USCA4 Appeal: 21-2107 Doc: 64 Filed: 05/31/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2107
GILFREDO LOPEZ-SORTO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 6, 2023 Decided: May 31, 2024
Before RICHARDSON, QUATTLEBAUM, and BENJAMIN, Circuit Judges.
Petition for review denied by published opinion. Judge Richardson wrote the opinion, in which Judges Quattlebaum and Benjamin joined.
ARGUED: Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Brendan Paul Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Alexandra M. Williams, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 21-2107 Doc: 64 Filed: 05/31/2024 Pg: 2 of 20
RICHARDSON, Circuit Judge:
Gilfredo Lopez-Sorto petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) decision denying him deferral
of removal under the Convention Against Torture (“CAT”). He argues that the IJ and BIA
used the wrong legal standard to evaluate his claim, failed to aggregate his various asserted
risks of torture, and ignored his experts’ testimony. We disagree. Accordingly, we deny
the petition for review.
I. BACKGROUND
Lopez-Sorto, a nearly fifty-year-old Salvadoran native, was admitted to the United
States as a lawful permanent resident in 1982, when he was eight years old. Ten years
later, he joined the “El Palo” street gang. As a member of this gang, he got into a fight
with members of a rival gang in Washington, D.C., in 1995. The fight began in a club, but
it turned into a car chase as members of the opposing gang pursued Lopez-Sorto through
the city. When traffic caused Lopez-Sorto to stop, his pursuers caught up to him in their
car. Lopez-Sorto then got out of his car, approached his rivals’ car, and killed one of the
occupants by shooting into the driver’s window.
As a result, Lopez-Sorto was convicted of second-degree murder while armed,
assault with intent to kill while armed, possession of a firearm during a violent crime, and
carrying a pistol without a license. He was sentenced to prison for a period of twenty-two
to sixty-five years and served twenty-six years, during which his gang disbanded and he
claims to have left gang life behind. His incarceration ended in 2021.
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After completing his prison sentence, Lopez-Sorto was transferred to U.S.
Immigration and Customs Enforcement (“ICE”) custody and served with a Notice to
Appear, which initiated removal proceedings against him. The Notice asserted that Lopez-
Sorto was removable under the Immigration and Nationality Act for having committed an
aggravated felony and an enumerated firearm offense. See 8 U.S.C. § 1227(a)(2)(A)(iii),
(a)(2)(C). Lopez-Sorto did not challenge his removability. He sought the only relief
available: deferral of removal under the CAT.1
At his hearing, Lopez-Sorto testified to his fear that he would be tortured should he
be deported to El Salvador. According to him, his many gang-related tattoos and criminal
record mark him as a potential gang member. And that would draw the attention of
Salvadoran authorities, anti-gang vigilante “death squads,” and street gangs like MS-13
and M-18, likely leading to his torture at each entity’s hands.
The IJ disagreed with Lopez-Sorto, concluding that he had not established that he
would more likely than not be tortured should he return to El Salvador. So the IJ ordered
that Lopez-Sorto be removed to El Salvador and denied his application for deferral of
removal under the CAT. Lopez-Sorto appealed only the IJ’s denial of CAT protection, but
the BIA affirmed the IJ’s decision and dismissed the appeal. This prompted Lopez-Sorto
1 Deferral of removal under the CAT is a limited form of immigration relief that only prevents removable aliens from being removed to a particular country where it is more likely than not that they will be tortured. Nasrallah v. Barr, 590 U.S. 537, 580 (2020). It does not grant a standalone right for aliens to remain in the United States indefinitely, nor does it upset or rescind any outstanding orders of removal. Id. at 582. On the contrary, an alien who has attained CAT protections still “may be removed at any time to another country where he or she is not likely to be tortured.” 8 C.F.R. §§ 1208.17(b)(2), 1208.16(f).
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to timely petition this Court for review under 8 U.S.C. § 1252, again challenging only the
IJ’s decision to deny his application for deferral of removal.
While his petition for review was pending, however, Lopez-Sorto failed to ask for
a stay of removal. So the government carried out the IJ’s order mandating that Lopez-
Sorto be removed from the country. Therefore, on October 8, 2021, Lopez-Sorto was
removed to El Salvador.
II. JURISDICTION
Lopez-Sorto’s 2021 removal raises a natural question: Is this case moot? Article
III limits a federal court’s jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III,
§ 2. But whether a suit is a “case” or “controversy” is not measured solely at the time the
litigation began; instead, “an actual controversy must be extant at all stages of review.”
Preiser v. Newkirk, 422 U.S. 395, 401 (1975). The doctrine of mootness establishes that
federal courts lack jurisdiction “[w]hen a case or controversy ceases to exist—either due
to a change in the facts or the law.” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017).
And a case or controversy ceases to exist “when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.”2 Knox v. Serv. Emps. Int’l Union, Loc.
1000, 567 U.S. 298, 307 (2012) (internal quotations omitted).
2 “Because mootness implicates our Article III jurisdiction, we have an obligation to address it sua sponte.” Wild Va. v. Council on Env’t Quality, 56 F.4th 281, 292 (4th Cir. 2022). Accordingly, even though both parties now argue that this case remains a live controversy, we cannot simply take them at their word.
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For jurisdiction to exist, we must determine that a favorable decision from us would
possibly grant “effectual relief” to Lopez-Sorto. Whether we can grant “effectual relief,”
however, turns on what relief the party is seeking. Here, Lopez-Sorto ultimately seeks
CAT protection—i.e., deferral of removal. Of course, we can’t give him that relief directly,
even if we hold in his favor. Our power is limited to vacating the BIA’s decision and
remanding to the agency. Only if the agency eventually holds in Lopez-Sorto’s favor
would he receive his requested relief. But the possibility that the agency may exercise its
discretion to deny Lopez-Sorto relief does not mean his case is moot. See Fed. Election
Comm’n v. Akins, 524 U.S. 11, 25 (1998). Rather, Lopez-Sorto’s case remains a live
Article III controversy unless we “‘know[]’ that [the] agency will not grant” him the relief
he seeks. Townes v. Jarvis, 577 F.3d 543, 548 (4th Cir. 2009) (quoting Akins, 524 U.S. at
25).
At first blush, it would seem logical, if not inevitable, to conclude that the agency
will not grant him that relief. Lopez-Sorto asks the BIA to defer his removal. That is, he
asks the government not to rescind his removal but merely to forbear from or delay
removing him to El Salvador. But he has already been removed. There is no longer any
pending removal to defer. The agency not only won’t defer his removal; it can’t. His
requested relief would thus seem to be a logical impossibility. Precisely for this reason,
some of our sister circuits have recognized that, “[i]n cases challenging a BIA decision, the
petitioner’s removal from the United States generally renders the petition moot.”
Mendoza-Flores v. Rosen, 983 F.3d 845, 847 (5th Cir. 2020); Peralta-Cabrera v. Gonzales,
501 F.3d 837, 842–43 (7th Cir. 2007).
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But Lopez-Sorto points us to ICE’s Facilitation of Return Policy (“Directive”).3
According to Lopez-Sorto, should we grant his petition, ICE could facilitate his return to
the United States. Under the Directive, facilitation of return is defined as “engag[ing] in
activities which allow a lawfully removed alien to travel to the United States (such as by
issuing a Boarding Letter to permit commercial air travel) and, if warranted, parol[ing] the
alien into the United States upon his or her arrival at a U.S. port of entry.” Directive ¶ 3.1.
Thus, if applicable, the Directive might allow ICE to restore Lopez-Sorto’s physical
presence in the United States. And since he would then be physically present in the country
while still subject to an order of removal, there would be a pending removal that the agency
could defer. And if that were so, the case might not be moot.
To determine whether Lopez-Sorto’s case is moot, therefore, we must determine
whether he may be returned under the Directive. The parties argue that he may and, on
this record, we must agree that it is possible.
The Directive’s operative paragraph states:
Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. court of appeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien’s return to the United States if either the court’s decision restores the alien to lawful permanent resident (LPR) status, or the alien’s presence is necessary for continued administrative removal proceedings. ICE will regard the returned alien as having reverted to the immigration status he or she held, if any, prior to the entry of the removal order and may detain the alien upon his or her return to the United States. If the presence of an alien who prevails on his or
3 ICE Policy Directive Number 11061.1: Facilitating the Return to the United States of Certain Lawfully Removed Aliens (Feb. 24, 2012), https://www.ice.gov/doclib/foia/dro_policy_memos/11061.1_current_policy_facilitating_ return.pdf [https://perma.cc/8FL9-AML2].
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her [petition for review] is not necessary to resolve the administrative proceedings, ICE will not facilitate the alien’s return. However, if, following remand by the court to the Executive Office for Immigration Review (EOIR), an alien whose [petition for review] was granted and who was not returned to the United States is granted relief by EOIR or the Department of Homeland Security (DHS) allowing him or her to reside in the United States lawfully, ICE will facilitate the alien’s return to the United States.
Directive ¶ 2.
Though phrased somewhat inartfully, the Directive applies in three scenarios. First,
ICE may facilitate an alien’s return to the United States when a favorable decision on a
petition for review “restores the alien to lawful permanent resident (LPR) status.” Id.
Second, the Directive permits returning an alien when “the alien’s presence is necessary
for continued administrative removal proceedings.” Id. And third, if “an alien whose
[petition for review] was granted and who was not returned to the United States is granted
relief [by the agency] allowing him or her to reside in the United States lawfully, ICE will
facilitate the alien’s return to the United States.” Id.
As to the first scenario, a favorable decision from us will not “restore the alien to
lawful permanent resident (LPR) status.” LPR status is “the status of having been lawfully
accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed.” 8 U.S.C.
§ 1101(a)(20). The BIA has concluded that LPR status “changes” when the BIA affirms
an order of removal against an alien. In re Lok, 18 I&N Dec. 101, 105–06 (B.I.A. 1981).
And we have adopted that position. Nwolise v. INS, 4 F.3d 306, 310–11 (4th Cir. 1993)
(“[Removal] orders become final and thus effect a change in lawful permanent residence
status at the time that they become ‘administratively final,’ that is, when the Board affirms
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an immigration judge’s order of deportation or an alien, having suffered an order of
deportation, allows the time for filing an appeal with the Board to run.”).4
In this case, Lopez-Sorto did not seek review of his removability before the BIA,
nor does he ask us to review that decision. Therefore, Lopez-Sorto lost his LPR status, at
the latest, when the BIA affirmed the IJ’s decision. And nothing we do here would possibly
affect that administratively final order. Lopez-Sorto only challenges the agency’s denial
of CAT protection. Were we to rule in his favor, only the BIA’s decision on CAT
protection would be impacted. See Nasrallah, 590 U.S. at 581–82 (noting that, while
removal and CAT orders may be reviewed concurrently, “ruling on a CAT claim does not
affect the validity of the final order of removal”). Accordingly, a favorable decision from
us will not upset the removal order against Lopez-Sorto, and he will not regain his LPR
status. Thus, the Directive does not apply to Lopez-Sorto under its first avenue of
applicability.
4 There might be some tension between Nwolise and the Supreme Court’s intervening decision in Barton v. Barr, 140 S. Ct. 1442 (2020). In Barton , the Court held that “the text of the law requires that” an alien become “inadmissible” at the moment “he is convicted of or admits” certain statutorily listed offenses. Id. at 1450 (quoting 8 U.S.C. § 1182(a)(2)(A)(i)). Here, we note that the text of § 1227(a)(2)(A)(iii) specifies that “[a]ny alien convicted of an aggravated felony at any time after admission is deportable.” Thus, under Barton, Lopez-Sorto became “deportable” at the moment of his conviction. See 140 S. Ct. at 1450. But that leaves open the question of whether being deportable alone constitutes a “change” to a lawful permanent resident’s “status of having been lawfully accorded the privilege of residing permanently in the United States,” see § 1101(a)(20), especially in light of § 1227(a)’s provision that removal under that section requires “the order of the Attorney General.” But since we need not decide this question to resolve the issue before us, we assume that Nwolise still provides the governing framework.
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The Directive similarly does not apply in its third scenario because, even if we were
to rule in Lopez-Sorto’s favor, he would not be “granted relief . . . allowing him . . . to
reside in the United States lawfully.” Directive ¶ 2 (emphasis added). As Lopez-Sorto
acknowledges, he is only eligible for one form of relief—deferral of removal under the
CAT. Would, then, such a deferral order permit Lopez-Sorto “to reside in the United States
lawfully”? While that may be so in some cases, the answer here is no. Remember, for
Lopez-Sorto to have some kind of removal to defer, logically, he must first be present in
the country. And under these facts, the only possible way for Lopez-Sorto to be physically
present in the country is through the Attorney General’s parole power, 8 U.S.C.
§ 1182(d)(5)(A), which cannot lead to an order permitting lawful residence.
To understand this, one needs to recognize that there are three ways through which
an alien can cross the border into the country. The first method is admission. The
immigration laws define “admission” as “the lawful entry of [an] alien into the United
States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). This is how most aliens enter the country. But some aliens cross the
border illegally, committing an “improper entry.” See § 1325(a). This second method
arises, for example, when an alien crosses the border into the country without authorization
and without going through the regular procedures of admission. Id. There is a third
method, however, for an alien whose physical presence in the United States is legally
authorized yet which does not constitute an admission. That is parole. Under
§ 1182(d)(5)(A), the Attorney General may “in his discretion parole into the United States
. . . for urgent humanitarian reasons or significant public benefit any alien applying for
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admission to the United States, but such parole of such alien shall not be regarded as an
admission of the alien.”
None of these three methods would permit Lopez-Sorto to reside in the United
States even were he to receive the relief he requests from us. First, he could not be admitted
into the country. Congress has declared some aliens “inadmissible,” barring them from the
privilege of being lawfully admitted. 8 U.S.C. § 1182(a). This includes aliens “convicted
of 2 or more offenses for which the aggregate sentences to confinement were 5 years or
more,” like Lopez-Sorto.5 § 1182(a)(2)(B). Accordingly, Lopez-Sorto cannot gain
physical presence in the country through admission.6
Next, Lopez-Sorto does not argue that he might establish a physical presence in this
country through improper entry. Nor could he. The possibility that a party may violate the
law cannot prevent a case from being moot. See O’Shea v. Littleton, 414 U.S. 488, 497
(1974) (“[W]e are nonetheless unable to conclude that the case-or-controversy requirement
is satisfied by general assertions or inferences that in the course of their activities
5 As discussed above, the language of the statute shows that inadmissibility attaches at the moment of conviction, not from some later adjudication in a removal proceeding. See Barton, 140 S. Ct. at 1450 (“[A] noncitizen is rendered ‘inadmissible’ when he is convicted of or admits the offense.”). As a result, Lopez-Sorto’s inadmissible status is not a collateral consequence of the removal proceedings below. Cf. Castendet-Lewis v. Sessions, 855 F.3d 253, 260 (4th Cir. 2017) (noting that collateral consequences of an immigration proceeding can defeat mootness). 6 There is a possibility that inadmissible aliens may be admitted when they are mistakenly authorized to enter the country by an immigration officer. See In re Quilantan, 25 I&N Dec. 285, 291 (B.I.A. 2010). But for purposes of mootness, we assume that people will comply with the law. See Spencer v. Kemna, 523 U.S. 1, 15–16 (1998). That possibility, therefore, is not one that defeats mootness.
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respondents will be prosecuted for violating valid criminal laws. We assume that
respondents will conduct their activities within the law . . . .”).
The only way for Lopez-Sorto to be physically present in this country, therefore, is
through the Attorney General’s parole power. Indeed, the Directive itself is an exercise of
that power. Directive ¶ 6.2. But an important legal caveat attaches to a parolee’s status:
He or she is “regarded as stopped at the boundary line.” Leng May Ma v. Barber, 357 U.S.
185, 189 (1958) (quoting Kaplan v. Tod, 267 U.S. 228, 230 (1925)). Legally, parolees are
treated as though they have not effected an “entry” into the country at all. Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 215 (1953); Zadvydas v. Davis, 533 U.S. 678,
693 (2001); DHS v. Thuraissigiam, 140 S. Ct. 1959, 1982 (2020). And in the absence of
an “entry,” the Supreme Court has concluded that an alien can neither “dwell” nor “reside”
within the United States, as those words are understood in the immigration context.
Kaplan, 267 U.S. at 229–30.
So even were Lopez-Sorto granted CAT protection, that would not qualify as an
order granting him lawful residence in the country. He could only be brought back into
the United States via the parole power, and physical presence within the country pursuant
to the parole power does not legally constitute entry; it thus cannot legally lead to residence.
See id. This cuts off the Directive’s third avenue of application.
Still, Lopez-Sorto may find refuge in the Directive’s second scenario, which applies
when “the alien’s presence is necessary for continued administrative removal
proceedings.” Directive ¶ 2. Though this is a close question, we cannot conclude on this
record that, were we to remand this case to the BIA, we would “know” that the agency
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would not conclude that Lopez-Sorto’s presence would be “necessary” for continued
proceedings. As the regulations governing the BIA establish, the BIA upon remand could,
in its discretion, “issue an order remanding [the] case to an immigration judge . . . for
further consideration.” 8 C.F.R. § 1003.1(d)(7)(ii). Unless the BIA “qualified or limited
the scope or purpose of the remand,” which it is not required to do, the IJ would not
necessarily be limited in what she could consider upon remand. § 1003.1(d)(7)(iii). And
the IJ could then decide that, based on the amount of intervening time or some other
consideration, she would like to open the case up for additional factfinding and testimony
from Lopez-Sorto. See Oral Arg. 21:40 – 22:10 (government conceding such a scenario is
possible, if unlikely). True, “[a]n Immigration Judge may conduct hearings through video
conference to the same extent as he or she may conduct hearings in person.” § 1003.25.
But the IJ could also determine she needs to assess Lopez-Sorto’s credibility, which can
turn on factors better evaluated in person, such as demeanor. So, even with the possibility
of tele-testimony, a rational IJ might still decide that in-person testimony is necessary for
further proceedings.7
7 We recognize the ambiguity the word “necessary” presents. In some contexts, it has been construed to include only what is strictly essential or absolutely needed. See Ayestas v. Davis, 584 U.S. 28, 44 (2018); Necessary, Merriam-Webster’s Collegiate Dictionary 828 (11th ed. 2020). But in other contexts, its meaning is broader, drawing in what is “convenient, useful, appropriate, suitable, proper, or conducive to the end sought.” Ayestas, 584 U.S. at 44 (quoting Necessary, Black’s Law Dictionary 928 (5th ed. 1979)). Because we find, however, that an IJ could plausibly determine that Lopez-Sorto’s presence is either essential or merely helpful, we need not resolve which sense of “necessary” the Directive employs.
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Accordingly, we agree with Lopez-Sorto and the government that the Directive
preserves this case. Since it’s possible that DHS will facilitate Lopez-Sorto’s return to the
country, it’s possible that a favorable disposition of Lopez-Sorto’s appeal will lead to his
removal being deferred. So this case is not moot.
III. DISCUSSION
On the merits, Lopez-Sorto raises three issues. But none amounts to reversible
error.
“When, as here, the BIA adopts and affirms the IJ’s decision and supplements it
with its own opinion, we review both decisions.” Ibarra Chevez v. Garland, 31 F.4th 279,
288 (4th Cir. 2022) (quoting Portillo Flores v. Garland, 3 F.4th 615, 625 (4th Cir. 2021)
(en banc)). We review legal questions—such as whether the agency applied the correct
legal standard to determine the likelihood of torture—de novo; and we review factual
findings—such as the likelihood of torture—for substantial evidence. Id. at 288–89, 291.
A. The IJ and BIA applied the correct legal standard.
Lopez-Sorto first argues that the IJ and BIA used the wrong legal standard in
determining whether he was more likely than not to suffer torture should he be deported to
El Salvador. To succeed on a CAT claim, an alien must “establish 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). In evaluating that claim, an immigration judge must consider
“all evidence relevant to the possibility of future torture.” § 1208.16(c)(3). Thus, when a
CAT claimant asserts that he faces “multiple potential sources of torture,” he is entitled to
protection “so long as the aggregate risk of torture that he faces is above 50 percent,” even
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if the risk stemming from any individual source falls below that threshold. Garcia v.
Garland, 73 F.4th 219, 233 (4th Cir. 2023).
1. The IJ and BIA properly evaluated one of Lopez-Sorto’s asserted risks of torture via a chain-of-events analysis.
In the immigration proceedings, both the IJ and the BIA denied Lopez-Sorto’s CAT
claim in part by citing to In re J-F-F-, 23 I&N Dec. 912 (A.G. 2006), which states that a
party cannot rely upon “a series of suppositions” to establish a risk of torture. Id. at 917.
Instead, when a CAT claimant purports to rest his risk of torture upon the confluence of
various independent conditions or a “hypothetical chain of events,” the alien must show
that “the entire chain will come together to result in the probability of torture.” Id. at 917–
18. Yet, as that opinion of the Attorney General recognizes, “[a]n alien will never be able
to show that he faces a more likely than not chance of torture if one link in the chain cannot
be shown to be more likely than not to occur.” Id. at 918 n.4. In such cases, “[p]utting
aside whether [an alien] is more likely than not to” experience the other identified
conditions or events, the agency properly denies CAT protection where an alien fails to
show that malefactors “would more likely than not torture someone in [that] position.” Id.
at 919–20. An alien’s failure to show that any one necessary condition is more likely than
not to occur, therefore—even assuming all the others do occur—dooms the claim.
That a chain of dependent events leading to a deportee’s torture is no stronger than
its weakest link is simple mathematical truth. For if some event necessarily antecedent to
the alien’s alleged torture only occurs, say, 45% the time, even assuming all other necessary
events have a 100% chance of occurring, the risk of torture itself is capped at 45%. As In
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re J-F-F- states, it “is the likelihood of all necessary events coming together that must more
likely than not lead to torture, and a chain of events cannot be more likely than its least
likely link.” Id. at 918 n.4. Thus, rather than raising an alien’s burden above the regulatory
requirements, In re J-F-F- functions as a shortcut that the agency can use to disregard
meritless CAT claims.
Still, Lopez-Sorto argues that we have implicitly abrogated this common-sense
approach in Rodriguez-Arias v. Whitaker, 915 F.3d 968 (4th Cir. 2019), and Garcia v.
Garland, 73 F.4th 219. In those cases, we explained that a CAT applicant need not prove
a “specific chain of events leading to his torture.” Garcia, 73 F.4th at 226 n.4. Because In
re J-F-F- turns on a “chain of events” analysis, Lopez-Sorto’s argument goes, the Attorney
General’s opinion irreconcilably conflicts with our precedents.
Lopez-Sorto’s argument misses a key distinction between the cases he relies on and
In re J-F-F-. In re J-F-F- is about what it takes to establish the likelihood that an alien
would be tortured by a single entity. If the torture from that entity would only occur
pursuant to a specific chain of events and “[t]he evidence does not establish that any step
in this hypothetical chain of events is more likely than not to happen, let alone that the
entire chain will come together,” a court can know that torture from that particular source
is not more likely than not to happen. In re J-F-F-, 23 I&N Dec. at 917–18 (emphasis
added). Rodriguez-Arias, on the other hand, is about how to determine whether an alien
has shown that it’s more likely than not he will be tortured when he has alleged several
entities as potential sources of torture. In such cases, a court must first determine the
likelihood of torture by each entity, then combine each likelihood together to determine
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whether, in the aggregate, the alien has shown he’s more likely than not to be tortured.
Rodriguez-Arias, 915 F.3d at 973. Neither that case nor any other case said that a chain-
of-events analysis couldn’t be used on that first step—i.e., to determine the likelihood of
torture from a single source—when the alien alleges that torture would only occur if a chain
of events did. See id.; Ibarra Chevez, 31 F.4th at 289–90.
Here, the IJ only relied on a chain-of-events analysis where Lopez-Sorto’s alleged
source of torture did. The IJ individually discussed each of the three sources of torture that
Lopez-Sorto identified: Salvadoran authorities, vigilante death squads, and street gangs.
Without discussion of the “chain of events” analysis, the IJ noted that it was unlikely that
Lopez-Sorto would be targeted or tortured by the first two. He only applied the “chain of
events” analysis to Lopez-Sorto’s assertion that he would be tortured by Salvadoran street
gangs. The IJ noted that this risk could only materialize if (1) Lopez-Sorto encounters
Salvadoran gang members, (2) those gang members learn that he has tattoos, such as by
forcing him to remove his clothes in their presence, and (3) they decided to harm him
because of his tattoos. This risk of torture, the IJ concluded, only arose by stringing
together a “series of suppositions,” and thus it was not likely to occur. A.R. 72. So the IJ
properly looked to the likelihood of a chain of events as to a single alleged source of torture;
he did not require proof of a specific chain of events whole-cloth.
2. The IJ and BIA properly aggregated Lopez-Sorto’s asserted risks of torture.
Lopez-Sorto follows up his first argument with a claim that the IJ and BIA failed to
aggregate his various risks of torture as they are required to do. See Rodriguez-Arias, 915
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F.3d at 973 (“[T]he risks of torture from all sources should be combined when determining
whether a CAT applicant is more likely than not to be tortured in a particular country.”).
We have said, however, that we will not find a failure to aggregate “if the court can
tell that the IJ and BIA ‘combined the threats from each [source] in deciding that [the
petitioner] did not demonstrate the requisite likelihood of torture.’” Ibarra Chevez, 31
F.4th at 290 (quoting Marqus v. Barr, 968 F.3d 583, 589 (6th Cir. 2020) (alterations in
original)). And the IJ or BIA need not be crystal clear for us to do so. Thus, we have cited
with approval cases that found no error where “[n]othing in the BIA’s or the IJ’s decisions
suggest[ed] that they failed to consider the petitioner’s probability of torture in the
aggregate.” Id. (quoting Marqus, 968 F.3d at 589 (alteration in original)); see also id. at
291 (“‘[A] separate or lengthy aggregation analysis’ is not required; ‘it is enough that the
record indicates the IJ and BIA considered the risk of torture in the aggregate[.]’” (quoting
Hassan v. Rosen, 985 F.3d 587, 591 (8th Cir. 2021))).
The IJ’s decision indicates he aggregated the risks of torture: He went through the
three sources of possible torture identified by Lopez-Sorto and concluded, “given these
factors,” that it was not likely he would be tortured should he be deported to El Salvador.
A.R. 73. By addressing each risk individually and then considering all three together in a
final concluding paragraph where the IJ specifically noted that his conclusion resulted from
the “factors” he had just reiterated, we “can tell that the IJ” aggregated the risks facing
Lopez-Sorto. Ibarra Chevez, 31 F.4th at 290.
Rodriguez-Arias is not to the contrary. In that case, we found failure to aggregate
after the IJ discussed three potential sources of harm in two separate orders. Rodriguez-
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Arias, 915 F.3d at 973. The IJ discussed two of the potential sources in the first order and
the third in a second order, but the two orders did not reference each other. Id. Instead,
the language of the second order suggested that the IJ treated the third source in isolation
from the first two. Id. Thus, even though the IJ might have aggregated the first two risks
by discussing them both in her first order, Ibarra Chevez, 31 F.4th at 289, the failure to
aggregate all the sources constituted reversible error. Rodriguez-Arias, 915 F.3d at 973.
This case, however, resembles the Rodriguez-Arias IJ’s first order because it discussed all
the potential sources in the same order, which Ibarra Chevez recognized implied
aggregation. Ibarra Chevez, 31 F.4th at 289
The BIA’s order also recognized the IJ’s aggregation analysis and made it explicit,
noting that the CAT standard required aggregating the various risks of torture. And it
applied that standard, holding that Lopez-Sorto “has not demonstrated that it is more likely
than not that he will be tortured by the gangs, death squads, police or other public officials
acting in an official capacity upon his return to El Salvador.” A.R. 5. This clarified that
the torture that was not more likely than not to occur wasn’t just from one of the entities,
but from the aggregate risk from those entities. And further down in its decision, the BIA
again referenced its aggregation by holding that Lopez-Sorto failed to show that “it is more
likely than not the respondent will be tortured if returned to El Salvador” after discussing
the risk of torture posed by the gangs and government actors. Id.
Thus, unlike in Rodriguez-Arias, where neither the IJ nor the BIA aggregated the
petitioner’s risks, both the IJ and the BIA here applied the proper aggregation analysis.
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While the IJ might not have been as clear as we would like, we conclude that the IJ’s order
sufficiently shows that he did consider Lopez-Sorto’s risks in the aggregate.
B. The IJ properly considered the expert witnesses.
Lopez-Sorto’s final argument is that the IJ erred by ignoring the testimony of Lopez-
Sorto’s two expert witnesses without adequate justification. And true, “[t]he IJ and BIA
abuse their discretion [when] they ‘arbitrarily ignore relevant evidence.’” Id. (quoting
Rodriguez-Arias, 915 F.3d at 974). But we have held that “[t]he BIA and IJ are not required
to discuss every piece of evidence in the record.” Ibarra Chevez, 31 F.4th at 292. Instead,
all they must do is “announce their decisions in terms sufficient to enable a reviewing court
to perceive that they have heard and thought and not merely reacted.” Id.
The record does not show that the agency ignored Lopez-Sorto’s experts. On the
contrary, the experts’ testimony was part of the foundation on which the IJ rejected Lopez-
Sorto’s claims. The IJ said that it took “into account the testimony of the two expert
witnesses.” A.R. 72. Part of that testimony was that Lopez-Sorto fell decades outside the
key demographic targeted by gangs. While the IJ recognized that Lopez-Sorto had many
risk factors, including his tattoos and past gang involvement, he decided that those were
outweighed by Lopez-Sorto’s risk mitigators, such as his lack of present gang affiliation
and age. And though the experts concluded that Lopez-Sorto’s age would not necessarily
eliminate a risk of torture, the IJ decided to give greater weight to their testimony that
Lopez-Sorto would not likely be a target for recruitment and their failure to identify a
similarly situated person who has been tortured in El Salvador. Lopez-Sorto might be
dissatisfied with the IJ’s conclusion; but the “likelihood of torture . . . constitutes the
19 USCA4 Appeal: 21-2107 Doc: 64 Filed: 05/31/2024 Pg: 20 of 20
ultimate factual finding that rested solely with the IJ, and the IJ’s decisions more than
amply explain why [he] reached a contrary finding.” Ibarra Chevez, 31 F.4th at 293.
Thus, to the extent that Lopez-Sorto argues that the IJ ignored his experts, he has
not established a “wholesale failure” to consider that evidence. See id. at 292. And to the
extent he argues that the IJ was unreasonable in concluding that Lopez-Sorto would not
face a sufficient risk of torture in El Salvador, the experts themselves provided “substantial
evidence” upon which the IJ could have reasonably reached that conclusion. Id. at 293.
* * *
For the foregoing reasons, the petition for review is
DENIED.