          United States Court of Appeals
                      For the First Circuit


No. 18-1122

                    FRANCISCO AVELAR GONZALEZ,

                           Petitioner,

                                v.

                       MATTHEW G. WHITAKER,*
                     ACTING ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                     Lynch, Stahl, and Lipez,
                         Circuit Judges.


     Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law Office
on brief for petitioner.
     Maarja T. Luhtaru, Trial Attorney, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Rachel L. Browning, Acting Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.

                        November 15, 2018




     *    Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
           LYNCH,   Circuit Judge.         Francisco Avelar-Gonzalez,    a

native and citizen of El Salvador, seeks judicial review of a Board

of Immigration Appeals (BIA) decision affirming an Immigration

Judge's (IJ) denial of Avelar-Gonzalez's requests for asylum under

the Immigration and Nationality Act (INA) § 208(a), 8 U.S.C.

§ 1158(a), for withholding of removal under INA § 241(b)(3), 8

U.S.C. § 1231(b)(3), and for protection under Article 3 of the

United Nations Convention Against Torture (CAT).1

           We focus on his argument, which underlies all his claims,

that the BIA erred in upholding the IJ's determination that Avelar-

Gonzalez did not provide adequate corroboration for his claims.

There is substantial evidence for the determination that Avelar-

Gonzalez   did   not   provide    adequate    corroboration,   which   was

reasonably available to him, for crucial elements of his claims,

and so we deny the petition for review.          We dismiss for lack of

jurisdiction Avelar-Gonzalez's claims regarding past persecution,

ineffective assistance of counsel, and protection under the CAT.

                                     I.

           Avelar-Gonzalez entered the United States on January 29,

2012, near Hidalgo, Texas.       The next day, he gave a sworn statement




     1    The Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S.
85, was implemented in the United States by the Foreign Affairs
Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242,
112 Stat. 2681–761 (codified at 8 U.S.C. § 1231 (2012)).


                                   - 2 -
to the Border Patrol, discussed later.                    On February 20, 2012, the

Department of Homeland Security served Avelar-Gonzalez with a

Notice to Appear in removal proceedings, and charged him with

inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien

present in the United States without being admitted or paroled.

On   March    16,     2012,    Avelar-Gonzalez,              through    prior     counsel,

conceded to the charge of removability, declined to name a country

for removal, and stated that he would seek "relief in the form of

asylum,    withholding        of    removal,       [and      the]   Convention     Against

Torture."      A change of venue to Boston was granted on July 13,

2012.

              Avelar-Gonzalez           filed     an    application      for    asylum   on

December 11, 2012.            The affidavit attached to Avelar-Gonzalez's

2012 asylum application contained only a single general paragraph

alleging     being    "chased       .    .   .    out   of    [El   Salvador]"     due   to

involvement with the Nationalist Republican Alliance (ARENA), a

political party.         The affidavit did not mention any specific

persecution      or    harm        that      Avelar-Gonzalez         had      experienced.

Further, Avelar-Gonzalez did not answer whether he, his family, or

his close friends or colleagues had experienced mistreatment or

harm in the past, and did not provide the requested information

about   his    background,         such      as   his   address,       past    residences,

education, employment, and family members.




                                             - 3 -
            On January 5, 2017, more than four years after his

initial application and almost five years after entering the United

States, Avelar-Gonzalez then filed what the parties refer to as an

"updated application" for asylum.        The IJ evaluated the updated

application.    Avelar-Gonzalez's updated asylum application stated

that he had a fear of persecution based on his political party

membership.     He supported that with a lengthier 2017 affidavit,

filed with the updated application, which stated, "I left my

country because my life was at risk on account of my political

opinion."     As to his political opinion, Avelar-Gonzalez said that

he was an active member of ARENA.

            Avelar-Gonzalez's    affidavit    described      three   violent

incidents in El Salvador after Avelar-Gonzalez joined ARENA in

2007.    First, while he and other ARENA members were "involved in

outreach efforts" in March 2008, a group from a rival political

party, Farabundo Martí National Liberation Front (FMLN), accosted

and physically assaulted them.     He escaped, with bruises.         Second,

while he was campaigning with other ARENA members in November 2008,

a group of people wearing FMLN shirts threatened the ARENA members,

and then shot at them.     Two members of the ARENA group were shot,

though   Avelar-Gonzalez   was   not,   and   the   police    took   witness

statements.     A report was compiled, but no copies were provided.

Third, around February 2009, Avelar-Gonzalez was threatened at

knifepoint by men in FMLN t-shirts while leaving a football match,


                                 - 4 -
because he refused to remove an ARENA t-shirt he was wearing.

Avelar-Gonzalez did not report this incident to the police and

does not claim he was injured during this incident.        Avelar-

Gonzalez's affidavit did not mention any incidents of persecution

or harm after the February 2009 incident, though he was in El

Salvador for nearly three more years before entering the United

States on January 29, 2012.

          At a merits hearing before an IJ on March 7, 2017,

Avelar-Gonzalez testified that he had left El Salvador due to

attacks based on his ARENA membership.    When testifying, Avelar-

Gonzalez was at times unable to remember details about the three

violent incidents, such as where and when the shooting had occurred

or how many FMLN members were involved in the March 2008 incident.

As to the March 2008 incident, Avelar-Gonzalez testified that this

altercation started when FMLN members attempted to "destroy the

[ARENA party] propaganda," or promotional material.    After ARENA

members "were opposed to that," the FMLN members then began hitting

the ARENA members.   The police responded to the incident; Avelar-

Gonzalez said ARENA officials filed a report with the police, but

again he did not provide a copy.   Avelar-Gonzalez also testified

that he was threatened about ten other times beyond the three

incidents mentioned in his affidavit, including in phone calls and

written notes, but he did not provide detail regarding these

incidents, nor did he describe these threats in his affidavit.   He


                               - 5 -
was also unable to remember "approximately what . . . these notes"

said.

          Avelar-Gonzalez's immigration record contained a sworn

statement given to Border Patrol agents on January 30, 2012, the

day after he crossed the border.     In this sworn statement, Avelar-

Gonzalez said that he left El Salvador in order "[t]o live and to

look for work in Miami, Fl[orida]."        When asked if he had "any

fear or concern about being returned to [his] home country or being

removed from the United States," he stated "[n]o."                He also

answered "[n]o" when asked, "[w]ould you be harmed if you are

returned to your home country or country of last residence?"              In

front of the IJ, Avelar-Gonzalez testified that he did not remember

giving this sworn statement to Border Patrol agents, and that he

did not remember telling the agents that he did not have a concern

about being returned to El Salvador or otherwise removed from the

United States.    He did, however, acknowledge that his signature

was on the sworn statement, and he did not claim that the interview

with the Border Patrol had not happened.

          In an oral decision on March 7, 2017, the IJ denied

Avelar-Gonzalez's    applications.       The   IJ   noted   a   number   of

inconsistencies     between   Avelar-Gonzalez's     affidavit    and     his

testimony regarding the three violent incidents, and expressed

concern with Avelar-Gonzalez's vague testimony and inability to

remember, or provide detail about, several important events.             For


                                 - 6 -
example, the IJ noted that Avelar-Gonzalez testified that he was

not injured during the March 2008 incident, before being confronted

about   the    inconsistency    with   his   affidavit.      Avelar-Gonzalez

amended his testimony to say that the declaration was correct

rather than his initial testimony.

              The IJ further stated that Avelar-Gonzalez's testimony

was "somewhat at odds" with his affidavit regarding the February

2009 incident, including when and where the incident occurred and

whether he was threatened at knifepoint or was shot at by FMLN

members.      Also, the IJ noted that Avelar-Gonzalez "was not able to

remember what happened in November 2008," and that this was a

significant event for his asylum application, as fellow ARENA

members were allegedly shot by FMLN members.              The IJ stated that

these particular inconsistencies and vague testimony "g[a]ve the

court pause," but the IJ did not hold them against Avelar-Gonzalez.

              The   IJ   then   expressed    further   concern    with   the

"different version of events that [Avelar-Gonzalez] told to the

Border Patrol," as compared to Avelar-Gonzalez's declaration and

testimony before the IJ.        The IJ also raised a concern regarding

Avelar-Gonzalez's testimony that he had been threatened numerous

times after the February 2009 incident, since these threats were

not discussed in Avelar-Gonzalez's affidavit and Avelar-Gonzalez

failed to provide detail about these threats during his testimony.




                                    - 7 -
             Due    to    these    concerns        regarding      inconsistencies,

vagueness, and the omission of important events from Avelar-

Gonzalez's application, the IJ had "serious doubts [about] the

respondent's credibility."           The IJ determined that Avelar-Gonzalez

had not produced necessary corroboration, such as police reports

from the November 2008 attack, medical records from fellow ARENA

party members' injuries, or notes related to the threats.                     The IJ

found that further corroborating evidence "appears to have been

reasonably available" (given that at least his mother and aunt

remained   in      El   Salvador),    and   that    Avelar-Gonzalez        "did   not

adequately      explain    his    failure     to   supply       such   corroborating

evidence."         Avelar-Gonzalez      did    provide      a    notarized    letter

recounting statements from two persons in El Salvador2 and a letter

from a representative of ARENA. The second letter confirms Avelar-

Gonzalez was "part of the team of ARENA activists."                     It says that




     2    The IJ referred to this letter as "from his parents," as
did the BIA. This appears to be incorrect based on the record,
which indicates that the letter was from two people who did not
say how they knew Avelar-Gonzalez, though the letter does refer to
Avelar-Gonzalez's parents.    Avelar-Gonzalez testified that his
father   is   dead,  though   Avelar-Gonzalez's   updated   asylum
application stated that his father was then alive and living in El
Salvador.
          In any case, labeling the letter as from Avelar-
Gonzalez's parents is at most harmless error, because the IJ
considered the letter's contents fairly, and did not discount or
credit the letter based on its authorship. See Butt v. Keisler,
506 F.3d 86, 90 (1st Cir. 2007) (holding that a mistake of fact by
an IJ constituted harmless error because it did not affect the
outcome of the decision).


                                       - 8 -
"based on the high crime conditions . . . of El Salvador and mainly

the district of Colon Township [that Avelar-Gonzalez] has been

faced with on a daily bas[i]s[,] he had no choice but to migrate

to the United States because his life was in danger."

            However, the IJ noted that the notarized letter from two

persons stated that Avelar-Gonzalez was attacked in December 2011

by gang members from both the "MS" and "18" gangs (not the FMLN),

and did not provide any further detail on the motivations for these

attacks.     Further, the three incidents Avelar-Gonzalez testified

to   were   in    2008   and   2009,   not     2011.   The   letter   from   the

representative of ARENA confirms that Avelar-Gonzalez was a member

of ARENA, but otherwise does not confirm his declaration or his

testimony.       The IJ concluded that Avelar-Gonzalez did not meet his

burden to show that the events actually happened, essential for

asylum, even considering the so-called corroborating evidence.

            We do not detail all of the IJ's findings and conclusions

regarding asylum.        The IJ denied Avelar-Gonzalez's applications

for asylum and for withholding of removal (which requires meeting

a higher standard).        Finally, considering the CAT claim, the IJ

determined that Avelar-Gonzalez had not demonstrated that it was

more likely than not that he would be tortured by or with the

consent of a public official if he returned to El Salvador.

            Avelar-Gonzalez appealed the IJ's decision to the BIA.

The BIA dismissed the appeal on January 9, 2018.             Adopting some of


                                       - 9 -
the IJ's decision, the BIA determined that the IJ did not err in

concluding      that    Avelar-Gonzalez          had    not     provided     adequate

corroborating evidence for the basic elements of his asylum claim,

and did not err in the weight ascribed to the two letters submitted

by Avelar-Gonzalez.        It affirmed denial of relief, noting that

Avelar-Gonzalez did not claim past persecution in his appeal, and

did not argue a CAT claim.

                                         II.

              We review the BIA's legal conclusions de novo, albeit

"with some deference to the agency's expertise in interpreting

both    the   statutes    that    govern        its    operations      and   its    own

implementing regulations."             Vega–Ayala v. Lynch, 833 F.3d 34, 38

(1st Cir. 2016) (quoting Alvizures–Gomes v. Lynch, 830 F.3d 49, 52

(1st Cir. 2016)).         We review the BIA's findings of fact and

credibility under a        "highly deferential"               substantial evidence

standard, Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005),

under   which    we    uphold    the    BIA's    findings       "if    'supported    by

reasonable, substantial, and probative evidence on the record

considered as a whole[,]'" I.N.S. v. Elias-Zacarias, 502 U.S. 478,

481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)).                          We uphold such

findings "unless any reasonable adjudicator would be compelled to

conclude to the contrary."              Silva v. Gonzales, 463 F.3d 68, 72

(1st Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).                     "When the BIA

adopts and affirms the IJ's ruling but also examines some of the


                                        - 10 -
IJ's conclusions, this Court reviews both the BIA's and IJ's

opinions."     Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st

Cir. 2018) (quoting Perlera–Sola v. Holder, 699 F.3d 572, 576 (1st

Cir. 2012)).

             An alien seeking asylum bears the burden of establishing

that he or she is a "refugee" as defined by the INA.      Villa-Londono

v. Holder, 600 F.3d 21, 24 (1st Cir. 2010).         To do so, the alien

must establish either past persecution or a well-founded fear of

future persecution, both subjective and objective, "on account of

race, religion, nationality, membership in a particular social

group, or political opinion."         8 U.S.C. § 1101(a)(42)(A).       An

alien's testimony can be enough to establish this status, see

Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007), but "testimony

need not be taken at face value," Rivas-Mira v. Holder, 556 F.3d

1, 4 (1st Cir. 2009).

A.    Lack of Corroboration

             In our view, this case turns on the issue of Avelar-

Gonzalez's failure to provide adequate corroboration of his story.

After reviewing the record, we find that the BIA did not err in

upholding the IJ's conclusion that Avelar-Gonzalez did not provide

adequate corroboration to establish elements of his asylum claim.

The   IJ   noted   inconsistencies    and   vague   testimony   regarding

important facts, including about the three primary incidents and

about alleged later threats.         The IJ expressed special concern


                                - 11 -
regarding the inconsistency between Avelar-Gonzalez's story as

related in his asylum application and testimony, and his story in

the sworn statement to the Border Patrol agents in 2012, where

Avelar-Gonzalez stated that he did not have a fear of being

returned to El Salvador and that he had come to the United States

simply "[t]o live and to look for work in Miami, Fl[orida]."                     As

a result, the IJ had "serious doubts [about] the respondent's

credibility."

             Based in part on these credibility concerns -- though

with no adverse credibility finding -- the IJ determined that

Avelar-Gonzalez's claims required further corroboration, about the

events themselves and about the reasons why Avelar-Gonzalez was

targeted (if he was in fact targeted).              "The weaker an applicant's

testimony,    the    greater   the   need     for    corroborating     evidence."

Soeung v. Holder, 677 F.3d 484, 488 (1st Cir. 2012).

             As   the   IJ   correctly   explained,       the   letter    from   a

representative of ARENA did not mention any attacks or targeting

due   to   political    affiliation;     instead,       the   letter    generally

mentioned Avelar-Gonzalez's need to move due to "the high crime

conditions."        The IJ also properly pointed out that the other

letter mentioned attacks by the "MS" gang and the "18" gang in

2011, but did not mention earlier incidents or clearly provide

reasons for the 2011 attacks.            Nor did Avelar-Gonzalez mention

these 2011 attacks during his testimony.                 Furthermore, Avelar-


                                     - 12 -
Gonzalez did not explain why he did not include in his affidavit

any discussion of events occurring after early 2009, including the

2011 attacks.    As it stands, nothing in his affidavit mentions any

harm or persecution in El Salvador during the almost three years

before he left the country.           Avelar-Gonzalez did not provide

further corroborating evidence such as police reports from the

shooting   incident,   threatening    written    notes   he   received,   or

medical reports from injuries he says other ARENA members suffered.

Nor did he provide evidence from a parent or other relative

corroborating his testimony.

             IJs can require corroboration without making an adverse

credibility determination.     Balachandran v. Holder, 566 F.3d 269,

273 (1st Cir. 2009).       "[S]uch [corroborating] evidence must be

provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence."        8 U.S.C. § 1158(b)(1)(B)(ii).

Here, the IJ explicitly found that corroborating evidence "appears

to have been reasonably available" and that Avelar-Gonzalez "did

not adequately explain his failure to supply such corroborating

evidence."    "[T]hese findings are entitled to deference."        Soeung,

677 F.3d at 488 (citing 8 U.S.C. § 1252(b)(4)).

             It was reasonable for the IJ to conclude that some

further    corroborating   evidence     should   have    been   available.

Submitting the two letters "show[s] both that he was able to obtain

corroborating items . . . and that he was aware of the need to


                                - 13 -
provide      documentation      in    support     of   his     application."

Balachandran, 566 F.3d at 273; see In re S–M–J–, 21 I. & N. Dec.

722,   725   (BIA   1997)    ("[A]n    asylum    applicant   should   provide

documentary support for material facts which are central to his or

her claim and easily subject to verification.").             Avelar-Gonzalez

did not provide a clear or sufficient explanation for why no

further corroboration was provided or available.                And Avelar-

Gonzalez filed his updated asylum application nearly five years

after entering the United States, clearly ample time to complete

a more comprehensive application, including evidence that actually

corroborated his assertions.

             The BIA's determination, upholding the IJ, regarding

Avelar-Gonzalez's     failure    to    produce   sufficient    corroborating

evidence is supported by substantial evidence.               We stress again

that Avelar-Gonzalez bore the burden of substantiating the facts

underlying his asylum claim.          See Bahta v. Lynch, 835 F.3d 65, 72

(1st Cir. 2016).       In claiming a well-founded fear of future

persecution, Avelar-Gonzalez relies heavily on the past events

that have not been adequately corroborated. His future persecution

claim cannot survive this failure of corroboration, and he does

not argue otherwise.        See generally Khan v. Mukasey, 541 F.3d 55,

58 (1st Cir. 2008) (denying petitioner's CAT claim "because it

depended on the same uncorroborated evidence as his asylum claim").




                                     - 14 -
B.    Withholding of Removal

               Since the standard for withholding of removal is more

stringent than the standard for asylum, see Alvarez-Flores v.

I.N.S., 909 F.2d 1, 4 (1st Cir. 1990),3 "our disposition of the

petitioner's asylum claim dooms his withholding of removal claim

as well," Rivera-Coca v. Lynch, 844 F.3d 374, 381 (1st Cir. 2016).

C.    Claims Over Which We Have No Jurisdiction

      1.       Past Persecution

               Avelar-Gonzalez has failed to exhaust his administrative

remedies on his past persecution claim, having failed to make any

clear argument concerning past persecution to the BIA, as the BIA

noted.      The BIA said, as a result, it did not consider this

argument.          "A failure to present developed argumentation to the

BIA   on   a       particular   theory   amounts   to   a   failure   to   exhaust




               To establish eligibility for asylum based on future
               3

persecution, an applicant must show 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.
§ 1101(a)(42)(A).     To establish eligibility for withholding
removal under 8 U.S.C. § 1231(b)(3) based on future persecution,
an applicant must " establish that it is more likely than not that
he or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or political
opinion upon removal to [a] country." 8 C.F.R. § 1208.16(b)(2)
(emphasis added).    The Supreme Court has held that for a well-
founded fear of future persecution in an asylum claim, "it need
not be shown that the situation will probably result in
persecution, but it is enough that persecution is a reasonable
possibility," at least sometimes including cases where the chance
of harm is "10%[.]" I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987) (quoting I.N.S. v. Stevic, 467 U.S. 407, 424-25 (1984)).


                                         - 15 -
administrative remedies as to that theory."                Ramirez-Matias v.

Holder, 778 F.3d 322, 327 (1st Cir. 2015).

      2.     Protection Under the CAT

             Avelar-Gonzalez also claims that the IJ and the BIA

"improperly considered" his request for protection under the CAT,

and particularly his argument concerning non-refoulement under

Article 3 of the CAT.      He did not make this argument to the BIA.

"[I]t is black-letter law that 'arguments not raised before the

BIA   are   waived   due   to    a     failure   to   exhaust   administrative

remedies.'"     García v. Lynch, 821 F.3d 178, 182 (1st Cir. 2016)

(quoting Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014)); see 8

U.S.C.     § 1252(d)(1).        That    Avelar-Gonzalez    made   an   argument

concerning the CAT to the IJ does not suffice: "an alien cannot

leapfrog over the BIA; that is, he cannot proffer a theory to the

IJ, forgo any presentation of that theory to the BIA, and then

resurrect the theory on a petition for judicial review."               Ramirez-

Matias, 778 F.3d at 327.

      3.     Ineffective Assistance of Counsel

             Avelar-Gonzalez next argues that his due process rights

were violated, because his former counsel was so ineffective that

Avelar-Gonzalez did not obtain a fair hearing before the BIA.

There is no      Sixth Amendment right to counsel in deportation

proceedings because they are not criminal.             Lozada v. I.N.S., 857

F.2d 10, 13 (1st Cir. 1988).           However, this court has held that if


                                       - 16 -
the deportation proceeding "was so fundamentally unfair that the

alien was prevented from reasonably presenting his case," that

constitutes a due process violation.       Id. (quoting Ramirez-Durazo

v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986)).

            Here,   Avelar-Gonzalez's     ineffective     assistance   of

counsel claim is not properly before us, because he did not exhaust

his administrative remedies and has not shown good cause for this

failure.4   Though "[t]here are some claims of denial of due process

or deprivation of constitutional rights that are exempt from this

exhaustion requirement because the BIA has no power to address

them, . . . [t]he BIA has procedures to hear ineffective assistance

of counsel claims through a motion to reopen."          Bernal-Vallejo v.

I.N.S., 195 F.3d 56, 64 (1st Cir. 1999); see Hernandez v. Reno,

238 F.3d 50, 55 (1st Cir. 2001) ("In the ordinary case, . . . [a

petitioner] must use the Board's own procedures to resolve his

competency of counsel claims.").        Avelar-Gonzalez did not file a

motion to reopen here, and has made no showing of good cause for

not doing so.




     4    Avelar-Gonzalez's claim    of ineffective assistance
focuses on the inclusion of arguably irrelevant material in his
submission to the BIA and the concession of his past persecution
claim.    It does not go to Avelar-Gonzalez's insufficient
presentation of facts or of corroborating evidence.    The BIA's
primary holding was that the IJ did not err in concluding that
Avelar-Gonzalez had not provided adequate corroboration to
establish elements of his asylum claim.


                               - 17 -
                               III.

          Avelar-Gonzalez's petition for review is denied as to

his challenge to the BIA's upholding of the IJ's finding of lack

of corroboration.   It is dismissed for lack of jurisdiction as to

his past persecution challenge, his due process challenge, and his

CAT challenge.




                              - 18 -
