FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NELSON ANDRADE-GARCIA,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 13-74115

Agency No.

A205-937-826

OPINION

On Petition for Review of an

Immigration Judge’s Decision

Submitted March 9, 2016*

Pasadena, California

Filed April 29, 2016

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit

Judges, and Frederic Block,** Senior District Judge.

Opinion by Judge Ikuta

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Frederic Block, Senior District Judge for the U.S.

District Court for the Eastern District of New York, sitting by designation.
2 ANDRADE-GARCIA V. LYNCH

SUMMARY***

Immigration

The panel denied a petition for review of an immigration

judge’s decision affirming an asylum officer’s negative

reasonable fear determination in reinstated removal

proceedings.

The panel held that this court reviews an IJ’s negative

reasonable fear determination for substantial evidence, and

applying that standard concluded that petitioner failed to

establish a reasonable possibility of torture, because he did

not show that Guatemalan police were aware of gang

extortion activities and breached their legal responsibility to

stop it.

COUNSEL

Marina Alexandrovich, Marina Alexandrovich, Esq., PLLC.,

Tempe, Arizona, for Petitioner.

Joyce R. Branda, Acting Assistant Attorney General, Civil

Division; Blair T. O’Connor, Assistant Director; Scott M.

Marconda, Trial Attorney; Office of Immigration Litigation,

Washington, D.C., for Respondent.

 

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

been prepared by court staff for the convenience of the reader.
ANDRADE-GARCIA V. LYNCH 3

OPINION

IKUTA, Circuit Judge:

Nelson Andrade-Garcia petitions for review of the

immigration judge’s determination, in a reasonable fear

proceeding, that he lacked a reasonable fear of torture and

therefore is not entitled to relief under the Convention

Against Torture (CAT) from his reinstated removal order. 

We have jurisdiction under 8 U.S.C. § 1252(a)(1). See OrtizAlfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). Contrary

to the government’s argument, our review of the immigration

judge’s determination is not limited to the question whether

it was “facially legitimate and bona fide.” Kleindienst v.

Mandel, 408 U.S. 753, 769 (1972). Rather, we review the

decision for substantial evidence and now affirm.

I

The Immigration and Nationality Act (INA) provides for

the expedited removal of an alien who was previously subject

to a removal order but returned illegally to the United States. 

Under 8 U.S.C. § 1231(a)(5), if the government “finds that an

alien has reentered the United States illegally” after being

removed or departing under a removal order, “the prior order

of removal is reinstated from its original date.” Id.1In

 

1

 8 U.S.C. § 1231(a)(5) states:

If the Attorney General finds that an alien has reentered

the United States illegally after having been removed or

having departed voluntarily, under an order ofremoval,

the prior order of removal is reinstated from its original

date and is not subject to being reopened or reviewed,

the alien is not eligible and may not apply for any relief
4 ANDRADE-GARCIA V. LYNCH

determining whether the alien may be removed under the

reinstated order, an immigration officer must make three

findings: (1) that the alien is subject to a prior order of

removal, (2) that the alien is in fact the alien who was

previously removed or voluntarily departed, and (3) that the

alien unlawfully reentered the United States. 8 C.F.R.

§ 241.8(a).

If the immigration officer determines that the alien is

properly subject to the reinstated removal order, the plain

language of the statute precludes relief. See 8 U.S.C.

§ 1231(a)(5) (stating that the reinstated removal order “is not

subject to being reopened orreviewed, the alien is not eligible

and may not apply for any relief under [the INA], and the

alien shall be removed under the prior order at any time after

the reentry”). Despite this language, aliens are not barred

from all relief. Given Congress’s subsequent ratification of

CAT, see Foreign Affairs Reform and Restructuring Act of

1998 (FARRA), Pub. L. No. 105–277, Div. G., Title XXII,

§ 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also

8 C.F.R. §§ 208.18, 1208.18,2the Executive may not remove

an alien subject to a reinstated removal order if it is more

likely than not that the alien will be tortured in the country of

removal. See Ortiz-Alfaro, 694 F.3d at 956 n.1 (assuming

without deciding that an alien subject to a reinstated removal

order may receive relief under CAT). Further, the Supreme

under this chapter, and the alien shall be removed under

the prior order at any time after the reentry.

2 Many provisions of 8 C.F.R. § 208 and 8 C.F.R. § 1208 are identical,

but section 208 was promulgated by the Department ofHomeland Security

and section 1208 was promulgated by the Executive Office ofImmigration

Review.
ANDRADE-GARCIA V. LYNCH 5

Court has noted that an illegally returning alien subject to a

removal order may seek withholding of removal under

8 U.S.C. § 1231(b)(3)(A), “[n]otwithstanding the absolute

terms in which the bar on relief is stated” in § 1231(a)(5). 

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006).

Because an alien subject to a reinstated removal order

may be able to obtain CAT protection or other withholding of

removal if eligible, the government has promulgated

regulations providing administrative review of these claims. 

Under 8 C.F.R. § 241.8(e), if an alien “expresses a fear of

returning to the country designated” in the reinstated order of

removal, the alien must be “immediately referred to an

asylum officer for an interview to determine whether the alien

has a reasonable fear of persecution or torture.” If the asylum

officer concludes that the alien has demonstrated “a

reasonable possibility that he or she would be persecuted on

account of his or her race, religion, nationality, membership

in a particular social group or political opinion, or a

reasonable possibility that he or she would be tortured in the

country of removal,” 8 C.F.R. §§ 208.31(c), 1208.31(c), the

asylum officer must refer the case to an immigration judge

(IJ), see id. §§ 208.31(e), 1208.31(e). These provisions are

intended to give aliens subject to a reinstated removal order

under § 1231(a)(5) the opportunity to seek withholding of

removal and protection under CAT. See 8 C.F.R. § 241.8(e)

(providing an exception to the immediate reinstatement of a

removal order to allow an alien to seek withholding of

removal); id. § 208.16 (providing for withholding of removal

under 8 U.S.C. § 1231(b)(3)(B) and CAT); see also

Regulations Concerning the Convention Against Torture,

64 Fed. Reg. 8478, 8485 (Feb. 19, 1999) (stating that the

“new reasonable fear of persecution or torture screening

process will ensure proper consideration of applications for
6 ANDRADE-GARCIA V. LYNCH

withholding under [§ 1231(b)(3)] and under the Convention

Against Torture, and of deferral of removal when appropriate,

in cases subject to reinstatement of a previous removal

order”).

The alien may appeal an asylum officer’s determination

that there is not a reasonable possibility of persecution or

torture to an IJ. 8 C.F.R. §§ 208.31(f)–(g), 1208.31(f)–(g). 

If the IJ concurs with the asylum officer’s conclusion, the

alien may not appeal the decision to the Board of Immigration

Appeals. Id. §§ 208.31(g)(1), 1208.31(g)(1). If the IJ

disagrees with the asylum officer, the IJ must give the alien

a full hearing on the merits of the alien’s withholding or CAT

claim. Id. §§ 208.31(g)(2), 1208.31(g)(2).

II

Nelson Andrade-Garcia is a native and citizen of

Guatemala who entered the United States illegally in 1998,

2005, and 2013. He was apprehended and ordered removed

on June 19, 2013, and was removed a day later.

Two weeks later, on July 4, 2013, Andrade-Garcia

reentered the United States again and was apprehended near

the border. He conceded that he entered the country illegally

and admitted that he had previously been removed pursuant

to a removal order. The government issued him a notice of

intent to reinstate the prior removal order. Andrade-Garcia

expressed a fear of returning to Guatemala, so the

government referred his case to an asylum officer for a

reasonable fear hearing.

At the hearing, Andrade-Garcia testified that he had

decided to return to the United States to avoid paying the
ANDRADE-GARCIA V. LYNCH 7

members of a Guatemalan gang the 50,000 quetzals (about

$6,500) that they demanded in phone calls to him. He stated

he was afraid to return because the gang members had

threatened to shoot him and cut off his arm. He believed this

threat because they had killed his aunt three years before for

not paying the money they demanded. Andrade-Garcia

testified that the police had investigated his aunt’s murder,

but his cousin decided “not to do anything because she was

already dead and they thought that they would not find

anything out.” In response to the asylum officer’s questions,

Andrade-Garcia testified that he had not been physically

harmed, nor had he suffered any psychological or emotional

harm. He also testified that he would not be harmed because

of his religion, political opinion, membership in any group or

organization, or family relationships. Further, he testified

that his parents, wife, and children remained in Guatemala

and had not been physically harmed or threatened. Although

Andrade-Garcia stated that he did not know of any

connection between the gang members and the Guatemalan

government, he speculated that the gang members are able to

influence the police because the Guatemalan government is

corrupt and he had seen cases where a robber is caught and

then released the same day after bribing the police.

The asylumofficer determined that Andrade-Garcia failed

to demonstrate either a reasonable fear of future persecution

on account of a protected ground or a reasonable fear of

torture. On appeal, the IJ concurred with the asylum officer’s

determination. The IJ ruled that Andrade-Garcia failed to

demonstrate a reasonable possibility of past or future

persecution on account of a protected ground and did not

demonstrate a reasonable possibility of future torture under

CAT because he did not establish torture by the government

or torture inflicted with the government’s acquiescence.
8 ANDRADE-GARCIA V. LYNCH

Andrade-Garcia timely petitioned for review on the

ground that the IJ erred in concluding that he had failed to

demonstrate that the Guatemalan government had acquiesced

in any torturous actions against him.

III

Although “[r]einstatement orders are not literally orders

of removal,” we have jurisdiction to review them under

8 U.S.C. § 1252(a)(1). Castro-Cortez v. INS, 239 F.3d 1037,

1044 (9th Cir. 2001), abrogated on other grounds by

Fernandez-Vargas, 548 U.S. 30. We may therefore review

“constitutional claims or questions of law” that are “raised in

the context of reinstated removal orders.” Garcia de Rincon

v. Dep’t of Homeland Sec., 539 F.3d 1133, 1137 (9th Cir.

2008); see also Villa-Anguiano v. Holder, 727 F.3d 873, 875

(9th Cir. 2013). An IJ’s negative determination regarding the

alien’s reasonable fear makes the reinstatement order final,

see 8 C.F.R. § 208.31(g)(1), and thus subject to review under

8 U.S.C. § 1252. See Villa-Anguiano, 727 F.3d at 875; see

also Ortiz-Alfaro, 694 F.3d at 958. Under § 1252, we may

decide the petition for review “only on the administrative

record on which the order of removal is based.” 8 U.S.C.

§ 1252(b)(4)(A). We review “factual findings underlying the

[IJ]’s denial of CAT relief,” as well as determinations for

withholding of removal, for substantial evidence. Vinh Tan

Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014);

Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). 

Therefore, we must uphold the IJ’s conclusion that AndradeGarcia did not establish a reasonable fear of torture unless,

based on the evidence, “any reasonable adjudicator would be

compelled to conclude to the contrary.” Ai Jun Zhi v. Holder,

751 F.3d 1088, 1091 (9th Cir. 2014).
ANDRADE-GARCIA V. LYNCH 9

The government argues that rather than reviewing the IJ’s

negative reasonable fear determination under § 1252 for

substantial evidence, we should apply a more deferential

standard and uphold the IJ’s determination so long as there is

a “facially legitimate and bona fide reason” for determining

that Andrade-Garcia did not have a reasonable fear of

persecution or torture. We disagree.

The “facially legitimate” standard of review sought by the

government has been applied in a related, but different,

context. The Supreme Court has “long recognized the power

to expel or exclude aliens as a fundamental sovereign

attribute exercised bythe Government’s political departments

largely immune from judicial control.” Fiallo v. Bell,

430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei,

345 U.S. 206, 210 (1953)). Congress has “plenary power to

make rules for the admission of aliens and to exclude those

who possess those characteristics which Congress has

forbidden.” Mandel, 408 U.S. at 766 (quoting Boutilier v.

INS, 387 U.S. 118, 123 (1967)). When Congress delegates

this plenarypower to the Executive, the Executive’s decisions

are likewise generallyshielded from administrative or judicial

review. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970,

971 (9th Cir. 1986). As we have explained, “[t]he doctrine of

nonreviewability of a consul’s decision to grant or deny a visa

stems from the Supreme Court’s confirming that the

legislative power of Congress over the admission of aliens is

virtually complete.” Id. at 970.

Despite these rulings, “courts have identified a limited

exception to the doctrine [of consular nonreviewability]

where the denial of a visa implicates the constitutional rights

of American citizens.” Bustamante v. Mukasey, 531 F.3d

1059, 1061 (9th Cir. 2008). In Mandel, the Court considered
10 ANDRADE-GARCIA V. LYNCH

the reviewability of the Attorney General’s decision not to

waive the inadmissibility of a Belgian revolutionary and

therefore not to issue him a temporary visa to enter the United

States. 408 U.S. at 766–70. Certain American citizens

wishing to communicate with the Belgian revolutionary had

challenged the Attorney General’s denial on First

Amendment grounds. Id. at 762. The Court indicated that a

decision in this context was subject to only limited review: so

long as the Executive exercises its broad authority “on the

basis of a facially legitimate and bona fide reason, the courts

will neither look behind the exercise of that discretion, nor

test it by balancing its justification against” the constitutional

rights of American citizens. Id. at 770.

3 Accordingly, we

have held “that under Mandel, a U.S. citizen raising a

constitutional challenge to the denial of a visa is entitled to a

limited judicial inquiry regarding the reason for the decision,”

and “[a]s long as the reason given is facially legitimate and

bona fide the decision will not be disturbed.” Bustamante,

531 F.3d at 1062;see also Noh v. INS, 248 F.3d 938, 942 (9th

Cir. 2001) (“We need not decide whether the Secretary’s

[visa]revocation decision would be unreviewable in all cases,

3 The Court has applied the same test to Congress’s direct exercise of its

authority to admit or exclude aliens and will uphold “congressional policy

choices in the immigration context” against a constitutional challenge if

Congress has exercised its broad power “on the basis of a facially

legitimate and bona fide reason.” Fiallo, 430 U.S. at 793–95. Following

Fiallo, we have also applied the “facially legitimate” standard to

constitutional challenges to immigration statutes. See An Na Peng v.

Holder, 673 F.3d 1248, 1258–59 (9th Cir. 2012) (applying the facially

legitimate standard where an alien brought an equal protection challenge

to a statute imposing a continuous-presence requirement on lawful

permanent residents (LPRs) but not on non-LPRs); Padilla-Padilla v.

Gonzales, 463 F.3d 972, 978–79 (9th Cir. 2006) (applying the facially

legitimate standard where an alien brought a due process challenge to a

statute imposing a ten-year presence requirement for relieffromremoval).
ANDRADE-GARCIA V. LYNCH 11

because the Secretary offered a facially legitimate and bona

fide reason for revoking Noh’s visa, namely that the visa had

been obtained illegally, thereby rendering his decision in this

case unreviewable.”). We have extended the reasoning of

Mandel to adjudicate an official’s decision to deny an alien’s

request to be granted temporary admission into this country

by means of parole. See Nadarajah v. Gonzales, 443 F.3d

1069, 1082 (9th Cir. 2006) (“[I]mmigration officials clearly

have the authority to deny parole to unadmitted aliens if they

can advance a facially legitimate and bona fide reason for

doing so.” (quoting Jean v. Nelson, 472 U.S. 846, 853

(1985))); Mason v. Brooks, 862 F.2d 190, 193–94 (9th Cir.

1988) (“[A] rejection of parole will be upheld if the agency

advanced a facially legitimate and bona fide reason for the

denial.”).

These principles are not applicable, however, to an alien’s

challenge to a reinstated order of removal. Although

Congress has indicated its intent to delegate discretionary

authority to the Attorney General to make visa and parole

decisions,4see, e.g., 8 U.S.C. § 1229 (initiation of removal

4

See, e.g., 8 U.S.C. § 1182(d)(3)(A) (“[A]n alien . . . may, after approval

by the Attorney General of a recommendation by the Secretary of State or

by the consular officer that the alien be admitted temporarily despite his

inadmissibility, be granted such a visa and may be admitted into the

United States temporarily as a nonimmigrant in the discretion of the

AttorneyGeneral.” (emphasis added)); id. § 1182(d)(5)(A) (“The Attorney

General may, except as provided in subparagraph (B) [excluding refugees

“unless the Attorney General determines that compelling reasons . . .

require that the alien be paroled”] or in section 1184(f) of this title

[excluding crewmembers in certain labor disputes], in his discretion parole

into the United States temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent humanitarian reasons or

significant public benefit any alien applying for admission to the United

States.” (emphasis added)).
12 ANDRADE-GARCIA V. LYNCH

proceedings); id. § 1229a (removal proceedings); id. §§ 1158,

1229b (relief from removal), Congress limited the

Executive’s discretion to impose a reinstated order of

removal by authorizing aliens to seek relief under CAT, see

FARRA, Pub. L. No. 105–277, Div. G., Title XXII,

§ 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also

8 C.F.R. §§ 208.18, 1208.18, and possibly other forms of

relief, see Fernandez-Vargas, 548 U.S. at 35 n.4. And if the

alien has met the relevant burden of proof, both CAT

protection and withholding of removal are mandatory forms

of relief. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.

2005) (CAT relief); Al-Harbi v. INS, 242 F.3d 882, 888 (9th

Cir. 2001) (withholding of removal).

Moreover, while Congress has limited courts’ authorityto

review discretionary visa and parole decisions,5 Congress has

expressly provided for judicial review of a final order of

removal. See 8 U.S.C. § 1252(a). Because we treat

reinstatement orders as final orders of removal, see CastroCortez, 239 F.3d at 1044, reinstatement orders are subject to

judicial review under 8 U.S.C. § 1252. See, e.g., VillaAnguiano, 727 F.3d at 875; Ortiz-Alfaro, 694 F.3d at 958.

Because there is no basis for holding that reinstated

removal orders are subject to the consular nonreviewability

doctrine, see Li Hing of Hong Kong, Inc., 800 F.2d at 971,

there is also no basis for limiting judicial review of the

5

See 8 U.S.C. § 1252(a)(2)(B) (stating that “no court shall have

jurisdiction to review” certain denials of discretionary relief, including

“any other decision or action of the Attorney General or the Secretary of

Homeland Security the authority for which is specified under this

subchapter to be in the discretion of the Attorney General or the Secretary

of Homeland Security”).
ANDRADE-GARCIA V. LYNCH 13

immigration judge’s determination to the “facially legitimate

and bona fide” standard. Accordingly, we review reinstated

removal orders under the standard applicable to final orders

of removal.

IV

We now turn to the IJ’s negative reasonable fear

determination, and we conclude that substantial evidence in

the record supports the IJ’s conclusion that Andrade-Garcia

failed to demonstrate a reasonable fear of torture. We

therefore deny Andrade-Garcia’s petition.

The regulations provide that, in accordance with the

United States’ obligations under CAT, “[t]he alien shall be

determined to have a reasonable fear of persecution or torture

if the alien establishes a reasonable possibility that he or she

would be persecuted on account of his or her race, religion,

nationality, membership in a particular social group or

political opinion, or a reasonable possibility that he or she

would be tortured in the country of removal.” 8 C.F.R.

§§ 208.31(c), 1208.31(c); see also id. § 208.16(c)

(implementing CAT). Under CAT, a person must

demonstrate that the torture was “inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Zheng

v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting

8 C.F.R. § 208.18(a)(1)) (emphasis omitted). “Acquiescence

of a public official requires that the public official, prior to

the activity constituting torture, have awareness of such

activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). 

Here, the IJ’s determination that Andrade-Garcia had not

shown that the police were aware of the gang’s extortion
14 ANDRADE-GARCIA V. LYNCH

activities and breached their legal responsibility to stop it was

supported by substantial evidence. We have stated that a

general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show

acquiescence. Garcia-Milian v. Holder, 755 F.3d 1026, 1034

(9th Cir. 2013). By Andrade-Garcia’s own testimony, the

police actively investigated his aunt’s death, but stopped that

investigation in accordance with his cousin’s decision

because “they thought that theywould not find anything out.” 

The inability to bring the criminals to justice is not evidence

of acquiescence, as defined by the applicable regulations. Id.

Nor does Andrade-Garcia’s testimony that a Guatemalan

police officer took a bribe from a robber and released him

demonstrate that the government was aware of and

acquiesced in the torturous activity that constitutes the basis

for Andrade-Garcia’s claim. See Madrigal v. Holder,

716 F.3d 499, 509 (9th Cir. 2013) (official need not have

“actual knowledge of the specific incident of torture” but

must have “‘awareness’ of the torturous activity”); Afriyie v.

Holder, 613 F.3d 924, 937 (9th Cir. 2010) (remanding for

reconsideration of CAT claim when petitioner presented

“evidence indicating that the government of Ghana was aware

of the danger [he] was facing”). We have reversed agency

determinations that future torture is not likely only when the

agency failed to take into account significant evidence

establishing government complicity in the criminal activity. 

See, e.g., Madrigal, 716 F.3d at 510 (evidence that police

officers and prison guards often worked directly on behalf of

the cartels); Zheng, 332 F.3d at 1190–91 (petitioner

personally saw smugglers give three cartons of cigarettes to

police before they were allowed to board their boat in the

harbor, and he often saw smugglers feasting and

nightclubbing with local police). Andrade-Garcia points to

no such evidence here.
ANDRADE-GARCIA V. LYNCH 15

We therefore hold that substantial evidence supports the

IJ’s conclusion that Andrade-Garcia failed to demonstrate

government acquiescence in torture sufficient to establish a

reasonable possibility of future torture under CAT.

PETITION DENIED.