Roberto Antonio Canales-Vasquez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14439
Non-Argument Calendar
____________________
ROBERTO ANTONIO CANALES-VASQUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-315-173
____________________
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2 Opinion of the Court 19-14439
Before R OSENBAUM , JILL PRYOR , and BLACK , Circuit Judges.
PER CURIAM:
Roberto Canales-Vasquez seeks review of the Board of Im-
migration Appeals’ (BIA) final order affirming the Immigration
Judge’s (IJ) denial of his application for protection under the United
Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (CAT). He further con-
tends the IJ’s denial of his asylum and withholding of removal
claims was based on a failure to consider the totality of the circum-
stances. We first address his CAT claim, then his arguments about
asylum and withholding of removal.
I. DISCUSSION
A. CAT Claim
We review only the BIA’s decision, except to the extent it
expressly adopts the decision of the IJ.
Sanchez-Castro v. U.S. Att’y
Gen., 998 F.3d 1281, 1285 (11th Cir. 2021). Factual determinations,
including whether a noncitizen has established eligibility for CAT
relief, are reviewed under the substantial evidence test.
Lingeswa-
ran v. U.S. Att’y Gen., 969 F.3d 1278, 1293–94 (11th Cir. 2020);
Ro-
driguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013).
To be eligible for CAT relief, an alien has the burden of
showing that he will, more likely than not, be tortured if removed
to his country of removal. 8 C.F.R. § 208.16(c)(2). In this context,
“torture” means
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19-14439 Opinion of the Court 3
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her or
a third person information or a confession, punishing
him or her for an act he or she or a third person has
committed or is suspected of having committed, or
intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind,
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.
Id. § 208.18(a)(1). Government officials will be deemed to have ac-
quiesced to torture only when they are aware of the activity con-
stituting torture before such activity happens and then breach their
legal responsibility to intervene to prevent it.
Sanchez-Castro, 998
F.3d at 1288. The government does not acquiesce to torture where
it attempts to combat the violence or other criminal activity, even
if its attempts are unsuccessful.
Id. (explaining even if the peti-
tioner was correct in arguing the police were not effective in con-
trolling gang violence, “it is dispositive that they are trying to do
so”).
Substantial evidence supports the determination Canales-
Vasquez did not demonstrate he more likely than not would be
tortured by or with the acquiescence of the Salvadoran govern-
ment. Canales-Vasquez specifically acknowledged no one on be-
half of the government had threatened to harm him in the past or
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4 Opinion of the Court 19-14439
intended to harm him in the future. Additionally, the Country Re-
port and other documentary evidence Canales-Vasquez submitted
shows the Salvadoran government has jailed more than 13,000 cur-
rent or former gang members, out of a total gang population of
approximately 70,000, and has attempted to combat gang activities
despite public distrust, equipment shortages, and other obstacles.
The limited success, or lack thereof, of these efforts does not influ-
ence a finding of governmental acquiescence, as the attempt alone
is dispositive.
See id. Accordingly, we deny Canales-Vasquez’s pe-
tition as to CAT relief.
B. Asylum and Withholding of Removal
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). The exhaustion requirement is ju-
risdictional and precludes review of a claimant’s argument if it was
not presented to the BIA.
Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1249-50 (11th Cir. 2006).
To the extent Canales-Vasquez references asylum and with-
holding of removal in his initial brief to the Court, his failure to
brief those issues before the BIA precludes this Court’s review for
two reasons. First, the BIA did not make any holdings that Canales-
Vasquez was ineligible for asylum and withholding of removal and
instead only held those applications were not before it because he
had conceded them, which Canales-Vasquez does not challenge on
appeal. Thus, his arguments about past and future persecution or
a nexus to a protected ground are not before this Court as those
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19-14439 Opinion of the Court 5
arguments are unrelated to any conclusions reached by the BIA in
its decision.
See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403
(11th Cir. 2016) (explaining because the BIA’s decision is the final
agency judgment, we do “not consider issues that were not reached
by the BIA”). Additionally, in any event, Canales-Vasquez did not
exhaust any argument he is eligible for asylum or withholding of
removal because he did not raise this issue in his brief to the BIA
and, in fact, expressly conceded his ineligibility before the BIA. He
therefore failed to give the BIA a full opportunity to consider these
claims and reverse any potential error by the IJ.
See Indrawati v.
U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (“Though ex-
haustion does not require a petitioner to use precise legal terminol-
ogy or provide a well-developed argument to support her claim, it
does require that she provide information sufficient to enable the
BIA to review and correct any errors below.” (quotation marks and
alteration omitted)). Accordingly, we dismiss his petition as to this
issue.
II. CONCLUSION
We deny Canales-Vasquez’s petition as it relates to CAT re-
lief, and dismiss his petition as it relates to asylum and withholding
of removal.
PETITION DENIED IN PART, DISMISSED IN PART.
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