FILED

NOT FOR PUBLICATION

MAR 8 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN HUEZO-CEDILLOS, No. 19-70732

Petitioner, Agency No. A078-465-876

v.

MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 11, 2021 San Francisco, California

Before: BERZON, CHRISTEN, and BADE, Circuit Judges.

Ruben Huezo-Cedillos, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (BIA) order affirming, without

opinion, an Immigration Judge’s (IJ) decision denying Huezo’s applications for

withholding of removal and protection under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we dismiss the

petition in part, deny in part, grant in part, and remand to the agency with

instructions to grant CAT relief.

Where “the BIA summarily affirms the IJ’s decision, we review the IJ’s

decision as the final agency action.” Zehatye v. Gonzales, 453 F.3d 1182, 1184

(9th Cir. 2006). “We review the [IJ’s] legal determinations de novo and its factual

findings for substantial evidence.” Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir.

2011). “Under the substantial evidence standard, we will uphold the agency’s

decision ‘if the decision is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Id. (quoting Tampubolon v.

Holder, 610 F.3d 1056, 1059 (9th Cir. 2010)). “We will reverse the agency when

the evidence in the record compels a reasonable factfinder to conclude that the

agency’s decision is incorrect.” Id. at 1051–52 (citation, internal quotation marks,

and alteration omitted).

1. Our jurisdiction to review removal orders is limited by the

requirement that the petitioner “exhaust[] all administrative remedies available.”

8 U.S.C. § 1252(d)(1). “[T]he principle of exhaustion may exclude certain

constitutional challenges that are not within the competence of administrative

agencies to decide,” such as due process claims, “but only if they involve more

2 than ‘mere procedural error’ that an administrative tribunal could remedy.” Barron

v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (citation omitted). Huezo did not

exhaust his argument that his due process rights were violated by the IJ’s failure to

inform him in 2014 of his apparent eligibility for cancellation of removal, and we

dismiss this portion of the petition for lack of jurisdiction. Id. at 677.

2. Huezo’s withholding of removal claim was premised on his

membership in two proposed particular social groups: (1) “former members of the

[gang] MS-13”; and (2) “[i]ndividuals with tattoos indicating their . . . former gang

membership.” The IJ explained that “[t]he country conditions evidence in the

record does not establish that ex-gang members, or those with tattoos that indicate

membership in a gang, are singled out for persecution,” and determined that neither

of these two proposed groups were cognizable. We conclude the IJ’s

determination was supported by substantial evidence. See Reyes v. Lynch, 842

F.3d 1125, 1137–38 (9th Cir. 2016) (upholding BIA’s determination that “former

members of the Mara 18 gang in El Salvador who have renounced their

membership” was not cognizable); Arteaga v. Mukasey, 511 F.3d 940, 945 (9th

Cir. 2007) (explaining that “‘[t]attooed gang member’ falls outside the Ninth

Circuit’s definition of social group”). To the extent Huezo proposes a new social

3 group in his petition for review, we lack jurisdiction to consider it. 8 U.S.C. § 1252(d)(1).

3. “To qualify for CAT relief, an alien must establish that ‘it is more

likely than not that he or she would be tortured if removed to the proposed country

of removal.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014)

(quoting 8 C.F.R. § 208.16(c)(2)). “Past torture is the first factor we consider in

evaluating the likelihood of future torture because past conduct frequently tells us

much about how an individual or a government will behave in the future.” Nuru v.

Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005). “[I]f an individual has been

tortured and has escaped to another country, it is likely that he will be tortured

again if returned to the site of his prior suffering, unless circumstances or

conditions have changed significantly, not just in general, but with respect to the

particular individual.” Id. at 1217–18.

The IJ found that it was not “more likely than not that [Huezo] would be

harmed at all if returned to El Salvador,” and denied Huezo’s CAT claim. The IJ

also found that Huezo “did not establish that any harm done by gang members

would be with the acquiescence of the El Salvador government.” We conclude the

record compels a contrary conclusion.

When Huezo was about thirteen years old, gang members in El Salvador cut

his throat when he refused to do something they wanted him to do. Huezo nearly

4 died as a result of the attack, and a stent was placed in his throat. Only a few days

later, gang members shot and robbed Huezo’s father after his father intervened to

keep Huezo out of harm’s way. Though the IJ found that Huezo “began sporting a

number of gang-related tattoos” while in El Salvador, Huezo’s unchallenged

testimony was that gang members forcibly tattooed him. When Huezo was

seventeen, after he was implicated in and exonerated of a murder, a vigilante group

called the Black Shadow broadcast his name over the radio and threatened to kill

him if he did not leave El Salvador. Huezo then fled El Salvador for the United

States.

“[U]nless circumstances or conditions have changed significantly, not just in

general, but with respect to the particular individual,” it is likely that a person who

has suffered past torture “will be tortured again if returned to the site of his prior

suffering.” Nuru, 404 F.3d at 1217–18. There is no evidence in the record that

country conditions have changed. Current country-conditions evidence shows that

extrajudicial killings of suspected gang members are one of the “most significant

human rights issues” in El Salvador. Indeed, this court has frequently noted the

dire conditions in El Salvador. See, e.g., J.R. v. Barr, 975 F.3d 778, 783 (9th Cir.

2020) (noting country-conditions evidence that “El Salvador became the most

homicidal nation . . . in the world not at war” and that “in many neighborhoods,

5 armed groups and gangs targeted certain persons . . . and created a climate of fear

that the authorities were not capable of restoring to normal” (internal quotation

marks and alteration omitted)); Parada v. Sessions, 902 F.3d 901, 916 (9th Cir.

2018) (noting reports of “rampant violence and murder” perpetrated by gangs in El

Salvador (internal quotation marks omitted)). In response to Huezo’s credible

testimony that Salvadoran police officers force suspected gang members to remove

their shirts to expose any tattoos, and then use the tattoos as justification for

extrajudicial killings, the IJ stated “it seems reasonable to believe that [Huezo]

would be able to explain to the officers that he was a member of MS-13 as a young

man and is no longer active with that gang.” There is no evidence in the record to

support the IJ’s speculation that police would accept such an explanation.

Country-conditions reports confirm that “[i]n an attempt to eradicate gangs, the

Salvadoran government has de facto sanctioned extrajudicial killings,” and

“investigation[s] revealed that police and military officers [have] committed

extrajudicial executions” in an attempt to fight gangs.

The IJ’s supposition that Huezo will not face danger in El Salvador is further

undermined by evidence that Huezo himself has continued to be recognized as a

former gang member since his name was broadcast over the radio, and country

conditions have therefore not significantly changed regarding Huezo in particular.

6 See Nuru, 404 F.3d at 1217–18. The IJ found that Huezo’s “case is weakened [] by

the passage of time” because Huezo had “not spent any appreciable time in El

Salvador since the mid- to late 1990s,” and asserted that “[i]t is very clear that 40-

year-olds are viewed by society much differently than 18-year-olds are.” But the

evidence does not support the statement that 40-year-olds are treated differently,

and the IJ failed to grapple with evidence that in 2017, after Huezo was removed

from the United States to El Salvador, a government official at the arrival facility

in El Salvador told Huezo that if he walked out of the facility he would be killed by

the 18th Street gang, a rival gang to MS-13. The official told Huezo that if

someone tried to kill him, Huezo would not be permitted to reenter the facility.

Huezo took a bus from the facility to his father’s house, where he hid for one

month before returning to the United States. Back in the United States, while

Huezo was detained, he met with a Salvadoran consulate official and overheard the

official inform a different detainee that Huezo should be worried about returning to

El Salvador because Huezo was “the bad guy, he’s the gang member.”

The pattern established by this evidence compels the conclusion that it is

more likely than not Huezo will be tortured by or with the acquiescence of a

government official if he is removed to El Salvador. Accordingly, we remand with

instructions to grant CAT relief.

7

PETITION DISMISSED IN PART, DENIED IN PART, GRANTED IN

PART, AND REMANDED.

8