                                                                            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                            NOT FOR PUBLICATION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.




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       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 a public

official or other person acting in an official capacity”). El Salvador has enacted

anti-gang laws, which “embrace a comprehensive approach to gang violence

prevention” and include several components aimed at youth prevention and

rehabilitation from gangs. Although some of these laws may be ineffective and the

social components under-funded, the government is nonetheless taking action by

enacting anti-gang laws. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th

Cir. 2014) (“[a] government does not acquiesce in the torture of its citizens merely


                                           3
because it is aware of torture but powerless to stop it” (internal quotation marks

omitted)).

      In addition, substantial evidence supports the Agency’s determination that

Chavez failed to demonstrate that he would more likely than not be targeted and

tortured by gangs. Chavez’s claim that he will be targeted by gangs is premised on

being recognized as a former gang member. Chavez testified that he has two gang

tattoos. One tattoo has been covered up with other tattoos, and the other is in a

discrete location and can be hidden. Chavez testified that people cannot identify

him as a former gang member based on his appearance and how he presents

himself.

      Even assuming gang members will be able to recognize Chavez as a former

member, the Agency properly found insufficient evidence to demonstrate that they

would torture him. Chavez left the gang while he was living in the United States

without incident, and he was not threatened or harmed in the eight years since

leaving. Moreover, no evidence was presented that the gang would view Chavez’s

departure as unsanctioned.

      In addition, the Agency properly found that Chavez, who is now in his

forties, was unlikely to be targeted by gangs based upon his age. Dr. Harry

Vanden testified that the gangs target El Salvador’s youth and that gang members


                                          4
are usually between the ages of nine or ten and into their twenties. The

documentary evidence further supports that gangs target the youth of El Salvador,

not men who are over 40 years old. Additionally, Chavez testified that gang

members can earn “veterano” status for previous actions and avoid being harassed.

      Finally, several of Chavez’s arguments—(1) that the Salvadoran government

would turn a blind eye to “death squads” of rogue police officers targeting gang

members, (2) that the BIA erred by not crediting Dr. Vanden’s testimony that

Chavez “appears rather young,” and (3) that the Agency erred by separately

considering various possible outcomes facing Chavez upon his arrival in El

Salvador, rather than addressing the aggregate risk of torture based on all possible

outcomes—were not exhausted to the BIA. Accordingly, this Court lacks

jurisdiction to consider them. 8 U.S.C. § 1252(d)(1); see Zara v. Ashcroft, 383

F.3d 927, 930 (9th Cir. 2004).

      DISMISSED IN PART AND DENIED IN PART.




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