Edwin Alvarenga v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3110
_____________
EDWIN ALVARENGA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A087-944-055)
Immigration Judge: Mirlande Tadal
_______________
Argued July 13, 2022
Before: GREENAWAY, JR., MATEY, and RENDELL, Circuit Judges.
(Filed: September 19, 2022)
Jordan Weiner [ARGUED]
American Friends Service Committee
Immigrant Rights Program
570 Broad Street
Suite 1001
Newark, NJ 07102
Counsel for Petitioner
Merrick B. Garland
Brian M. Boynton
Kiley Kane
Andrea N. Gevas [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION
_______________
MATEY, Circuit Judge.
Petitioner Edwin Alvarenga is subject to removal but claims Convention Against
Torture (“CAT”) protection citing the threat of gang violence in El Salvador. But the Board
of Immigration Appeals (“BIA”) denied his claim based on substantial evidence, and so
we must deny his petition.
I.
Alvarenga illegally entered the United States from El Salvador in 1995 and settled
in New Jersey. There, he met a Salvadoran drug dealer and MS-13 gang member named
Inmar Mendoza.1 Alvarenga began working for Inmar delivering narcotics and was
arrested. He cooperated with police and later testified against Inmar, leading to convictions
against Inmar and two of his associates. While imprisoned for his own role in the scheme,
Alvarenga was visited by Inmar’s brother who blamed Alvarenga for Inmar’s arrest and

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
1
Inmar Mendoza is referred to interchangeably throughout the administrative record
as “Pirate” and “Inmar.”
2
warned him to “be careful.” A.R. 203. Shortly afterward, the Department of Homeland
Security (“DHS”) removed Alvarenga to El Salvador.
A week after Alvarenga arrived in El Salvador, armed MS-13 members came to his
home and threatened punishment for cooperating against Inmar. Alvarenga soon fled,
reentering the United States and returning to a town near his old neighborhood in New
Jersey. There, Inmar cornered Alvarenga as he got out of his car and threatened him at
knifepoint. Nothing came of these threats, but Alvarenga soon faced a new criminal
investigation. Once more, Alvarenga offered cooperation. This time, he helped catch “El
Doctor,” a drug dealer he met through Inmar. Facing removal for a second time, Alvarenga
sought protection fearing that, if he is deported to El Salvador, MS-13 members will finally
make good on their threats.
An Immigration Judge (“IJ”) denied Alvarenga’s application, finding insufficient
evidence of likely torture. On appeal, the BIA upheld the IJ’s decision. Finding no errors
within our limited scope of review, we will deny this petition.2
II.
To qualify for relief under CAT, Alvarenga bears the burden of proving that “it is
more likely than not that he . . . would be tortured” in El Salvador. 8 C.F.R. § 1208.16(c)(2).
2
The BIA had jurisdiction under 8 C.F.R. § 1208.31(g)(2)(ii) and we have
jurisdiction under 8 U.S.C. § 1252(a). Because the BIA “invoke[d] specific aspects” of the
IJ’s “factfinding in support of [its] conclusions,” we review both decisions. Uddin v. Att’y
Gen., 870 F.3d 282, 289 (3d Cir. 2017), as amended (Sept. 25, 2017). Factual findings are
reviewed under the substantial evidence standard and “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Sandie v. Att’y
Gen., 562 F.3d 246, 251 (3d Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).
3
A standard that assesses what would likely happen to the applicant, whether this constitutes
torture, how public officials would respond, and whether such a response would constitute
acquiescence. Myrie v. Att’y Gen., 855 F.3d 509, 515–16 (3d Cir. 2017). Applying that test,
we conclude the BIA did not err in finding Alvarenga’s evidence too thin to win the day. 3
A. Alvarenga Has Not Shown a Likelihood of Torture
Alvarenga first argues that the IJ ignored evidence of MS-13’s operations in El
Salvador, and the particular threat of gang violence toward witnesses. He notes the IJ,
whose reasoning was adopted by the BIA, inferred from the lack of harm Alvarenga
suffered despite the two threats, that the danger has passed. That, he says, ignored the
evidence of conditions in El Salvador and the broader problems of gang violence. But it
does not follow that Alvarenga made the required showing. The single interaction with
gang members in El Salvador, more than ten years ago, did not result in any harm, let alone
torture. Likewise Alvarenga’s one-time run-in with Inmar in New Jersey.4 Alvarenga
responds that this lack of past harm does not mean he does not qualify. But it does show a
lack of harm despite ample opportunity.
Similarly, the IJ relied on Alvarenga’s expert evidence that gangs usually target
family members of witnesses to contrast the long absence of harm to Alvarenga’s relatives.
3
Though we remind the agency that, while they are “not required to write an
exegesis on every contention,” they still must “show that [they have] reviewed the record
and grasped the movant’s claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)
(quoting Mansour v. I.N.S., 230 F.3d 902, 908 (7th Cir. 2000)).
4
Alvarenga objects to the Board’s discussion of his return to the same area he fled.
But as the IJ stated, “[t]he mere fact that [Alvarenga] decided to return to New Jersey,
where he lived with and interacted with [Inmar], demonstrates that he does not fear [Inmar]
or his associates.” A.R. 54.
4
See generally Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004) (citation
omitted) (“The reasonableness of a fear of persecution is diminished when family members
remain in the native country unharmed, and the applicant himself had not been singled out
for abuse.”). In the face of the gang’s failure to inflict harm when given repeated chances,
we cannot say that the evidence compels the conclusion Alvarenga faces torture if returned.
See Sandie, 562 F.3d at 251.
B. Alvarenga Has Not Shown a Likelihood of Government Acquiescence
Even if we disagreed with the BIA’s conclusion that Alvarenga failed to show likely
torture, we see no basis to disturb the finding that the Salvadoran government would not
partake, acquiesce, or turn a blind eye. “Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to prevent such activity.”
8 C.F.R. § 1208.18(a)(7). Under the “highly deferential” substantial evidence standard of
review applied here, Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020), the BIA’s finding
that public officials would likely respond by deterring gang violence, is “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal
quotation marks and citations omitted).
Here, the BIA discerned no clear error in the IJ’s determinations, based on country
conditions evidence in the record, that Salvadoran government and law enforcement
officials investigate and prosecute, with some success, gang-related violence and
corruption. The IJ also referenced Alvarenga’s expert’s report on the country conditions in
5
El Salvador, pointing to recent successful gang prosecutions. And Alvarenga admitted that
he never reported the threats.
Alvarenga points to statistics about the scale of gang activity in El Salvador. But we
are “not permitted to weigh the evidence or substitute our own conclusions for that of the
fact-finder.” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citation omitted). And
“[w]hile every predictive judgment is subject to second-guessing, especially when it
involves the behavior of foreign governmental actors, the BIA’s conclusion is not one that
a reasonable adjudicator would be compelled to reject.” Galeas Figueroa v. Att’y Gen.,
998 F.3d 77, 93 (3d Cir. 2021).
Nor does Alvarenga’s evidence establish willful blindness by the Salvadoran
government. See Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007). Alvarenga
claims that “the agency misapplied the willful blindness standard by failing to undertake
an individualized analysis of the effectiveness of the government’s efforts to combat gang
violence.” Opening Br. 33. See Quinteros v. Att’y Gen., 945 F.3d 772, 788 (3d Cir. 2019).
But while some of the country conditions evidence shows general gang violence, that same
evidence also suggests successful attempts at combatting the problem. See Galeas
Figueroa, 998 F.3d at 93. It is not enough for Alvarenga to argue that the record supports
his arguments; he must establish that the record compels the conclusion that he will be
tortured and that the government will turn a blind eye. See Sandie, 562 F.3d at 251. Because
Alvarenga did not show that it was more likely than not he would be tortured in El Salvador
by or with the acquiescence of a public official, the decision denying CAT protection was
supported by substantial evidence.
6
III.
For these reasons, we will deny the petition for review of the BIA’s decision.
7
Edwin Alvarenga v. Attorney General of the United States
No. 21-3110
RENDELL, Circuit Judge, dissenting:
I respectfully dissent from the majority’s opinion, as I would reverse and remand
because the Immigration Judge failed to adequately discuss the expert opinion offered on
behalf of the petitioner in this case.
Dr. Thomas J. Boerman is a recognized expert on gangs in El Salvador and has
provided expert testimony in over 500 matters in U.S. and Canadian courts involving
petitioners from Central America, including from El Salvador, fearing gang violence. See
A.R. 74.1 He opined that, in his “professional opinion […] Mr. Alvarenga would be at
high risk of egregious physical harm and death if returned to El Salvador.” A.R. 76.
Indeed, Dr. Boerman described this as “the only defensible conclusion.” Id. His opinion
consists of one hundred and twenty detailed paragraphs over twenty-seven single-spaced
1
Dr. Boerman attested that he has declined to give testimony in another approximately
125 cases, typically when there are questions about the petitioner’s veracity, his own lack
of expertise, or his belief that the petitioner does not face an unusually high risk as
compared to the general population. A.R. 74. He only involves himself in cases in which
he believes that “1) there is a high and predictable risk of egregious physical harm and
possibly death, 2) those risks exist for reasons that are particular to the individual versus
arising from the risk of generalized violence, 3) internal relocation cannot be viewed as a
viable option for safe repatriation, and 4) it is unrealistic to conclude that the Salvadoran
government would be able or willing to protect the individual if returned.” Id.pages. The Immigration Judge cites to the opinion only four times, and mischaracterizes,
or takes out of context, Boerman’s statements in each instance.2
When reviewing questions of law and applications of law to undisputed facts, “our
review is plenary,” and our precedent requires that the Immigration Judge and the Board
take into account “all evidence relevant to the possibility of future torture, including past
torture and the possibility of relocating to avoid future harm.” Ghanem v. Att’y Gen., 14
F.4th 237, 248 (3d Cir. 2021) (citation omitted); see also Guzman Orellana v. Att’y Gen.,
956 F.3d 171, 177 (3d Cir. 2020). Neither the Immigration Judge nor the Board need
“write an exegesis on every contention” in the record. Ghanem, 14 F.4th at 250 n.8
(quoting Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)). But, they must explain
their decision if they disregard evidence favorable to the applicant or in tension with their
findings. Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (“Even if not
specifically addressed in the decision below, the agency may not ignore evidence
favorable to the alien. And if evidence is to be disregarded, we need to know why”)
(cleaned up).
2
For example, the Immigration Judge notes that petitioner’s family members were not
harmed, citing the expert report as if it concluded that this fact was controlling. But Dr.
Boerman merely notes that this can occur, A.R. 90, and harm to family is merely one of
the methods of recrimination employed by MS-13. Id. The Immigration Judge also
concluded that the government would protect petitioner because Dr. Boerman notes that
the “government has prosecuted and convicted 373 members of MS-13.” A.R. 84. But the
next sentence of his opinion states that this is counterproductive, as incarcerating gang
members actually strengthens gangs, and historically, prosecution “has never translated to
a diminishing of gang control over communities or enhanced security for individuals at
risk from them. Id.2
Here, for instance, the Immigration Judge has not explained why she did not
consider, or disregarded, evidence in the record that suggested MS-13 gang members
were likely to harm Alvarenga if he returned to El Salvador. Dr Boerman’s opinion is
replete with statements which are favorable to petitioner, none of which are cited by the
Immigration Judge. Indeed, most are totally ignored.
The Immigration Judge also relied on the fact that MS-13 had not threatened
Alvarenga in years to support her finding that Alvarenga did not face a likelihood of
harm should he return to El Salvador. See A.R. 54. Dr. Boerman, however, counsels quite
the opposite conclusion: “Once targeted, the gravity of the threat toward an individual
does not diminish across time, even over the course of years.” A.R. 92. MS-13 gang
members have “institutional memory.” A.R. 93. The Immigration Judge did not discuss
why she discounted the expert’s testimony in this area.
The Immigration Judge also ignores Dr. Boerman’s opinion, while purporting to
credit it, concluding that the Salvadoran government would not turn a blind eye to
Alvarenga’s persecution. She cites to the report when she concludes, “based on the
evidence submitted, it appears as though the police would act if Respondent submitted a
complaint.” A.R. 55. But, when read in context, and in full, the report suggests the
opposite conclusion. See, e.g., A.R. 77-82, ¶¶ 20-43 (section titled “Governmental
Responses to Gangs and Inability to Control Them”). Dr. Boerman states, “For reasons
described in various sections of this declaration, it is wholly unreasonable to conclude
that the Salvadoran government would be able or willing to offer Mr. Alvarenga any
protection whatsoever. Not only do police and other agents of government not involve
3
themselves in what they perceive as intra and inter-gang violence, but the social
constructs, resources, experiences and institutional structures necessary to protect him in
the short, medium or long-term simply do not exist.” A.R. 76 (emphasis added).
The Immigration Judge’s failure to mention, let alone discuss, the conclusions in
Dr. Boerman’s expert report which are favorable to the petitioner, was error. Indeed, we
are left wondering why, or whether, she discredits the opinion. As we noted in Quinteros,
in light of the Immigration Judge’s disregard of this evidence, we need to know why. We
have no choice but to vacate and remand for her to consider the expert’s opinion in toto.
For these reasons, I respectfully dissent.
4