Benito Antonio Villalobos Sura v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO ANTONIO VILLALOBOS SURA ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 20-71839
Agency No.
A209-428-559
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 30, 2021*
Pasadena, California
Filed August 17, 2021
Before: John B. Owens and Ryan D. Nelson, Circuit
Judges, and Alvin K. Hellerstein,** District Judge.
Opinion by Judge R. Nelson
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Alvin K. Hellerstein, United States District Judge
for the Southern District of New York, sitting by designation.

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SUMMARY***
Immigration
Denying Benito Villalobos Sura’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that substantial evidence supported the denial of
withholding of removal under the serious nonpolitical crime
bar, and the denial of protection under the Convention
Against Torture based on the lack of government
acquiescence.
The panel held that substantial evidence supported the
Board’s determination that there were “serious reasons to
believe” Villalobos Sura committed four aggravated
murders and was therefore statutorily ineligible for
withholding of removal. The panel explained that Villalobos
Sura did not dispute that the murders were both serious and
nonpolitical, and thus the government needed to show only
that there were “serious reasons to believe” or probable
cause that he committed the murders. The panel explained
that although this court has not held that a foreign arrest
warrant or an Interpol Red Notice (a request to locate and
provisionally arrest an individual pending extradition) alone
can establish probable cause, it has held that arrest warrants
and other government documents provide probable cause
when supported by other evidence. The panel concluded that
the government met its burden here. First, an arrest warrant
declaring Villalobos Sura in contempt of court for failing to
attend a pretrial hearing created an indication of reliability
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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VILLALOBOS SURA V . G ARLAND 3
by including Villalobos Sura’s name and identifying
information, explaining that that he was accused of
aggravated murder, listing the names of the victims, and
implying that the charged murders were gang related.
Second, the Red Notice contained a brief description of
events, alleging that Villalobos Sura and others used knives
and firearms to kill four men for presumably being members
of the MS-13 gang. Finally, Villalobos’s own testimony
supported the finding where he admitted that the identifying
information in the documents fit his description, his
testimony placed him within several miles of the murder at
the time of the crime, and Villalobos Sura conceded that a
Salvadoran arrest warrant requires a witness, suggesting the
Salvadoran government had additional evidence.
After considering the foreign documents, the suspicious
timing of Villalobos Sura’s departure from El Salvador, and
his unpersuasive testimony, the panel held that substantial
evidence also supported the Board’s determination that
Villalobos Sura failed to establish by a preponderance of the
evidence that the bar did not apply.
The panel held that Villalobos Sura failed to establish
that any torture he may face would be caused by or with the
consent or acquiescence of the Salvadoran government. The
panel explained that Villalobos Sura’s concession of safety
combined with an inability to do more than speculate that the
police would not protect him from gang violence provided
substantial evidence to support the Board’s denial of CAT
protection.

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4 VILLALOBOS SURA V . G ARLAND
COUNSEL
Marco A. Garzon, Argumedo Garzon Law Group, San
Francisco, California, for Petitioner.
Daniel E. Goldman, Senior Litigation Counsel; Rebecca
Hoffberg Phillips, Trial Attorney; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
R. NELSON, Circuit Judge:
We are asked to decide whether an Interpol Red Notice,
among other evidence, creates a serious reason to believe an
alien committed a serious nonpolitical crime before entering
the United States. If so, Petitioner Benito Antonio
Villalobos Sura is ineligible for withholding of removal
unless he can show by a preponderance of the evidence that
he did not commit the crime. Because substantial evidence
supports the Board of Immigration Appeals’ conclusion that
the serious nonpolitical crime bar is applicable and
Villalobos Sura failed to adequately attribute any future
torture to the Salvadoran government, we deny his petition
for withholding of removal or deferral of removal.
I
A
Villalobos Sura is a native and citizen of El Salvador.
While serving in the Salvadoran Army, he resided in the
town of San Miguel. As part of his service, he helped local

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VILLALOBOS SURA V . G ARLAND 5
Salvadoran police arrest gang members, including members
of MS-13.
In February 2016, two MS-13 members told him “[t]hat
they had an order for [Villalobos Sura] to disappear and if
[he] did not go on [his] own they will make [him] disappear.”
They also called him “rana,” a Spanish word for “frog,” a
derogatory term used by gang members for members of the
military. Though he reported this incident to his supervising
military officers, he did not report it to the police because he
was concerned that some police officers were also members
of the MS-13 gang.
Despite the threat, Villalobos Sura continued his military
service until it was completed in June or July 2016. He
remained in his home in San Miguel until August 2016. He
testified that he did not flee El Salvador earlier because he
did not want to be absent without leave and have an arrest
warrant issued against him.
In May 2016, several months before Villalobos Sura
entered the United States, four men were murdered in
Jucuapa, five kilometers from where Villalobos Sura was
stationed. According to a later Interpol Red Notice,1 an
arrest warrant was issued in July 2017 for Villalobos Sura
and four others asserting that they murdered four MS-13
gang members in Jucuapa with knives and firearms. The
Special Examining Magistrates’ Court in San Miguel issued
1 “A Red Notice is a request to locate and provisionally arrest an
individual pending extradition. It is issued by [Interpol’s] General
Secretariat at the request of a member country or an international tribunal
based on a valid national arrest warrant. . . . [I]t is the closest instrument
to an international arrest warrant in use today.” Guan v. Barr, 925 F.3d
1022, 1029 n.2 (9th Cir. 2019) (first alteration in original) (internal
quotation marks and citations omitted).

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an arrest warrant listing someone with Villalobos Sura’s
name, age, birthday, place of residence, and Salvadoran
identification number to be in contempt of court in absentia
for failure to appear to answer the charge of “aggravated
murder” of the four victims.
Upon entering the United States in September 2016,2 he
was detained by border patrol, and removed to El Salvador
because he lacked documentation. He told border patrol
officers that he had no fear of returning to El Salvador. Upon
his return to El Salvador, he stayed in a hotel in San
Salvador.
Eight days later, he re-entered the United States and was
placed in withholding-only proceedings before an
Immigration Judge (“IJ”) after he expressed a fear of
returning to El Salvador. Villalobos Sura applied for
withholding of removal and relief under the Convention
Against Torture (“CAT”).
Before an IJ, Villalobos Sura sought withholding of
removal or deferral of removal as a former Salvadoran
military member who received a death threat from gang
members. During his hearing, Villalobos Sura conceded that
he matched the identity of the person described in the arrest
warrant and the Red Notice. He also acknowledged that he
was stationed only five kilometers away from the site of the
murders. But he denied any prior knowledge of either arrest
warrant, any role in the murders, or even visiting the city of
Jucuapa. He stated that “the higher rank officers from the
army were in charge of going out with the police on foot
patrol but [he] was [a] first class soldier so [he] was just
2 As to the date he first entered the United States, Villalobos Sura
has wavered between September and October 2016.

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VILLALOBOS SURA V . G ARLAND 7
watching the parties and [] did not go with them.” Nor did
he know what they did while on patrol. Villalobos Sura
theorized that these unnamed military or police officers may
have falsely accused him of murders they had committed.
Villalobos Sura testified that he feared returning to El
Salvador and being placed in criminal custody based on false
charges, where he would be vulnerable to the MS-13 gang
and his former colleagues who framed him. He stated that
such would be the case anywhere in El Salvador. He worried
that a Salvadoran jail would be unable to protect him from
gangs. On the other hand, he also expressed that he would
feel safe if held in jail after being deported to El Salvador.
Finally, Villalobos Sura declared that his experience
working with police exposed him to the corrupt nature of the
justice system in El Salvador. He alleges a Salvadoran judge
can be bribed for $200, eliminating any need for a witness to
obtain an arrest warrant.
Villalobos Sura submitted evidence related to gang
violence, general corruption in El Salvador, and documents
outlining country conditions including the 2018 United
States Department of State Human Rights Report for El
Salvador, two reports from the International Crisis Group,
and news articles. The government submitted the arrest
warrant and the Red Notice.
B
After a merits hearing, the IJ ordered Villalobos Sura
removed to El Salvador. Relying on the arrest warrant and
the Red Notice, the IJ found Villalobos Sura statutorily
ineligible for withholding of removal under the serious
nonpolitical crime bar because the evidence raised serious
reasons to believe that he committed aggravated murder.
The IJ did not find any evidence negating the government’s

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documents except Villalobos Sura’s “own self-serving
testimony.” The IJ was not persuaded by Villalobos Sura’s
explanation that some unnamed officers may have framed
him. The IJ also noted that there was “no apparent political
tie or motive for” the murders. Because the IJ found
Villalobos Sura’s testimony insufficiently credible, he could
not show by a preponderance of the evidence that the serious
nonpolitical crime bar does not apply.
The IJ alternatively denied withholding of removal on
the merits. She found that the isolated threat did not amount
to past persecution and that Villalobos Sura’s decision to
finish his military service and remain in El Salvador after his
service for a month or two meant that he could not show a
clear probability of future persecution. The IJ also rejected
some of Villalobos Sura’s proposed social groups as non-
cognizable.
On the deferral of removal CAT claim, the IJ found that
Villalobos Sura failed to establish probability of torture as
he could not show past persecution or a clear probability of
future persecution. The IJ also found that he had not shown
“it would be the government or government officials who
would subject him to torture.” The IJ acknowledged
Villalobos Sura’s claims of a corrupt judicial system,
country reports, and other background information detailing
general corruption in El Salvador, but also relied on the
efforts El Salvador made to combat gang violence. The IJ
noted that Villalobos Sura’s testimony showed he did not
fear any harm from government officials if he was jailed in
El Salvador.
C
On appeal, the Board of Immigration Appeals (“BIA”)
adopted and affirmed the decision of the IJ. The BIA agreed

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VILLALOBOS SURA V . G ARLAND 9
that the government had met its burden for the serious
nonpolitical crime bar and that Villalobos Sura failed to
show that the bar did not apply given his testimony was
unpersuasive when compared to the Salvadoran arrest
warrant and the Red Notice. Therefore, the BIA affirmed
the IJ’s determination that Villalobos Sura was ineligible for
withholding of removal. As this resolved his withholding of
removal claims, the BIA did not address the IJ’s alternative
reasons for denying withholding of removal on the merits.
The BIA also agreed with the IJ’s reasoning for denying
deferral of removal under CAT. The BIA highlighted that
Villalobos Sura did not show he was more likely than not to
be tortured by or with the acquiescence of the Salvadoran
government despite the country conditions evidence. This
petition timely followed.
II
We review the legal determinations of the BIA de novo
and the factual determinations for substantial evidence. See
Guan, 925 F.3d at 1031. Substantial evidence review
requires us to uphold the BIA’s determination unless “the
evidence compels a contrary conclusion.” Parada v.
Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (citation
omitted). When the BIA incorporates portions of the IJ’s
decision, we treat the incorporated portions as part of the
BIA’s decision. See id.
III
A
If “there are serious reasons to believe that [an] alien
committed a serious nonpolitical crime outside the United
States before the alien arrived in the United States,” the alien

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10 VILLALOBOS SURA V . G ARLAND
is ineligible for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A), see id. § 1231(b)(3)(B)(iii), and
withholding of removal under CAT, see 8 C.F.R.
§§ 1208.16(c)(4), (d)(2). We have interpreted the “serious
reasons” standard as “tantamount to probable cause.” Go v.
Holder, 640 F.3d 1047, 1052 (9th Cir. 2011).
The government has the initial burden of introducing
evidence that the bar may apply. See 8 C.F.R.
§§ 1208.16(d)(2), 1240.8(d). If the government meets its
burden, then the applicant has the burden to rebut the bar by
a preponderance of the evidence. See id.; Matter of W-E-R-
B-, 27 I. & N. Dec. 795, 799 (BIA 2020) (concluding “the
burden shifted to the [applicant] to prove by a preponderance
of the evidence that the serious nonpolitical crime bar does
not apply—in other words, to show that there are not serious
reasons for believing that he committed a serious
nonpolitical crime”). Thus, if substantial evidence supports
the agency’s findings that the government met its burden and
that the petitioner did not, the BIA’s decision must be
upheld. See Guan, 925 F.3d at 1031–32.
1
To begin, Villalobos Sura does not dispute that the
murders were both serious and nonpolitical. Thus, the
government need show only that there are “serious reasons
to believe” he committed the murders.
The arrest warrant and the Red Notice provided by the
government, combined with the incredibility of Villalobos
Sura’s testimony, establish the requisite probable cause.
Probable cause exists when there is a “fair probability” that
the defendant committed the alleged crime. Silva-Pereira v.
Lynch, 827 F.3d 1176, 1189 (9th Cir. 2016) (citation
omitted); see also Maryland v. Pringle, 540 U.S. 366, 371

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VILLALOBOS SURA V . G ARLAND 11
(2003) (defining probable cause as “a reasonable ground for
belief of guilt” that is “particularized with respect to the
person” (citation omitted)).
While we have not held that a foreign arrest warrant
alone can establish probable cause, we have held that arrest
warrants and other government documents provide probable
cause when supported by other evidence. In Silva-Pereira,
827 F.3d at 1188–89, we held that a foreign indictment
containing specific facts related to the alleged crime, along
with eyewitness testimony, created probable cause.
Similarly, we have upheld a finding of probable cause based
on a petitioner’s admission coupled with a Chinese arrest
warrant. Guan, 925 F.3d at 1030, 1032.
Likewise, we have never held that a Red Notice alone is
sufficient to constitute probable cause. While a Red Notice
was issued for the petitioner in Guan, that decision did not
reference the Red Notice when upholding the probable cause
finding. See id. at 1029–30, 1032. Since a Red Notice is not
independently vetted for factual and legal justification,
United States v. Mohamud, 843 F.3d 420, 424 n.5 (9th Cir.
2016), its reliability corresponds with that of the foreign
nation’s arrest warrant.3 By contrast, the BIA has
determined in at least one case that a Red Notice may be
3 Two of our sister circuits have also held that a Red Notice, without
more, is insufficient to create probable cause to arrest someone. See
Radiowala v. Att’y Gen., 930 F.3d 577, 580 n.1 (3d Cir. 2019)
(“Congress has not seen fit to prescribe that an Interpol Red Notice alone
is an independent basis for removal. . . . [T]he Department of Justice’s
view is that, by itself, a Red Notice is not a sufficient basis for arresting
someone [because it] often falls short of what the Fourth Amendment
requires.”); Hernandez Lara v. Barr, 962 F.3d 45, 48 n.3 (1st Cir. 2020)
(recognizing a “Red Notice alone is not a sufficient basis to arrest the
‘subject’ of the notice” (citation omitted)).

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sufficient for the serious nonpolitical crime bar to apply.
Matter of W-E-R-B-, 27 I. & N. Dec. at 797–800.
Here, the BIA based its finding of a “serious reason to
believe” Villalobos Sura committed the murders on the
Salvadoran arrest warrant, the Red Notice, and Villalobos
Sura’s concessions. It is undisputed that the BIA’s precedent
in Matter of W-E-R-B- establishes that a Red Notice can be
sufficient for probable cause. Still, Villalobos Sura contends
that because the government did not submit documents
demonstrating the credibility of the warrants and Red
Notice, this case is distinguishable. While our precedent has
not answered whether a Red Notice alone is sufficient, we
need not decide that today. Our prior decisions in Guan and
Silva-Pereira guide us, as each relied on foreign documents
buttressed with other evidence.
Those foreign documents are much like the arrest
warrant and Red Notice here. The arrest warrant declaring
Villalobos Sura in contempt of court for failing to attend a
pretrial hearing creates an indication of reliability because it
1) states Villalobos Sura’s name and identifying
information; 2) explains that he is accused of aggravated
murder; 3) lists the names of the victims; and 4) implies that
the charged murders were gang related. We recognize that
the initial arrest warrant for the aggravated murders is not a
part of the record; however, in conjunction with the Red
Notice, the arrest warrant for contempt of court is sufficient.
As noted previously, the Red Notice contains a brief
description of events, alleging that Villalobos Sura and
others used knives and firearms to kill four men for
presumably being members of the MS-13 gang.
Villalobos Sura’s testimony also supports a probable
cause finding. He admitted that the identifying information
in the documents fit his description. His testimony placed

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VILLALOBOS SURA V . G ARLAND 13
him within several miles of the murder at the time of the
crime. Further strengthening the government’s case,
Villalobos Sura conceded that a Salvadoran arrest warrant
requires a witness, suggesting the Salvadoran government
had additional evidence. Though this is far from concrete
evidence of his guilt, the documents, combined with
Villalobos Sura’s testimony, are substantial evidence
supporting the BIA’s determination of a “fair probability” he
committed the murders. Silva-Pereira, 827 F.3d at 1189
(citation omitted).
2
Substantial evidence also supports the BIA’s
determination that Villalobos Sura failed to show there are
not serious reasons to believe he committed the murders.
Because the government has met its burden, Villalobos Sura
can prevail only upon showing, by a preponderance of the
evidence, that the bar to withholding of removal does not
apply. See 8 C.F.R. § 1208.16(d)(2). Under the substantial
evidence standard, reversal is only appropriate where the
evidence “compels a reasonable factfinder to conclude that
the BIA’s decision is incorrect” in deciding that a petitioner
failed to meet the preponderance of the evidence standard.
Baghdasaryan v. Holder, 592 F.3d 1018, 1022 (9th Cir.
2010) (cleaned up).
To substantiate his claim that he did not commit a
serious, nonpolitical crime, Villalobos Sura provided
testimony and specific country conditions reports. He
testified that an arrest warrant can be procured without a
witness for a bribe of $200, and he provided a State
Department report stating that the Salvadoran judiciary is
“burdened by inefficiency and corruption.” He likewise
alleged that some of his superiors would slip away on patrol
for hours, and these individuals may have framed him. And

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he argues that his testimony is credible given his
professional experience working with law enforcement in El
Salvador.
But the Supreme Court recently held that an IJ’s and
BIA’s failure to expressly make an adverse credibility
determination does not mean that a reviewing court must
treat that testimony as credible. Garland v. Dai, 141 S. Ct.
1669, 1677 (2021). Thus, if the record contains evidence
that a “reasonable factfinder could find sufficient” to
discredit the testimony, the reviewing court must accept the
agency’s findings. Id. Thus, Villalobos Sura’s testimony is
not per se credible.
Sufficient evidence in the record supports the IJ’s
decision to discredit Villalobos Sura’s testimony and other
evidence. The IJ found Villalobos Sura’s testimony to be
“self-serving” and “unpersuasive” when compared to the
evidence presented by the government. The testimony also
lacked specific allegations of who framed him, instead only
generally speculating that his superiors may have committed
the murders. And the IJ found Villalobos Sura’s decision to
flee El Salvador “soon after these alleged events occurred”
to be suspicious given that he could have left several months
earlier if he were motivated to flee by the gang threat. This
suspicion is not unreasonable. These findings were adopted
and incorporated by reference by the BIA.4
4 Villalobos Sura argues that the agency ignored his evidence, but in
most instances, he merely accuses the IJ of improperly weighing the
evidence. The IJ expressed that she reviewed and considered all
evidence, but she found his testimony to be unpersuasive. Moreover, the
IJ considered the country reports and news articles and gave them little
weight when addressing future persecution.

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VILLALOBOS SURA V . G ARLAND 15
After considering the foreign documents, the suspicious
timing of Villalobos Sura’s departure from El Salvador, and
his unpersuasive testimony, substantial evidence supports
the BIA’s conclusion that Villalobos Sura failed to show by
a preponderance of evidence that there were not serious
reasons to believe he committed the murders.
B
While the serious nonpolitical crime bar defeats
Villalobos Sura’s withholding of removal claims, it does not
preclude eligibility for deferral of removal under CAT. See
8 C.F.R. § 1208.17(a). That said, we deny Villalobos Sura’s
deferral of removal claim because “[s]ubstantial evidence
supports the BIA’s finding that it is not more likely than not
that [he] will be tortured in El Salvador” by or with the
consent or acquiescence of the Salvadoran government. Del
Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016);
see also Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th
Cir. 2017) (explaining that CAT relief requires the alien to
“prove not only that torture will more likely than not occur,
but also that there is sufficient state action involved in the
torture”). “[D]eferral of removal provides a less permanent
form of protection than withholding of removal and one that
is more easily and quickly terminated if it becomes possible
to remove the alien consistent with Article 3 of the CAT
. . . .” United States v. Reyes-Bonilla, 671 F.3d 1036, 1051
(9th Cir. 2012) (alteration in original) (citation omitted).
While the BIA agreed with the totality of the IJ’s
reasoning for denying deferral of removal, it specified that
Villalobos Sura failed to establish that any torture he may
face would be caused by or with the consent or acquiescence
of the Salvadoran government. That reason alone is enough
to deny deferral of removal. The IJ explained that when
Villalobos Sura was asked if he would be safe if he were held

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16 VILLALOBOS SURA V . G ARLAND
in a Salvadoran jail, he answered affirmatively.5 We hold
that Villalobos Sura’s concession of safety combined with
an inability to do more than speculate that the police would
not protect him from gang violence provide substantial
evidence sufficient to support the BIA’s decision to deny
deferral of removal.
IV
Substantial evidence—including a Red Notice, an arrest
warrant, and Villalobos Sura’s various concessions—
supports the BIA’s finding that there are “serious reasons to
believe” Villalobos Sura committed four aggravated
murders. Villalobos Sura’s documentary evidence of
corruption and self-serving testimony do not compel a
contrary conclusion. Moreover, substantial evidence
supports the BIA’s decision to deny deferral of removal
because Villalobos Sura failed to adequately attribute any
potential future torture to the Salvadoran government.
PETITION DENIED.
5 Villalobos Sura also suggested he would be at risk of harm from
gangs in jail because of police corruption and impoverished conditions.
Such speculation cannot compel the court to ignore his contradictory
concession of safety. See Matter of Z-Z-O-, 26 I. & N. Dec. 586, 592
(BIA 2015) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” (citation
omitted)).

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