                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                  No. 16-3757
                                 _____________
                      BILLY KERBIN CALDERON-ARGUMEDO,
                               AKA Jorge Vasquez,
                                               Petitioner
                                       v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                              Respondent
                              ______________
                   On Petition for Review of a Final Order
                   Of the Board of Immigration Appeals,
                        Agency No. A098-617-432
                   (Immigration Judge: Daniel A. Morris)
                              ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 24, 2017
                                   ______________

         Before: SMITH, Chief Judge, McKEE and RENDELL, Circuit Judges.

                           (Opinion filed: September 15, 2017)
                              _______________________

                                       OPINION *
                                ______________________
McKEE, Circuit Judge.

       Petitioner Billy Kerbin Calderon Argumedo 1 petitions for review of a ruling by the


*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Because Petitioner refers to himself as “Billy Calderon” in his brief, we use his
preferred surname here.
Board of Immigration Appeals dismissing his appeal of an Immigration Judge’s decision

denying his request for protection under the United Nations’ Convention Against Torture

(“CAT”). 2 Because we find that substantial record evidence supports the agency’s

determination that Calderon did not meet his burden of proof for CAT protection, we will

affirm.

                                              I.

          Calderon is a 32-year-old man originally from El Salvador. He first entered the

United States in 2000, when he was 15 years old. While in high school in Virginia,

Calderon became affiliated with the MS-13 gang, which also exists in El Salvador. In

2005, Calderon was arrested and charged with automobile theft. 3

          In 2006, Calderon was removed to El Salvador. He reentered the United States in

August 2008, and later became an Evangelical Christian. In 2013, he was apprehended

and placed in immigration detention. During his detention, an asylum officer conducted

a reasonable fear interview, and found no reasonable fear of persecution or torture.

Calderon appealed this finding, and the Department of Homeland Security referred his

case to an Immigration Judge for withholding only proceedings. In 2016, an IJ conducted

the withholding only proceedings and (1) pretermitted Calderon’s application for

withholding of removal based on the length of his sentence for automobile theft in 2005, 4



2
 S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85.
3
 While in DHS custody, Calderon was convinced to get an MS-13 tattoo placed across
his chest. This tattoo is still visible today.
4
    This determination was not challenged in the BIA appeal, and is not challenged here.
                                               2
and (2) denied Calderon’s application for deferral of removal under the Convention

Against Torture, finding that Calderon could not make a particularized showing that he

would be subjected to torture upon his return to El Salvador. The BIA affirmed, and

Calderon now appeals his CAT denial.

                                             II. 5

       Calderon presents two arguments on appeal: (1) the IJ and BIA erred in

concluding that Calderon did not prove that the Salvadoran government acquiesces to

torturous activity through the willful blindness of its public officials; and (2) Calderon

provided sufficient evidence to prove that he would more likely than not be tortured upon

return to El Salvador. We address each argument in turn.

       Calderon first argues that the IJ and BIA incorrectly denied his CAT claim

because both applied an incorrect legal standard for determining whether he would be

tortured “by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” 6 However, because the IJ and BIA

based their decisions on Calderon’s inability to show that he was personally in danger of

future torture by gangs in El Salvador, rather than determining whether the government’s




5
  We have jurisdiction to review the IJ and BIA’s decisions regarding Calderon’s
application for deferral of removal and protection under the CAT. 8 U.S.C. § 1252(a);
Voci v. Gonzales, 409 F.3d 607, 612–13 (3d Cir. 2005) (where the BIA’s decision adopts
or defers to portions of the IJ’s decision, we will review those aspects of the IJ’s decision
as well). We review factual findings using the substantial evidence standard. Tarrawally
v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).
6
  8 C.F.R. § 1208.16(c)(3).

                                              3
action (or inaction) regarding gang violence rose to the level of acquiescence, the

argument is meritless.

       When applying for protection under the CAT, “[t]he burden of proof is on the

applicant . . . to establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 7 Both the IJ and BIA found that Calderon

had failed to meet this burden, and that failure made Calderon ineligible for relief under

the CAT. 8 Thus, Calderon’s argument that the IJ and BIA improperly assessed the

“acquiescence” prong of a CAT claim is irrelevant, because that is not why his claim

failed before the IJ or BIA. 9

       Calderon next argues that the IJ and BIA were incorrect in concluding that he

could not show a likelihood of future torture because they improperly ignored the

following evidence: (1) the Salvadoran government supports the killing of gang members

as a “cleansing” of society; (2) the police are unwilling to help him despite his reports of

the threats; (3) the MS-13 gang was able to locate Calderon despite his relocations to live

with his girlfriend and relatives; (4) the MS-13 gang threatened to kill him and his



7
 8 C.F.R. § 208.16(c)(2); see also id. at § 208.17 (governing deferral of removal under the
CAT).
8
  See, e.g., App. at 51 (“Here, the Court is not persuaded that the respondent will be
personally at risk of torture if he is returned to his country.”); id. at 5 (“Based on the
Immigration Judge’s properly found facts, we will affirm his conclusion that the
applicant did not meet his heavy burden to show a likelihood of harm rising to the level
of torture in El Salvador.”).
9
  Indeed, Calderon bases this argument on language from the portion of the IJ’s decision
discussing Calderon’s application for withholding of removal, which was not appealed to
either the BIA or this Court. See Petitioner Br. 18 (citing App. at 49).

                                                4
family; (5) members of his family have already been killed or severely injured by gangs;

and (6) he will now be targeted as a Christian if he returns to El Salvador, because the

church leads the anti-gang movement in the country.

         We review such factual determinations under the substantial evidence standard. 10

Thus, the IJ and BIA’s determinations will only be overturned where “the evidence not

only supports [reversal] but compels it.” 11 When “assessing whether it is more likely than

not that an applicant would be tortured in the proposed country of removal,” a court

should consider:

         (i) Evidence of past torture inflicted upon the applicant;

         (ii) Evidence that the applicant could relocate to a part of the country of
         removal where he or she is not likely to be tortured;

         (iii) Evidence of gross, flagrant or mass violations of human rights within the
         country of removal, where applicable; and

         (iv) Other relevant information regarding conditions in the country of
         removal. 12

Finally, it is important to note that “the IJ and BIA need not ‘discuss every piece of

evidence mentioned’” by an applicant seeking relief. 13

         Here, it is undisputed that Calderon was not tortured in the past. The record also

shows, as the BIA noted, that “while in El Salvador [from 2006-2008], [Calderon]


10
   Wang v. Ashcroft, 368 F.3d 347, 350 (3d Cir. 2004) (“We will sustain the BIA’s
decision if substantial evidence in the record supports its decision.”).
11
   I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
12
     8 C.F.R. § 1208.16(c)(3).
13
  Green v. U.S. Att’y Gen., 694 F.3d 503, 509 (3d Cir. 2012) (quoting Huang v. U.S.
Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010)).

                                                5
received numerous telephone calls from gang members telling him that he had to resume

gang activities, but he was not harmed when he did not do so.” 14 Similarly, Calderon

“testified that gang members told him his family would be harmed or killed if he did not

rejoin the gang, but his family remains in El Salvador unharmed.” 15 Calderon also

testified that his cousin’s murder and his brother’s shooting were unrelated to Calderon’s

gang membership. 16 After considering Calderon’s evidence, the IJ and BIA concluded

that Calderon “has not shown that his fear of returning to El Salvador is supported by

sufficient facts, rather than based upon speculation or assumptions regarding what might

happen to him if he returns.” 17

       We agree. Calderon submitted evidence that gangs in El Salvador are dangerous

and harmful. That is a proposition that cannot really be disputed. However, he did not

submit evidence sufficient to compel (or even support) a finding that it would be more

likely than not that he would personally be tortured if he were to return. Thus, neither the

IJ nor the BIA can be said to have ignored relevant record evidence that would have

changed this conclusion.

                                            III.

       For the reasons set forth above, we deny Calderon’s petition for review of his final

removal order.




14
   App. at 4.
15
   Id.
16
   Id. at 132–34.
17
   Id. at 51–52.
                                             6
