Israel Alvarado-Herrera v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISRAEL ALVARADO-HERRERA, No. 18-70191
Petitioner,
Agency No.
v. A206-023-796
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of an
Immigration Judge
Argued and Submitted September 16, 2020
San Francisco, California
Filed April 13, 2021
Before: Paul J. Watford, Michelle T. Friedland, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Watford
2 ALVARADO-HERRERA V. GARLAND
SUMMARY *
Immigration
The panel granted in part, denied in part, and dismissed
in part, Israel Alvarado-Herrera’s petition for review of an
immigration judge’s decision affirming an asylum officer’s
negative reasonable fear determination in reinstatement
proceedings, and remanded with instructions.
As an initial matter, the panel concluded that it lacked
jurisdiction to consider Alvarado-Herrera’s contention that
the Department of Homeland Security could not reinstate his
2013 expedited removal order because the order failed to
comply with two regulatory provisions requiring certain
signatures. The panel noted that the statute authorizing
reinstatement of prior removal orders, 8 U.S.C. § 1231(a)(5),
precludes most collateral attacks on the validity of the
removal order being reinstated, unless the petitioner can
show that a “gross miscarriage of justice” occurred during
the earlier removal proceedings. The panel concluded that
even that narrow sliver of jurisdiction is foreclosed when the
underlying order was, as in this case, an expedited removal
order. The panel explained the statute governing expedited
removal orders, 8 U.S.C. § 1252(e), limits judicial review to
three narrow issues, each of which must be raised in habeas
corpus proceedings, concerning “whether the petitioner is an
alien”; “whether the petitioner was ordered removed” under
an expedited removal order; and whether the petitioner can
prove that he or she has lawful status in the United States as
an asylee, refugee, or permanent resident. Because
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALVARADO-HERRERA V. GARLAND 3
Alvarado-Herrera did not raise any such challenge, and this
was not a habeas corpus proceeding, the panel dismissed this
portion of the petition for lack of jurisdiction.
The panel rejected Alvarado-Herrera’s contention that
the agency lacked the statutory authority to create the
reasonable fear screening process for withholding of
removal and Convention Against Torture claims in
reinstatement proceedings, and that Congress intended every
non-citizen to receive a full due process hearing before an
immigration judge. The panel concluded that the agency’s
adoption of the reasonable fear screening process was based
on a permissible reading of 8 U.S.C. § 1231(a)(5) and § 2242
of the Foreign Affairs Reform and Restructuring Act, as it
represented a reasonable effort to reconcile the two statutes’
competing demands of allowing immigration officials to
quickly identify and resolve frivolous claims to protection,
thereby recognizing Congress’s desire to ensure the swift
removal of non-citizens subject to reinstatement, while at the
same time, addressing the United States’ treaty obligations
by making it possible for those who do have a reasonable
fear of persecution or torture to receive a hearing before an
immigration judge at which they can establish their
entitlement to appropriate relief.
The panel rejected Alvarado-Herrera’s contention that
the reasonable fear screening procedures violate the Fifth
Amendment’s Due Process Clause because they do not
afford non-citizens the right to present new evidence during
the review hearing before an immigration judge. The panel
wrote that Alvarado-Herrera misconstrued the nature of a
review hearing, at which the immigration judge sits in an
appellate capacity, reviewing the written record prepared by
the first-instance decision-maker (the asylum officer). The
panel explained that due process does not mandate the right
4 ALVARADO-HERRERA V. GARLAND
to present new evidence to an appellate tribunal when a
litigant has been afforded a reasonable opportunity to present
evidence to the first-instance decision-maker. The panel
also concluded that nothing in the record supported
Alvarado-Herrera’s contention that the immigration judge
failed to review the asylum officer’s determination de novo,
as the regulations require.
The panel held that substantial evidence supported the
immigration judge’s determination that Herrera-Alvarado
failed to establish a reasonable fear of persecution on
account of a protected ground. The panel wrote that violence
perpetrated by a gang to avenge the death of one of its
members, without more, does not constitute persecution on
account of a protected ground.
The panel held that substantial evidence did not support
the immigration judge’s determination that Alvarado-
Herrera failed to establish a reasonable fear of torture with
the consent or acquiescence of a public official, given
Alvarado-Herrera’s specific assertions of police complicity
in the 18th Street gang’s violent acts. Noting that the asylum
officer refused to credit Alvarado-Herrera’s assertions,
which were based in part on media reports and common
knowledge among Hondurans that it is well known that the
police work for the gangs, that the police are allied with the
18th Street gang in particular, and that the police not only
allow gang members to harm others but also provide
information to gang members to help them find and kill
people, the panel wrote that it was unclear what additional
evidence the asylum officer expected Alvarado-Herrera to
produce at that stage of the proceedings. The panel observed
that non-citizens in reinstatement proceedings who express
a fear of returning to their home country typically appear for
a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like
Alvarado-Herrera, are being held in detention facilities and
do not have legal representation. The panel wrote that, as a
result, they cannot realistically be expected to produce for
the asylum officer’s review the kind of detailed country
conditions evidence that would be introduced during a merits
hearing before an immigration judge. The panel wrote that
such a demand would be inconsistent with the purpose of a
reasonable fear interview, which is simply to screen out
frivolous claims for relief in as expeditious a manner as
possible, and if a non-citizen provides an otherwise credible
account concerning his fear of torture, his own statements
can supply adequate support for claims about country
conditions, at least for purposes of satisfying the ten percent
threshold necessary to pass a reasonable fear screening
interview. The panel remanded with instructions for the
agency to provide Alvarado-Herrera a hearing before an
immigration judge only as to the merits of his claim for
protection under CAT.
COUNSEL
Stacy Tolchin (argued) and Megan Brewer, Law Offices of
Stacy Tolchin, Los Angeles, California, for Petitioner.
Dana M. Camilleri (argued), Trial Attorney; Sabatino F.
Leo, Senior Litigation Counsel; Anthony P. Nicastro,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
6 ALVARADO-HERRERA V. GARLAND
OPINION
WATFORD, Circuit Judge:
Israel Alvarado-Herrera, a native and citizen of
Honduras, reentered the United States illegally in 2017. The
Department of Homeland Security (DHS) ordered him
removed to Honduras after reinstating an earlier removal
order that had been entered against him in 2013. Because
Alvarado-Herrera expressed a fear of returning to Honduras,
an asylum officer conducted a screening interview to
determine whether he reasonably feared persecution or
torture in his home country. The asylum officer determined
that he did not have a reasonable fear of such harm, and an
immigration judge affirmed that determination. Alvarado-
Herrera petitions for review of the immigration judge’s
decision on several grounds, all of which we reject with one
exception: We agree with Alvarado-Herrera that the
immigration judge’s finding that he lacks a reasonable fear
of torture is not supported by substantial evidence.
I
Alvarado-Herrera first entered the United States illegally
in May 2013. He was apprehended shortly after crossing the
southern border and placed in what are known as expedited
removal proceedings. Expedited removal proceedings
involve, as the name suggests, a streamlined process through
which certain non-citizens—such as those apprehended at or
near the border soon after entry—may be removed from the
United States without a hearing before an immigration
judge. See 8 U.S.C. § 1225(b)(1). Expedited removal orders
are entered by DHS immigration officers, not by
immigration judges, and judicial review of such orders is
severely curtailed. § 1252(a)(2)(A), (e). DHS entered an
expedited removal order against Alvarado-Herrera and
ALVARADO-HERRERA V. GARLAND 7
removed him to Honduras pursuant to that order in June
2013.
In December 2017, Alvarado-Herrera reentered the
United States illegally and was again apprehended shortly
after crossing the southern border. Rather than issue a
second expedited removal order, DHS decided to reinstate
his earlier 2013 removal order. Congress has authorized
reinstatement of prior removal orders as another streamlined
process through which certain non-citizens may be removed
from the country. The statute authorizing reinstatement
provides as follows:
If the Attorney General finds that an alien has
reentered the United States illegally after
having been removed or having departed
voluntarily, under an order of removal, the
prior order of removal is reinstated from its
original date and is not subject to being
reopened or reviewed, the alien is not eligible
and may not apply for any relief under this
chapter, and the alien shall be removed under
the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5).
To reinstate a prior removal order, an immigration
officer must find that the individual in question: (1) is not a
citizen; (2) was removed or voluntarily departed while
subject to a prior removal order; and (3) reentered the United
States illegally. 8 C.F.R. § 241.8(a); see Morales-Izquierdo
v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc). In
this case, an immigration officer made each of the required
findings against Alvarado-Herrera and reinstated his 2013
removal order.
8 ALVARADO-HERRERA V. GARLAND
Although § 1231(a)(5) states that a non-citizen whose
prior removal order has been reinstated “is not eligible and
may not apply for any relief under this chapter,” regulations
issued by DHS’s predecessor agency carve out exceptions to
that seemingly categorical prohibition. A non-citizen may
be entitled to apply for withholding of removal or protection
under the Convention Against Torture (CAT) at a hearing
held before an immigration judge. But to obtain that hearing,
a non-citizen must first pass a screening interview conducted
by an asylum officer, during which the non-citizen must
show that he or she has a “reasonable fear” of persecution or
torture in the designated country of removal. 8 C.F.R.
§§ 208.31(c), 241.8(e). If the asylum officer determines that
the non-citizen has established a reasonable fear, the non-
citizen is placed in “withholding only” proceedings before
an immigration judge, during which the judge will hold a
hearing on whether to grant the non-citizen withholding of
removal or protection under CAT. §§ 208.2(c)(2)–(3),
208.31(e).
If the asylum officer determines that the non-citizen has
not established a reasonable fear, the non-citizen may
request review of that determination by an immigration
judge. § 208.31(g). During the review hearing, the
immigration judge conducts a de novo review of the record
prepared by the asylum officer and may (but need not) accept
additional evidence and testimony from the non-citizen.
Bartolome v. Sessions, 904 F.3d 803, 812–13 (9th Cir.
2018). If the immigration judge affirms the asylum officer’s
adverse determination, as occurred here, the non-citizen may
file a petition for review in the appropriate circuit court of
appeals. Ayala v. Sessions, 855 F.3d 1012, 1015–16 (9th Cir.
2017).
ALVARADO-HERRERA V. GARLAND 9
Alvarado-Herrera expressed a fear of persecution and
torture if he were returned to Honduras. As Alvarado-
Herrera explained during his interview with the asylum
officer, that fear was based on an incident in Honduras
several years earlier in which a group of armed 18th Street
gang members—dressed as police officers and displaying
police badges—shot and killed the business owner for whom
Alvarado-Herrera worked as a bodyguard, apparently in
retaliation for the business owner’s refusal to pay the gang’s
extortion demands. Alvarado-Herrera and his fellow
bodyguards returned fire, killing one of the gang’s members.
One of the other bodyguards also died during the attack.
Alvarado-Herrera himself suffered gunshot wounds and was
hospitalized for two days. After leaving the hospital, he
went into hiding out of fear that the gang would seek to kill
him in retaliation for the death of one of its members during
the attack. Two of Alvarado-Herrera’s fellow bodyguards
who survived the attack were later killed, allegedly by the
gang, and Alvarado-Herrera learned from acquaintances that
the gang continued to look for him.
The asylum officer found Alvarado-Herrera’s account
credible but determined that he had not established a
reasonable fear of persecution or torture. As to persecution,
the asylum officer found that Alvarado-Herrera failed to
establish that the gang would target him because of a
protected characteristic (race, religion, nationality,
membership in a particular social group, or political
opinion). As to torture, the asylum officer found that
Alvarado-Herrera failed to establish that retaliatory violence
from the gang would be perpetrated by or with the consent
or acquiescence of a public official. Alvarado-Herrera
requested review of the asylum officer’s determination by an
immigration judge, but the judge affirmed the determination
on the same grounds given by the asylum officer.
10 ALVARADO-HERRERA V. GARLAND
Alvarado-Herrera filed a timely petition for review of the
immigration judge’s decision. We have jurisdiction to
review Alvarado-Herrera’s constitutional and legal
challenges to the reasonable fear screening process as well
as his factual challenge to the evidentiary support for the
immigration judge’s decision. See 8 U.S.C. § 1252(a)(1),
(a)(2)(D), (a)(5), (b)(9); Ayala, 855 F.3d at 1018. As
explained immediately below, however, we lack jurisdiction
to review his collateral attacks on the validity of the 2013
expedited removal order.
II
Alvarado-Herrera contends that DHS could not reinstate
his 2013 expedited removal order because the order failed to
comply with two of the requirements imposed by the
regulation governing expedited removal, 8 C.F.R. § 235.3.
First, the regulation states that an expedited removal
order “must be reviewed and approved by the appropriate
supervisor before the order is considered final.”
§ 235.3(b)(7). To implement that requirement, the form on
which DHS issues expedited removal orders, Form I-860,
has a designated line for the name and title of the supervisor
granting approval, as well as a separate line for the
supervisor’s signature that states, “Signature of supervisor,
if available.” Directly below the signature line is a box
accompanied by text that reads: “Check here if supervisory
concurrence was obtained by telephone or other means (no
supervisor on duty).” On Alvarado-Herrera’s 2013
expedited removal order, the name and title of the supervisor
granting approval is typed in, but the line for the supervisor’s
signature is blank. Instead, the box below is checked to
indicate that supervisory approval was obtained by
telephone or other means. Alvarado-Herrera contends that
his expedited removal order is not final (and is therefore
ALVARADO-HERRERA V. GARLAND 11
invalid) because it does not contain the supervisor’s
signature.
Second, the regulation states that, “[a]fter obtaining
supervisory concurrence in accordance with paragraph
(b)(7) of this section, the examining immigration official
shall serve the alien with Form I-860 and the alien shall sign
the reverse of the form acknowledging receipt.”
§ 235.3(b)(2)(i). The record shows that an immigration
officer served Alvarado-Herrera with Form I-860.
Alvarado-Herrera contends that his expedited removal order
is invalid because the record does not contain the back of
Form I-860, which precludes us from determining whether
he signed the form to acknowledge receipt, as the regulation
requires.
We lack jurisdiction to entertain these arguments. The
statute authorizing reinstatement of prior removal orders
states that the underlying order “is not subject to being
reopened or reviewed.” 8 U.S.C. § 1231(a)(5). We have
held that this language precludes most collateral attacks on
the validity of the removal order being reinstated, unless the
petitioner can show that a “gross miscarriage of justice”
occurred during the earlier removal proceedings. Garcia de
Rincon v. DHS, 539 F.3d 1133, 1137–38 (9th Cir. 2008).
But even that narrow sliver of jurisdiction is foreclosed when
the underlying order is, as in this case, an expedited removal
order. Id. at 1138–39. Judicial review of expedited removal
orders is governed by § 1252 of Title 8, which provides that
“no court shall have jurisdiction to review” an expedited
removal order except as provided in subsection (e). 8 U.S.C.
§ 1252(a)(2)(A). Subsection (e) in turn limits judicial
review to three narrow issues, each of which must be raised
in habeas corpus proceedings: “whether the petitioner is an
alien”; “whether the petitioner was ordered removed” under
12 ALVARADO-HERRERA V. GARLAND
an expedited removal order; and whether the petitioner can
prove that he or she has lawful status in the United States as
an asylee, refugee, or permanent resident. § 1252(e)(2); see
DHS v. Thuraissigiam, 140 S. Ct. 1959, 1963–64 (2020)
(rejecting a Suspension Clause challenge to this limitation).
Alvarado-Herrera’s arguments challenging the validity
of his 2013 expedited removal order do not fall within any
of the categories of reviewable issues, and this is not a
habeas corpus proceeding in any event. We therefore
dismiss this portion of Alvarado-Herrera’s petition for
review for lack of jurisdiction. See Pena v. Lynch, 815 F.3d
452, 455–56 (9th Cir. 2016).
III
Alvarado-Herrera next challenges the legality of the
reasonable fear screening process, both facially and as
applied to him.
His broadest contention is that the screening process
itself is unlawful because the agency lacked statutory
authority to create it. As noted above, the screening process
requires a non-citizen to establish a “reasonable fear” of
persecution or torture during an interview with an asylum
officer. Only if the non-citizen succeeds in making that
showing may he or she apply for withholding of removal and
protection under CAT in a hearing before an immigration
judge. In Alvarado-Herrera’s view, Congress intended every
non-citizen who expresses a fear of persecution or torture to
receive a “full due process hearing” before an immigration
judge, without first having to jump through the hoop of
passing a screening interview conducted by an asylum
officer.
ALVARADO-HERRERA V. GARLAND 13
We analyze this contention under the familiar two-step
framework established in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). At
step one we ask “whether Congress has directly spoken to
the precise question at issue.” Id. at 842. Here, the answer
to that question is no.
Congress enacted § 1231(a)(5), the provision
authorizing reinstatement, as part of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(IIRIRA). Pub. L. No. 104-208, Div. C, Title III,
§ 305(a)(3), 110 Stat. 3009–546, 3009–599. Section
1231(a)(5) does not address whether non-citizens who
express a fear of persecution or torture are entitled to a “full
due process hearing” before an immigration judge on claims
for withholding of removal and protection under CAT.
The provision might be read to suggest that no such
entitlement exists, for it states that non-citizens subject to
reinstatement are “not eligible and may not apply for any
relief under this chapter.” 8 U.S.C. § 1231(a)(5) (emphasis
added). This language would suggest no need for any
hearings before an immigration judge, since both
withholding of removal and protection under CAT are forms
of relief available “under this chapter,” meaning Chapter 12
of Title 8. 1
1
The provision authorizing withholding of removal, now codified
at 8 U.S.C. § 1231(b)(3)(A), appears in the same statutory section as
§ 1231(a)(5). Congress added the provision authorizing CAT relief two
years after enacting § 1231(a)(5); it is found as a note following § 1231.
See Foreign Affairs Reform and Restructuring Act of 1998 (FARRA),
Pub. L. No. 105-277, Div. G, Title XXII, § 2242(b), 112 Stat. 2681–761,
2681–822.
14 ALVARADO-HERRERA V. GARLAND
Courts later held, however, that non-citizens in
reinstatement proceedings are eligible for withholding of
removal under § 1231(b)(3)(A), notwithstanding the
language of § 1231(a)(5). See Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 35 n.4 (2006); Andrade-Garcia v.
Lynch, 828 F.3d 829, 831–32 (9th Cir. 2016). And in 1998,
Congress authorized CAT relief without excluding non-
citizens in reinstatement proceedings as eligible recipients.
See FARRA § 2242(b)–(c), 112 Stat. at 2681–822; Andrade-
Garcia, 828 F.3d at 831. Ultimately, the most that can be
said at step one of the Chevron analysis is that § 1231(a)(5)
is “silent or ambiguous” as to whether all non-citizens are
entitled to a hearing before an immigration judge on claims
for withholding of removal and protection under CAT.
Chevron, 467 U.S. at 843.
Alvarado-Herrera offers two main arguments in
response. First, he points out that Congress expressly
authorized similar screening interviews in expedited
removal proceedings. See 8 U.S.C. § 1225(b)(1)(A)–(B).
He asks us to infer from the absence of any such
authorization in § 1231(a)(5) that Congress did not intend to
permit screening interviews in reinstatement proceedings.
For the reasons just explained, however, we cannot draw that
inference. It seems at least equally possible that Congress
did not contemplate that any non-citizens subject to
reinstatement would receive a hearing before an immigration
judge on claims for withholding of removal, and statutory
authorization for protection under CAT had not even been
enacted yet. There was thus no reason for Congress to
consider whether a screening mechanism should be set up to
determine which non-citizens would be entitled to a hearing
before an immigration judge and which would not. By
contrast, Congress established a screening mechanism in the
expedited removal context because it had expressly
ALVARADO-HERRERA V. GARLAND 15
authorized non-citizens in those proceedings to apply for
asylum and withholding of removal. § 1225(b)(1)(A)(i)–
(ii).
Second, Alvarado-Herrera contends that a series of out-
of-circuit cases involving the rights of stowaways supports
his position. The courts in those cases held, under statutory
provisions that have since been amended, that the Attorney
General could not adjudicate the asylum claims of
stowaways through an informal interview conducted by an
immigration officer while affording all other asylum
applicants a full hearing before an immigration judge.
Selgeka v. Carroll, 184 F.3d 337, 344–45 (4th Cir. 1999);
Marincas v. Lewis, 92 F.3d 195, 200–01 (3d Cir. 1996); Yiu
Sing Chun v. Sava, 708 F.2d 869, 874–77 (2d Cir. 1983).
Those decisions turned on the fact that Congress had
mandated the creation of a single, uniform procedure for
adjudicating the claims of all asylum applicants, irrespective
of their status. That statutory command, the courts
concluded, left no room for the Attorney General to create a
different procedure applicable to just one category of
applicants based on their status as stowaways. Here, we
have no comparable command from Congress mandating
that all applicants for withholding of removal and protection
under CAT shall receive a hearing before an immigration
judge.
Moving to step two of the Chevron analysis, we ask
whether the agency’s adoption of the reasonable fear
screening process “is based on a permissible construction of
the statute.” Chevron, 467 U.S. at 843. To answer this
question, we consider two different statutes with somewhat
conflicting aims: 8 U.S.C. § 1231(a)(5) and § 2242 of
FARRA (codified in a note following § 1231). We think the
choice to establish a reasonable fear screening process, see
16 ALVARADO-HERRERA V. GARLAND
8 C.F.R. § 208.31, is based on a permissible reading of both
statutes, as it represents a reasonable effort to reconcile the
two statutes’ competing demands.
The enactment of § 1231(a)(5) in 1996 and § 2242 in
1998 tugged DHS’s predecessor agency in opposite
directions. On the one hand, by declaring in § 1231(a)(5)
that non-citizens subject to reinstatement are “not eligible
and may not apply for any relief under this chapter,”
Congress sought to expedite the removal of those who
reenter the United States illegally after having been removed
at least once before. See Morales-Izquierdo, 486 F.3d
at 494. Affording a hearing before an immigration judge to
every non-citizen who expresses a fear of persecution or
torture could interfere with that objective. On the other
hand, in enacting § 2242, Congress sought to effectuate the
United States’ obligations under CAT by declaring it to be
“the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing
the person would be in danger of being subjected to torture.”
FARRA § 2242(a), 112 Stat. at 2681–822. Congress
directed the agency to issue regulations implementing this
policy, without excluding non-citizens in reinstatement
proceedings from those eligible to apply for protection under
CAT. FARRA § 2242(b)–(c), 112 Stat. at 2681–822.
The regulation the agency adopted in response achieves
both of Congress’s objectives. It allows immigration
officials “to quickly identify and resolve frivolous claims to
protection,” thereby recognizing Congress’s desire to ensure
the swift removal of non-citizens subject to reinstatement.
Regulations Concerning the Convention Against Torture,
64 Fed. Reg. 8478, 8479 (Feb. 19, 1999). At the same time,
a screening process addresses the United States’ treaty
ALVARADO-HERRERA V. GARLAND 17
obligations by making it possible for those who do have a
reasonable fear of persecution or torture to receive a hearing
before an immigration judge at which they can establish their
entitlement to appropriate relief. Nothing in § 1231(a)(5) or
§ 2242 of FARRA forbids this general approach. Indeed, we
have previously praised the agency’s regulation as
“balancing the fair resolution of claims for relief from
removal against Congress’ desire to provide for streamlined
removal of certain classes of individuals, including those
subject to reinstated removal orders.” Perez-Guzman v.
Lynch, 835 F.3d 1066, 1079 n.8 (9th Cir. 2016).
Having permissibly chosen to fill a gap left by Congress
by adopting a screening mechanism, the agency adopted
screening procedures that are modeled on the procedures
Congress adopted in the expedited removal context. See
8 U.S.C. § 1225(b)(1)(B). Every non-citizen who expresses
a fear of returning to his or her home country is referred to a
specially trained asylum officer for a non-adversarial
interview, during which the non-citizen has the right to the
assistance of counsel at no expense to the government.
8 C.F.R. §§ 208.1(b), 208.31(b)–(c). The non-citizen must
be advised of the nature and purpose of the interview and
afforded an opportunity to present evidence supporting his
or her claimed fear of persecution or torture, and the asylum
officer must prepare a written record of the interview.
§ 208.31(c). The non-citizen need show only a “reasonable
possibility” of persecution or torture, which has been defined
to require a ten percent chance that the non-citizen will be
persecuted or tortured if returned to his or her home country.
§ 208.31(c); Bartolome, 904 F.3d at 809. A non-citizen who
receives an adverse determination from the asylum officer is
entitled to seek de novo review of that determination before
an immigration judge, and an adverse decision by the
immigration judge is subject to an additional layer of review
18 ALVARADO-HERRERA V. GARLAND
in the court of appeals. 8 C.F.R. § 208.31(g); Bartolome,
904 F.3d at 812; Ayala, 855 F.3d at 1018. Collectively, these
procedures reduce the risk that meritorious claims will be
erroneously rejected at the screening stage.
Alvarado-Herrera contends that these procedures violate
the Fifth Amendment’s Due Process Clause because they do
not afford non-citizens the right to present new evidence
during the review hearing before an immigration judge.
Alvarado-Herrera misconstrues the nature of a review
hearing. In such hearings, the immigration judge sits in an
appellate capacity, reviewing the written record prepared by
the first-instance decision-maker (the asylum officer). Due
process does not mandate the right to present new evidence
to an appellate tribunal when a litigant has been afforded a
reasonable opportunity to present evidence to the first-
instance decision-maker.
Alvarado-Herrera also contends that the immigration
judge failed to review the asylum officer’s determination de
novo, as DHS’s regulations require. See Bartolome,
904 F.3d at 812. But the immigration judge acknowledged
at the outset of the hearing that he was obligated to conduct
“an independent review of the decision of the asylum
officer.” Nothing in the record supports Alvarado-Herrera’s
contention that the immigration judge failed to do so.
IV
We turn, finally, to Alvarado-Herrera’s factual challenge
to the immigration judge’s decision—namely, his claim that
the adverse reasonable fear determination is not supported
by substantial evidence. To establish a reasonable fear,
Alvarado-Herrera had to show that he faces at least a ten
percent chance of being persecuted or tortured if he is
returned to Honduras. See Bartolome, 904 F.3d at 808–09.
ALVARADO-HERRERA V. GARLAND 19
In our view, he did not succeed in making that showing as to
the risk of persecution, but he did so as to the risk of torture.
The immigration judge found that Alvarado-Herrera
failed to establish a reasonable fear of persecution because
the record does not show that any harm Alvarado-Herrera
might suffer at the hands of the 18th Street gang would occur
on account of his “race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); 8 C.F.R. § 208.31(c). That finding is
supported by substantial evidence. Alvarado-Herrera fears
retaliatory violence from the gang because one of the gang’s
members was killed during the attack on Alvarado-Herrera’s
former employer, during which Alvarado-Herrera and his
fellow bodyguards returned fire. He contends before us that
this violence would amount to persecution based on an
imputed political opinion, but during his interview with the
asylum officer he specifically denied fearing harm based on
any political opinions he held. Regardless, violence
perpetrated by a gang to avenge the death of one of its
members, without more, does not constitute persecution on
account of a protected ground. See Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010).
The immigration judge found that Alvarado-Herrera also
failed to establish a reasonable fear of torture because he did
not show that any torture the gang might inflict would occur
with the consent or acquiescence of a public official. See
8 C.F.R. § 208.18(a)(1); Barajas-Romero v. Lynch, 846 F.3d
351, 363 (9th Cir. 2017). That finding is not supported by
substantial evidence, given Alvarado-Herrera’s specific
assertions of police complicity in the 18th Street gang’s
violent acts.
During his interview with the asylum officer, Alvarado-
Herrera provided an account of his experiences in Honduras
20 ALVARADO-HERRERA V. GARLAND
that both the asylum officer and the immigration judge
deemed credible. In addition, Alvarado-Herrera described
conditions of widespread police corruption in Honduras.
Based in part on media reports and common knowledge
among Hondurans, he asserted that it is well known that the
police work for the gangs, that the police are allied with the
18th Street gang in particular, and that the police not only
allow gang members to harm others but also provide
information to gang members to help them find and kill
people. The asylum officer refused to credit these assertions
because Alvarado-Herrera did not support them with
additional corroborating evidence, and the immigration
judge affirmed the asylum officer’s determination without
elaboration.
It is unclear what additional evidence the asylum officer
expected Alvarado-Herrera to produce at this stage of the
proceedings. Non-citizens in reinstatement proceedings
who express a fear of returning to their home country
typically appear for a reasonable fear interview within a
short time of their apprehension by immigration authorities.
See 8 C.F.R. § 208.31(b) (interview must generally be
conducted within ten days of referral). Many, like Alvarado-
Herrera, are being held in detention facilities and do not have
legal representation. As a result, they cannot realistically be
expected to produce for the asylum officer’s review the kind
of detailed country conditions evidence that would be
introduced during a merits hearing before an immigration
judge. See, e.g., Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1185 n.7 (9th Cir. 2020). Nor would such a demand be
consistent with the purpose of a reasonable fear interview,
which is simply to screen out frivolous claims for relief in as
expeditious a manner as possible. Thus, if a non-citizen
provides an otherwise credible account concerning his fear
of torture, his own statements can supply adequate support
ALVARADO-HERRERA V. GARLAND 21
for claims about country conditions, at least for purposes of
satisfying the ten percent threshold necessary to pass a
reasonable fear screening interview.
Alvarado-Herrera’s statements to the asylum officer
provided adequate support for his claims about the
prevailing country conditions in Honduras. More
specifically, Alvarado-Herrera’s account of the attack by
18th Street gang members offered details that corroborated
his claim of widespread police corruption and complicity.
He noted that the gang members who carried out the attack
were dressed in police uniforms and displayed police badges
to gain access to a private residential complex. Those details
do not prove police complicity in the gang’s attack, but they
do suggest that his assertions about the 18th Street gang’s
alliance with the police may be based on more than mere idle
speculation or rumor. Put differently, they give rise to at
least a ten percent chance that his claims about police
complicity in gang violence may in fact be true.
If Alvarado-Herrera’s assertions about police corruption
and complicity are accepted as true at this stage of the
proceedings, any reasonable adjudicator would be
compelled to conclude that they suffice to establish a
“reasonable possibility” that he may be subjected to torture
with government acquiescence, as that term has been defined
in the relevant regulation. See 8 C.F.R. § 208.18(a)(7)
(government acquiescence “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”). We
have held that a public official need not have actual
knowledge of the specific incident of alleged torture. “[I]t is
sufficient that the public official is aware that torture of the
sort feared by the applicant occurs and remains willfully
22 ALVARADO-HERRERA V. GARLAND
blind to it.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th
Cir. 2020). And the acquiescence of low-level officials, such
as corrupt police officers, can suffice. Xochihua-Jaimes,
962 F.3d at 1184–86; Madrigal v. Holder, 716 F.3d 499,
509–10 (9th Cir. 2013). Alvarado-Herrera’s statements to
the asylum officer establish at least a ten percent chance that
he would be subjected to torture by 18th Street gang
members with the acquiescence of local police officers.
In sum, we conclude that the immigration judge’s
decision to affirm the asylum officer’s reasonable fear
determination as to torture was not supported by substantial
evidence. We remand this case to the agency with
instructions to provide Alvarado-Herrera a hearing before an
immigration judge only as to the merits of his claim for
protection under CAT.
Alvarado-Herrera’s motion to supplement the record
(Dkt. No. 17) is DENIED. See 8 U.S.C. § 1252(b)(4)(A).
PETITION FOR REVIEW GRANTED in part,
DENIED in part, and DISMISSED in part;
REMANDED with instructions.