Hernan Flores v. William Barr

973 F.3d 230

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 2, 2020
• Docket: 19-1591
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1591

HERNAN PORTILLO-FLORES,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: May 13, 2020 Decided: September 2, 2020

Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Rushing joined. Judge Thacker wrote a dissenting opinion.

ARGUED: Alexandra Maria Williams, Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Sarah Kathleen Pergolizzi, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. QUATTLEBAUM, Circuit Judge:

Hernan Alexander Portillo-Flores (“Portillo”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of

his application for asylum, withholding of removal and protection under the Convention

Against Torture (“CAT”), and ordering his removal from the United States to El Salvador.

In seeking a reversal of the BIA’s decision, Portillo confronts a “narrow and deferential”

standard of review. Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011).

Like offensive linemen on a football team, standards of review are not glamorous

or exciting. But that does not mean they are unimportant. To the contrary, standards of

review are “elemental expression[s] of judicial restraint” that “focus reviewing courts upon

their proper role when passing on the conduct of other decision-makers.” Evans v. Eaton

Corp. Long Term Disability Plan, 514 F.3d 315, 320, 321 (4th Cir. 2008). In doing so,

standards of review designate a “primary decision-maker other than the reviewing court”

and prescribe a level of deference meant to “safeguard the superior vantage points of those

entrusted with primary decisional responsibility.” Id. at 321.

These principles of primacy and deference are particularly pertinent for immigration

decisions, where “the admission and exclusion of foreign nationals is a ‘fundamental

sovereign attribute exercised by the Government’s political departments largely immune

from judicial control.’” See Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018) (quoting

Fiallo v. Bell, 430 U.S. 787, 792 (1977)); Blanco de Belbruno v. Ashcroft, 362 F.3d 272,

278–79 (4th Cir. 2004); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21

(1976). In the asylum context, where “the law entrusts the agency to make the basic asylum

2 eligibility decision . . . ‘judicial judgment cannot be made to do service for an

administrative judgment.’ Nor can an ‘appellate court . . . intrude upon the domain which

Congress has exclusively entrusted to an administrative agency.’” I.N.S. v. Orlando

Ventura, 537 U.S. 12, 16 (2002) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943))

(internal citation omitted).

Often, standards of review, like offensive linemen in a football game, control the

outcome of an appeal. That is the case here. We need only find substantial evidence in the

record to support the findings that Portillo was not entitled to relief, and, because we do,

we deny Portillo’s petition for review.

I.

Portillo, a native and citizen of El Salvador, entered the United States in October

2015 near Eagle Pass, Texas as a 15-year-old unaccompanied juvenile. He soon

encountered U.S. Customs and Border Protection agents and admitted to illegally entering

the country by crossing the Rio Grande.

The Department of Homeland Security (“DHS”) served Portillo with a Notice to

Appear for removal proceedings, charging him under the Immigration and Nationality Act,

8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen present in the United States without having

been admitted or paroled. He was released to live with family, and the DHS later initiated

the removal proceedings.

Portillo conceded removability but applied for asylum, withholding of removal and

protection under the CAT. He claimed that if he returns to El Salvador, he would be

3 “harmed, tortured, or killed” by the gang MS-13 because of his membership in a particular

social group—namely, “a member of [his] sister’s family.” J.A. 780. He also stated that

Salvadorian police will not protect him because they are “working along with MS-13 in

order to fulfill their threats to [his] family.” Id.

A.

At Portillo’s individual removal hearing, Portillo and his sister, Paola, testified

before the immigration court. Paola said that the family’s problems with MS-13 began in

2013 when she was living with Portillo and their mother in Ciudad Delgado, El Salvador.

A local gang leader, known as “El Pelon,” wanted her to be his girlfriend. Paola testified

that when she resisted, El Pelon told her that if she failed to submit to his demands, “he

might kill [her] mother and/or [her] brother.” J.A. 201. One day, as she left school, El Pelon

confronted Paola and told her that if she continued to refuse him, “something’s going to

happen” to Portillo and their mother. J.A. 203. Paola testified that neither she nor her family

went to the police about these threats. Instead, the family sent her to the United States.

Portillo testified that he was not told about these threats. But, in the months after

Paola’s departure from El Salvador, members of MS-13 approached him five or six times

with knives and a handgun, asking for information about her location. Once, a group of

gang members told Portillo, who was then 14 years old, that if he failed to help them, he

would “get hurt.” J.A. 139. Portillo also testified that the gang beat him three or four times.

During this period, he would sometimes “get home without shoes, beaten up, with bruises,

and even sometimes without a shirt,” but he never told his family what was happening. J.A.

205. Portillo said the last beating he received from MS-13 was the worst. Although he

4 conceded he received no medical treatment after this incident, Portillo testified that he

almost died.

Portillo said that, after he was last approached by MS-13, his mother sent him to

live with his uncle on a ranch in Chalatenango, about two hours away from Ciudad

Delgado. While there, Portillo said he did not leave the ranch and had food brought to him

because he feared MS-13 would find him.

During the time Portillo was away, his mother told him that four uniformed police

officers came to the house looking for him, and that two gang members were watching the

visit from a distance. Paola said their mother felt this interaction meant “El Pelon or the

gang was linked to the police because they were asking about [Portillo].” J.A. 206.

Following the visit, Portillo said his mother moved to an apartment in Ciudad Delgado and,

as far as he knows, she has not been contacted by the gang since.

Portillo testified that although he had no interaction with the gang in Chalatenango,

he left after about a month because he was afraid that the gang would find him. He claimed

he could not simply hide in another region of El Salvador because MS-13 is “all over the

country,” and that, regardless of where he moved, they may be able to find him. J.A. 152.

Portillo left El Salvador and entered the United States in October of 2015. Portillo said he

never went to the police about the conduct of the MS-13 gang members because he “knew

that the police did not have the capacity to protect [him] from that gang.” J.A. 147.

In addition to this testimony, Portillo submitted documents in support of his

application for relief, including reports on country and gang conditions in El Salvador, as

5 well as statements from family members and friends. However, Portillo conceded that his

mother is the only other person with first-hand knowledge of his treatment by MS-13.

B.

The immigration judge found Portillo and his sister to be credible witnesses. Yet,

she denied his application for asylum, withholding of removal and protection under the

CAT.

Regarding the requirements for asylum, the IJ first found that, although Portillo was

threatened and beaten by members of MS-13, his “injuries did not require any medical

attention and based on that, . . . the level of harm that [Portillo] experienced does not rise

to the level of persecution.” J.A. 79. And while Paola testified “that she received death

threats towards her mother and brother,” the IJ declined to find “that the death threats the

sister received could be imputed” to Portillo. J.A. 80. However, the IJ noted that if the BIA

determined that the threats could be imputed to Portillo, he may be able to establish past

persecution “since death threats constitute harm rising to the level of persecution.” J.A. 80

(citing Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015)).

The IJ also found that “the harm [Portillo] suffered did not occur at the hands of the

El Salvadoran government or an agent that the government is unwilling or unable to

control.” J.A. 80. She emphasized that Portillo did not report his treatment by MS-13 to

the police, and that, based on reports submitted by the government, El Salvador has taken

steps to address gang activity and police corruption.

Echoing her past-persecution analysis, the IJ also ruled that Portillo did not

otherwise establish a well-founded fear of future persecution. Accordingly, she concluded

6 Portillo failed to establish his eligibility for asylum. And because Portillo failed to meet

“the lower asylum standard,” he “necessarily fail[ed] to satisfy the more stringent standard

of withholding of removal.” J.A 81.

As to Portillo’s CAT claim, the IJ held that Portillo did not “provide[] evidence that

shows that it is more likely than not that he specifically would be tortured in the future in

El Salvador with the consent or acquiescence of the government.” J.A. 81. As a result, she

denied his request for relief under the CAT. 1

C.

Portillo timely appealed the IJ’s decision to the BIA, but the BIA dismissed his

appeal. First, it found “no clear factual or legal error” in the IJ’s determination that Portillo

did not establish past persecution or a well-founded fear of persecution on a protected

ground. J.A. 9. Regarding past persecution, the BIA found that the IJ was not required to

1 Additionally, while the IJ acknowledged that members of an immediate family may constitute a protected social group, she concluded that “the fact that gang members sought information from [Portillo] about his sibling without more does not support [his] claim that the gang intended to persecute him on account of his family.” J.A. 80. Therefore, the IJ found that Portillo did not establish “a nexus between the harm suffered and a protected ground.” J.A. 80. On review, the BIA found that the IJ was correct in finding that Portillo “did not meet his burden of establishing the requisite nexus between the alleged harm he fears and his membership in a particular social group.” J.A. 10. Instead, it concluded that the record supported the IJ’s finding that his fears are of “an act of random criminal or gang violence,” and not motivated by a protected ground. J.A. 10. On appeal, Portillo contends the IJ and the BIA erred in concluding he failed to connect the alleged persecution to his status as a member of his sister’s family. But the government does not dispute Portillo’s contention that the IJ and BIA erred in finding an insufficient nexus between the alleged persecution and Portillo’s membership in a protected group. Therefore, we will not address that issue. See Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018).

7 apply a child-specific standard of proof, and that she “correctly found that although

[Portillo] was threatened and beaten on several occasions in El Salvador, he never suffered

any serious physical harm requiring medical attention.” J.A. 9. Next, it concluded that

unlike prior Fourth Circuit cases such as Tairou v. Whitaker, 909 F.3d 702 (4th Cir. 2018),

where a death threat was enough to constitute past persecution, Portillo did not directly

receive a death threat. Instead, the BIA affirmed the IJ’s conclusion, and found that “the

alleged ‘death threat’ here was made to [Portillo’s] sister—not to [Portillo].” J.A. 10.

Additionally, the BIA held that the IJ did not clearly err in concluding that Portillo

failed to demonstrate that the harm he fears in El Salvador “was or would be inflicted by

the government or by individuals or groups that the government is unwilling or unable to

control.” J.A. 11. Like the IJ, the BIA emphasized Portillo’s failure to report any threats or

mistreatment to the police or government officials in El Salvador. Accordingly, the BIA

concluded that Portillo “is not a refugee for asylum purposes,” and that “he has not satisfied

the higher burden of proof for withholding of removal.” J.A. 11.

Turning last to his CAT claim, the BIA held that Portillo did not sufficiently show

that it is more likely than not that he will be tortured “by or at the instigation of or with the

consent or acquiescence [to include willful blindness] of a public official or other person

acting in an official capacity.” J.A. 11 (quoting 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1)).

Accordingly, it concluded that the IJ did not clearly err in denying his CAT claim.

8 II.

Portillo timely petitioned for review of the BIA’s decision affirming the IJ’s denial

of his application for asylum, withholding of removal and relief under CAT, and ordering

his removal from the United States to El Salvador. We have jurisdiction to review a final

order of removal under 8 U.S.C. §§ 1252(a)(1), (a)(5).

On appeal, Portillo argues that, with respect to the asylum and withholding of

removal claims, the IJ and BIA erred in finding that he did not carry his burden to prove

past persecution or establish that the government of El Salvador is unwilling or unable to

protect him from MS-13. He also argues that the IJ and BIA failed to conduct a meaningful

CAT analysis.

III.

We begin with Portillo’s arguments concerning asylum and withholding of removal.

The Immigration and Nationality Act (“INA”) authorizes the Attorney General to grant, at

his discretion, asylum to applicants who qualify as refugees under 8 U.S.C.

§ 1102(a)(42)(A). See 8 U.S.C. §§ 1158(a)(1), (b)(1)(A); Mejia v. Sessions, 866 F.3d 573,

578 (4th Cir. 2017).

To qualify as a refugee, an applicant bears the burden of proving that he “is unable

or unwilling to return to” his country of origin “because of [past] persecution or a well-

founded fear of [future] persecution on account of,” as relevant here, his “membership in

a particular social group.” 8 U.S.C. §§1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R

§ 1208.13(b); Orellana v. Barr, 925 F.3d 145, 151 (4th Cir. 2019). In addition, “an

9 applicant alleging past persecution must establish either that the government was

responsible for the persecution or that it was unable or unwilling to control the

persecutors.” Mulyani v. Holder, 771 F.3d 190, 198 (4th Cir. 2014). But, because asylum

is a form of discretionary relief, “the Attorney General is not required to grant asylum to

everyone who meets the definition of refugee.” INS v. Cardoza-Fonseca, 480 U.S. 421,

428 n. 5 (1987) (emphasis original).

The elements of a claim for withholding of removal are generally the same for an

asylum claim. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). However, in

contrast to an asylum claim, “[i]f an applicant for withholding of removal establishes her

claim, the Attorney General cannot remove her to her native country.” Mejia, 866 F.3d at

578–79 (emphasis original, citation omitted). Accordingly, “the standard of proof for

withholding of removal is higher, requiring the applicant to establish a ‘clear probability’

of persecution, rather than the less stringent ‘well-founded fear’ of persecution that will

suffice to make out an asylum claim.” Salgado-Sosa v. Sessions, 882 F.3d 451, 456–57

(4th Cir. 2018). “Necessarily, an applicant who fails to meet the lower standard for showing

eligibility for asylum will be unable to satisfy the higher standard for showing withholding

of removal.” Mulyani,771 F.3d at 198 (internal quotation marks and citation omitted).

Portillo argues that the IJ and BIA committed three errors in finding that the harm

he suffered in El Salvador did not rise to the level of persecution. Portillo first claims that

in conducting their past-persecution analyses, the IJ and BIA failed to consider the harmful

acts he and his sister suffered from the perspective of a child. Second, he argues that even

10 from an adult perspective, the physical abuse he suffered rose to the level of persecution.

Third, he argues that MS-13 threatened to kill him, which, alone, constitutes persecution.

However, we need not address these arguments because, even if Portillo were to prevail on

them, under our standard of review, we must uphold the BIA’s determination that he is not

eligible for asylum or withholding of removal because he did not establish that the

Salvadoran government was unable or unwilling to control MS-13. 2

When, as here, an applicant purports to fear persecution by a private actor, such as

MS-13, “[w]hether a government is ‘unable or unwilling to control’ a private actor ‘is a

factual question’” that we review for substantial evidence. Orellana, 925 F.3d at 151

(quoting Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011)). 3 Because this

standard of review is so important to the outcome of this case, we address it before

considering the merits of Portillo’s claim.

2 A claim for asylum or withholding of removal based on a well-founded fear of future persecution, like claims based on past persecution, require the applicant to show the government would be unable or unwilling to control the alleged persecution by a private actor. See Orellana, 925 F.3d at 151. Therefore, we likewise need not address the BIA’s determinations that Portillo did not have a well-founded fear of future persecution. 3 As always, we review any legal questions de novo. Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). 11 1.

“The phrase ‘substantial evidence’ is a ‘term of art’ used throughout administrative

law to describe how courts are to review agency factfinding.” Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019) (quoting T-Mobile South, LLC v. Roswell, 135 S. Ct. 808, 815

(2015)). Generally, “[u]nder the substantial-evidence standard, a court looks to an existing

administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the

agency’s factual determinations.” Biestek, 139 S. Ct. at 1154 (quoting Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold for such evidentiary sufficiency

is not high. Substantial evidence . . . is more than a mere scintilla. It means—and means

only—such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Biestek, 139 S. Ct. at 1154); see Contreras-Mejia v. Barr, No. 19-1120, 2020

WL 2569293, at *4 (4th Cir. May 21, 2020).

Substantial evidence is codified as the “highly deferential” standard of review for

the BIA’s factual findings in 8 U.S.C. § 1252(b)(4). Nasrallah v. Barr, 140 S.Ct. 1683,

1692 (2020); Tang v. Lynch, 840 F.3d 176, 180 (4th Cir. 2016). This statute limits our

review to “the administrative record on which the order of removal is based,” and instructs

that “the administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A), (B); see I.N.S.

v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992) (“To reverse the BIA finding we must

find that the evidence not only supports [the opposite] conclusion, but compels it . . . .”)

(emphasis original). Stated differently, it requires us to “uphold [the BIA’s] factual findings

unless no rational factfinder could agree with the [BIA’s] position.” Temu v. Holder, 740

12 F.3d 887, 891 (4th Cir. 2014). Such a narrow standard of review “recognizes the respect

we must accord both the BIA’s expertise in immigration matters and its status as the

Attorney General’s designee in deportation decisions.” Huaman-Cornelio v. Bd. of

Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992).

Ultimately, “[w]e may not disturb the BIA’s determinations on asylum eligibility so

long as those determinations ‘are supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Mulyani, 771 F.3d at 197 (quoting Tassi

v. Holder, 660 F.3d 710, 719 (4th Cir.2011)). And in conducting this review, “[w]e may

not reweigh the evidence, and, [e]ven if the record plausibly could support two results: the

one the IJ chose and the one [the petitioner] advances, reversal is only appropriate where

the court find[s] that the evidence not only supports [the opposite] conclusion, but compels

it.” Tang, 840 F.3d at 180 (internal quotation marks and citations omitted) (emphasis

original).

2.

Guided by this standard of review, we turn to Portillo’s challenge to the BIA’s

finding that he did not establish that the Salvadoran government was unable or unwilling

to control MS-13. In so doing, “our power to review an order of removal is limited to the

‘final’ order,” which generally “come[s] not from the IJ, but ‘from the BIA, the highest

administrative tribunal.’” Mulyani, 771 F. 3d at 196 (quoting Martinez v. Holder, 740 F.

3d 902, 908 n.1 (4th Cir. 2014)). However, when “the BIA adopts the IJ's opinion and

supplements it with its own reasoning, we review both rulings.” Hernandez-Avalos v.

Lynch, 784 F.3d 944, 948 (4th Cir. 2015); see also Martinez, 740 F.3d at 908 n.1

13 (explaining that decisions reviewing both IJ and BIA decisions “involve BIA decisions that

incorporate some part of the IJ opinion as part of the BIA’s final order”).

Initially, the IJ found that because Portillo did not report the threats or beatings to

the police, and El Salvador has taken steps to address gang activity and police corruption,

the harm that Portillo suffered “did not occur at the hands of the El Salvadoran government

or an agent that the government is unwilling or unable to control.” J.A 80. On review, the

BIA determined that the IJ’s conclusion was not clearly erroneous, and emphasized that

Portillo “testified that he never reported any threats or mistreatment by the gang members

to the police or to any other government official in El Salvador.” J.A. 11. These conclusions

are consistent with our precedent, which holds that “an applicant who relinquishes a

protective process without good reason will generally be unable to prove [his]

government’s unwillingness or inability to protect [him].” Orellana, 925 F.3d at 153.

Portillo does not contest that neither he, nor anyone in his family, reported MS-13’s

threats and physical abuse to the police or another government agent. Instead, he cites our

previous holding that “there is no requirement that an applicant persist in seeking

government assistance when doing so (1) ‘would have been futile’ or (2) ‘have subjected

[him] to further abuse.’” Id. (quoting Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058

(9th Cir. 2006)). He then argues that he and his sister credibly testified why they were

justified in not going to the police, and, more generally, that he and his family “believed

that the police were in cahoots with the MS-13 gang . . . .” Appellant’s Op. Br. at 18.

However, this testimony does not allow us to disturb the BIA’s findings because the record,

14 viewed as a whole, does not compel the conclusion that going to the police would have

been futile or subjected Portillo to further abuse. See Elias-Zacarias, 502 U.S. at 481 n. 1.

At his removal hearing, Portillo provided contradictory testimony on this issue. He

first asserted that he “knew that the police did not have the capacity to protect [him] from

the gang” because he had a friend who was found dead after he reported MS-13 to the

police. J.A. 147. But, during subsequent questioning, he seemed to walk back his original

claim by stating, “[the police] might have been able to protect me, but the point is that my

mother was still there.” J.A. 149. 4 And later, during cross examination, he conceded that

“[the police] might have been able to do something against gang members. I don’t really

know.” J.A. 175.

Paola, for her part, testified that there was an understanding that the police would

not do anything, and that their mother believed that the police were working with MS-13

“because [Portillo] was doing nothing wrong and [the police] came looking for him.” J.A.

207. Yet, when Portillo was asked if he thought the visit from the police demonstrated that

they were working with MS-13, he said, “I’m not sure.” J.A. 175. Portillo’s contradictions

and concessions constitute more than a scintilla of evidence supporting the BIA’s decision.

Moreover, the record does not compel the conclusion that, even if Portillo had

sought official protection, the government of El Salvador was otherwise unwilling or

unable to control the gang. See Elias-Zacarias, 502 U.S. at 481 n. 1. In finding that El

Salvador has taken steps to address gang activity and police corruption, the IJ relied, in

4 Portillo also appeared to acknowledge that the police arrested a gang member in his friend’s case. 15 part, on the 2016 and 2017 U.S. State Department Country Reports on Human Rights in El

Salvador. J.A. 81. And, in affirming the IJ’s finding, the BIA cited the pages of the IJ

decision that discuss those reports. We have “previously noted that State Department

reports are ‘highly probative evidence’ of conditions in foreign countries,” Suarez-

Valenzuela v. Holder, 714 F.3d 241, 247–48 (4th Cir. 2013) (quoting Gonahasa v. INS,

181 F.3d 538, 542 (4th Cir. 1999)). Therefore, the policies documented in the reports

bolster the evidence in the record supporting the BIA’s decision. See Gonahasa, 181 F.3d

at 542.

While we appreciate Portillo’s testimony that he feared going to the police, his fear

does not eliminate the evidence in the record supporting the BIA’s conclusion. Under the

standard of review that we are compelled to follow, if there is more than a scintilla of

evidence in the record to support this factual finding, we must uphold it “unless no rational

factfinder could agree with the [BIA’s] position.” Tang, 840 F.3d at 180 (quoting Temu,

740 F.3d at 891). The BIA’s decision that Portillo failed to establish the Salvadorian

government was unwilling or unable to control MS-13 is “supported by reasonable,

substantial, and probative evidence in the record considered as a whole.” Elias-Zacarias,

502 U.S. at 481 (citation omitted). Therefore, it must stand, regardless of whether we might

have reached a different decision.

Because the record does not compel the conclusion that the Salvadoran government

was unwilling or unable to control MS-13, we must uphold the IJ and BIA’s conclusion

that Portillo does not qualify as a refugee under 8 U.S.C. § 1102(a)(42)(A), and is ineligible

for asylum and withholding of removal. See Mulyani, 771 F.3d at 197–99.

16 IV.

Finally, we turn to Portillo’s argument that the IJ and BIA erred by denying his

application for CAT protection. In reviewing a denial of relief under CAT, “[t]he standard

of review is the substantial-evidence standard. The agency’s ‘findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.’” Nasrallah, 140 S.Ct. at 1692 (quoting 8 U.S.C § 1252(b)(4)(B)).

An alien seeking CAT protection bears the burden to show that “it is more likely

than not that he or she would be tortured” in the country of removal. Rodriguez-Arias v.

Whitaker, 915 F.3d 968, 971 (4th Cir. 2019) (quoting 8 C.F.R. § 1208.18(a)(1)). And

“torture” is defined as “(1) ‘any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person’ in a manner that is (2) ‘by or at the instigation

of or with the consent or acquiescence of a public official or other person acting in an

official capacity.’” Rodriguez-Arias, 915 F.3d at 971 (quoting 8 C.F.R. § 1208.18(a)(1)).

Portillo raises three issues concerning his CAT claim. First, he argues that the IJ’s

determination “that ‘the government’ of El Salvador will not consent or acquiesce to his

torture” constitutes “obvious legal error.” Appellant’s Op. Br. at 20. He claims that the

proper standard is whether “a public official or other person acting in an official capacity”

will consent or acquiesce to the torture. Id. (quoting 8 C.F.R. § 1208.18(a)(1) (2019)

(emphasis omitted). Second, Portillo challenges the brevity of the IJ and BIA’s CAT

analysis, claiming they neither address all of his arguments nor adequately explain the basis

of their CAT decisions. Third, he asserts that the BIA committed legal error by “engaging

17 in fact-finding in the first instance of whether a public official was likely to acquiesce to

Mr. Portillo’s torture.” Id. at 21.

First, we disagree with Portillo’s argument that the IJ committed a legal error, much

less an obvious one, in finding that Portillo failed to establish that it was more likely than

not that he would be tortured in El Salvador “with the consent or acquiescence of the

government.” J.A. 8. The language of the IJ’s conclusion follows the established law of

this Circuit. Namely, to qualify for protection under the CAT, a petitioner bears the burden

to “show that, if removed, it is ‘more likely than not that he or she would be tortured’ with

the consent or acquiescence of the government” in their country of origin. Salgado-Sosa,

882 F.3d at 456 (citing 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1)).

Moreover, the BIA, in affirming the IJ’s denial of relief under the CAT, stated as

follows:

The record also supports the Immigration Judge’s determination that the respondent has not met his burden of establishing his claim under the Convention Against Torture inasmuch as he has not shown that it is more likely than not that he will be tortured “by or at the instigation of or with the consent or acquiescence [to include willful blindness] of a public official or other person acting in an official capacity” in El Salvador (IJ at 6). 8 C.F.R.§§1208.16(c)(2),1208.18(a)(1); see Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) (explaining that an Immigration Judge's predictive findings of what may or may not occur in the future are findings of fact, which are reviewed under the “clear error” standard); see also Lizama v. Holder, 629 F.3d 440, 449 (4th Cir. 2011) (discussing Convention Against Torture standard).

J.A. 11. As Portillo acknowledges, this language sets forth the appropriate legal standard.

Therefore, Portillo’s argument that his CAT claim was denied based on an obvious legal

error is without merit.

18 Next, Portillo argues that the IJ and BIA’s CAT analyses were inadequate because

they failed to address his fears that the police are complicit with MS-13’s efforts to find

him, or his “particularized risks of torture, country conditions, and mass human rights

violations in the country of removal.” Appellant’s Op. Br. at 21‒22. However, this

argument ignores the first sentence of the IJ’s CAT analysis, which states that she

considered the country conditions described in the 2016 and 2017 State Department

Country Reports on Human Rights in El Salvador. J.A. 81. Further, in affirming the IJ’s

CAT findings, the BIA explicitly cited the pages of the IJ decision that referenced those

reports. See J.A. 4.The BIA also held that “[a]lthough [Portillo] claims that his grandmother

and sister ‘believe’ that the Salvadoran police are working with local MS gang members .

. ., [he] has not presented sufficient evidence demonstrating that he will be tortured by or

with the requisite acquiescence of any government official in El Salvador.” J.A. 11.

Accordingly, the BIA’s decision that the IJ did not err in finding that Portillo did not

establish his eligibility for CAT protection is supported by substantial evidence and does

not constitute “a wholesale failure [by] the IJ and BIA to consider evidence” offered to

support his CAT claim. Rodriguez-Arias, 915 F.3d at 974.

And Portillo’s argument that the IJ and the BIA failed to adequately explain how

they arrived at their decisions fares no better. The IJ stated she considered the evidence of

conditions in El Salvador, but that Portillo had not proven that it was more likely than not

that he would be tortured with the consent or acquiesce of the Salvadoran government.

Then, on review, the BIA cited to the applicable law, the relevant portions of the IJ decision

and additional evidence in the record before concluding that the IJ did not err in finding

19 that Portillo failed to offer sufficient evidence to support his claim. Although the BIA’s

decision could have been more comprehensive, it was not required to discuss every piece

of evidence in the record. See Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014)

(citation omitted). Instead, the BIA “announce[d] [its] decision in terms sufficient to enable

a reviewing court to perceive that they have heard and thought and not merely reacted” to

the evidence. Id. Therefore, reversal is not warranted.

Finally, the BIA did not “engage in fact-finding in the first instance of whether a

public official was likely to acquiesce to Mr. Portillo’s torture . . . .” Appellant’s Op. Br. at

21. It simply found “no clear error” in the IJ’s denial of CAT protection, and reiterated the

IJ’s finding that Portillo had not provided sufficient evidence to establish that he would be

tortured with the requisite acquiesce of a Salvadoran government official. J.A. 11.

In conclusion, substantial evidence in the record supports the BIA’s determination

that Portillo was not eligible for CAT protection, and the BIA did not otherwise err in

dismissing the appeal of the IJ’s denial of Portillo’s CAT application.

Our good friend and colleague in dissent disagrees with our conclusions. Instead,

Judge Thacker would decline to uphold the IJ and the BIA decisions because they are too

“cursory” and fail “to engage with [the] applicant’s arguments and evidence.” Post at 24.

At least regarding the points on which our decision turns—whether Portillo established that

the Salvadoran government was unwilling or unable to control MS-13, and whether he

20 established he will be tortured by or with the consent or acquiescence of a Salvadoran

official—we cannot agree.

Importantly, the IJ and the BIA are not required to discuss every piece of evidence

in the record. Ai Hua Chen, 742 F.3d at 179. And while they are required to “announce

their decision[s] in terms sufficient to enable a reviewing court to perceive that they have

heard and thought and not merely reacted,” id., here, their decisions satisfy this standard.

To review, the IJ explained that the State Department Country Reports on Human

Rights in El Salvador indicate that “the government of El Salvador has put measures into

place to address criminal activity and has arrested gang members and corrupt police

officers.” J.A. 81. “Typically, we have approved of the [agency’s] proclivity for finding

State Department Country Reports to be the definitive word in asylum cases.” Ai Hua

Chen, 742 F.3d at 179. And while we have cautioned against “treating these Country

Reports as ‘Holy Writ’ immune to contradiction,” id. (citation omitted), here, contradictory

evidence in the record does not compel a contrary conclusion. See Elias-Zacarias, 502 U.S.

at 481 n. 1. Additionally, the BIA acknowledged Portillo’s claim that “his grandmother

and sister ‘believe’ that the Salvadoran police are working with local MS gang members,”

but concluded that he did not provide sufficient corroborating evidence to conclude “that

he will be tortured by or with the requisite acquiescence of any government official in El

Salvador.” J.A. 11.

To be sure, the IJ and the BIA could have explained their conclusions in more detail.

But by pointing to “highly probative evidence” in the State Department Country Reports

of the Salvadoran government’s efforts to combat gang violence, Gonahasa, 181 F.3d at

21 542, and by specifically addressing Portillo’s explanation for why he did not report the

gang’s abuse, the IJ and the BIA decisions indicate that they “heard and thought” and did

“not merely react[]” to the arguments and evidence before them. Ai Hua Chen, 742 F.3d at

179 (internal quotation marks and citation omitted). And, as the BIA noted, Portillo did

“not meaningfully challenge[]” the IJ’s conclusion that the Salvadoran government was

unwilling or unable to control MS-13 in his appeal to the BIA. J.A. 4. In fact, the record

shows that the brief he submitted to the BIA essentially omitted any challenge to the BIA’s

findings on this issue. It is therefore unfair to criticize the BIA for not more thoroughly

addressing an argument that Portillo did not bother to make.

Further, despite our colleague’s concern, we disagree that the evidence Portillo

offered concerning whether government officials were unwilling and unable to specifically

protect Portillo, or were otherwise involved in his abuse, was unrebutted. As noted above,

at his removal hearing, Portillo himself provided contradictory testimony on this issue,

ultimately conceding that “[the police] might have been able to do something against gang

members. I don’t really know.” J.A. 175. And when asked about the veracity of his sister

and mother’s claim that the police were specifically involved in his mistreatment by MS-

13, he admitted, “I’m not sure.” J.A. 175.

Last, our colleague asserts that we attempt to do the work of the IJ and the BIA.

Post at 34. We disagree. Instead, we merely performed the work required of us by the

prescribed standard of review. Under it, we must uphold the BIA’s determinations on

asylum eligibility “so long as those determinations ‘are supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Mulyani, 771

22 F.3d at 197 (quoting Tassi, 660 F.3d at 719) (emphasis added). Accordingly, our

responsibility is to look to the whole record to “ensure that substantial evidence supports

the BIA’s judgment.” Mulyani, 771 F.3d at 200. That is precisely what we have done here.

VI.

For the foregoing reasons, we deny Portillo’s petition for review of the BIA’s

decision affirming the IJ’s denial of his application for asylum, withholding of removal

and protection under the CAT, and ordering his removal from the United States to El

Salvador. Accordingly, Portillo’s Petition is

DENIED.

23 THACKER, Circuit Judge, dissenting:

The majority opinion begins its analysis with a reminder of the applicable standard

of review, emphasizing the importance of deference in this context. But the majority fails

to mention a threshold requirement for the application of deference -- in order to be

accorded deference, agency decisionmakers below must conduct sufficient analysis to

which we can defer. See Cordova v. Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[T]he

Supreme Court long ago instructed that ‘the process of review requires that the grounds

upon which the administrative agency acted be clearly disclosed and adequately

sustained.’” (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943))). Here, neither the

Immigration Judge (“IJ”) nor the Board of Appeals (“BIA”) provide even the bare

minimum level of explanation that our precedent requires. This failure is an abuse of

discretion.

The agency decisions here are precisely the kinds of cursory opinions we have

repeatedly rejected for their failure to engage with an applicant’s arguments and evidence.

I therefore respectfully dissent.

In this case, we are called upon to address Petitioner’s claims for asylum,

withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”).

In 2013, Petitioner was living with his mother and sister in Ciudad Delgado, El

Salvador. “El Pelon,” a local MS-13 group leader, began calling and texting Petitioner’s

sister, Paola, then a student in the tenth grade. El Pelon indicated he wanted Paola to be

24 his girlfriend and told her that if she failed to submit to his demands, he might kill her

mother and brother. El Pelon began following Paola and would have other gang members

approach her and issue threats. Paola eventually informed her mother of El Pelon’s

continuing threats. As a result, the family decided to send Paola to the United States for

her safety.

After Paola fled the country, El Pelon’s crew began targeting Petitioner seeking

information about Paola’s location. MS-13 approached Petitioner on five or six occasions

over the next several months, always asking him about Paola. The gang members were

armed with knives and guns each time they contacted Petitioner. At the time of these

incidents, Petitioner was only 14 or 15 years old. Three or four of the times that MS-13

approached Petitioner, the gang members beat him up.

Petitioner’s mother saw him arrive home several times without shoes, beaten up

with bruises, and sometimes shirtless. The final beating Petitioner received was so severe

that he testified that he “almost die [sic] on that occasion.” A.R. 143. 1 This last beating

prompted Petitioner to disclose the ongoing issue to his mother. Concerned for her child’s

safety, Petitioner’s mother decided to send Petitioner to stay on a ranch in Chalatenango,

El Salvador, to live with his uncle. Petitioner testified that he believed MS-13 would have

killed him if he had remained in Ciudad Delgado.

Once in Chalatenango, Petitioner remained in hiding. But soon, while Petitioner

was in Chalatenango, “four people who were policemen working with the gang members

1 Citations to the “A.R.” refer to the Administrative Record filed by the parties in this appeal. 25 came to [Petitioner’s mother’s] house threatening [her] so that [Petitioner] would turn

himself into [sic] the gang members.” A.R. 290. Petitioner’s mother saw El Pelon and

another gang member standing outside in the alleyway behind the police during this

encounter. Petitioner’s sister testified that when her mother looked out the door during this

encounter, her mother “saw . . . El P[e]lon, so she understood that El P[e]lon or the gang

was linked to the police because they were asking about [Petitioner].” Id. at 206.

As a result of the threats, Petitioner’s mother fled her house in Ciudad Delgado and

now lives in hiding elsewhere in El Salvador. Petitioner’s sister sends money for their

mother’s care to make sure her mother does not need to leave the house in her new location.

The visit of the police to Petitioner’s mother’s house also prompted his mother and sister

to decide to send Petitioner from El Salvador to the United States. He entered without

inspection on approximately October 12, 2015. When he arrived in the United States,

Petitioner was 15 years old.

United States Customs and Border Protection detained Petitioner upon his entry to

the United States. On October 3, 2018, Petitioner received a hearing on the charge of

removability before an IJ. Petitioner asserted claims for asylum, or in the alternative, for

withholding of removal and protection pursuant to the CAT.

At Petitioner’s hearing, his sister Paola testified as to her reasons for leaving El

Salvador and her belief that had she stayed, El Pelon would have raped or killed her. She

also testified with respect to El Pelon’s threats against her brother. Specifically, Paola

testified that had Petitioner remained in El Salvador, “if he had not been dead by now, that

could have been a miracle from God.” A.R. 208. She stated that she and her mother

26 thought it best to send Petitioner to the United States because “[i]t was going to come to

the point that [the gang] w[as] going to be able to find him. And they weren’t going to be

using words anymore. He was going to get murdered.” Id.

Petitioner testified that the gang threatened him the first time they approached him,

specifically asking for Paola’s whereabouts, and threatening that Petitioner was “going to

get hurt.” A.R. 139. El Pelon himself approached Petitioner at one point when he had been

beaten up, asked questions about his sister, and threatened him. All of the beatings

occurred in succession within a two or three month time frame before Petitioner went into

hiding in Chalatenango, after which point the police (together with the gang) came looking

for him at his mother’s house.

Petitioner specifically stated that had he stayed in Ciudad Delgado, the MS-13

members “would have killed me because the last time they beat me up, they almost -- I

almost died. And I believe they could have taken more reprisals against me.” A.R. 146–

47. Petitioner also testified that he did not go to the police “because [he] knew that the

police did not have the capacity to protect [him] from th[e] gang,” and also indicated that

he believed the police who came to his mother’s house are gang members. Id. at 145–47.

The IJ found both Petitioner and his sister Paola credible. Petitioner also filed

numerous exhibits including declarations from family members corroborating his stated

reasons for leaving El Salvador. Petitioner supplemented the testimonial evidence about

the dangers in El Salvador and the inability of the police to protect him with expert analysis

explaining how MS-13 can “operate . . . largely without police or military interference

because of corruption and the Salvadoran government’s inability to maintain order,” and

27 how filing a police report can make matters worse because gang members will “seek to

obtain the name of the person who reported [their activity] via their sources within the

police, government and community and take revenge to send the message that others

should not report similar crimes.” A.R. 387. Additionally, Petitioner provided United

States Department of State country conditions reports from the relevant years detailing

“widespread corruption,” as well as “weak rule of law, which contributed to high levels of

impunity and government abuse, including unlawful killings by security forces.” Id. at

440. These reports explain that, “[i]mpunity persisted despite government steps to dismiss

and prosecute” bad actors within security forces, the justice system, and the executive

branch. Id.

Ultimately, the IJ issued an oral decision denying Petitioner all requested relief and

ordering his removal. The IJ acknowledged that MS-13 threatened to kill Petitioner but

concluded that Petitioner failed to demonstrate a nexus between the threats and beatings

and a protected ground sufficient to support his claim for asylum. The IJ then spent just a

single brief paragraph on its determination that “the harm that [Petitioner] suffered did not

occur at the hands of the El Salvadoran government or an agent that the government is

unwilling or unable to control.” A.R. 80. The IJ cited Petitioner’s failure to report the

threats or attacks to police and said simply that, though “[t]here is no doubt El Salvador

has a high rate of crime,” its government “has put measures into place to address criminal

activity and has arrested gang members and corrupt police officers.” Id. Finally, the IJ

also decided that Petitioner failed to support his claim for relief pursuant to the CAT

because he did not establish that it is more likely than not that he would suffer torture in El

28 Salvador with the consent or acquiescence of the government. The IJ’s CAT analysis

consisted of just three sentences. Petitioner timely filed a notice of appeal to the BIA.

The BIA dismissed Petitioner’s appeal in a single member decision. The Board

issued its own opinion, concluding that the IJ did not commit error as to any of Petitioner’s

three claims for relief. This opinion was only slightly more developed than the IJ’s

decision.

II.

When, as here, “the BIA adopts the IJ’s opinion and supplements it with its own

reasoning, we consider both rulings.” Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017)

(internal quotation marks omitted).

We review legal conclusions de novo. Cordova v. Holder, 759 F.3d 332, 337 (4th

Cir. 2014). And we do not disturb the agency’s factual determinations as long as those

determinations “are supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011) (citation

omitted) (applying the substantial evidence standard to asylum claims); Mulyani v. Holder,

771 F.3d 190, 197 (4th Cir. 2014) (same, in the context of withholding of removal); Lizama

v. Holder, 629 F.3d 440, 449 (4th Cir. 2011) (same, in addressing CAT relief). “We review

factual findings for substantial evidence, and will reverse them only if any reasonable

adjudicator would be compelled to conclude to the contrary.” Alvarez Lagos v. Barr, 927

F.3d 236, 248 (4th Cir. 2019) (internal quotation marks omitted). But “an applicant for

asylum is entitled to know that agency adjudicators reviewed all [his] evidence, understood

it, and had a cogent, articulable basis for [their] determination that [his] evidence was

29 insufficient.” Orellana v. Barr, 925 F.3d 145, 153 (4th Cir. 2019) (internal quotation marks

omitted). And so are we.

“We must uphold the BIA’s decision unless it is manifestly contrary to law and an

abuse of discretion.” Cordova, 759 F.3d at 337 (internal quotation marks omitted). “The

BIA abuses its discretion if it fails to offer a reasoned explanation for its decision, or if it

distorts or disregards important aspects of the applicant’s claim.” Id. (internal quotation

marks omitted). “As a general matter, when the Board errs, ‘the proper course

. . . is to remand to the agency for additional investigation or explanation.’” Alvarez Lagos,

927 F.3d at 249 (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)).

Where the adjudicating agency “misapplies the law in evaluating a request for

asylum, the appropriate remedy is to remand so that the agency may apply the correct legal

standard in the first instance.” Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006)

(citing Ventura, 537 U.S. at 16).

1.

The Immigration and Nationality Act (“INA”) authorizes the Attorney General to

grant asylum to any refugee. 8 U.S.C. § 1158 (b)(1)(A). The burden of proving eligibility

for asylum rests with the applicant. 8 C.F.R. § 208.13(a). An asylum applicant must

demonstrate either that he was subjected to past persecution or that he has a “well-founded

fear of future persecution.” 8 C.F.R. § 208.13(b). An applicant who establishes past

30 persecution is entitled to a rebuttable presumption of a well-founded fear of persecution. 8

C.F.R. § 208.13(b)(1).

Applicants must also establish that the persecution they fear would be inflicted “on

account of” their race, religion, nationality, membership in a particular social group, or

political opinion. 8 C.F.R. § 208.13(b)(2)(i)(A). To demonstrate the requisite “nexus,” an

applicant must demonstrate that the protected ground is “at least one central reason” for his

persecution. Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019) (internal quotation

marks omitted).

Finally, asylum applicants must establish that their alleged persecution occurred at

hands of their government or a party that government is unwilling or unable to control. See

Mulyani v. Holder, 771 F.3d 190, 198 n.4 (4th Cir. 2014).

Petitioner challenges the IJ and BIA determinations as to past persecution, nexus of

that persecution with a particular social group, and the government’s inability or

unwillingness to control the party subjecting Petitioner to persecution.

The majority opinion declines to address Petitioner’s arguments on past persecution

and nexus, reasoning that we need not reach those issues. In the majority’s view,

irrespective of any error in the persecution and nexus analyses, we still must uphold the

BIA’s determination that Petitioner did not establish that the El Salvadoran government

was unable or unwilling to control MS-13, and thus affirm denial of his asylum claim.

31 b.

To demonstrate that El Salvador’s government was unable or unwilling to control

the MS-13 gang members Petitioner fears, he provided country reports to supplement his

sister’s and his own credible testimony that reports to the local police are ineffective and

can trigger retribution. See A.R. 147–48 (Petitioner explained he “knew that the police did

not have the capacity to protect [him]” because a friend reported gang threats to the police

and was killed). Despite this evidence, both the IJ and BIA held in the Government’s

favor.

“[A]n IJ is not entitled to ignore an asylum applicant’s testimony” as to whether the

government is unable or unwilling to control an applicant’s persecutors. Hernandez-

Avalos v. Lynch, 784 F.3d 944, 951 (4th Cir. 2015) (citation omitted). Here, both Petitioner

and Paola credibly testified to their reasons for believing that filing a police report would

only further increase Petitioner’s risk of harm. Indeed, the IJ found them credible, “due to

their demeanor, their candor, [that] they were responsive to all questions, and their

testimony was consistent, both between their two testimonies and also with the written

statements that are in the file.” A.R. 79. Petitioner, Paola, their mother, and their

grandmother all expressed the belief that the police visit to the mother’s home occurred in

conjunction with El Pelon’s gang, members of which were standing nearby watching the

visit. Yet neither the IJ nor BIA addressed this testimony at all. Further, neither the IJ nor

BIA explained how evidence that El Salvador generally has arrested some MS-13 members

and some corrupt police officers could rebut Petitioner’s specific evidence about his

persecutors and the police force in his area.

32 As the majority notes, “an applicant who relinquishes a protective process without

good reason will generally be unable to prove [his] government’s unwillingness or inability

to protect [him].” Orellana v. Barr, 925 F.3d 145, 153 (4th Cir. 2019). But we have

previously rejected a per-se reporting requirement, explaining that an applicant can be

excused from seeking government intervention if to do so “(1) would have been futile or

(2) have subjected [him] to further abuse.” Id. (internal quotation marks omitted).

To support its determination that the IJ’s finding on this issue was not clearly

erroneous, the BIA explained, “[s]pecifically, as noted by the Immigration Judge,

[Petitioner] testified that he never reported any threats or mistreatment by the gang

members to the police or to any other government official in El Salvador.” A.R. 4. Full

stop. The BIA’s swift conclusion of this analysis reads as though Petitioner’s failure to

report the threats and beatings was fatal to his claim.

But, again, we have expressly rejected such a per se reporting requirement.

Orellana, 925 F.3d at 153. The application of such a requirement by the BIA was legal

error, and legal errors “necessarily constitute an abuse of discretion.” Tassi v. Holder, 660

F.3d 710, 725 (4th Cir. 2011) (citation omitted).

c. Even if the BIA had acknowledged the correct legal standard -- which it did not --

Petitioner offered credible “unrebutted, legally significant evidence,” Tassi, 660 F.3d at

719, that reporting the incidents to local police “would have been futile” or “subjected

[him] to further abuse” or worse, Cordova v. Holder, 759 F.3d 332, 340 (4th Cir. 2014).

This evidence was “arbitrarily ignored” by the IJ and BIA, who never so much as

33 mentioned any of the testimony on this point. Tassi, 660 F.3d at 719. Because the IJ

ignored relevant evidence, and because the BIA adopted the IJ’s flawed conclusion, I

would remand to require reconsideration of Petitioner’s evidence under the proper legal

standard.

This is not a case in which the agency adjudicators made the evaluation in the first

instance that Petitioner’s failure to report was not justified. To the contrary, this is a case

where the IJ and BIA both completely omitted the required analysis. The IJ and BIA

failed to evaluate Petitioner’s evidence justifying his failure to report and identifying law

enforcement’s inability to protect him. Both the IJ and BIA abdicated their responsibility

to address Petitioner’s evidence that he could not safely or effectively report the violence

to the police.

The majority’s analysis attempts to do this work for the IJ and BIA. See Majority

Op. 14–15 (pointing to various statements in the record, suggesting that there might be

support for the absent agency determination that Petitioner’s failure to report was

unjustified). To be sure, our standard of review is deferential to an agency’s considered

determination. It does not, however, authorize us to excuse misapplication of the law or to

create a post hoc justification for an unexplained conclusion. We must require agencies to

do their jobs so that we can do ours. We cannot review or defer to an analysis that does

not exist in the first instance.

Still, the majority asserts that even if Petitioner had sought official protection, the

record evidence does not compel the conclusion that the Salvadoran government was

unwilling or unable to control MS-13. The majority opinion cites what it says is the IJ’s

34 and BIA’s reliance on 2016 and 2017 country reports from the United States Department

of State detailing some efforts undertaken by El Salvador to address gang activity. See

Majority Op. 16 (citing the IJ decision at A.R. 81 and “the BIA cit[ing] the pages of the IJ

decision that discuss those reports,” without citation). This means, even in the majority’s

charitable view, the agency decisionmakers’ analysis of Petitioner’s country reports boils

down to the following two sentences: “[t]here is no doubt that El Salvador has a high rate

of crime. [citing country reports]. However, the government of El Salvador has put

measures into place to address criminal activity and has arrested gang members and corrupt

police officers. [citing those same reports].” A.R. 81. This purported analysis is plainly

insufficient.

Yet even if -- fully analyzed -- these country reports provide more than a mere

scintilla of evidence that El Salvador is willing to attempt gang control, I fail to see how

these reports provide evidence that the country is able to do so. Neither the IJ nor BIA

opinions provide any analysis to that effect -- nor do they analyze Petitioner’s evidence to

the contrary.

d. Agency adjudicators err when they “disregard[] and distort[] important aspects of

the record.” Orellana, 925 F.3d at 148. When disregarding “credible, significant, and

unrebutted evidence,” agency adjudicators must offer “specific, cogent reason[s]” for

doing so. Id. at 152 (alterations in original) (quoting Tassi, 660 F.3d at 722). And

critically, Petitioner was “entitled to know that agency adjudicators reviewed all [his]

evidence, understood it, and had a cogent, articulable basis for its determination that [his]

35 evidence [was] insufficient.” Id. at 153 (internal quotation marks omitted). In my view,

both the IJ and BIA fell far short of that standard in this case.

Here, Petitioner provided credible evidence that Salvadoran law enforcement is --

at minimum -- unable to prevent violence against MS-13 targets, and in his specific case,

that the local police may have been cooperating with the gang members targeting him.

“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual

findings.” Hernandez-Avalos, 784 F.3d at 951 (citation omitted). Neither the IJ nor BIA

even mentioned -- let alone evaluated -- Petitioner’s claims that local law enforcement were

involved with MS-13 and were unable to protect him from the gang’s violence. Both

adjudicating bodies simply treated Petitioner’s failure to report that violence as fatal per se

to his asylum claim without considering his reasons for not going to the police. The IJ

merely noted that El Salvador “has put measures into place to address criminal activity and

has arrested gang members and corrupt police officers,” A.R. 81, and the majority would

have us accept this as sufficient analysis of the country’s ability to protect Petitioner from

MS-13. This is not enough. Purported Salvadoran efforts to combat gang violence and

corruption in general do not excuse the agency’s failure to support its decision with the

proper legal and factual analysis of Petitioner’s specific circumstances.

Remand -- not deference -- is the appropriate treatment when “the grounds upon

which the administrative agency acted [are not] clearly disclosed and adequately

sustained.” Cordova, 759 F.3d at 338 (quoting SEC v. Chenery Corp., 318 U.S. 80, 94

(1943)).

36 3.

Because I disagree with the majority’s conclusion affirming the IJ and BIA

determinations on the alleged protections afforded by the Salvadoran government, I also

address Petitioner’s arguments that the agency decisionmakers erred in their past

persecution analysis. In my view, the agency adjudicators erred there, too.

With regard to past persecution, the IJ concluded that Petitioner failed to meet the

evidentiary standard because, despite being “beaten and threatened on several occasions,”

“these injuries did not require any medical attention.” A.R. 79. “[B]ased on that,” the IJ

determined “the level of harm that [Petitioner] experienced does not rise to the level of

persecution.” Id. The BIA affirmed the IJ’s decision, noting that “he never suffered any

serious physical harm requiring medical attention.” Id. at 2. There is zero legal support

for this position. There is no requirement that an asylum seeker be beaten badly enough to

require medical attention. And rightfully so.

“Persecution involves the infliction or threat of death, torture, or injury to one’s

person,” Li v. Gonzales, 405 F.3d 171, 177 (2005) (emphasis supplied) (internal quotation

marks omitted), and, as we have recognized in other cases, “extortion itself can constitute

persecution, even if the targeted individual will be physically harmed only upon failure to

pay,” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247 (4th Cir. 2017) (emphasis

supplied) (internal quotation marks omitted). After Paola left El Salvador, gang members

beat Petitioner repeatedly and promised “to do damage to him and to his family” if “he did

37 not turn Paola in to them.” A.R. 290. Here, the unrebutted evidence is that Petitioner -- a

14–15 year old child -- experienced repeated beatings and physical threats, culminating in

a beating so severe that Petitioner credibly testified that he “almost die[d].” Id. at 143.

This is no “mere harassment.” Li, 405 F.3d 171 at 177 (internal quotation marks omitted).

We have previously deemed similar threats sufficient to support a finding of past

persecution even absent any accompanying physical beating. See Zavaleta-Policiano, 873

F.3d at 245 (“if you do not want to pay you will pay with the blood of your children”).

Thus, in light of our precedent -- and common sense -- I am convinced the substantial

evidence compels the conclusion that Petitioner did experience past persecution in the form

of severe beating and threats.

I am convinced of this conclusion even without tacking on the explicit threat to

Petitioner’s life as communicated to his sister, who was told that “if [she] did not accept

what [El Pelon] wanted to do with [her], he might kill [her] mother and/or [her] brother.”

A.R. 201. Petitioner’s sister testified that she believed El Pelon was capable of carrying

out this threat “because the entire neighborhood was afraid of him.” Id. She ultimately

left El Salvador after El Pelon said she would “start seeing the consequences of the things

[he is] capable of doing,” saying, “in reality, if [she] love[d] her brother and [her] mother,

[she had] better yield, otherwise something’s going to happen.” Id. at 203.

In this vein, the BIA attempted to distinguish Petitioner’s situation from others

where explicit death threats were communicated directly to the applicant, rather than a third

38 party. But tellingly, as with its conjured up medical treatment requirement, the BIA cites

zero precedent for a “recipient-only” rule or anything that otherwise supports its refusal to

recognize the death threat against Petitioner communicated through his sister. There is no

precedent for this position. In any event, even if the threats communicated had only been

targeting his sister and mother, “[v]iolence or threats to one’s close relatives is an important

factor in deciding whether mistreatment sinks to the level of persecution.” Baharon v.

Holder, 588 F.3d 228, 232 (4th Cir. 2009) (citation omitted).

Moreover, denying -- as the Government does -- that Petitioner experienced past

death threats before he left El Salvador is completely at odds with the record and the IJ’s

findings of fact and credibility. See Resp’t’s Br. 12 (arguing Petitioner “received vague

threats that did not include threats of death”).

Here the MS-13 threats targeted Petitioner himself as well as his family members.

Both Petitioner and his sister testified credibly to their belief that it was clear from the

gang’s multiple threats that “[h]e was going to get murdered.” A.R. 208 (emphasis

supplied).

Thus, though I firmly believe Petitioner has met his burden of demonstrating past

persecution even without the death threats, with the death threats appropriately recognized,

there is all the more reason to grant Petitioner relief.

39 3.

I readily conclude that substantial evidence compels the conclusion that Petitioner

established past persecution, and that he, therefore, would be entitled to a rebuttable

presumption as to a reasonable fear of future persecution. Yet neither the IJ nor BIA

provides sufficient analysis on this point either.

The IJ’s fear of future persecution analysis is actually unintelligible: “Although

[Petitioner] has shown that he may suffer harm if he returns to El Salvador even though the

Court does not agree that that harm rises to the level of persecution, he has not shown a

nexus to a protected ground or that the harm will occur at the hands of the El Salvadoran

government or an agent that the government is unwilling or unable to control. [sic].” A.R.

81. Not only is this sentence ungrammatical, it also conflates the second and third prongs

of the asylum analysis -- nexus and government conduct -- with the first prong which is

concerned with past or future persecution. I cannot even understand this reasoning. How

could it possibly be entitled to deference?

The BIA’s analysis is not much better. For its part, the BIA appears to think

Petitioner’s future fear of persecution was rebutted, suggesting, “even if [Petitioner] has

established that he suffered harm rising to the level of past persecution when he was 14

years old, [his] present adult age constitutes a fundamental change in circumstances such

that he no longer has a well-founded fear of persecution.” A.R. 3 (citing 8 C.F.R.

§ 1208.13(b), which sets forth the rebuttable presumption). What?? This analysis is

completely backward. In the first instance, this analysis misapprehends the significance of

40 Petitioner’s age to this case. And it fails to provide any actual analysis of the evidence

with regard to a fear of future persecution.

Petitioner’s age was raised by Petitioner because he has argued that, even if the past

harms he suffered would not rise to the level of persecution as experienced by adults,

consideration should have been given to his young age at the time of the events. Petitioner

argues that the agency decisionmakers should have considered “whether the harmful acts

he suffered constitute persecution when viewed from the perspective of a child.” A.R. 24.

Our sister circuits have repeatedly recognized acts as persecution for child

applicants even where the same conduct might not meet that standard for an adult. See,

e.g., Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (explaining that, though the

petitioner was never victimized directly, the combination of circumstances that might not

suffice for an adult “could well constitute persecution to a small child totally dependent on

his family and community” (citation omitted)); Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir.

2004) (“[A]ge can be a critical factor in the adjudication of asylum claims and may bear

heavily on the question of whether an applicant was persecuted or whether she holds a

well-founded fear of persecution.”). Near death beatings and threats from armed men

would undeniably be traumatic for any individual, but surely there can be little debate that

the severity of such incidents and the reasonable perception of future harm stemming

therefrom would be greater for a 14-year-old boy than for an adult man. Indeed, the

Department of Justice has itself acknowledged, “[t]he harm a child fears or has suffered . .

. may be relatively less than that of an adult and still qualify as persecution.” U.S. Dep’t

41 of Justice, Immigr. & Naturalization Serv., File No. 120/11.26, Memorandum on

Guidelines for Children’s Asylum Claims (1998), 1998 WL 34032561.

The substantial evidence demonstrates that Petitioner established past persecution

irrespective of his age. But taking into account that Petitioner was only a child during the

events in question, it becomes all the more obvious that the substantial evidence in this

case compels a conclusion contrary to that reached by the IJ and BIA.

Furthermore, if the BIA wanted to use Petitioner’s growth to rebut a presumption of

future persecution, it needed to explain why, despite a change in age, “a reasonable person

would [not] have fear of persecution” in like circumstances. Tang v. Lynch, 840 F.3d 176,

181 (4th Cir. 2016) (quoting Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002)). That is, even

if it believed the underlying events did not constitute past persecution for an adult, the BIA

never evaluated whether those acts would place a reasonable adult in fear of future

persecution.

Thus, both the IJ and BIA once again failed to provide a meaningful analysis of

whether Petitioner established a well-founded fear of future persecution. Having

concluded that Petitioner did not establish past persecution, the agency decisionmakers

simply stumbled through their determinations that he likewise did not have a fear of future

persecution either, with the IJ barely providing a coherent paragraph and the BIA resorting

to Petitioner’s age as a “changed circumstance” in attempt to support such position.

To me, Petitioner’s youth when he received the assaults and threats at issue serves

to underscore the errors made by the IJ and BIA in refusing to find past persecution. And

42 it does not in any way undermine or rebut the presumption of future persecution to which

he should be entitled on the evidence in the record. To the contrary, for these reasons, I

cannot credit the IJ or BIA “analyses” of Petitioner’s well-founded fear of future

Last, but certainly not least, as the majority acknowledges, the Government does

not dispute that the IJ and BIA erred in finding that Petitioner failed to establish a nexus

between his alleged persecution and particular social group membership, merely stating

that we “need not reach the agency’s decision regarding nexus to a protected ground.”

Resp’t’s Br. 18 n.7. Petitioner alleges error based on the IJ and BIA determinations failing

to recognize his family as a cognizable particular social group and that his family

relationship to his sister is not “one central reason” for the past or future persecution he

fears. A.R. 3. The BIA upheld the IJ’s finding that “the harm [Petitioner] fears is motivated

by an act of random criminal or gang violence, which is unrelated” to his family

membership. Id.

Given that the Government does not contest Petitioner’s allegation of error -- and

given that the IJ and BIA also erred in their analyses of Petitioner’s persecution and the

ability of the Salvadoran government to protect him -- I dissent from the majority’s

decision to affirm. Rather, I would remand for the BIA to perform the correct analysis of

Petitioner’s past persecution, the nexus of that persecution to his family membership, the

evidence that reporting MS-13’s violence would have been futile or harmful, and the

43 reasons for determining that the El Salvadoran government would nonetheless be able to

protect Petitioner.

IV. The determination that the IJ and BIA erred with regard to Petitioner’s asylum claim

necessarily implicates their conclusions as to his claim for withholding of removal. The IJ

and BIA rejected Petitioner’s withholding of removal claim, reasoning that his failure to

establish a claim for asylum meant that he would be unable to meet the higher evidentiary

standard for withholding of removal. See Zelaya v. Holder, 668 F.3d 159, 161 (4th Cir.

2012) (explaining, “an [applicant] who cannot meet his burden of proof on an asylum claim

cannot meet his burden of proof on a withholding of removal claim under the INA”

(citation omitted)). But because the BIA rested its conclusion as to withholding of removal

on its flawed asylum determination, I would also remand for reconsideration of Petitioner’s

withholding of removal claim consistent with the analysis set forth above.

Finally, I would also remand Petitioner’s CAT claim for further analysis. I cannot

agree with my colleagues that the CAT analyses of the IJ and BIA adequately addressed

Petitioner’s “particularized risks of torture, country conditions, and mass human rights

violations in the country of removal.” Pet’r’s Br. 21–22. As with their asylum analyses,

the IJ and BIA woefully underexplain their assessment of Petitioner’s argument and

evidence with regard to his CAT claim.

To be eligible for CAT protection, an applicant must demonstrate that it is “more

likely than not that he or she would be tortured if removed to the proposed country of 44 removal.” 8 C.F.R. § 208.16(c)(2). An applicant is not required to link the likelihood of

torture to a protected ground. See Lizama v. Holder, 629 F.3d 440, 449 (4th Cir. 2011).

Torture is defined as “any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person . . . by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.”

8 C.F.R. § 1208.18(a)(1). Government acquiescence requires a demonstration that officials

are aware of or remain willfully blind to the acts constituting torture. 8 C.F.R. §

1208.18(a)(7); see Rodriguez-Arias v. Whitaker, 915 F.3d 968, 971 (4th Cir. 2019).

The IJ’s CAT discussion is, in full, a mere three sentences long:

The Court has considered the 2016 and 2017 Human Rights Reports for El Salvador, as well as the articles submitted in Exhibits 5 and 6 which confirm that violence is a significant problem in El Salvador. However, [Petitioner] has not provided evidence that shows that it is more likely than not that he specifically would be tortured in the future in El Salvador with the consent or acquiescence of the government. For these reasons, I deny [Petitioner]’s request for relief under the CAT.

A.R. 81. To its credit, the BIA did at least add one item of fact in its analysis, noting that

Petitioner’s “grandmother and sister ‘believe’ that the Salvadoran police are working with

local MS gang members.” Id. at 4. 2 But otherwise, reviewing the IJ’s decision for clear

2 Given that the IJ’s three-sentence CAT analysis was devoid of any factual findings on Petitioner’s specific evidence of police corruption, the BIA was left to its own devices and failed to consider all the record evidence. For one thing, the BIA’s factual description fails to acknowledge that Petitioner’s mother -- in addition to his sister and his grandmother -- attested to her understanding that the policemen who visited her house “were policemen working with the gang members . . . threatening [her] so that [Petitioner] would turn himself into the gang members.” A.R. 290. 45 error, the BIA agreed with the IJ’s determination rejecting Petitioner’s claim for CAT relief

without any other reference to the facts.

Review of Petitioner’s CAT relief claim is significantly hindered by the IJ’s and

BIA’s scant analysis. Petitioner put forth credible evidence that he fears future persecution

by MS-13 members, and he also put forth specific, credible evidence that the police have

been involved in prior attempts to locate him. As we have previously explained, “the BIA’s

or IJ’s failure to engage with an applicant’s evidence hampers our ability to meaningfully

review what was decided below.” Rodriguez-Arias, 915 F.3d at 974.

Of note, we have previously rejected exactly the kind of cursory analysis performed

here, holding insufficient an IJ’s analysis “acknowledg[ing] that there are ‘some instances

of torture of gang members and former gang members by the police in El Salvador,’ but

then assert[ing] that the ‘evidence does not support’ the likelihood that the harm inflicted

on [the applicant] would be with the government’s acquiescence.” Rodriguez-Arias, 915

F.3d at 974 (quoting the record in that case). And where the BIA similarly failed to engage

with the applicant’s evidence, we held that the “wholesale failure to fully consider [the

applicant]’s country-conditions evidence constitute[d] reversible error.” Id. at 975

(emphasis supplied). Likewise, I submit that here “[d]enying [Petitioner]’s claim for CAT

relief required more -- much more -- from both the BIA and the IJ” than the sparse analysis

provided. Id.

At best, the agency decisionmakers acknowledged only Petitioner’s family’s

“belief” in police corruption without acknowledging the abundant expert evidence

Petitioner submitted corroborating his testimonial evidence, including affidavits by

46 professional analysts explaining how MS-13 can “operate . . . largely without police or

military interference because of corruption and the Salvadoran government’s inability to

maintain order,” A.R. 387, and country reports evidence indicating the effectiveness of the

national police force is hampered by “corruption and criminality,” id. at 447.

Circuit courts, including our own, have repeatedly warned the BIA that it “must

interact seriously with the full panoply of the risk-of-torture evidence submitted.”

Rodriguez-Arias, 915 F.3d at 975 (citing Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th

Cir. 2010) and Kamalthas v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001)). “When a man’s

life is on the line, he is entitled to know that the court deciding his claim reviewed all his

evidence, understood it, and had a cogent, articulable basis for its determination that his

evidence was insufficient.” Rodriguez-Arias, 915 F.3d at 975. A petitioner whose life is

on the line deserves -- and under our precedent is entitled to -- more than the absolute

disregard of his relevant evidence exhibited in the IJ and BIA opinions here. The BIA and

IJ fail to provide adequate analysis when they limit review of the evidence only to country

condition reports and ignore an applicant’s particularized evidence. See Cabrera Vasquez

v. Barr, 919 F.3d 218, 223–24 (4th Cir. 2019) (remanding where “[a]lthough the IJ found

[the petitioner] credible, the BIA’s order lack[ed] any meaningful engagement with her

testimony” and relied exclusively on country condition reports “that ‘showed the

government was making efforts to fight the gangs in El Salvador’” (quoting the record in

that case)).

Therefore, I would remand Petitioner’s CAT relief claim with instruction to engage

with the evidence provided beyond just the country reports and the BIA’s one liner about

47 Petitioner’s family’s beliefs. Petitioner detailed numerous threats as well as physical

assaults on his person. He also presented evidence that the government officials

responsible for protecting him are possibly in league with his would-be torturers. The IJ’s

and BIA’s respective failures to acknowledge this evidence and apply our CAT precedent

to it is error and warrants remand.

VI. In conclusion, I borrow from the majority opinion, which likens the standard of

review to an offensive lineman in football. In light of the limited analyses below, which

were at worst nonsensical and cursory at best, the standard of review “offensive lineman”

in this case cannot protect the decision below. Instead, the weak analysis of the agencies

left their blind side wide open.

I dissent.