Edgar Chavez v. Jefferson Sessions

FILED NOT FOR PUBLICATION JAN 10 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDGAR ARMANDO CHAVEZ, No. 15-70822 Petitioner, Agency No. A094-144-347 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 4, 2017 Pasadena, California Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,** District Judge. Edgar Armando Chavez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeal (“BIA”)’s decision dismissing his appeal of an Immigration Judge (“IJ”)’s decision finding him removable and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. denying his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the petition for review. First, Chavez argues, for the first time, that the Agency erred in denying withholding of removal because “it did not address the relevant framework” in Matter of Y-L-, 23 I. & N. Dec. 270 (AG 2002), when it found that his aggravated felony conviction was a particularly serious crime. We “may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). Moreover, “we may review any issue addressed on the merits by the BIA, regardless whether it was raised to the BIA by the petitioner.” Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (emphasis added). Here, the BIA did not address on the merits whether Chavez overcame the presumption under Matter of Y-L- that he was convicted of a particularly serious crime, but rather determined that Chavez did not meet his burden of presenting evidence to rebut that presumption. Accordingly, Chavez failed to exhaust his argument regarding the IJ’s particularly serious crime determination to the Agency. 2 Second, the Agency did not err by holding that Chavez failed to demonstrate CAT deferral eligibility. Substantial evidence supports the Agency’s finding that Chavez failed to demonstrate that he would “more likely than not” be tortured by the Salvadoran police. See 8 C.F.R. § 1208.16(c)(2). Although Chavez may be interrogated as part of the reception process when he returns to El Salvador, a wide variety of interrogation techniques are employed, many of which are not torture. The record does not compel the requisite “more likely than not” probability of torture. Moreover, substantial evidence supports the BIA’s determination that the Salvadoran government would not consent or acquiesce to torture by gangs. 8 C.F.R. § 1208.18(a)(1) (applicant must show that the alleged torture will be “inflicted by or at the instigation of or with the consent or acquiescence of ...

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