B. R. v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

B.R., No. 19-70386

Petitioner,

Agency No.

v. A200-822-829

MERRICK B. GARLAND, Attorney

General, ORDER AND

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 9, 2021

San Francisco, California

Filed February 23, 2022

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit

Judges, and Lee H. Rosenthal, * District Judge.

Order;

Opinion by Judge Bea

*

The Honorable Lee H. Rosenthal, Chief United States District

Judge for the Southern District of Texas, sitting by designation.

2 B.R. V. GARLAND

SUMMARY **

Immigration

The panel filed: 1) an order granting Respondent’s

petition for panel rehearing, withdrawing the opinion filed

July 12, 2021, replacing that opinion with a superseding

opinion, and denying as moot the petition for rehearing en

banc; and 2) a superseding opinion denying in part and

granting in part B.R’s petition for review of a decision of the

Board of Immigration Appeals, and remanding. In the

superseding opinion, the panel held that 1) substantial

evidence supported the agency’s conclusion that B.R. was

properly served a copy of his Notice to Appear (“NTA”);

2) the Department of Homeland Security (”DHS”) later

cured its initial failure to serve the NTA on B.R.’s custodian

when he was released from detention as a minor; 3) the

agency erred by failing to credit or discredit B.R.’s specific

evidence that the government’s evidence of alienage was

tainted by violations of his rights; and 4) the evidence did

not compel reversal of the agency’s denial of protection

under the Convention Against Torture.

As to the issue of personal service, the panel concluded

that B.R.’s declaration stating that he did not remember

receiving a copy of the NTA fell far short of the evidence

needed to rebut the presumption of proper personal service.

As to the issue of service on B.R’s custodian (his mother),

B.R. relied Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th

Cir. 2004), which held that DHS must provide service of an

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

B.R. V. GARLAND 3

NTA on the custodians of juvenile aliens released from

custody. The parties agreed that, after releasing B.R. from

its custody, DHS never served the NTA on his custodian and

that, under Flores-Chavez, DHS’s original NTA service was

thus insufficient. However, the parties disputed whether the

error was fatal to DHS’s efforts to remove B.R.

As a general matter, the panel held that, absent a showing

of prejudice, improper service of an NTA can be cured. The

panel explained that the statute does not require notice at a

particular moment and that nothing in the statute or

regulations requires termination in this context. The panel

also considered Aguilar Fermin v. Barr, 958 F.3d 887 (9th

Cir. 2020), where the court addressed the similar issue of the

service of a defective NTA. There, the court held that the

remedy is to provide DHS an opportunity to cure the defect

in the NTA rather than to order termination. The panel

concluded that it logically proceeds that the remedy for

improper service of an NTA is for proper service to be

provided at a later time, provided the alien is not prejudiced.

B.R. argued that a different rule exists for minors released

from DHS custody. The panel rejected that contention,

explaining that Flores-Chavez does not require DHS to serve

an NTA upon a minor alien’s custodian at the very moment

the alien is released from its custody. Here, the panel held

that DHS cured the defective service by later properly

serving a copy of the NTA on B.R.’s counsel, after B.R.

became an adult, and before substantive proceedings had

commenced. Therefore, the panel concluded that regardless

whether DHS’s improper service failed to vest the

immigration court with jurisdiction initially, the immigration

court had jurisdiction throughout all of B.R.’s substantive

removal proceedings subsequent to DHS’s perfection of

service on B.R.

4 B.R. V. GARLAND

B.R. also argued that DHS’s failure to serve B.R.’s

mother and the seven-year gap between that initial failure

and its perfection were egregious regulatory violations

requiring termination. Because the agency failed to address

this argument below, the panel remanded to the agency to

consider whether DHS committed an egregious regulatory

violation and whether the violation prejudiced B.R.

As to the question of alienage, the panel explained that

DHS initially submitted three I-213 (Record of

Deportable/Inadmissible Alien) forms to meet its burden of

establishing alienage. B.R. moved to suppress, claiming the

forms had been created using his juvenile court records, in

violation of California privacy laws and his constitutional

rights. DHS then submitted supplemental evidence of

alienage: a Mexican birth certificate and a presentence

investigation report. The IJ assumed that B.R. made out a

prima facie case of a violation of federal regulations or his

constitutional rights, but rather than following the normal

burden shifting framework, the IJ addressed whether the

supplemental evidence was obtained independently of the

claimed unlawful act or of the I-213s, before B.R. moved to

suppress the supplemental evidence based on taint.

The panel observed that the decision preemptively to

find evidence to be independent of a suppressible violation

may be a valid course in some circumstances, but not in these

circumstances. Here, B.R. subsequently presented specific

evidence that at least the birth certificate was itself the

product of tainted evidence. However, the panel concluded

that nothing in the record indicated that the agency seriously

considered B.R.’s evidence of taint; instead, it appeared that

the agency arbitrarily ignored it and found the government’s

evidence free from taint. The panel concluded that this was

error and an abuse of discretion. Therefore, the panel

B.R. V. GARLAND 5

remanded with instructions to afford DHS the opportunity to

rebut B.R.’s evidence of taint.

The panel noted that B.R. never submitted specific

evidence that DHS’s presentence investigation report was

tainted. Even so, the panel wrote that it had serious

misgivings as to the propriety of the admission of the

presentence investigation report that should be addressed on

remand, including how DHS obtained the report when it was

placed under seal by the federal district court.

Finally, the panel held that nothing in the record

compelled the conclusion that the Mexican government

would torture B.R. or acquiesce in his torture for purposes of

CAT relief.

COUNSEL

Kristen Jackson (argued), Public Counsel, Los Angeles,

California; Hayley Upshaw, San Francisco Public

Defender’s Office, San Francisco, California; for Petitioner.

Jennifer A. Bowen (argued), Trial Attorney; Andrew C.

Maclachlan, Senior Litigation Counsel; Anthony C. Payne

and John W. Blakeley, Assistant Directors; Brian M.

Boynton, Acting Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

Mark T. Roche, Baker & McKenzie LLP, San Francisco,

California, for Amici Curiae Legal Services for Children,

Children’s Law Center of California, Law Foundation of

Silicon Valley, and Pacific Juvenile Defender Center.

6 B.R. V. GARLAND

Nareeneh Sohbatian and Nimalka Wickramasekera,

Winston & Strawn LLP, Los Angeles, California; Ashley A.

Chung, Winston & Strawn LLP, Chicago, Illinois; Eimeric

Reig-Plessis, Winston & Strawn LLP, San Francisco,

California; for Amicus Curiae Catholic Legal Immigration

Network, Inc. (Clinic).

Thomas R. Kreller, Linda Dakin-Grimm, and Mohammad

Tehrani, Milbank LLP, Los Angeles, California, for Amicus

Curiae Immigrant Legal Resource Center.

ORDER

Respondent’s petition for panel rehearing, Docket No.

81, is GRANTED without further oral argument. The

Opinion filed July 12, 2021, and reported at 4 F.4th 783, is

hereby WITHDRAWN and replaced with a superseding

Opinion filed concurrently with this Order. The petition for

rehearing en banc, Docket No. 81, is DENIED AS MOOT.

Future petitions for rehearing will be permitted under the

deadlines outlined in Federal Rules of Appellate Procedure

35(c) and 40(a)(1).

OPINION

BEA, Circuit Judge:

As a minor, petitioner B.R. had multiple run-ins with the

law and accumulated a lengthy juvenile court record with the

State of California—a record that states he was born in

Mexico. B.R. soon came to the attention of the Department

B.R. V. GARLAND 7

of Homeland Security (“DHS”), which suspected he was not

lawfully present in the United States. DHS took B.R. into

custody while he was still a minor, issued him a Notice to

Appear (“NTA”), and initiated removal proceedings against

him. After he was released and while those proceedings

were ongoing, B.R. sold methamphetamine to an undercover

federal officer. He was incarcerated, and, in 2018, he was

ordered removed.

B.R. now seeks review of the Board of Immigration

Appeals’ (“BIA”) dismissal of his appeal from the

Immigration Judge’s (“IJ”) final order of removal and denial

of his application for deferral of removal under the

Convention Against Torture (“CAT”). He presents three

main arguments. First, he claims DHS effected improper

service of the NTA, thereby failing to vest the immigration

court with jurisdiction, and that DHS should not have been

permitted to cure that service violation. We reject and deny

the claim with one small exception. The IJ is permitted to

allow DHS to cure defective service without terminating

proceedings, provided that the alien does not demonstrate

that DHS’s defective service prejudiced the alien’s interests.

Here, DHS cured its defective service prior to any

substantive removal proceedings and B.R. demonstrated no

prejudice from the delay. Our holding in Flores-Chavez v.

Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require

DHS to serve an NTA upon a minor alien’s custodian at the

very moment the alien is released from its custody. We do

remand, however, on B.R.’s argument that DHS

nevertheless committed an egregious regulatory violation

under Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018), by

failing promptly to serve B.R.’s custodian. Because the

agency failed properly to address that claim in its rulings,

and without expressing any opinion on that claim’s merits,

8 B.R. V. GARLAND

we remand so the agency can consider the claim properly,

including whether the violation prejudiced B.R.

Second, B.R. contends the evidence DHS submitted to

support its charge that B.R. was born in Mexico should be

suppressed because DHS did not obtain the evidence

independently of B.R.’s confidential juvenile court records

(records which he alleges DHS obtained in violation of

California privacy laws and his constitutional rights). The

exclusionary rule is generally not available in immigration

proceedings, but we hold that once an alien makes a prima

facie showing of an egregious regulatory or Fourth

Amendment violation warranting suppression and submits

specific evidence that the government’s evidence is tainted,

the government has the burden and opportunity to rebut that

claim of taint. The IJ erred in failing to credit or discredit

B.R.’s specific evidence of taint. We grant B.R.’s petition

for review on this issue and remand for further development

of the record.

Finally, B.R. argues the BIA erred in concluding he is

not entitled to deferral of removal under CAT. In the interest

of judicial economy, in the event DHS is able to prove B.R.’s

alienage on remand, we reject now his assignments of error

as to his CAT claim. The generalized country reports upon

which he exclusively relies would not compel any

reasonable adjudicator to conclude that the Mexican

government would torture or acquiesce in his torture from

the various actors he identifies.

I. BACKGROUND

B.R., now twenty-six years old, has lived since

childhood in California with his mother and siblings. As a

juvenile, B.R. was arrested multiple times and accumulated

a juvenile criminal record with the State of California, a

B.R. V. GARLAND 9

record which relates that B.R. was born in Mexico. In 2010,

while sixteen-year-old B.R. was detained on charges of

possession of a concealed firearm as a minor, an

Immigration and Customs Enforcement (“ICE”) agent

interviewed him. The agent determined B.R. was a native

and citizen of Mexico, memorializing that determination in

a Form I-213 (Record of Deportable/Inadmissible Alien),

which DHS used to initiate deportation proceedings. 1 B.R.

insists now that he never told the ICE agent that he was born

in Mexico.

On October 19, 2010, DHS detained sixteen-year-old

B.R. and charged him with removability as an alien who is

present in the U.S. without lawful admission or parole,

pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). That same day,

DHS served B.R. with an NTA. B.R. signed the certificate

of service but has since stated that he does not “remember”

being given a copy of the NTA. On October 20, 2010, DHS

filed the NTA with the Executive Office for Immigration

Review (“EOIR”). B.R. was deemed an unaccompanied

minor and remained in custody until he was eventually

released to his mother in March 2011. Upon his release,

DHS failed to serve a copy of the NTA on B.R.’s mother. In

fact, DHS has never served B.R.’s mother with his NTA.

Nevertheless, in compliance with the NTA, B.R.

appeared at his first removal hearing in October 2011 at the

age of seventeen. It was the only removal hearing B.R.

attended as a minor, and it was continued so B.R. could find

counsel. Twice more, in 2012 (after he turned eighteen),

B.R. appeared at removal hearings without a lawyer. Both

times he was granted continuances to find counsel. No

1

DHS created three separate I-213s related to B.R., dated 2010,

2011, and 2017.

10 B.R. V. GARLAND

pleadings were filed, no substantive issues were addressed,

and no orders of removal were entered at these hearings.

In 2013, while immigration proceedings were still

ongoing, B.R. (then nineteen) sold methamphetamine to an

undercover federal officer. He was indicted on six federal

charges of possession with intent to distribute but pleaded

guilty to and was convicted only of one count of conspiracy

to possess with intent to distribute methamphetamine and

received a sixty-month sentence. While B.R. was in prison,

he failed to appear at his removal hearing and was ordered

removed in absentia. But in 2017, after learning B.R. had

failed to appear because he was incarcerated, the IJ granted

DHS’s motion to reopen the proceedings.

In January 2018, B.R. (now represented by an attorney)

moved to terminate proceedings on the ground that DHS

failed to effectuate proper service in 2011 by failing to serve

a copy of his NTA on B.R.’s custodian (his mother) when he

was released to her custody, which he argued was required

for minor aliens pursuant to Flores-Chavez v. Ashcroft,

362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that

DHS’s 2011 NTA service was improper under our Flores-

Chavez rule, but denied the motion after concluding that

DHS was permitted to perfect service by re-serving the NTA

on then-adult B.R. The IJ noted DHS had done so by re-

serving the NTA by mail on B.R.’s counsel as an attachment

to the agency’s response to B.R.’s motion.

In March 2018, B.R. filed a motion to suppress evidence

and to terminate proceedings, in which he argued that the

three I-213s that DHS had assembled and submitted as

evidence of B.R.’s alienage improperly relied on B.R.’s

confidential juvenile records—an act B.R. argued was a

violation of his Fourth and Fifth Amendment rights and an

egregious regulatory violation—and that these forms should

B.R. V. GARLAND 11

be suppressed. B.R. argued that without the I-213s, DHS,

which at that point had submitted no other evidence of his

alienage, failed to meet its burden of establishing that B.R.

was born in Mexico. In response to the motion, DHS

submitted two additional pieces of evidence of alienage:

(1) B.R.’s Mexican birth certificate, and (2) a district court

presentence investigation report which stated that B.R. was

born in Mexico. 2

On April 6, 2018, the IJ denied the motion to suppress

evidence and to terminate proceedings. The IJ refrained

from deciding whether DHS had acted unlawfully with

respect to B.R.’s juvenile records in the preparation of the I-

213s but assumed for purposes of analysis that DHS had

indeed obtained information for the I-213s unlawfully.

Sidestepping the merits, the IJ held that DHS’s supplemental

evidence (the Mexican birth certificate and the district court

presentence report) was obtained based on B.R.’s identity

alone, which, regardless of any alleged constitutional or

regulatory violation, cannot be suppressed. Thus, the IJ

found the supplementary evidence not suppressible and

determined that DHS had proved B.R.’s Mexican alienage

by clear, unequivocal, and convincing evidence, even

without the I-213s. The IJ then dismissed B.R.’s motion to

suppress the I-213s and to terminate removal proceedings as

moot.

B.R. moved for reconsideration of that order, arguing

that: (a) his due process rights were violated because the IJ

admitted DHS’s supplemental evidence without giving him

adequate time to review and respond; (b) the supplemental

evidence was not obtained independently of the I-213s or his

2

The presentence investigation report was prepared by a probation

officer in connection with B.R.’s 2013 methamphetamine conviction.

12 B.R. V. GARLAND

state juvenile records and accordingly are tainted by the

alleged constitutional violations; (c) the evidence was

improperly authenticated; and (d) the presentence

investigation report was sealed by the district court and

improperly obtained and submitted by DHS. The IJ

considered the motion as a form of reply to DHS’s response

and evidence, but denied the motion to reconsider and

sustained the charge of removability against B.R.

As to relief from removal, B.R. conceded he was not

eligible for asylum or withholding of removal. B.R.’s only

application for relief was for deferral of removal under CAT.

B.R. testified before the IJ (who did not make an adverse

credibility finding) that he is likely to experience future

torture from a number of sources if removed to Mexico.

B.R. fears that his mother’s uncle, who murdered B.R.’s

father over a land dispute in Jalisco, Mexico before he was

born, might torture B.R. if he returns to Mexico. B.R. also

has a number of tattoos, including one visible tattoo on his

neck honoring his deceased father. He claims he fears that

Mexican authorities might torture him based on the

erroneous assumption that these tattoos are gang related.

B.R. also fears that he may be tortured in reprisal for his

sister’s testimony at his cousin’s criminal trial. In 2009,

B.R.’s sister provided information to the police after she

witnessed B.R.’s cousin commit sexual assault. The cousin

avoided arrest by fleeing to Mexico where he became

involved with the New Generation Jalisco Cartel, a notable

drug cartel located in Jalisco, Mexico. While in Mexico, the

cousin sent threatening messages to B.R. and his sister. The

cousin later returned to the U.S., where he was arrested and

convicted of the 2009 sexual assault, for which B.R.’s sister

appeared as a witness for the prosecution. B.R. did not

B.R. V. GARLAND 13

witness the 2009 assault and did not testify. B.R.’s cousin

remains incarcerated in California state prison.

Finally, B.R. fears retribution from the drug supplier he

had identified to the Drug Enforcement Agency. B.R.’s drug

supplier had bragged that his (the supplier’s) father was

involved in the La Familia Michoacána drug cartel in

Mexico.

On August 21, 2018, the IJ denied B.R.’s application for

CAT relief and ordered B.R. removed to Mexico. 3 The IJ

found that B.R. failed to establish a likelihood that he would

be tortured from the identified sources and that B.R. had also

failed to show that any torture would occur by or with the

consent or acquiescence of the Mexican government.

On appeal, the BIA affirmed and adopted the IJ’s

decisions. 4 B.R. timely petitioned us for review of the BIA’s

order affirming the IJ’s: (1) March 6, 2018 denial of B.R.’s

motion to terminate; (2) April 6, 2018 denial of B.R.’s

motion to suppress and terminate proceedings; (3) April 17,

2018 denial of B.R.’s motion to reconsider and objection to

DHS’s supplemental alienage evidence; and (4) August 21,

2018 denial of B.R.’s CAT claim. We have jurisdiction to

3

The IJ also denied B.R.’s motion to terminate in which he argued

that the IJ lacked jurisdiction because the NTA failed to specify a time

or place of the proceedings, citing Pereira v. Sessions, 138 S. Ct. 2105

(2018). B.R. does not appeal this finding.

4

Because the BIA adopted the IJ’s decisions, we review not only

the decision of the BIA, but those of the IJ as well. Matter of Burbano,

20 I. & N. Dec. 872, 876 (BIA 1994). Henceforth, we refer to the BIA

and the IJ collectively as “the agency.”

14 B.R. V. GARLAND

review the final order of removal under 8 U.S.C.

§ 1252(a)(1). 5

II. STANDARD OF REVIEW

This court reviews the agency’s “purely legal

determinations de novo.” Flores-Chavez, 362 F.3d at 1155.

“We review the agency’s factual findings under the

‘extremely deferential’ substantial-evidence standard, under

which we treat such findings as ‘conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary.’” Velasquez-Gaspar v. Barr, 976 F.3d 1062,

1064 (9th Cir. 2020) (quoting Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003); 8 U.S.C. § 1252(b)(4)(B)).

We review the denial of a motion to reconsider for abuse

of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972

(9th Cir. 2004). “The BIA abuses its discretion when it acts

arbitrarily, irrationally, or contrary to the law, and when it

fails to provide a reasoned explanation for its actions.”

Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.

2014) (internal quotation marks and citations omitted).

III. DISCUSSION

A. NTA Service

B.R.’s first set of arguments relate to DHS’s service of

the NTA. He argues that: (1) DHS failed to effect proper

personal service of the NTA in 2010; (2) DHS failed to effect

proper service on his mother as Flores-Chavez requires; and

(3) DHS’s improper service was an egregious regulatory

5

B.R.’s unopposed motion to supplement the record (Dkt. No. 17)

and motion to take judicial notice (Dkt. No. 44) are GRANTED.

B.R. V. GARLAND 15

violation requiring termination of removal proceedings. We

reject the first two arguments and remand on the third.

1. Personal Service

B.R. claims that, despite his signature on the NTA

certificate of service, DHS did not effect personal service on

him in accordance with 8 U.S.C. § 1229(a)(1) because,

although he was shown the NTA, he was not given a copy of

it. He further argues that an immigration court’s jurisdiction

over removal proceedings vests only if DHS personally

serves the NTA on the alien before DHS files the NTA with

the EOIR. Therefore, he argues, his proceeding should be

terminated for lack of jurisdiction because DHS filed his

NTA with EOIR before effecting proper personal service.

We find substantial evidence supports the BIA’s conclusion

that DHS personally served B.R. with the NTA prior to filing

it with the EOIR. We need not address his follow-on

jurisdictional argument.

This court applies a presumption of regularity to the

service of an NTA and will presume “[i]n the absence of

clear evidence to the contrary . . . that public officers

properly discharge their duties.” Kohli v. Gonzales,

473 F.3d 1061, 1068 (9th Cir. 2007) (quotation marks and

citation omitted). B.R. signed the NTA’s certificate of

service, and we may presume the officer then provided him

with a copy. B.R. supplied no evidence to rebut this

presumption beyond his own declaration, which states that

he does not “remember” receiving a copy. On its own, a

declaration simply refuting personal service is insufficient to

overcome the presumption of regularity. See Sembiring v.

Gonzales, 499 F.3d 981, 988–89 (9th Cir. 2007) (relying on

corroborating circumstantial evidence beyond the alien’s

own statements to find the alien had overcome the

presumption of regularity).

16 B.R. V. GARLAND

B.R. suggests his “unrefuted” declaration amounts to

clear evidence rebutting the presumption because the

government did not supply any evidence contradicting his

version of events. That is not how presumptions work. The

burden is on B.R. to provide “clear evidence” that

contradicts a properly invoked presumption of regularity;

DHS need not respond unless or until he has done so. B.R.’s

declaration falls far short of the evidence needed to rebut the

presumption of regularity, and DHS’s decision to rest on the

presumption does not elevate an insufficient declaration to

“clear evidence.” Substantial evidence supports the

conclusion that B.R. was properly served a copy of the NTA.

2. Defective Service and Cure Under Flores-Chavez

In Flores-Chavez, we construed DHS detention and

release regulations to require that DHS provide additional

service of an NTA on the custodians of all juvenile aliens

who are released from DHS custody. 362 F.3d at 1163. In

that case, DHS had served an NTA on Flores-Chavez, a

fifteen-year-old alien in its custody but did not serve the

NTA on the adult to whom he was later released. Id. at 1153.

Subsequently, Flores-Chavez failed to appear at his removal

proceedings and was ordered removed in absentia. Id. at

1154. The agency denied Flores-Chavez’s motion to reopen

proceedings based on improper service because DHS’s

general notice provisions required additional service only on

adult custodians of minor aliens fourteen-years-old or

younger. Id. (citing 8 C.F.R. 103.5a(c)(2)(ii) (2004),

redesignated as 8 CFR § 103.8(c)(2)(ii)). We reversed,

holding that even for minor aliens between the ages of fifteen

and seventeen, if they are released from DHS to an adult’s

custody, DHS regulations “require[] notice to the adult to

whom the juvenile is released from custody.” Id. at 1163.

We based our decision not on the general notice provisions,

B.R. V. GARLAND 17

but on DHS’s detention and release provisions, 8 C.F.R.

§ 242.24 (2004), redesignated as 8 C.F.R. § 236.3, which

make the adult to whom a minor alien is released responsible

for the alien’s appearance before the immigration court. Id.

On the basis that the adult custodian is the caretaker of the

minor alien, the regulation, reviewed in the light of the canon

of constitutional avoidance (to avoid potential due process

violations), must also require notice be served on that

custodian. Id. at 1160–63.

Here, the parties agree that, after releasing B.R. from its

custody, DHS never served the NTA on B.R.’s custodian

(his mother) and that, under Flores-Chavez, DHS’s original

NTA service was thus insufficient. The dispute lies in

whether this error is fatal to DHS’s efforts to remove B.R.

The agency deemed DHS’s initial service improper but

permitted DHS to re-serve the NTA on the then-adult B.R.’s

attorney, curing the violation by perfecting service before

any hearings were held at which substantive matters were

treated. B.R. argues that the agency erred because, under

Flores-Chavez, DHS’s failure to serve B.R.’s mother at the

moment he was released to her is an error that cannot be

cured and permanently deprives the immigration court of

jurisdiction over B.R.’s removal proceedings. Thus, he

suggests, we should order the BIA “to dismiss removal

proceedings for lack of jurisdiction.”

Reviewing the matter de novo, we hold that improper

service of an NTA on a minor alien released from DHS

custody can be cured if DHS later perfects service before

substantive removal proceedings begin. Therefore,

regardless whether DHS’s improper service in 2010 failed to

vest the immigration court with jurisdiction initially, the

immigration court had jurisdiction throughout all of B.R.’s

18 B.R. V. GARLAND

substantive removal proceedings subsequent to DHS’s

perfection of service on B.R. in 2018.

Before addressing B.R.’s Flores-Chavez argument, we

hold as a general matter that, absent a showing of prejudice,

improper service of an NTA can be cured and is not fatal.

The statute does not require notice to be provided at any

particular moment. Instead, the statute states only that: “In

removal proceedings under section 1229a of this title,

written notice (in this section referred to as a ‘notice to

appear’) shall be given in person to the alien . . . .” 8 U.S.C.

§ 1229(a)(1). The regulations also require service on the

alien. 8 C.F.R. § 1003.14(a) (When DHS files an NTA with

the EOIR, it is required to “include a certificate showing

service on the opposing party pursuant to § 1003.32.”).

Section 1003.32(a) does require “simultaneous[]” service for

documents filed with the immigration court, including the

NTA. But nothing in the statute or regulations requires

termination of removal proceedings solely because the initial

service was found to be defective.

B.R. concedes as well that we have “not yet held that

improper NTA service requires termination of removal

proceedings.” Indeed, we have not. But we have considered

the similar issue of the service of a defective NTA (as

opposed to improper service of an otherwise valid NTA) and

came to a conclusion opposite to the one B.R. proposes here.

In Aguilar Fermin v. Barr, we held that the remedy for

service of a defective NTA is to provide DHS an opportunity

to cure the defect in the NTA rather than to order termination

of removal proceedings. 958 F.3d 887 (9th Cir. 2020).

There, DHS had served the petitioner with an NTA that was

missing the location where her proceedings were to take

place—information required for the NTA to be valid under

8 C.F.R. §1003.15(b)(6). Id. at 893–94. We agreed with the

B.R. V. GARLAND 19

BIA’s interpretation of the regulation and concluded that the

“appropriate remedy” for service of the defective NTA was

for DHS to provide the alien “with the complete notice at a

later time.” Id. at 895. In other words, service of a defective

NTA “can be cured and is not fatal.” Id. Given no statutory

or regulatory provision requires otherwise, we think it

logically proceeds that the remedy for improper service of

an NTA is for proper service to be provided at a later time,

provided the alien is not prejudiced by the delay.

In holding that defective service may be cured absent

prejudice, we align ourselves with the BIA, which has

already concluded that the remedy for improper service of

an NTA is generally to postpone proceedings until DHS is

able to perfect and cure defective service. In Matter of

W-A-F-C-, the IJ terminated proceedings after DHS had

failed to serve the NTA on the person with whom the minor

alien resided in accordance with the regulatory requirements

for serving minors under the age of fourteen. 26 I. & N. Dec.

880, 880 (BIA 2016). The BIA reversed, holding that when

DHS makes an effort to re-serve, “DHS should be given an

opportunity to effect proper service” without termination of

proceedings. 6 Id. at 882. Matter of W-A-F-C- built on a

prior BIA holding in Matter of E-S-I-, where, despite indicia

that the alien was incompetent, DHS failed to serve the alien

in accordance with the regulatory requirements for

incompetents. 26 I. & N. Dec. 136, 145–46 (BIA 2013).

6

In so holding, the BIA distinguished one of its earlier cases, Matter

of Mejia-Andino, where it affirmed an IJ’s termination of proceedings

after DHS never attempted to cure service of a seven-year-old who had

failed to appear at two hearings. Id. at 882 (citing Matter of Mejia-

Andino, 23 I. & N. Dec. 533, 535–37 (BIA 2002)). B.R.’s reliance on

Matter of Mejia-Andino is misplaced because here, as in Matter of W-A-

F-C-, DHS did attempt and did complete a cure of service, and B.R. did

appear at his hearings. Id.

20 B.R. V. GARLAND

Rather than require termination of proceedings, the BIA

remanded and ordered that the IJ “grant a continuance to

give . . . DHS time to effect proper service.” Id.

We look to the statute and regulations to determine

DHS’s obligations. We see no reason to burden the

government’s efforts in enforcing immigration laws by

judicially mandating service of charging documents on all

aliens be perfect on the very first attempt absent statutory or

regulatory language so requiring. As written, the function of

the service requirement is to provide notice to the alien of

his removal proceedings, not to delay interminably

proceedings with unnecessary, do-or-die procedural hurdles.

The service requirement performs that function so long as

the government properly served notice on the alien before a

hearing on substantive matters, regardless whether service

occurs on the first attempt or by subsequent cure.

But regardless whether service may be cured generally,

B.R. argues a different rule exists for minors released from

DHS custody. B.R. claims that under our holding in Flores-

Chavez, DHS is required to effect proper service at the time

a minor is released and may not cure defective service at

some later time or date. To support that contention, B.R.

relies on this phrase from our opinion:

[W]hen [DHS] releases a minor alien to an

adult’s custody pursuant to 8 C.F.R.

§ [236.3], thereby making that adult

responsible for the minor’s future appearance

at immigration proceedings, the agency must

serve notice of the minor’s rights and

responsibilities upon that adult if the minor is

under eighteen.

B.R. V. GARLAND 21

Flores-Chavez, 362 F.3d at 1163 (emphasis added). Thus,

he argues, we established a temporal limitation that requires

proper service the moment the minor is released, and that a

failure to do so cannot ever be cured.

B.R. misreads our opinion. In that passage we used the

word “when” as a preface to a condition, not as a temporal

requirement on service. Our analysis in Flores-Chavez

spends considerable time differentiating the general service

requirements for minor aliens under § 103.8 from the

specific provision discussing the release of minors from

custody under § 236.3, concluding: “§ [236.3] pertains

specifically to the protections afforded a juvenile who is

taken into [DHS] custody and the responsibilities of the adult

to whom he is released.” Id. at 1158. “[W]hen,” in the

context we used it in Flores-Chavez, means “if” or “on the

occasion of.” The opinion distinguished between minors

generally and those minors released to an adult’s custody. In

other words, service on a minor alien’s guardian is required

only “if” the minor alien is released from DHS custody, not

“upon the moment” of his being released. See Cruz Pleitez

v. Barr, 938 F.3d 1141, 1146 (9th Cir. 2019) (distinguishing

Flores-Chavez in holding that DHS need not serve an NTA

on the guardian of a minor over the age of fourteen when

DHS never detained or released the minor from custody).

Flores-Chavez requires DHS to serve the NTA on the

custodian of a minor alien after he is released. It does not

create a bizarre rule where, if service on the custodian is not

made the instant the minor is released, DHS is barred from

pursuing removal.

B.R. also forwards a public policy argument: that unless

we require DHS to serve the guardian at the moment of

release, DHS could strategically delay service to the

guardian to circumvent the special protections for minors

22 B.R. V. GARLAND

described in Flores-Chavez. We are not persuaded. These

notice protections exist to place minors on equal footing with

adults. See Flores-Chavez, 362 F.3d at 1157, 1160. Once

an adult, an alien no longer needs such protections. Indeed,

absent some type of disability, physical or mental, an adult

alien is in a better situation to protect his own interests than

a minor alien, who must rely on third parties or guardians.

Even if we were swayed by B.R.’s public policy arguments,

DHS could simply delay service of an NTA and commence

removal proceedings once the alien turns eighteen. See

Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir. 2001)

(DHS has unreviewable “discretion regarding when and

whether to initiate deportation proceedings.). In contrast, we

are much more wary of following B.R.’s reasoning, where

even a day’s delay in service would grant the minor alien

permanent immunity from removal.

To cure defective service, DHS re-served the NTA on

then-adult B.R., but B.R. here complains that DHS again did

not serve notice on B.R.’s mother. We hold that DHS need

not have served B.R.’s mother after he turned eighteen and

that DHS properly perfected service by mailing the NTA to

B.R.’s attorney. 7 Once B.R. turned eighteen, he was no

longer entitled to the protections of Flores-Chavez, which

are premised on the idea that “no minor alien under age

eighteen should be presumed responsible for understanding

his rights and responsibilities in preparing for and appearing

at final immigration proceedings.” 362 F.3d at 1157. Re-

service should conform to DHS regulations that apply to the

alien at the time of the service. Here, DHS re-served the

7

Service by mail on an adult alien’s attorney qualifies as proper

service. 8 C.F.R. § 103.8(a)(1)(i).

B.R. V. GARLAND 23

NTA on B.R. prior to any substantive proceedings before the

IJ and so corrected its prior improper service.

In sum, we hold that IJs do have authority to allow DHS

to cure improper service of an NTA without requiring

termination of proceedings, that Flores-Chavez did not

create a temporal requirement that DHS serve a minor

alien’s custodian immediately upon release, and that DHS

did properly perfect service on B.R. here. The immigration

court had jurisdiction over B.R.’s removal proceedings.

3. Whether B.R. Is Entitled to Termination of

Proceedings as a Result of a Prejudicial Regulatory

Violation

In holding that DHS may cure defective service to avoid

violating § 1229 and related regulations, we do not suggest

that there is no remedy when improper service amounts to

an egregious regulatory violation which works to prejudice

an alien’s interests. Our test from Sanchez v. Sessions

provides adequate remedy of such instances: “[A] petitioner

is entitled to termination of their [sic] proceedings without

prejudice as long as the following requirements are satisfied:

(1) the agency violated a regulation; (2) the regulation was

promulgated for the benefit of petitioners; and (3) the

violation was egregious, meaning that it involved

conscience-shocking conduct, deprived the petitioner of

fundamental rights, or prejudiced the petitioner.” 904 F.3d

643, 655 (9th Cir. 2018).

B.R. argues that, even if DHS is permitted to cure

defective service, its initial failure to serve B.R.’s mother in

accordance with Flores-Chavez’s interpretation of 8 C.F.R.

§ 236.3 and the seven-year gap between its initial failure and

its perfection in 2018 were egregious regulatory violations

24 B.R. V. GARLAND

because they prejudiced his interests, requiring termination

of his removal proceedings.

The agency, however, did not address B.R.’s egregious

regulatory violation argument below. To be sure, the agency

did address B.R.’s claims that DHS failed personally to serve

him and that DHS violated Flores-Chavez by failing to serve

an adult responsible for B.R. when B.R. was released from

custody. But whether DHS “cured” its violation of Flores-

Chavez or “perfected service” upon B.R. after originally

serving him improperly simply does not answer the question

that Sanchez sets out: whether DHS committed a regulatory

violation that was conscious-shocking, deprived B.R. of

fundamental rights, or otherwise prejudiced him. Sanchez,

904 F.3d at 655. Indeed, B.R. argues that DHS’s Flores-

Chavez violation prejudiced him even though DHS

eventually served him properly. “[I]t goes without saying

that IJs and the BIA are not free to ignore arguments raised

by a petitioner,” Sagaydak v. Gonzales, 405 F.3d 1035, 1040

(9th Cir. 2005), so because the agency did not address B.R.’s

egregious regulatory violation argument, we grant B.R.’s

petition and remand to the agency for it to consider that

particular argument. We leave the determination of whether

DHS did in fact commit an egregious regulatory violation,

including whether DHS prejudiced B.R., for the agency to

determine in the first instance on remand.

B. Evidence of Alienage

B.R.’s second main argument is levied against the

evidence that DHS submitted to prove B.R.’s alienage. DHS

has the burden of proving alienage by “clear and convincing

evidence.” 8 C.F.R. § 1240.8(a). To meet that burden here,

DHS initially submitted three I-213 forms to establish B.R.’s

alienage. But before the IJ, B.R. moved to suppress these

forms, claiming DHS had created them using B.R.’s juvenile

B.R. V. GARLAND 25

court records, in violation of California privacy laws and

B.R.’s constitutional rights. In response, rather than join

issue on the provenance of the birth and citizenship facts

contained in the I-213s by submission of evidence as to how

DHS had procured such information, DHS submitted two

pieces of supplemental evidence of B.R.’s alienage. The

first item was B.R.’s Mexican birth certificate indicating he

was born in Jalisco, Mexico. Alongside the birth certificate,

DHS submitted a certification signed by an ICE agent stating

he had obtained B.R.’s birth certificate “through the publicly

available archives portal on the Consulate General of

Mexico website by inputting [B.R.]’s biographical

information.” The second item was a presentence

investigation report created after B.R.’s 2014 federal

methamphetamine conviction at age nineteen. Unlike with

the birth certificate, DHS provided no explanation for how it

obtained the presentence investigation report.

To resolve this motion to suppress, the IJ first assumed

B.R. made out a prima facie case that the three I-213s were

suppressible due to DHS’s alleged unlawful actions. The IJ

then observed that “identity evidence is never suppressible

in civil removal proceedings.” Finally, the IJ concluded that,

even under the assumption that the I-213s were suppressible,

DHS had located and submitted B.R.’s birth certificate and

presentence investigation report using only B.R.’s identity

information, making the documents independent evidence of

B.R.’s alienage.

B.R. filed a motion to reconsider and objected to the new

evidence, claiming that he was not granted sufficient time to

review and respond and that DHS did not demonstrate that

the supplemental alienage evidence was obtained

independently of the alleged violation. B.R. presented new

uncontested evidence that suggested that more than just his

26 B.R. V. GARLAND

name was necessary to obtain a certified copy of his Mexican

birth certificate—the ICE agent would also have needed his

date of birth, names of his parents, or a unique population

identification code. The IJ stated it would consider the

motion to reconsider “to be a form of response” to the

underlying motion to suppress, but denied the motion,

finding the original order did not contain any errors of law

or fact.

Because the IJ treated the motion to reconsider as part of

the original briefing, we are presented with a somewhat

murky question as to our standard of review. We could

arguably review de novo the IJ’s order denying

reconsideration alongside the order permitting DHS’s

supplemental evidence. See Martinez-Medina v. Holder,

673 F.3d 1029, 1033 (9th Cir. 2011) (“We review de novo

the denial of a motion to suppress.”). We could also review

under the abuse of discretion standard proper for motions to

reconsider. Lara-Torres, 383 F.3d at 972. Here, since we

find against the government under either standard, we will

employ the abuse of discretion standard, which is more

favorable to its position.

“As a general matter, the Fourth Amendment’s

exclusionary rule does not apply to immigration

proceedings.” Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th

Cir. 2019). “There are, however, two critical exceptions to

this rule: (1) when the agency violates a regulation

promulgated for the benefit of petitioners and that violation

prejudices the petitioner’s protected interests; and (2) when

the agency egregiously violates a petitioner’s Fourth

Amendment rights.” Sanchez, 904 F.3d at 649 (internal

citations omitted).

Under the Supreme Court’s ruling in INS v. Lopez-

Mendoza, evidence of alienage is admissible if it is obtained

B.R. V. GARLAND 27

independently of, or sufficiently attenuated from

suppressible evidence. See INS v. Lopez-Mendoza, 468 U.S.

1032, 1043 (1984); Sanchez, 904 F.3d at 653 & n.12. An

alien’s identity is not suppressible. Lopez-Rodriguez v.

Mukasey, 536 F.3d 1012, 1015 n.5 (9th Cir. 2008). Alienage

evidence obtained using only an alien’s identity is severed

from any violation that may otherwise justify exclusion.

When reviewing whether evidence is tainted by a

suppressible violation in the criminal sphere, we employ a

burden-shifting framework. In that context, “[i]nitially, the

defendant who shows that he was the victim of an

unconstitutional search must go forward with specific

evidence demonstrating taint. The burden then shifts to the

government to show that it acquired its evidence from an

independent source.” United States v. Cella, 568 F.2d 1266,

1284–85 (9th Cir. 1977) (citations omitted). We adapt that

framework for our purposes here. Applied to the limited

instances in which we recognize the availability of the

exclusionary rule in immigration proceedings, if an alien

establishes a prima facie case of an egregious regulatory or

Fourth Amendment violation warranting suppression, the

alien is then charged with providing specific evidence that

each piece of allegedly suppressible government evidence is

tainted by that unlawful act. Upon that showing, the burden

then shifts to the government to contest the alien’s specific

evidence of taint or otherwise show the government’s

allegedly tainted evidence is immune from suppression,

including a demonstration that the evidence was obtained

independently of or is sufficiently attenuated from the

underlying unlawful act or evidence obtained therefrom.

Here, the IJ assumed for purposes of analysis that the

information in the I-213s was obtained in violation of federal

regulations or B.R.’s constitutional rights. But DHS

28 B.R. V. GARLAND

submitted supplemental evidence of alienage not at issue in

B.R.’s motion to suppress the I-213s. To suppress DHS’s

supplemental evidence, B.R. had the initial burden to

demonstrate it was tainted by DHS’s unlawful act. But the

IJ acted out of turn. The IJ addressed whether the

supplemental alienage evidence was obtained independently

of the claimed unlawful act or of the I-213s before B.R.

moved to suppress the supplemental evidence based on taint.

The decision preemptively to find evidence to be

independent of an alleged suppressible violation may be a

valid course of action in some circumstances, but if the IJ is

later presented with information contrary to IJ’s

assumptions, the IJ is required to give that evidence reasoned

consideration.

B.R. subsequently presented specific evidence in his

motion to reconsider that tended to prove that at least the

birth certificate was not obtained independently of tainted

evidence but was itself the product of tainted evidence.

According to B.R.’s evidence, DHS could not have obtained

the birth certificate without using at least some of the

information available to DHS only in B.R.’s confidential

juvenile court record, to wit his date of birth, the Mexican

state in which he was born, his parents’ names, etc. That is

specific evidence of taint, yet nothing in the record indicates

that the agency seriously considered this evidence. Instead,

it appears the agency arbitrarily ignored it and found the

government’s evidence free from taint. That is error and an

abuse of discretion. Cole v. Holder, 659 F.3d 762, 772 (9th

Cir. 2011) (“[W]here potentially dispositive testimony and

documentary evidence is submitted, the [agency] must give

reasoned consideration to that evidence.”).

We are unable to conclude, based on the existing record

evidence, that DHS obtained the birth certificate based on

B.R. V. GARLAND 29

B.R.’s identity evidence alone. 8 DHS’s certified account as

to how it obtained B.R.’s birth certificate—stating that the

ICE officer obtained it by inputting B.R.’s “biographical

information” into the Consulate General of Mexico

website—is insufficient to rebut B.R.’s evidence of taint.

The ICE officer’s certificate did not reveal which

biographical information he used or where and how that

information was obtained. If ICE located the birth certificate

by using information gleaned from B.R.’s juvenile records

or his I-213s, it would not be free from the taint of that

alleged suppressible violation. If ICE used only his name,

or used information obtained in its interview with B.R., then

DHS has the burden on remand to so demonstrate, and to so

demonstrate with sufficient detail to allow the IJ to verify

that the evidence does not constitute fruit of unlawful

government conduct.

Because “[a] successful prima facie showing of a

regulatory violation for evidentiary suppression purposes . . .

normally entitle[s] the petitioner to a remand for the

government to rebut the petitioner’s showing,” Sanchez,

904 F.3d at 653, we remand with instructions to afford DHS

the opportunity to rebut B.R.’s evidence of taint. 9 We

8

We do not fault DHS. In supplementing its alienage evidence,

DHS was responding to B.R.’s motion to suppress the I-213s. At that

point, there was as yet no contention that the birth certificate and

presentence investigation report were tainted. DHS’s statements

accompanying the supplemental documents are taciturn and concerned

primarily with authenticating the documents, not with establishing that

they were obtained independently of B.R.’s juvenile court records.

9

Because we remand on the merits, we need not resolve B.R.’s

contention that he was deprived of a reasonable time to review DHS’s

supplemental evidence and was denied due process. See Lo v. Ashcroft,

341 F.3d 934, 937 & n.3 (9th Cir. 2003) (abstaining from addressing

petitioner’s due process argument after granting petition on the merits).

30 B.R. V. GARLAND

recognize that we have yet to plot out precisely what

information about a person qualifies as his “identity.”

Certainly, at least, the person’s name. But certainly not his

place of birth. Perez Cruz, 926 F.3d at 1136. To the extent

necessary, the agency may examine in the first instance the

finer grains of this issue as it relates to DHS’s supplemental

evidence.

We note, however, that B.R. never satisfied his burden

to submit specific evidence that DHS’s presentence

investigation report was tainted. The presentence

investigation report was created by a probation officer

following B.R.’s methamphetamine conviction and appears

to be attenuated from any alleged unlawful act on the part of

ICE or DHS. “The law of this Circuit is that there is no

sanction to be applied when an illegal arrest only leads to

discovery of the man’s identity and that merely leads to the

official file or other independent evidence. The file can be

used so far as relevant.” United States v. Orozco-Rico,

589 F.2d 433, 435 (9th Cir. 1978) (internal quotation marks

and citation omitted). B.R.’s conviction is a matter of public

record and information contained within that official file is

per se independent of any suppressible violation committed

pursuant to unrelated immigration proceedings. B.R. has not

provided any evidence that DHS uncovered his federal

conviction by using information obtained from B.R.’s

unrelated California state juvenile criminal record.

Even so, we have serious misgivings as to the propriety

of the admission of the presentence investigation report that

should be addressed on remand, including how DHS

obtained the presentence investigation report when it was

placed under seal by the federal district court. Given these

misgivings and the fact that the agency relied on both the

birth certificate and the presentence investigation report in

B.R. V. GARLAND 31

determining that DHS’s evidence was sufficient to establish

alienage, we refrain from concluding in the first instance that

the presentence investigation report alone is sufficient to

establish B.R.’s alienage. INS v. Ventura, 537 U.S. 12, 16

(2002) (per curiam).

We grant the petition for review and remand for the

agency to reopen proceedings consistent with this opinion,

including, if necessary, examining the merits of B.R.’s

motion to suppress the I-213s. 10

C. Convention Against Torture

Finally, in the interest of judicial economy, we examine

the agency’s denial of B.R.’s application for protection

under CAT in the event the government is able to prove

B.R.’s alienage on remand. B.R. attacks a number of the

agency’s legal and factual findings including, most crucially,

the finding that B.R. failed to demonstrate any torture he is

likely to suffer would occur with the acquiescence of the

Mexican government or its officials. We conclude

substantial evidence supported the agency’s finding and

deny the petition as to relief from removal.

In denying B.R. deferral of removal under CAT, the

agency found that B.R. “failed to show that the Mexican

government would acquiesce to the torture he fears,” an

essential element to obtaining CAT relief. B.R. argues that

10

B.R. also argues that termination under Sanchez is required due to

DHS’s unlawful treatment of his confidential juvenile records and that

the agency ignored this argument. B.R. has not yet proven DHS

committed any egregious regulatory violation or abridgment of his

fundamental rights and he is not entitled to termination at this juncture.

Sanchez, 904 F.3d at 655–56. He may renew this argument on remand

if he so desires.

32 B.R. V. GARLAND

this factual conclusion lacked substantial evidence for two

main reasons. First, he argues that because American law

enforcement officers have profiled B.R. as a gang member

due to his tattoos (although B.R. stated he was profiled

primarily “based on the people [he would] hang out with”),

Mexican law enforcement might similarly profile him as a

gang member and might torture him as a result. Second, he

argues that the Mexican government sometimes colludes

with cartels and is generally ineffective in deterring and

prosecuting crime.

CAT protection cannot be granted unless an applicant

shows a likelihood of torture that “is inflicted by or at the

instigation of or with the consent or acquiescence of a public

official acting in an official capacity or other person acting

in an official capacity.” 8 C.F.R. § 208.18; Arrey v. Barr,

916 F.3d 1149, 1160 (9th Cir. 2019). “[A] government does

not acquiesce in the torture of its citizens merely because it

is aware of torture but powerless to stop it.” Garcia-Milian

v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (citation

omitted). Evidence of future acquiescence by public

officials should be sufficiently related to the sources of

petitioner’s likely torture. Parada v. Sessions, 902 F.3d 901,

916 (9th Cir. 2018) (“[T]he acquiescence standard is met

where the record demonstrates that public officials . . .

would acquiesce in torture the petitioner is likely to suffer.”).

For example, if the torture is likely to arise from violence by

the Mara Salvatrucha (“MS-13”) gang, the evidence must

show public officials acquiesce in gang or specifically MS-

13 torture. See id. at 915–16. If torture is likely to arise from

an alien’s uncle over a prior land dispute, then evidence of

acquiescence must show public officials acquiesce in their

citizens torturing or killing each other over personal grudges

or property disputes. Generalized evidence of violence in a

country is itself insufficient to establish that anyone in the

B.R. V. GARLAND 33

government would acquiesce to a petitioner’s torture. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.

2010).

First, B.R.’s assertion that Mexican authorities

themselves might torture him because they might believe his

tattoos are gang related—despite the fact that he testified that

his tattoos are not gang related—is, on this record, pure

speculation. Blandino-Medina v. Holder, 712 F.3d 1338,

1348 (9th Cir. 2013). Second, he makes no effort to provide

evidence that Mexican authorities would acquiesce to his

torture at the hands of his uncle.

Finally, the agency’s conclusion that B.R. failed to prove

that the Mexican government would acquiesce in his torture

at the hands of either the La Familia Michoacána drug cartel

or the New Generation Jalisco Cartel is supported by

substantial evidence. B.R. did not cite any direct evidence

that the Mexican government or local Mexican officials are

aware of and have acquiesced in any cartel plan to torture

B.R. See Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th

Cir. 2003). Instead, he relies only on generalized country

reports and news clippings. The agency examined these

reports and reasonably concluded that they do not establish

that anyone in the Mexican government would acquiesce to

B.R.’s torture. Indeed, upon our own inspection, these

reports suggest that, while on occasion some corrupt

officials may turn a blind eye to cartel activity, the Mexican

government, rather than being willfully blind to cartel

violence and torture, actively combats and prosecutes cartel

activity. While these troubling reports describe senseless,

abhorrent violence throughout Mexico and a demoralizing

ineffectiveness on the part of the Mexican government’s

genuine efforts to free its citizens from this terror, they do

not prove that the Mexican government would acquiesce in

34 B.R. V. GARLAND

the torture of its citizens at the hands of cartels. See

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016)

(“[A] general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show

acquiescence.”).

Nothing in the record would compel a reasonable

adjudicator to conclude that the Mexican government would

acquiesce in B.R.’s torture. Because B.R. failed to satisfy

this essential element, he is ineligible for CAT protection,

and we need not address his remaining assignments of error.

His petition for review as to his application for CAT

protection is denied.

IV. CONCLUSION

For the reasons outlined above, the petition for review is

GRANTED in part; DENIED in part; and REMANDED

for further proceedings consistent with this opinion.