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Herrera-Garcia v. Barr

United States Court of Appeals, Seventh Circuit

March 18, 2019

Rafael Giovanni Herrera-Garcia, Petitioner,
v.
William P. Barr, Attorney General of the United States, Respondent.

          Argued September 25, 2018

          Petitions for Review of Dedsions of the Board of Immigration Appeals. No. A074-211-058

          Before Kanne, Rovner, and Barrett, Circuit Judges.

          Barrett, Circuit Judge.

         Rafael Giovanni Herrera-Garcia seeks to avoid removal to El Salvador because he says that he will be tortured by gangs or corrupt government authorities if he is forced to return there. An immigration judge found that Herrera-Garcia had not shown that he, specifically, would be in danger and denied his request for relief. The judge also concluded that Herrera-Garcia had not established that the government would have inflicted or allowed the alleged torture. The Board adopted and affirmed that decision.

         Because the administrative decisions are supported by substantial evidence in the record, we deny Herrera-Garcia's petition for review of these decisions. We also reject his second petition for review on the denial of his motion for reconsideration because we agree with the Board that it was untimely.

         I.

         Herrera-Garcia is a native and citizen of El Salvador. He entered the United States illegally in 1990 and has remained here for the past twenty-seven years. In 2016, the Department of Homeland Security initiated removal proceedings against him under 8 U.S.C. § 1229a.[1] It alleged that he was removable as an alien because he was (1) convicted of a crime of moral turpitude and (2) present in the United States without being admitted or paroled. In his removal proceedings before the immigration judge (IJ), Herrera-Garcia denied both claims and argued that he qualified for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

         Herrera-Garcia's argument for withholding centered on his time growing up in El Salvador. He testified that when he was nine years old, guerrillas stopped him and his friends to get information about people in his neighborhood who might be working for the military-because at that time, the guerillas and the El Salvadoran government were fighting a civil war. Herrera-Garcia said that the guerrillas continued to stop by every three weeks or so to ask similar questions. He admitted, however, that he never saw any of the guerillas with guns. He also said that during one encounter, the guerrillas stopped him and a few friends and forced his friend, Franklin, to smoke marijuana. He claimed that although he escaped from the guerillas, they kidnapped Franklin.

         Herrera-Garcia also testified that several of his friends were forced to join the military. He explained that he didn't want to be involved in the violence between the military and the guerillas. Ultimately, out of fear of both the military and the guerillas, he fled to the United States in 1990 and has remained here illegally since then.

         Herrera-Garcia testified that his fear of living in El Salvador is worse today than it was twenty-seven years ago because of the growing number of gangs and kidnappings there. His parents also testified about the current state of gang violence in the country. They said that they worry about El Salvadoran gangs kidnapping him for ransom given his American accent-because the gangs believe that Americans are wealthy.

         The IJ found Herrera-Garcia removable and denied his applications for asylum, withholding of removal, and relief under CAT. On his CAT claim, the IJ held that Herrera-Garcia had failed to show that it was more likely than not that he would be tortured if he returned to El Salvador. The IJ also found "entirely speculative" his claims that he would be tortured by gangs. Lastly, the IJ concluded that Herrera-Garcia had failed to provide sufficient evidence that the El

         Salvadoran government would participate or acquiesce in the alleged torture.

         Herrera-Garcia appealed to the Board of Immigration Appeals, which adopted and affirmed the IJ's decision. Herrera-Garcia's petition for review makes only one argument: he claims that he is entitled to relief under CAT. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment ...


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