Francisco Gabriel Alvarez-Miranda, a native and citizen of El Salvador, sought protection from removal to his home country. He applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). An immigration judge denied these applications, finding that his claim of de facto statelessness due to a lack of identifying documents was insufficient to prove past or future persecution. The Board of Immigration Appeals dismissed Alvarez's appeal from that decision. Alvarez then petitioned the Ninth Circuit for review, arguing that his due process rights were violated during the proceedings and that the agency's factual findings regarding his asylum and CAT claims were incorrect.
The panel addressed four distinct legal issues. First, regarding the claim for appointed counsel, the court acknowledged it had authority to consider the issue even if not raised below, but held that Ninth Circuit precedent explicitly forecloses such an argument. Second, the court addressed other due process claims, including allegations that the immigration judge failed to obtain a knowing waiver of counsel, failed to explain proceedings, or failed to develop the record. The court ruled these claims were unexhausted because they were not raised before the Board. Under 8 U.S.C. § 1252(d)(1), a court may only review a removal order if the alien has exhausted all administrative remedies, a requirement that extends to correctable procedural errors. Third, the court found that Alvarez's substantive asylum and withholding of removal arguments were also unexhausted because he failed to challenge the immigration judge's determination regarding his de facto statelessness in his notice of appeal to the Board. Finally, the court reviewed the CAT claim under the substantial evidence standard. To qualify for CAT relief, an applicant must show it is more likely than not they would be tortured and that the government would acquiesce. The court found the Board's finding that Alvarez's claim was speculative and lacked evidence of state action was supported by substantial evidence. The court noted that general ineffectiveness of police is insufficient to prove acquiescence, and Alvarez's anecdotal evidence of corruption did not meet the legal standard.
The petition for review is denied, and the removal order stands. The decision reinforces the strict exhaustion requirement in immigration appeals, barring review of claims not raised before the Board. It also clarifies that general allegations of police ineffectiveness do not satisfy the high bar for proving government acquiescence in torture under the Convention Against Torture.
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