholding of removal, as

well as his CAT claim, on the merits. We nonetheless address this

later-filed petition first. We do so both because we treat it as

a motion to remand and consider new evidence, see 8 C.F.R.

§ 1003.2(c)(4), and because a ruling in his favor on that motion

could moot his petition for review of the BIA's affirmance of the

denial of his claims on the merits, see 8 U.S.C. § 1252(a)(1)

(providing for judicial review of final orders of removal);

Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) ("The

BIA's granting of the motion to reopen means there is no longer a

- 14 - final decision to review."); Romero-Osorio v. Mukasey, 267 F. App'x

87, 87 (2d Cir. 2008) (indicating that after the BIA "granted the

motion to reopen, there is no longer a final order of removal for

[the Court of Appeals] to review").

As a threshold matter, 8 U.S.C. § 1158(a)(3) generally

"divests courts of jurisdiction to review determinations of

timeliness or the applicability of exceptions to the one-year rule"

for the filing of asylum applications. Oroh v. Holder, 561 F.3d

62, 66 (1st Cir. 2009). Escobar contends, however, that we do

have jurisdiction to consider his petition for review of the BIA's

denial of his motion to reopen. We may assume that Escobar is

right in so contending, because we conclude that, even if 8 U.S.C.

§ 1158(a)(3) poses no jurisdictional bar to our conducting such

review, the BIA did not err in denying the motion. See

Tacuri-Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021)

("[W]hen statutory jurisdiction is ambiguous but the merits are

straightforward, we bypass the jurisdictional issue and explain

why the merits hold no water."), abrogation on other grounds

recognized by Figueroa v. Garland, 119 F.4th 160, 165 (1st Cir.

2024).

As a reminder, Escobar premised his motion to reopen on

declarations from two proposed expert witnesses: Dr. Gellman and

- 15 - Dr. Nickels. We begin with Escobar's arguments about how the BIA

erred in denying his motion to reopen insofar as those arguments

rest on Dr. Nickels's declaration.

1.

Escobar argues that the BIA committed legal error in not

finding Dr. Nickels's declaration previously unavailable.

According to Escobar, the BIA incorrectly assessed the

declaration's availability based on whether the declaration "did

not exist in the world" rather than whether Escobar "had no access

to the [declaration] at the time of" the hearing. In pressing

this argument, Escobar does not dispute that the hearing before

the IJ took place on June 28, 2023, and thus one month after Dr.

Nickels's field research trip that concluded in May 2023. He also

acknowledges that Dr. Nickels had "obtained raw data" by the time

of the prior merits hearing. Escobar nonetheless maintains that

the BIA erred by not "conduct[ing] a meaningful analysis on whether

[Escobar] could have accessed Dr. Nickels'[s] raw data and his

opinion" by the time of the merits hearing. (Emphasis in

original). We disagree.

As the movant, Escobar bore the burden of showing that

Dr. Nickels's opinion was unavailable in the month prior to the

hearing. See Benitez v. Wilkinson, 987 F.3d 46, 52 (1st Cir. 2021)

("To prevail on a motion to reopen before the BIA, the movant must

show 'new, material evidence that was not available or discoverable

- 16 - at the prior hearing . . . .'" (quoting Jutus v. Holder, 723 F.3d

105, 110 (1st Cir. 2013))); see also 8 C.F.R. § 1003.2(c)(1) ("A

motion to reopen proceedings shall not be granted unless it appears

to the [BIA] that evidence sought to be offered is material and

was not available and could not have been discovered or presented

at the former hearing."). Escobar's brief to the BIA, however,

did not offer any explanation as to why Dr. Nickels's opinion

–- and thus Dr. Nickels's declaration -- was practically

unavailable to him during the period between the research trip and

the merits hearing. Accordingly, at least given the record before

us and the arguments made to the BIA, Escobar has failed to show

that the BIA abused its discretion in denying the motion to reopen

insofar as the motion rests on Dr. Nickels's declaration.

2.

We also see no basis for concluding that the BIA abused

its discretion in denying the motion to reopen insofar as the

motion rests on Dr. Gellman's declaration. Many of Escobar's

arguments about why that ruling was erroneous merely repeat the

legal challenges presented in the merits appeal without addressing

how Dr. Gellman's declaration bears on them. These arguments thus

fail because they are wholly untethered to any contention regarding

the materiality of Dr. Gellman's declaration itself. We thus

confine our discussion to the grounds for challenging the BIA's

ruling that do not suffer from this fatal defect.

- 17 - Escobar contends that the BIA abused its discretion in

ruling that Dr. Gellman's declaration is not material to the

changed-circumstance exception to the one-year time bar because,

according to Escobar, the declaration shows that he would face an

increased likelihood of being arrested in El Salvador based on his

mental illness. The declaration states in the relevant respect,

however, only that "it is entirely possible" that he would face

that consequence if he were removed. We thus see no abuse of

discretion in the BIA's determination "that the added possibility

of someone reporting [Escobar] to obtain a cash reward" is

insufficient "to trigger the exception to the asylum time bar based

on changed country conditions."

Escobar's challenges to the BIA's ruling denying the

motion to reopen as applied to his withholding of removal claim

and his CAT claim rest on the same contentions about the claimed

import of Dr. Gellman's statements regarding the possibility of

his future detention. For these challenges, too, however, Escobar

fails to show the materiality of Dr. Gellman's declaration to the

claims at issue. Thus, the same reasons that led us to conclude

that the BIA did not commit reversible error in denying the motion

to reopen as to the changed-circumstance exception also lead us to

conclude that these challenges fail. For these reasons, we

conclude that the BIA did not abuse its discretion in determining

- 18 - that Dr. Gellman's declaration is not material to Escobar's

withholding of removal claim or his CAT claim.

IV.

We now turn to Escobar's initial petition for review, in

which he takes aim at the BIA's ruling affirming the denial of his

claims for asylum and withholding of removal, and his claim for

CAT protection. We begin with the portion of this petition for

review that concerns Escobar's asylum claims before then

addressing the portions of the petition that concern,

respectively, his withholding of removal claims and his CAT claim.

As we have explained, the agency denied Escobar's asylum

claims both on the ground that his asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B) and on the ground that, assuming

that the claims were timely, the claims lacked merit. Escobar

contends that the agency erred in both respects.

We start with Escobar's contention that the BIA erred in

concluding that his asylum claims are barred because he did not

satisfy either the changed-circumstance or

extraordinary-circumstance exception to the one-year time bar for

submitting his asylum application. We begin by addressing a

dispute about our jurisdiction to consider this challenge.

- 19 - The Attorney General contends that we have no

jurisdiction to address this challenge. The Attorney General

relies on 8 U.S.C. § 1158(a)(3), which, as we noted above,

generally "divests courts of jurisdiction to review determinations

of timeliness or the applicability of exceptions to the one-year

rule" for the filing of asylum applications. Oroh, 561 F.3d at

66.

It is true that Escobar challenges, in part, the agency's

factual finding that his mental impairment did not prevent him

from filing a petition. But Escobar argues in response to the

Attorney General's jurisdictional objection that 8 U.S.C.

§ 1252(a)(2)(D) "carves out an exception allowing courts to review

'constitutional claims or questions of law,'" id. at 66 (quoting

8 U.S.C. § 1252(a)(2)(D)), and that his challenge falls within the

exception because it presents a question of law.

We need not decide whether the jurisdictional bar set

out in 8 U.S.C. § 1158(a)(3) applies with respect to Escobar's

challenge to the BIA's rejection of his contention that he can

satisfy the extraordinary-circumstance exception to the one-year

time bar. As we will explain, there is no merit to the challenge

and we bypass the jurisdictional issue. See Doe v. Town of Lisbon,

78 F.4th 38, 44-45 (1st Cir. 2023) (holding that, when a case poses

a question of statutory, rather than Article III, jurisdiction,

"the question of jurisdiction 'need not be resolved if a decision

- 20 - on the merits will favor the party challenging the court's

jurisdiction'" (quoting Akebia Therapeutics, Inc. v. Azar, 976

F.3d 86, 92 (1st Cir. 2020))).

The agency found that, although Escobar's "mental health

conditions qualify as a mental disability," he failed to meet the

requirements of the extraordinary-circumstance exception based on

those conditions. The agency based that finding on the ground

that Escobar "did not provide sufficient evidence to meet his

burden to show the Court why his delay in filing was reasonable

given his disability."

Escobar argues in response that we "should

reverse . . . because the undisputed record[] compel[s] the

contrary conclusion of the BIA's extraordinary[-]circumstance

determination." The problem for Escobar with that contention is

that, as the Attorney General points out, Escobar filed his asylum

application 18 years after his entry into the United States and 14

years after reaching the age of majority. The Attorney General

argues that "these lapses of time were not reasonable" even given

Escobar's claimed extraordinary circumstances based on his mental

illness. And, at least given what the record shows about Escobar's

mental illness and his ability "to work, marry, and have a child

during this time," we agree with the Attorney General that the BIA

did not commit reversible error in rejecting Escobar's contention

- 21 - that he satisfied the requirements to demonstrate extraordinary

circumstances.

That brings us to the dispute between the parties over

whether there is a jurisdictional bar to our considering Escobar's

separate challenge to the BIA's denial of his changed-circumstance

ground for excusing his failure to satisfy the one-year time bar.

We conclude that there is not.

We have previously held that a petitioner raised a

reviewable "question of law" where the petitioner's "challenge

ask[ed] whether the agency misconstrued a statute . . . in

assessing the timeliness of [the petitioner's] asylum

application." Lumataw v. Holder, 582 F.3d 78, 86 (1st Cir. 2009).

Escobar contends that the agency imposed a requirement under 8

U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(4)(i) that an

applicant claiming changed circumstances cannot have been eligible

for asylum prior to the change in circumstances, even though there

is no such requirement. Thus, Escobar is arguing that the agency

"applied the wrong changed[-]circumstance standard" in deciding

that "no changed[-]circumstance exception could have applied to

[his asylum application] solely because [he] would have already

been eligible for asylum . . . at the time of his entry to the

United States in 2004." We agree with Escobar that this challenge

raises a question of law and thus that we have jurisdiction to

- 22 - review the challenge. See Wilkinson v. Garland, 601 U.S. 209, 212

(2024).

As for the merits of Escobar's challenge to the agency's

changed-circumstance ruling, Escobar concedes that a changed

circumstance must "materially affect the applicant's eligibility

for asylum." 8 U.S.C. § 1158(a)(2)(D); see 8 C.F.R.

§ 1208.4(a)(4)(i). But he argues that there is "no requirement

that [the applicant] can invoke [the] exception only when he

has . . . become eligible for asylum on any ground for the first

time." Instead, Escobar contends that:

even if an asylum applicant [were] already eligible for asylum . . . at the time of entry [into] the United States and failed to pursue his asylum protection on that basis within one year of his entry, the changed[-]circumstance exception allows him to pursue asylum on a different or [the] same basis after the one-year deadline.

Escobar goes on to contend that the IJ erroneously ruled otherwise

and that the BIA then affirmed that ruling solely based on that

legally flawed ground. Thus, Escobar argues that the agency erred

as a matter of law in rejecting his contention that he had

satisfied the changed-circumstance exception, such that his

application was not properly deemed untimely.

Although the issue Escobar raises is one of first

impression in our court, every circuit to have examined the issue

- 23 - has concluded, like the Sixth Circuit in Mandebvu v. Holder, that

8 U.S.C. § 1158(a)(2)(D) does not impose the requirement that we

understand the agency to have imposed in Escobar's case. 755 F.3d

417, 426 (6th Cir. 2014) (concluding that the agency had erred as

a matter of law by requiring that "an asylum applicant, in order

to excuse a delay in filing beyond the one-year deadline,

demonstrate that he would not have been eligible for asylum had he

applied before the change"); accord Zambrano v. Sessions, 878 F.3d

84, 88 (4th Cir. 2017) ("New facts that provide additional support

for a pre-existing asylum claim can constitute a changed

circumstance."); Weinong Lin v. Holder, 763 F.3d 244, 248-49 (2d

Cir. 2014) (finding that further evidence of an existing asylum

claim may constitute changed circumstances); Singh v. Holder, 656

F.3d 1047, 1053 (9th Cir. 2011) (holding changed circumstances may

include events that make stronger an application for a previously

existing asylum claim); Vahora v. Holder, 641 F.3d 1038, 1044 (9th

Cir. 2011) (rejecting the agency's interpretation of the exception

that "requir[ed] the applicant to show that, prior to the change

in circumstances, the applicant could not have filed a meritorious

application"); Fakhry v. Mukasey, 524 F.3d 1057, 1063 (9th Cir.

2008) ("[T]here can be 'changed circumstances which materially

affect the applicant's eligibility for asylum' even if the alien

always meant to apply for asylum and always feared

- 24 - persecution . . . ."). Moreover, in explaining that conclusion,

the Sixth Circuit persuasively observed:

There is nothing in the plain language of the statute that requires an applicant to show that he was ineligible for asylum when he arrived in the United States before he can take advantage of "changed circumstances" to extend the deadline for filing an application. The changed circumstances must "materially affect the applicant's eligibility for asylum," but it is not evident that a changed condition that strengthens an applicant's already existing claim for asylum categorically fails to have such a material effect.

Mandebvu, 755 F.3d at 426-27 (quoting 8 U.S.C. § 1158(a)(2)(D)).

In addition, we note that the Ninth Circuit in Vahora,

after reviewing in detail the relevant legislative history to 8

U.S.C. § 1158(a)(2)(D), concluded that "[t]he narrow

interpretation of the changed[-]circumstances exception urged by

the IJ and BIA . . . would turn what Congress intended completely

on its head." 641 F.3d at 1045. And, in Matter of D-G-C-, the

BIA itself impliedly accepted that the changed-circumstance

exception could be met where an applicant who had a preexisting

basis for claiming asylum "raise[s] a claim for asylum . . . on

the basis of a newly articulated claim of future persecution." 28

I. & N. Dec. 297, 301 (BIA 2021).

We note, too, that the Attorney General makes no argument

to us that we should adopt an interpretation of 8 U.S.C.

§ 1158(a)(2)(D) that is contrary to the interpretation of it that

- 25 - our sister circuits have embraced. Rather, the Attorney General

contends only that Escobar "misconstrues the [BIA]'s decision"

because the BIA in fact rejected Escobar's changed-circumstance

ground for concluding that the time bar is inapplicable only for

fact-based reasons that were unrelated to whether he was initially

eligible for asylum based on his grandmother's mistreatment. But

we cannot agree with that contention about what the BIA held.

We understand the BIA, in "affirm[ing] the [IJ's]

conclusion that the respondent's asylum application is

time-barred," to have adopted the IJ's sole rationale for rejecting

Escobar's ground for contending the changed-circumstance exception

applied. See Hasan, 673 F.3d at 33 ("[T]o the extent that the BIA

deferred to or adopted the IJ's reasoning, we review those portions

of the IJ's decision as part of the final decision of the BIA."

(quoting Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir. 2008))).

And the IJ's opinion demonstrates that its sole rationale for

concluding that Escobar's mental health condition did not

constitute a changed circumstance that "materially affect[ed] his

eligibility for asylum" was that Escobar previously "would have

been eligible to apply for asylum" on a different basis.4

4 Although the BIA began its analysis of the time-bar issue by stating that "[t]he respondent must show that he filed his asylum application within a reasonable period given the asserted changed and extraordinary circumstances," this recitation of the statutory requirement does not suffice to show that the BIA

- 26 - We also note that, on this record, "we are unable

confidently to conclude that had the agency conducted the proper

timeliness analysis, it would not have found" that the

changed-circumstance exception applied to Escobar's untimely

asylum application. Lumataw, 582 F.3d at 90. After all, the

record shows that Escobar filed his application for asylum in April

2022, and that the application, as amended in August 2022, claimed

that he was eligible for asylum as a member of a PSG defined as

"Salvadorans with unspecified schizophrenia spectrum and other

psychotic disorders who exhibit erratic behavior." And the record

not only shows that Escobar testified that he was not "clearly

diagnosed" with schizophrenia until January 2022, but also

contains a report prepared by a psychiatrist who evaluated Escobar

in August 2022 and diagnosed him with, among other disorders,

"Unspecified Schizophrenia Spectrum and Other Psychotic Disorder."

Nor can we deem the agency's error as to the timeliness

of the asylum claims harmless based on the agency's independent

affirmed the IJ's denial of the applicability of the changed-circumstance exception based on Escobar's delay having been unreasonable and not because his prior eligibility for asylum precluded him from showing changed circumstances. Moreover, the BIA noted it would "not disturb the [IJ's] finding that the respondent's filing of his asylum application over 14 years after attaining the age of majority was unreasonable," (emphasis added), and the only IJ finding as to the reasonableness of the delay concerned the extraordinary-circumstance exception, as the IJ made no such finding as to the changed-circumstance exception.

- 27 - ruling rejecting the merits of Escobar's asylum claims. Escobar

contends that independent ruling is itself flawed. He contends

that is so because "the IJ failed to address [his allegation of]

future persecution by gangs on account of his mental illness" and

that the BIA then erred in determining that, "[g]iven the [IJ's]

reference to '[Escobar's] persecutors'" in disposing of his mental

illness-based future persecution claim, the IJ did in fact consider

potential future persecution by gang members. Escobar's

contention in this regard rests on the assertion that the IJ's

analysis concerning "the lack of resources for mental health care

in El Salvador" -- a topic on which the IJ did focus in discussing

"Escobar's persecutors" -- "has no logical connection to the

question of whether gang members would harm him on account of his

mental health disability."5 (Emphasis omitted).

The Attorney General does respond that Escobar's

argument on this point "is uncompelling because, as the [BIA]

stated, the [IJ] . . . properly considered the prospect of harm

perpetrated by the numerous and varied parties [Escobar]

5 Escobar argues before us that if he could show the extraordinary-circumstance or changed-circumstance exception applies to any one of his claims, the time bar that would otherwise preclude consideration of his asylum application would not apply such that all his asylum claims, including even those for which no extraordinary or changed circumstances had been shown, could be considered. For this last proposition, Escobar points to Yan Yang v. Barr, 939 F.3d 57, 61-62 (2d Cir. 2019). As we do not determine whether Escobar has satisfied the requirements of either exception, we do not reach this issue.

- 28 - identified, including gangs, where [the IJ] referenced Escobar's

'persecutors' in the plural." And while the Attorney General

concedes that the IJ "did not expressly identify the perpetrators

or source of such killings within the confines of his withholding

determination" and that the decision was "not of ideal clarity,"

the Attorney General argues that "it is readily discernable from

the [IJ's] decision that he duly considered Escobar's professed

fear of harm by gangs."

The Attorney General's response fails to show that the

agency's legal error in evaluating the applicability of the

changed-circumstance exception was harmless. There is no

indication that the IJ, in finding that "there is insufficient

evidence to establish that [Escobar's] persecutors would be

motivated to harm him on account of his [mental health issues],"

intended "persecutors" to include Salvadoran gangs. Indeed, even

though Escobar advanced the argument that he may face future

persecution by gang members on account of his mental illness,

nothing in the agency's decisions indicates that the claim was

considered.

Thus, having reviewed the IJ's and BIA's decisions on

the merits of Escobar's asylum claims, we are not convinced that

the agency "ma[de] findings, implicitly if not explicitly, on all

grounds necessary for decision," as it is required to do. Un v.

Gonzales, 415 F.3d 205, 209 (1st Cir. 2005). Accordingly, we

- 29 - vacate and remand the BIA's ruling denying the asylum application.

We emphasize, however, that we express no view on the ultimate

merits of the issues that remain in dispute on remand.6

We move on to address the portion of Escobar's initial

petition for review that concerns his claims for withholding of

removal. Our work here is more straightforward.

"The agency denied [Escobar's] claim for withholding of

removal on the ground that the standard for demonstrating

entitlement to such withholding is higher than the standard for

demonstrating entitlement to asylum and thus that because

[Escobar] failed to show the latter he also failed to show the

former." Pineda-Maldonado v. Garland, 91 F.4th 76, 90 (1st Cir.

2024). But, as we have just explained, the agency erred in

disposing of Escobar's mental health-based asylum claims. Thus,

6 We note that, notwithstanding our affirming the BIA's denial of Escobar's motion to reopen, the agency has discretion to admit relevant, material evidence that was not available at the prior merits hearing. Viknesrajah v. Lynch, 620 F. App'x 28, 31 (2d Cir. 2015) ("[T]he [IJ] has authority to consider additional evidence if it is material, was not previously available, and could not have been discovered or presented at the former hearing." (second alteration in original) (quoting Matter of M–D–, 24 I. & N. Dec. 138, 141 (BIA 2007))); Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010) (holding that an IJ has authority to consider new evidence on remand so long as the IJ is not prevented from doing so by the remand order); Manguriu v. Lynch, 794 F.3d 119, 123 (1st Cir. 2015) ("[R]emand is necessary so that the BIA, either directly or through a further remand to the [IJ], may gather any available evidence relevant to the . . . inquiry . . . .").

- 30 - "because the agency provided no other justification that could

suffice to sustain [the] denial" of Escobar's related withholding

of removal claims beyond its disposition of his asylum claims, we

grant Escobar's petition for review of the agency's denial of these

withholding of removal claims. Id.

C.

The final portion of Escobar's initial petition for

review that we must consider concerns Escobar's challenge to the

agency's denial of his claim for CAT protection. As a reminder,

Escobar premises his CAT claim on three potential "sources of

torture": Salvadoran authorities, Salvadoran gangs, and Salvadoran

medical workers. The agency denied the CAT claim on the ground

that Escobar failed to show that he more likely than not would be

tortured in El Salvador by or with the acquiescence of the

government. Escobar contends that the agency erred in doing so

because the agency misapplied the acquiescence standard and failed

to apply the aggregate standard under which, he contends, he has

shown what he must to be eligible for CAT protection. We are not

persuaded that the agency misapplied the acquiescence standard.

We nonetheless vacate and remand so that the agency may assess the

applicability of the aggregate standard in the first instance.

See Velerio-Ramirez v. Lynch, 808 F.3d 111, 117 (1st Cir. 2015)

("[W]hen the BIA has not spoken on an issue that a statute has

- 31 - placed in its hands, remand is appropriate to give the BIA an

opportunity to address the issue in the first instance.").

Under 8 C.F.R. § 1208.18(a)(1), an individual is

eligible for CAT protection only if he or she faces torture "by or

with the acquiescence of a government official." Lafortune v.

Garland, 110 F.4th 426, 438 (1st Cir. 2024) (emphasis added)

(quoting Nako v. Holder, 611 F.3d 45, 50 (1st Cir. 2010)). Escobar

argues that the agency erred by "requir[ing him] to establish the

acquiescence prong of CAT for the possibility of torture by the

Salvadoran authorities" even though "[t]he acquiescence prong is

only needed for non-state[-]actor[-]based CAT claims." In other

words, Escobar alleges that the agency erred by requiring him to

prove "acquiescence" of the Salvadoran government for torture

committed by the Salvadoran government.

This contention rests on a mistaken understanding of the

BIA's ruling as to his CAT claim. The BIA affirmed the IJ's

determination "that [Escobar] has not shown that a public official

more likely than not would acquiesce in 'torture' of him within

the meaning of the regulations." It is clear from context that

this determination refers specifically to the risk of torture from

gangs. The sentence prior to this finding explains why the IJ

found that the risk of torture from Salvadoran authorities did not

provide grounds for Escobar's CAT protection claim, and the

- 32 - sentence following this finding explains why the agency found the

threat of torture from mental health professionals also failed to

provide grounds for Escobar's CAT protection claim. Moreover, to

offer support for the determination that Escobar had failed to

meet his burden on acquiescence, the BIA cited Romilus v. Ashcroft

for the proposition that "an applicant for [CAT protection] must

demonstrate that any torture he will suffer would be at the hands

of the government or with the consent or acquiescence of the

government." 385 F.3d 1, 8 (1st Cir. 2004).

The structure of the IJ's ruling -- which was upheld by

the BIA -- reinforces our conclusion about the proper way to

understand the basis for the BIA's ruling. The IJ addressed the

"sources of torture" in separated paragraphs: first addressing the

risk of torture by Salvadoran authorities, next the risk posed by

gangs, and lastly the risk posed by medical workers. The IJ only

required that Escobar prove the government's acquiescence in his

torture by gangs.

Thus, we conclude that the BIA addressed, one at a time,

Escobar's three "sources of torture" and only required a showing

of governmental acquiescence for the risk of torture by gangs. As

a result, we see no merit in Escobar's first ground for challenging

the BIA's denial of his CAT claim.

- 33 - 2.

Escobar's next contention is that the agency failed to

consider the evidence of the risk of torture in aggregate, "and

not as separate, divisible" risks. Matter of J-R-G-P-, 27 I. & N.

Dec. 482, 484 (BIA 2018) (quoting Quijada-Aguilar v. Lynch, 799

F.3d 1303, 1308 (9th Cir. 2015)). Escobar characterizes the

agency's allegedly separated treatments of the sources of torture

as a "fail[ure] to apply the aggregate standard." Escobar contends

that the agency treated the three risks of torture "separately"

and that "nothing in [the agency's] decisions reflects that [the

agency] applied the aggregate standard." Escobar acknowledges

that we have not previously ruled on the applicability of the

aggregate standard and argues that we should adopt the standard,

as other circuits have, and apply it here.

The Attorney General appears to disagree, contending

that "the agency's decision reflects that it duly considered the

risk of harm from all the various sources Escobar identified and

found it insufficient to establish the requisite likelihood of

persecution, much less torture."7 However, while the agency may

7 Escobar asserts that, regarding the IJ's failure to apply the aggregate standard, he "contended this issue before the BIA." Although it is not clear to us that Escobar did so contend, the Attorney General does not argue to us that Escobar failed to exhaust his argument on this ground and thus we proceed to the merits. See Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023) (holding non-jurisdictional exhaustion rules are "subject to waiver and forfeiture").

- 34 - have considered, as the Attorney General observes, the risk of

torture posed by "the various sources," the decision does not show

in any clear way that the agency considered these risks together.

With respect to each source of torture, the BIA did find that

Escobar had not shown that he more likely than not would face

torture from that source. But the BIA did not explicitly consider

whether Escobar could show that, if the risk from each source were

combined, it is more likely than not that he would be tortured.

Of course, the lack of clarity in this regard only

matters if the aggregate standard must be applied and that

application could yield a finding that Escobar would be more likely

than not subject to torture in El Salvador. We are aware that

several of our sister circuits have adopted this standard,

sometimes calling it the "aggregate risk legal standard." See

Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021); Kamara v.

Att'y Gen., 420 F.3d 202, 213–14 (3d Cir. 2005); Quijada-Aguilar

v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015), abrogation on other

grounds recognized by United States v. Draper, 84 F.4th 797, 805

n.3 (9th Cir. 2023); Rodriguez-Arias v. Whitaker, 915 F.3d 968,

972–73 (4th Cir. 2019); Abdi Omar v. Barr, 962 F.3d 1061, 1065

(8th Cir. 2020). But, as Escobar acknowledges, we have not decided

whether a claim for CAT protection must adhere to the aggregate

standard.

- 35 - Here, the Attorney General has not disputed the

applicability of the standard. The agency itself, however, has

not passed on the question of the aggregate standard's

applicability in this case, let alone how Escobar's CAT claim would

fare under it. Thus, we find it prudent to provide the agency the

opportunity to assess the scope and applicability of the aggregate

standard in the first instance, including any questions of

exhaustion or waiver that may be in play. See Rosa v. Garland,

114 F.4th 1, 25 (1st Cir. 2024) ("Though the parties' briefs before

us argue the merits of the challenge . . . we decline to reach

that issue before the BIA has ruled on it in the first instance.");

see also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); H.H.

v. Garland, 52 F.4th 8, 24 n.21 (1st Cir. 2022) (ruling on

noncitizen's CAT claim without reaching arguments that the BIA

"failed to aggregate all potential sources of torture").

Accordingly, we vacate the denial of Escobar's CAT claim and remand

for further proceedings to enable the parties to develop the

relevant issues and to allow the agency to assess the applicability

of this standard in the first instance.

For the foregoing reasons, we affirm the denial of

Escobar's motion to reopen. We also grant Escobar's petition for

judicial review of the agency's decision. We remand the petition

- 36 - as it relates to Escobar's claims for asylum, withholding of

removal, and protection under the CAT.

- 37 -