NOT RECOMMENDED FOR PUBLICATION File Name: 25a0374n.06
Case No. 25-3001
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jul 28, 2025 KELLY L. STEPHENS, Clerk ) JACINTO SALOMON COBO-LOPEZ ) Petitioner, ) ) ON PETITION FOR REVIEW FROM v. ) THE UNITED STATES BOARD OF ) IMMIGRATION APPEALS PAMELA BONDI, Attorney General, ) Respondent. ) OPINION )
Before: COLE, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Jacinto Cobo-Lopez petitions for review of an
order of the Bureau of Immigration Appeals affirming an immigration judge’s finding that he was
eligible for removal. We deny the petition.
I.
Jacinto Salomon Cobo-Lopez is 27 years old and grew up in a rural hamlet near Santa
Maria Nebaj in Guatemala; he speaks both Spanish and Ixil, a Mayan language.1 In December
2015, Cobo-Lopez came to the United States, fleeing members of a gang, named Mara
Salvatrucha, who sought to recruit him. He first encountered these gang members in the town
square in December 2014, while he was on his way to school. The gang members threatened him
into joining the gang, which Cobo-Lopez ultimately did. During the months Cobo-Lopez spent
with the gang, he saw them hit and rob people, and he also heard that they had killed people. Cobo-
1 We cite Cobo-Lopez’s hearing testimony, as he was found credible by the immigration judge. No. 25-3001, Cobo-Lopez v. Bondi
Lopez did not tell his parents at the time that he was in the gang. But when the gang pressured
him toward joining them in further violence, including potential murders, Cobo-Lopez told his
parents, left the gang on November 12, 2015, and fled to the United States.
Cobo-Lopez fears that if he returns to Guatemala, the gang will find and kill him. While
he was a member, they threatened and mistreated him, hitting him in the head with a thrown bottle
and hitting his stomach when he refused to do what they asked. After he left the gang but before
he left the country, gang members called or visited his home every day to pressure him into
rejoining. When he refused, they threatened to kill him and his mother. Cobo-Lopez’s mother
twice called the police, but they did not come. The gang stopped contacting Cobo-Lopez once he
reached the United States.
Cobo-Lopez arrived in the United States at Rio Grande City in Texas on December 10,
2015. The next day, December 11, 2015, he was given a Notice to Appear (NTA) for removal
proceedings, which charged that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i). The NTA
was defective, as it did not include the time and date of his removal hearing. Cobo-Lopez first
appeared before the immigration judge (IJ) more than a year later, on January 4, 2017. He admitted
the allegations of the NTA and conceded removability at that time. Cobo-Lopez had two more
brief hearings before the IJ, on July 19, 2017, and February 14, 2018, and then a final merits
hearing on January 8, 2021. Cobo-Lopez presented evidence, including a Guatemala human rights
report from the Department of State and a translated statement from his parents in Guatemala.
At that January 8 hearing, the IJ heard testimony from Cobo-Lopez and found in an oral
decision issued that day that he was removable. The IJ determined that Cobo-Lopez was credible,
but that he was not eligible for asylum or withholding of removal because he had not experienced
persecution based on any of the protected grounds. Cobo-Lopez then appealed to the Bureau of
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Immigration Appeals (BIA), which affirmed the IJ and issued a decision dismissing his appeal on
December 5, 2024. Cobo-Lopez filed a timely petition for review of the BIA’s removal order,
which we have jurisdiction to review. See 8 U.S.C. § 1252(a)(1).
II.
Where the BIA reviews an IJ’s decision de novo and issues its own opinion, we review the
BIA’s decision. Guzman-Vazquez v. Barr, 959 F.3d 253, 259 (6th Cir. 2020). We also review the
IJ’s decision to the extent the BIA adopted its reasoning. Id. In this case, the BIA issued its own
opinion but adopted the IJ’s reasoning in some places. Where this occurs, we review the IJ’s
decision and reasoning.
For both the BIA and IJ decisions, we consider factual findings under the substantial
evidence standard, under which “we affirm so long as the Board’s finding ‘is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.’” Sabastian-
Andres v. Garland, 96 F.4th 923, 929 (6th Cir. 2024) (quoting Zhao v. Holder, 569 F.3d 238, 247
(6th Cir. 2009)). And we will “reverse only if ‘the evidence not only supports a contrary
conclusion, but compels it.’” Id. (quoting Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007)).
We review legal conclusions de novo. Id.
III.
Cobo-Lopez raises seven issues on appeal, some of which overlap. We proceed through
each, in the order in which he advances them.
A. We begin with Cobo-Lopez’s argument regarding his defective NTA. Federal law
establishes requirements for NTAs in removal proceedings. 8 U.S.C. § 1229(a)(1). Among them,
the NTA must contain “[t]he time and place at which the proceedings will be held.”
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8 U.S.C. § 1229(a)(1)(G)(i). As previously noted, Cobo-Lopez’s December 11, 2015, NTA did
not have this statutorily required information—instead, it just provided that the time and place of
his hearing were to be set later. The Supreme Court has held that such an NTA is not the statutorily
required notice to appear. Pereira v. Sessions, 585 U.S. 198, 208–09 (2018) (“A putative notice
to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings
is not a ‘notice to appear under section 1229(a)[.]’”); see also Niz-Chavez v. Garland, 595 U.S.
155, 159–60 (2021).2
Cobo-Lopez did not raise the argument that his NTA was defective until appeal before the
BIA. The Board admitted that the NTA was defective, but pointed to its decision in Matter of
Fernandes, 28 I & N Dec. 605 (BIA 2022), in which it categorized the requirement as a “claims-
processing rule” rather than a provision affecting the jurisdiction of the immigration judge. DE 8-
2, BIA Op., CAR 3 (quoting Fernandes, 28 I & N Dec. at 608). The distinction matters because,
“[u]nlike jurisdictional limits . . . claim-processing rules are subject to waiver and forfeiture by a
litigant.” McIntosh v. United States, 601 U.S. 330, 337 (2024). In Fernandes, the BIA stated that
it would “generally consider an objection to a noncompliant notice to appear to be timely if it is
raised prior to the closing of pleadings before the Immigration Judge.” Fernandes, 28 I & N Dec.
at 610–11.
2 Pereira addressed the “stop-time rule” associated with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546, under which (1) noncitizens can apply for adjustment of immigration status, under certain circumstances, after ten years of presence in the United States, but (2) the service of an NTA stops the accrual of this ten-year period. 585 U.S. at 202–03. Its analysis laid the groundwork for Niz-Chavez, which in turn further interpreted the requirements for an NTA. 593 U.S. at 159. Because Pereira and Niz-Chavez addressed only the stop-time rule, which is not at issue here, they do not squarely address whether Cobo-Lopez’s argument is timely or, if not timely, excusable. -4- No. 25-3001, Cobo-Lopez v. Bondi
This court has applied the rule of Fernandes in a series of unpublished decisions, holding
that a challenge to a defective NTA was untimely, and thus properly not considered, if not raised
during proceedings before the IJ. See, e.g., Alvarenga-Canales v. Garland, No. 22-3514, 2023
WL 3094545, at *3 (6th Cir. Apr. 26, 2023) (neither raised before IJ nor BIA); Reyes-Rodriguez
v. Garland, No. 23-3548, 2024 WL 1574673, at *4 (6th Cir. Apr. 11, 2024) (not raised until motion
to reopen proceedings made with BIA); Palma-Campos v. Bondi, No. 24-3490, 2025 WL 665849,
at *1 (6th Cir. Feb. 20, 2025) (same); Hernandez v. Bondi, No. 24-3467, 24-3468, 24-3469, 24-
3470, 24-3472, & 24-3474, 2025 WL 943710, at *1 (6th Cir. Mar. 28, 2025) (same). We follow
those cases today.
Cobo-Lopez argues that his argument should be considered timely because his hearing on
the merits occurred before the 2022 decision in Fernandes. The government admits his last hearing
before the IJ was January 8, 2021. But this is not a reason why he could not have raised his
objection before then, as it was based not just on Niz-Chaves and Fernandes but also on the
Supreme Court’s earlier decision in Pereira.
Regarding our consideration of the timeliness of his objection, Cobo-Lopez urges us to
adopt the approach of the Seventh Circuit. In that circuit, “relief” is “available for those who make
timely objections,” and also for “those whose timing is excusable and who can show prejudice.”
Ortiz-Santiago v. Barr, 924 F.3d 956, 965 (7th Cir. 2019). As we pointed out earlier this year in
Espinoza-Anguiano v. McHenry, however, the Seventh Circuit itself has foreclosed this argument.
No. 24-3219, 2025 WL 405108, at *2 (6th Cir. Feb. 5, 2025) (citing Meraz-Saucedo v. Rosen, 986
F.3d 676, 683 (7th Cir. 2021)). Although we do not disclaim the Seventh Circuit’s approach,
Cobo-Lopez’s timeliness argument would fail even if it applied here. Cobo-Lopez is thus not
entitled to relief on these grounds.
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B.
We next consider Cobo-Lopez’s argument that the IJ failed to carry out a sufficiently
distinct analysis of Cobo-Lopez’s claim for withholding of removal. This issue is intertwined with
the IJ’s and BIA’s decisions about Cobo-Lopez’s asserted social group, which was relevant to the
asylum determination.
Immigration law provides that noncitizens in the United States may be granted asylum by
the Secretary of Homeland Security or the Attorney General if they are determined to be a
“refugee,” which is defined, in pertinent part, as someone outside their home country who is
“unable or unwilling” to return to that country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). Cobo-Lopez claimed asylum on
the grounds that he had suffered persecution as a member of a distinct social group, namely young
ethnic Mayans, who were former gang members, residing in the remote rural areas of Guatemala,
who have refused to join the gang despite having been targeted and approached by gang members
demanding that they join. DE 8-2, IJ Hearings, CAR 103–04.
There is another ground under which a noncitizen can challenge removability: they can
seek “withholding of removal.” The Attorney General must withhold removal if “the alien’s life
or freedom would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The
standards for asylum and withholding of removal are very similar, and an application for asylum
is also deemed an application for withholding of removal. 8 C.F.R. § 1208.3(b).
Cobo-Lopez argues that neither the IJ nor the BIA analyzed his withholding of removal
claim with sufficient particularity, given that it is governed by a different standard. He is right, at
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least in one regard. We have held that, based on statutory language, a noncitizen can seek
withholding of removal if that protected ground was merely “at least one reason” for past
persecution. Guzman-Vazquez, 959 F.3d at 274. This is distinct from the standard for asylum,
which requires more: that the applicant establish that one of the protected grounds is “at least one
central reason for persecuting” them. Id. at 270 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). The
difference does not make “causation for withholding claims easier to prove than causation for
asylum claims,” because an applicant for withholding still has a higher burden to show the
probability of future persecution. Id. at 274 (alteration omitted). But it is distinct. It could
conceivably have been necessary to carry out separate analysis under this prong.
The problem for Cobo-Lopez, however, is that this distinction does not affect his case. The
BIA held that Cobo-Lopez’s testimony did not establish persecution, for asylum purposes, because
his asserted social group was not cognizable. In other words, despite his credible testimony of
mistreatment, Cobo-Lopez did not experience persecution in connection with any protected
ground. Because both asylum and withholding of removal require affiliation with a protected
group or status, if Cobo-Lopez failed to qualify for asylum on this ground, then he also failed to
qualify for withholding of removal. So this raises the question of whether the BIA was correct to
hold that Cobo-Lopez’s social group was not cognizable.
Whether his social group is cognizable is a purely legal question, and as such we review it
de novo. Reyes Galeana v. Garland, 94 F.4th 555, 558 (6th Cir. 2024). An applicant for asylum
or for withholding of removal based on a claim of persecution in connection with membership in
a particular social group, must show that he belongs to a group that is (1) “comprised of members
who share an immutable characteristic”; (2) “defined with particularity”; and (3) “perceived to be
socially distinct in the society in question.” Id. at 558–59. We note that “this court has already
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rejected the claim that individuals targeted to join MS-13 qualify as a socially distinct group.”
Cruz-Guzman v. Barr, 920 F.3d 1033, 1036 (6th Cir. 2019) (citing Umana-Ramos v. Holder, 724
F.3d 667, 674 (6th Cir. 2013)).
Cobo-Lopez’s asserted group is different; it is based on past gang membership and also on
young rural Guatemalan status. He defines it as: “Young ethnic Mayans residing in the remote
rural areas of Guatemala who have been targeted and approached by gang members demanding
that they join the gang but who have refused.” DE 8-2, Proposed Stipulated Facts, CAR 153. At
a hearing, his attorney added the criterion that the young men be “former gang members.” Id. at
CAR 104. On appeal, Cobo-Lopez points out that Mayan race is an immutable characteristic and
that although residence in rural communities might not intuitively be seen as immutable, it should
be. But his only argument for the second and third prongs is that this group’s very “specific and
distinguishable” characteristics “mak[e] it distinct from the rest of society.” CA6 R. 15-1, Pet.
Br., at 17.
Our cases require more than this, especially in the gang context. See Cruz-Guzman, 920
F.3d at 10236–37; Umana-Ramos, 724 F.3d at 673–74. We have held, in a case involving claimed
persecution against Mexican business owners, that the “social distinction” prong “demands a
showing that Mexican society actually perceives the purported group to be a distinct class of
persons subject to persecution.” Reyes Galeana, 94 F.4th at 559. Cobo-Lopez’s claims here are
like those we rejected in Zaldana Menijar v. Lynch, 812 F.3d 491, 498–499 (6th Cir. 2015). In
that case, the petitioner sought to establish that he belonged to a persecuted group of “active and
long-term former gang members,” and we held that his evidence did not “support the crucial
requirement that society, not the gangs themselves, perceives former members as a socially distinct
group.” Id. at 499. It is not true that former gang membership could never be the kind of distinct
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social group membership that can support a persecution claim. See id. But such a claim requires
evidentiary support and investigation into the individual facts and circumstances of the case. And
for such a claim to be successful, more evidence is required than was presented here. It is Cobo-
Lopez’s burden to establish all the prongs of a cognizable group, and as to social distinction, he
does not offer sufficient evidence for the group he claims.
The social distinction prong is not a recasting of the particularity and immutability prongs;
it is an independent requirement. Because Cobo-Lopez has not made this showing, and thus has
not established that he belongs to a cognizable particular social group for persecution purposes,
his withholding claim fails, and it was not necessary for the IJ or the BIA to analyze grounds for
persecution under a different standard.3
Cobo-Lopez also argues that the BIA “erroneously disregarded the severe harm” to which
he testified, refusing to say whether it rose to the level of persecution. CA6 R. 15-1, Pet. Br., at
19. But the persecution inquiry “takes place only after” the applicant establishes protected status
under the asylum or withholding of removal statutes. Reyes Galeana, 94 F.4th at 560. Our
conclusion that Cobo-Lopez has not established that he belongs to a cognizable particular social
group means that this argument also necessarily fails.
C.
Cobo-Lopez also contends that the BIA “erroneously concluded Mr. Cobo-Lopez could
reasonably relocate within his country.” CA6 R. 15-1, Pet. Br. at 19. As Cobo-Lopez points out,
the BIA did not independently analyze this issue. It adopted the IJ’s decision, so we analyze that.
See Guzman-Vazquez, 959 F.3d at 259.
3 We base our conclusion only on this prong of the cognizable group analysis and do not decide whether, as the BIA found and the government asks us to find, this asserted protected group was impermissibly circularly defined by its harm. -9- No. 25-3001, Cobo-Lopez v. Bondi
“In cases in which the applicant has not established past persecution, the applicant shall
bear the burden of establishing that it would not be reasonable for him or her to relocate.”
8 C.F.R. § 1208.13(b)(3)(i). This language applies here, because Cobo-Lopez has not established
that he belongs to a cognizable particular social group. In analyzing the potential of relocation,
the regulations provide that “adjudicators should consider the totality of the relevant circumstances
regarding an applicant’s prospects for relocation.” Id. § 1208.13(b)(3).
Here, the IJ did so. He found that it would be “reasonable for [Cobo-Lopez] to relocate to
another part of the country.” DE 8-2, IJ Op., CAR 53. The IJ provided four reasons. First,
although Cobo-Lopez primarily speaks Ixil, he was able to overcome a language barrier to find a
job and housing in the United States. Second, “no records or evidence” supported Cobo-Lopez’s
asserted fear that if he moved to another village, locals would “think he was a thief and possibly
harm him.” Id. Third, “there is no civil strife, inadequate civil infrastructure, or geographical
limitations” that would prevent internal relocation generally. Id. And the IJ saw “no reason to
believe that gang members across the country would have a way of identifying him or recognizing
him based on his limited interactions with the gang in his local town.” Id.
Even if not comprehensive, this analysis by the IJ, and its subsequent adoption by the BIA,
belies Cobo-Lopez’s argument on appeal that the Board did not sufficiently evaluate country
conditions related to his relocation claim. Additionally, we are not persuaded by Cobo-Lopez’s
argument on this appeal that relocation is unreasonable because “[t]here is no place in Guatemala
where he could live safely.” CA6 R.15-1, Pet. Br., at 16. While we do not doubt that he may face
risks from the gang if he returned to his hometown, he offers limited evidence to support his
argument that he would face similar risks elsewhere in Guatemala—and insufficient evidence to
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“compel” us to reach a conclusion contrary to the BIA’s. Sabastian-Andres, 96 F.4th at 929
(emphasis omitted).
D.
Next, Cobo-Lopez argues that the BIA erred in denying relief under the Convention
Against Torture (CAT), which bars removal in certain circumstances. Under the regulations
implementing the CAT, the applicant for relief 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). Qualifying torture must be “inflicted by, or at the instigation of, or with the
consent or acquiescence of, a public official acting in an official capacity or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1). And “[a]cquiescence can mean ‘willful blindness’
to a private actor’s abusive conduct.” Sabastian-Andres, 96 F.4th at 931 (quoting Amir v.
Gonzales, 467 F.3d 921, 927 (6th Cir. 2006)). The likelihood may be established by the applicant’s
own, uncorroborated testimony, if credible. 8 C.F.R. § 1208.16(c)(2). We review the factual
determinations connected to a CAT decision under the substantial evidence standard, but legal
questions de novo. Marqus v. Barr, 968 F.3d 583, 588–89 (6th Cir. 2020).
Cobo-Lopez first argues that the BIA and IJ did not give sufficiently meaningful
consideration to his arguments. CA6 R. 15-1, Pet. Br., at 21–22. We disagree, although the
question is close. The IJ’s and BIA’s cursory analysis here comes close to critical deficiency.
“Though it need not write an exegesis on every contention, the BIA must consider the issues raised,
and announce its decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Trujillo Diaz v. Sessions, 880 F.3d 244, 255 (6th Cir.
2018) (internal quotations omitted). In the eyes of the IJ, Cobo-Lopez failed to establish that he
would likely be tortured if he was removed to Guatemala because his mother, “who remained in
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Guatemala and was a subject to the gang’s threats, was never harmed.” DE 8-2, IJ Op., CAR 55.
The BIA, in turn, agreed with the IJ: “The record evidence does not support the conclusion that it
is more likely than not that the Guatemalan government would torture the respondent, acquiesce,
or be willfully blind to his torture upon returning to Guatemala as required for protection under
the CAT.” DE 8-2, BIA Op., CAR 4.
This court has, in previous cases, vacated and remanded the BIA’s decision for more
searching review of relevant torture-related information in the record, for instance where the Board
had failed completely to mention instances of torture in country conditions reports. See, e.g.,
Mostafa v. Ashcroft, 395 F.3d 622, 625–66 (6th Cir. 2005). But the IJ’s determination here that
Cobo-Lopez had not met the standard was based on “consid[eration of] all the documentary
evidence submitted,” which included a 2018 Human Rights Report for Guatemala. CAR 8-2, IJ
Op., CAR 55; Id., Guatemala Human Rights Report, CAR 172. Unlike Mostafa, where the BIA
failed to recognize a record of “extensive human rights abuses,” including evidence of widespread
torture, the record here does not suggest obvious oversight of similarly significant and serious
country conditions. Mostafa, 395 F.3d at 625–26. Although the submitted human rights report
notes the risk of torture in mental health and prison facilities, and weak reporting mechanisms,
unlike those considered in Mostafa the materials in this case do not persuade us that if the BIA had
“properly considered all evidence relevant to the possibility of future torture in [Guatemala], it
might have adjudicated [Cobo-Lopez’s] claim differently.” Id. at 626.
This conclusion is bolstered by the IJ and BIA’s assessment of the specific threats facing
Cobo-Lopez. The IJ rejected Cobo-Lopez’s CAT claim, in part, because his mother, one
of the subjects of the gang’s threats, was never harmed despite remaining in the same village.
CAR 8-2, IJ Op., CAR 55. While that analysis alone would be insufficient, as it did not address
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the risks that Cobo-Lopez himself faced as a former member of the gang, the IJ clarified that its
fuller threat analysis was “noted above.” Id. And earlier in the decision, the IJ more fully
explained that Cobo-Lopez failed to show “that he would be harmed [upon] returning” because he
“had been gone from Guatemala for years” and the gang “never followed through” on “analogous”
threats made to his mother. Id. at 54. Additionally, the IJ noted that “despite remaining in
Guatemala after quitting the gang, [Cobo-Lopez] was not harmed while in Guatemala” and “only
received threats and saw gang members walking by his house.” Id. Consequently, the IJ’s
reasoning was not so lacking as to require remand for further analysis.
Second, Cobo-Lopez also argues that the BIA failed to review the evidence “on its merits”
and instead “dismissed[ed] it as speculative.” CA6 R. 15-1, Pet. Br., at 22. But, even if its
explanation was sparse and overly reliant on the IJ’s reasoning, the BIA clarified that it had in fact
reviewed the “record evidence.” DE 8-2, BIA Op., CAR 4.
Cobo-Lopez still has the underlying burden of establishing that that it is more likely than
not that he would be tortured with at least the government’s “acquiescence” or “willful blindness”
if removed to Guatemala. Sabastian-Andres, 96 F.4th at 931; see 8 C.F.R. § 1208.16(c)(2). And
we agree that Cobo-Lopez’s evidence did not give rise to a sufficient probability that he would be
tortured upon return to Guatemala with at least the willful blindness of the government.
Cobo-Lopez offered several pieces of evidence to support his argument. He testified
credibly that the gang hit him in the head with a glass bottle. See DE 8-2, Hearing, CAR 134; DE
8-2, IJ Op., CAR 51. The IJ found that this was the “only harm he suffered from the gang.” Id.
This was incorrect, because Cobo-Lopez also testified to being hit in the stomach. Compare DE
8-2, Hearing, CAR 135, with DE 8-2, IJ Op., CAR 51. Cobo-Lopez also testified that during the
month after he left, gang members called his mother and said that they would kill both him and
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her. Although his mother did not mention it in her statement, Cobo-Lopez testified that she twice
called the police to report the gang’s threats, and they did not respond. Once, after he had left, the
gang came to his house, but they did not enter, as the gate was locked. Finally, he testified that he
believes the gang would come looking for him if he returned to Guatemala, though he admits they
have had no contact with him or his mother (who remains unharmed in Guatemala) in over five
years.
Considering conditions in Guatemala specifically, we have noted that the police are not
likely to respond to gang-related violence, but also that Guatemala “has taken some steps to address
the problem.” Sabastian-Andres, 96 F.4th at 932. Additionally, the IJ found most convincing the
fact that the gang never carried out its “analogous” threats against Cobo-Lopez’s mother and
eventually stopped contacting her. DE 8-2, IJ Op., CAR 54–55. The Board agreed with the IJ,
and further reasoned that CAT eligibility “cannot be established by stringing together a series of
suppositions to show that it is more likely than not that torture will result if the evidence does not
establish that each step in the hypothetical chain of events is more likely than not to happen.” DE
8-2, BIA Op., CAR 4 (citing Matter of J-F-F-, 23 I&N. Dec. 912, 917–18 (A.G. 2006)). We agree
with this analysis. The gang harmed Cobo-Lopez, and was certainly intimidating and threatening
him and his family, but it has neither contacted him nor acted against his family since he fled.
Cobo-Lopez has not presented sufficient evidence to meet the standard for relief under the CAT.
E.
Cobo-Lopez finally argues that the BIA erred in denying his request for voluntary departure
and abused its discretion. After removal proceedings have concluded, the Attorney General “may
permit an alien voluntarily to depart the United States at the alien’s own expense” in certain
circumstances. 8 U.S.C. § 1229c(b)(1). A noncitizen qualifies for this relief if he satisfies four
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eligibility requirements: (1) he has been physically present in the United States for one year
preceding service of the NTA; (2) he has been of good moral character for 5 years preceding his
application for voluntary departure; (3) he is not deportable under certain other statutory
provisions, and (4) he has established “by clear and convincing evidence” that he has the means to
depart the United States and intends to do so. Id. The BIA found that Cobo-Lopez had not
presented evidence supporting prima facie eligibility for voluntary departure. In particular, Cobo-
Lopez failed to present evidence of a passport or other travel document that would permit him to
leave the country.
As an initial matter, we note that although § 1229(c)(b)(1)’s overarching “may permit”
language is discretionary, we retain jurisdiction to decide nondiscretionary legal questions within
that determination. See Hernandez v. Garland, 59 F.4th 762, 768–70 (6th Cir. 2023). Just as in
Hernandez, we are analyzing one of multiple eligibility requirements within a discretionary
decision; here, it is the BIA’s determination that Cobo-Lopez had not met the requirement to
demonstrate the means and intent of departing the United States voluntarily. 8 U.S.C.
§ 1229c(b)(1)(D); see DE 8-2, BIA Op., CAR 4. We have jurisdiction to review the Board’s
decision on this ground. Hernandez, 59 F.4th at 770.
And just as in Hernandez, we would affirm here on any standard of review. See id. at 771.
On appeal, Cobo-Lopez claims that he has a passport that he is ready to submit to the BIA. But
the government points out that he has still “submitted no evidence” of this passport, and that
statements by his counsel are not themselves sufficient evidence. CA6 R. 16, Resp. Br., at 40–41
(citing I.N.S. v. Phinpathya, 464 U.S. 183, 188 n.6 (1984)). We agree with the government. Cobo-
Lopez has still not demonstrated his eligibility for voluntary departure, and the BIA did not err in
determining that he was not eligible for this relief on this ground.
- 15 - No. 25-3001, Cobo-Lopez v. Bondi
IV.
We deny Cobo-Lopez’s petition for permission to appeal the BIA’s decision affirming the
IJ’s decision that he is eligible for removal to Guatemala.
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