                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 14-2155

                   VICTOR MANOLO ESCOBAR TELLES,

                               Petitioner,

                                     v.

                        LORETTA E. LYNCH,*
              Attorney General of the United States,

                               Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                       AN IMMIGRATION JUDGE


                                  Before

                    Lynch, Lipez, and Thompson,
                          Circuit Judges.


     Randall L. Johnson and Johnson and Associates, P.C. on brief
for petitioner.
     Todd J. Cochran, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
and Jennifer L. Lightbody, Senior Litigation Counsel, Civil
Division, on brief for respondent.




     *    Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
March 9, 2016
                 LYNCH, Circuit Judge.          This case involves a petition to

review an Immigration Judge's ("IJ") denial of relief based on his

determination that the petitioner, whose prior order of removal

had been reinstated, failed to establish a reasonable fear of

persecution or torture, a necessary prerequisite for withholding

or deferral of removal under these circumstances.                         See 8 C.F.R.

§§ 241.8(e), 1241.8(e); 8 C.F.R. §§ 208.31(g), 1208.31(g).

                 Because   the    petitioner's      claims    easily      fail    on   the

merits, we assume hypothetical jurisdiction.1 See Royal Siam Corp.

v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007); see also Global

NAPs, Inc. v. Verizon New Eng., Inc., 706 F.3d 8, 12–13 (1st Cir.

2013) (per curiam).          We hold that the petitioner does not state a

colorable        constitutional       or   legal   claim     and   that    substantial

evidence supports the IJ's holding that the petitioner has not

established a "reasonable possibility" of persecution or torture.

See 8 C.F.R. §§ 208.31(c), 1208.31(c).

                                            I.

                 Victor Manolo Escobar Telles, a native and citizen of

Guatemala, says that he initially entered the United States in

1994 or 1995. Between April 2003 and February 2004, he was charged

with       and   convicted       of   several    offenses,     including         indecent




       1  While the government concedes jurisdiction in this case,
the jurisdictional question may warrant a more thorough analysis,
which we reserve for a future case.


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exposure, lewd and lascivious acts, and assault and battery.    On

August 5, 2004, he was issued a Notice to Appear alleging he

entered the United States without being admitted or paroled and

did not possess valid nonimmigrant documentation.   Escobar Telles

applied for withholding of removal, relief under the United Nations

Convention Against Torture ("CAT"), and cancellation of removal

under Immigration and Nationality Act ("INA") § 240A(b)(1).     He

subsequently withdrew the application for cancellation of removal.

After a hearing, an IJ issued an oral decision on June 20, 2006,

denying Escobar Telles's applications for withholding of removal

and relief under the CAT and ordering Escobar Telles removed to

Guatemala.

             Escobar Telles appealed to the Board of Immigration

Appeals ("BIA"), which dismissed his appeal on December 31, 2007.

The BIA explained that Escobar Telles did not object to the IJ's

determination that he was barred from withholding of removal under

INA § 241(b)(3)(B)(ii) because he was convicted of a "particularly

serious crime," see 8 U.S.C. § 1231(b)(3)(B)(ii), and so affirmed

the IJ's denial of that form of relief.   The BIA also noted that

Escobar Telles explicitly told the IJ that he was not pursuing

relief under the CAT but found that even if he had not made this

statement, it would affirm the IJ's denial of relief under the CAT

on the merits because Escobar Telles failed to show it was more




                               - 4 -
likely than not that he would suffer torture by the Guatemalan

government or with its acquiescence.

             Escobar Telles did not seek review of the BIA's order

and left the United States on March 26, 2008.            He later reentered

the United States without permission.          Escobar Telles said that he

reentered later in 2008.

             In   February   2014,   Escobar    Telles   was   arrested   for

unlicensed operation of a motor vehicle and failure to register as

a sex offender.       He was issued a Notice of Intent/Decision to

Reinstate Prior Order on March 3, 2014.         Escobar Telles refused to

sign an acknowledgement and response to the determination and

refused to give a statement to Department of Homeland Security

officials.

             Escobar Telles expressed a fear of harm if he were to

return to Guatemala, and on September 16 and 26, 2014,2 went before

an Asylum Officer ("AO") for a reasonable fear determination.3            See


     2    The government acknowledges that the date on the Asylum
Officer's report (September 18, 2014) appears to be inaccurate
because the interviews had not been completed by then.

     3    Under 8 U.S.C. § 1231(a)(5), an alien who reenters
illegally after having been removed is barred from challenging his
prior removal order and applying for "any relief" under Title 8,
Chapter 12.     See 8 U.S.C. § 1231(a)(5).       However, federal
regulations allow "an alien whose prior order of removal has been
reinstated" who expresses a fear of returning to the country of
removal to go before an AO for a determination of "whether the
alien has a reasonable fear of persecution or torture." 8 C.F.R.
§§ 241.8(e), 1241.8(e).     In this "reasonable fear screening
process," if the AO determines that the alien has a reasonable


                                     - 5 -
8 C.F.R. §§ 208.31(a)–(b), 1208.31(a)–(b).         The AO concluded that

Escobar Telles failed to establish a reasonable fear of persecution

or torture.    In addition, the AO found Escobar Telles's testimony

not credible because of inconsistencies between his claims before

the AO and those brought in his 2006 hearing.

            The AO explained that even if Escobar Telles's testimony

had been credible, his claims would still fail because he did not

demonstrate a nexus between the threats he allegedly received and

a "protected ground of the refugee definition," and because his

fear   of   gang   violence   was   "rooted   entirely   in   speculation."

Finally, the AO noted that while Escobar Telles claimed people may

seek to harm him in Guatemala based on his sex crime convictions,

this claim was "undermined by his assertion that it would be

possible to relocate to an area in Guatemala where the people would

be unaware of his sex crimes in the U.S.," and in any event, "it

is well established law that a person's criminality cannot be the

basis of an asylum claim."

            Escobar Telles requested that an IJ review the AO's

decision, see 8 C.F.R. §§ 208.31(f)–(g), 1208.31(f)–(g), and on



fear of persecution or torture, then the AO refers the case to an
IJ to determine whether the alien is eligible for withholding of
removal. Regulations Concerning the Convention Against Torture,
Interim Rule with Request for Comments, 64 Fed. Reg. 8478, 8485
(Feb. 19, 1999); see also 8 C.F.R. §§ 208.31(e), 1208.31(e). If
the AO determines that the alien has not established a reasonable
fear, then the alien can request that an IJ review this negative
determination. 8 C.F.R. §§ 208.31(g), 1208.31(g).


                                    - 6 -
October   29,   2014,   an   IJ   held   a   hearing   to   review    the   AO's

determination.    Escobar Telles's counsel said that the only relief

sought was "deferral under CAT" and that because of Escobar

Telles's prior convictions they "wouldn't even be trying for

withholding."    At the hearing, Escobar Telles testified that he

was afraid to return to Guatemala because he feared being killed

as a result of witnessing a murder in 1992.            He said that he came

to the United States in 1994 because "they were always looking for

me," but he could not identify the person who was purportedly

looking for him and trying to harm him.           Escobar Telles testified

that someone had sent letters to his house signed "Jose."               He said

that the only time he had seen the person purportedly threatening

him "was when [the man] committed the murder, and he got out of

the car and he threatened [Escobar Telles]."            Escobar Telles also

testified that he never told the police about these threats because

"it would get back to the person and then they would end up killing

[him]."

            In addition, Escobar Telles said that he was beaten up

around 1992 or 1993 by "people that would pass as Catholics . . .

because [he] converted to the Evangelical religion."                 He did not

report this to the police either.            Escobar Telles's counsel also

submitted evidence that he said showed Escobar Telles's family had

been targeted by gang members and that two of his cousins had been

murdered.   Then, Escobar Telles's sister testified about problems


                                    - 7 -
that her family experienced with gang members in Guatemala as well

as the murder of the two cousins.4           Escobar Telles's counsel argued

"that the Asylum Officer erred in finding only a generalized fear

of   persecution   when   [they   had]       all   these   specific   instances

targeting [Escobar Telles's] family and his family members," and

he pointed to the testimony and evidence submitted.

            The IJ found that Escobar Telles had not established a

reasonable possibility of torture.            The IJ explained that Escobar

Telles    "made   no   showing   to   indicate      that   the   government   of

Guatemala acquiesces in the torture of the respondent.                 Rather,

what has been presented to the Court is that there is a generalized

fear of crime in Guatemala."          This petition for review followed.5

See 8 C.F.R. §§ 208.31(g)(1), 1208.31(g)(1).

                                       II.

            The government, agreeing with the petitioner, asserts

that we have "jurisdiction to review the Immigration Judge's

concurrence with the asylum officer's negative reasonable fear




      4   Although Escobar Telles's counsel had originally said
that Escobar Telles's ex-wife would testify as well, after Escobar
Telles's sister testified, Escobar Telles's counsel told the IJ
that it was not necessary for the ex-wife to testify.

      5    Escobar Telles sought a stay of removal pending
resolution of his petition, which was denied on December 2, 2014.
He then filed a petition for panel rehearing, which was denied on
December 10, 2014. According to Escobar Telles, he was removed to
Guatemala on December 11, 2014.



                                      - 8 -
determination."6   However, the parties disagree on the applicable

standard.    No circuit has yet defined the standard of review we

employ to review the IJ's decision under these circumstances.

            The government urges us to apply a "'facially legitimate

and bona fide reason' standard of review to an Immigration Judge's

threshold determination that an alien, who is the proper subject

of a reinstated order of removal, does not hold a reasonable fear

of torture so as to warrant a full merits hearing on an application

for CAT protection."   It relies on Kleindienst v. Mandel, 408 U.S.

753 (1972), where the Supreme Court applied this standard to a

First Amendment challenge to the exclusion of an alien.      Id. at

769–70.   The Court explained that, "plenary congressional power to

make policies and rules for exclusion of aliens has long been


     6    The issue of jurisdiction is more complicated than the
government suggests. The underlying statutory provision provides
that an alien who has reentered illegally after having been removed
is not eligible for any relief under Title 8, Chapter 12, see 8
U.S.C. § 1231(a)(5), but federal regulations provide for a
reasonable fear screening process.     See 8 C.F.R. §§ 241.8(e),
1241.8(e). The regulations then provide that if the IJ concurs
with the AO's negative determination, then "[n]o appeal shall lie
from the immigration judge's decision." 8 C.F.R. §§ 208.31(g)(1),
1208.31(g)(1). Given the uncertainty regarding our jurisdiction,
and our ability to easily resolve the case on the merits, "we
believe that this is a case in which we may -- and should -- bypass
the jurisdictional question." Royal Siam Corp., 484 F.3d at 143;
see Global NAPs, Inc., 706 F.3d at 12–13 (explaining that "[w]hen
confronted with non-constitutional challenges to jurisdiction,"
and "when a party 'easily wins an affirmance on the substantive
issue,' we may 'decline to decide the jurisdictional issues raised
by it.'" (quoting Restoration Pres. Masonry, Inc. v. Grove Eur.
Ltd., 325 F.3d 54, 59 (1st Cir. 2003))).



                                - 9 -
firmly established," id., and "Congress has delegated conditional

exercise of this power to the Executive," id. at 770.                 It held

that "when the Executive exercises this power negatively on the

basis of a facially legitimate and bona fide reason, the courts

will neither look behind the exercise of that discretion, nor test

it by balancing its justification against the First Amendment

interests   of    those    who   seek    personal   communication    with   the

applicant."      Id.7

            However,      assuming      hypothetically   that   we   do     have

jurisdiction, we need not and do not reach the question of whether

this standard should apply to an IJ's concurrence with an AO's

negative reasonable fear determination because Escobar Telles's

claim fails even under the substantial evidence standard he says

should apply.      There was substantial evidence to support the IJ's

concurrence.     Escobar Telles testified that while he was receiving

threats from "Jose," he never reported these threats to the police.

Nor did he report the instances of being beaten up around 1992 or

1993 for "convert[ing] to the Evangelical religion."                   The IJ

acknowledged Escobar Telles's testimony and evidence regarding the




     7    The government also relies, inter alia, on Kerry v. Din,
135 S. Ct. 2128, 2139–40 (2015) (Kennedy, J., concurring in the
judgment) (applying Mandel to a constitutional challenge to the
explanation received regarding a visa denial) and Fiallo v. Bell,
430 U.S. 787, 794–95 (1977) (applying Mandel to a constitutional
challenge to the qualifications for special preference immigration
status).


                                     - 10 -
gang violence his family experienced.             The IJ also heard testimony

from Escobar Telles's sister about this violence and the murder of

two of their cousins. Escobar Telles's sister said that the police

were investigating at least one of their cousins' murders, but she

also acknowledged that they did not know who was responsible for

the murders.       There was ample basis for the IJ to concur in the

determination that Escobar Telles had not established a reasonable

possibility     of     torture.       See     8     C.F.R.     §§   208.18(a)(1),

1208.18(a)(1)      (explaining      that    under    the     CAT,   "[t]orture   is

defined as any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person . . .

when such pain or suffering is 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").

             To the extent Escobar Telles purports to make a due

process argument, this claim is not even colorable.                  The IJ heard

Escobar Telles's testimony as well as that of his sister.                 Indeed,

Escobar Telles declined to call his ex-wife because he did not

think   it   was     "necessary."      Notwithstanding         Escobar   Telles's

suggestions to the contrary, there is nothing in the record that

suggests the IJ did not consider all of the testimony and evidence

presented.     Cf. Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st

Cir. 2011) ("An IJ does not err merely by failing to address

specifically each piece of evidence the petitioner presented. . . .


                                     - 11 -
The record reveals that the IJ considered the totality of the

evidence presented, even if it did not recite that evidence in all

its detail." (citations omitted)).       There was no due process

violation.

                                 III.

             We deny Escobar Telles's petition for review.




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