F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N E L S O N A

N D R A D E -G A R

C I A , P etitioner,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent. N o. 13-74115

Ag ency No. A205-937-826

OPI NI ON

On Petition for Review of an I mmig ration J udg e’s Decision

Submitted March 9, 2016 * Pasadena, California

F iled April 29, 2016

B efore: Richard R. Clifton and Sandra S. I kuta, Circuit J udg es, and F rederic B lock, * * Senior District J udg e

.

Opinion by J udg e I k

uta

* T h e p a n e l u na n im o u sly co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** T h e H o n o rab le Fred eric B lo ck

, Sen io r District J u d g e f o r th e U .S. District C o u rt f

o r th e Eastern District o f New Yo rk

, sittin g b y d esig n atio n

.A N D R A D E -G A R

C I A V

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N C H 2

SUMMARY * * *

Im m igration

The panel denied a petition f or review of an immig r ation judg e’s decision affirming an asy lum officer ’ s neg ative reasonable fear determination in reinsta t ed removal proceeding s.

The panel h e l d t hat this court reviews a n I J ’ s neg ative reasonable fear d etermination for substantial evidence, a nd apply ing that standard c oncluded that petitioner fai l e d to establish a reasonable possibility o f t o r ture, because he did
not show that Guatemalan police w ere a ware of g ang

ex tortion activities and breached their leg al responsibility to stop it.

COUNSEL

Marina Alex androvich, Marina A lex androvich, Esq., PL L C., Tempe, Ariz ona, for Petitioner.

J o y c e R. B randa, Acting Assistant Attorney General, Civil Div i s i o n ; B lair T

. O’Connor, Assistant Director; Scott M. Marconda, Trial Attorney ; Office of I mmig ration L itig ation, W a shing ton, D.C., for Respondent.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A N D R A D E -G A R

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N C H 3

OP INION

I KUTA, Circuit J udg e:

Nelson Andr a d e

- Garcia petitions for review of the immig ration judg e’s determinatio n, in a reasonable fear proceeding

, that he l a ck ed a reasonable fear of torture a nd theref o re is not e n titled to relief under the Convention Ag ainst T o r t u re (CAT) from his reinstated removal order. W e have jurisdiction under 8 U.S.C. § 1252(a)(1). S ee OrtizAlfaro v. Holder

, 694 F .3d 955, 958 (9th Cir. 2 012). Contrary
to the g overnment’s arg ument, our review of the immig r ation judg e’s determina t i o n is not limited to the question whether i t was “ facially leg itimate and bona fide.” Kleindienst v. Mandel

, 408 U.S. 753, 769 ( 1 9 7 2 )

. Rather, we review the decision for substantial evidence and now affirm.

I

The I mmig ration and N ationality Act (I NA) provides for the ex pedited removal of an alien who was previously subject
to a removal o rder but returned illeg ally to the United States. Under 8 U.S.C. § 1231(a)(5), if the g overnment “finds that an alien has r eentered th e United States illeg ally ” after being removed or departing under a r emoval order, “the prior order of re m o v a l i s reinstated f rom its o rig inal date.” Id. 1 I n

1 8 U.S.C. § 1 23 1 (a)(5 ) states:

If th e A tto rn ey Gen eral f

in d s t h at an alien h as reen tered th e Un i ted States illeg ally af t er h av in g b een rem o v ed or h av in g d ep arted v o lu n tarily

, u n d er an o rd er o f rem o v al, th e p rio r o rd er o f rem o v al is rein stated f ro m its o rig in al d ate an d is n o t su

b j ect to b ein g reo p en ed o r rev iew ed

, th e alien is n o t elig ib le an d m ay n o t ap p ly f o r an y reliefA N D R A D E -G A R

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determining w hether the alien may be removed under the reinstated order, an immig ration officer mus t m ak e three finding s: (1) that the alien is s u b j e c t to a prior order o f removal, (2) that the alien is in fact the alien w ho was p r eviously r emoved or voluntarily departed, and (3) that t h e alien unlawfully reentered the Un ited States. 8 C.F .R. § 241.8(a).

I f the immig ration officer d etermines that the a l i e n is properly s u b

j e c t to the r einstated r emoval order, the plain la n gu a g e of the statute precludes relief. See 8 U .S.C. § 1231(a)(5) (stating that the reinstated removal order “is not subject to b eing reopened o r reviewed, the alien is n ot elig ible and may not apply for any relief u n d e r [ the I NA]
, and the alien shall be removed under the prior order at any time a fter th e r e entry ” ). Despite this lang uag e, aliens are not barred from al l relief. G iven Cong ress’s subsequent ratification o f CAT, see F oreig n Affairs Reform and R e s t r ucturing Act o f 1998 (F ARRA), Pub. L

. No. 105–277, Div. G.
, Title XXI I
, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C.F .R. §§ 208.18, 1208.18, 2 the Ex ecutive may n ot remove

an alien subject to a reinstated r em o v a l order if it is more likely than n ot that the alien w ill be tortured in the c ountry o f removal. See Ortiz-Alfaro

, 694 F .3d at 956 n

. 1 (assuming without deciding that an a lien subject to a reinstated removal order may receive relief under C AT). F urther, the Supreme

u n d er th is ch ap ter, an d t

h e alien sh all b e rem o v ed u n der th e p rio r o rd er at an y

tim e af ter th e reen try

.

2 Man y p ro v isio n s o f 8 C .F.R. § 2 0 8 an d 8 C .F.R. § 1 2 0 8 are id en tical, b u t sectio n 20 8 w as p ro m

u lg ated b y th e Dep artm en t o f Ho m elan d Secu rity

an d sectio n 1 2 0 8 w as p ro m u lg ated by th e Ex ecu tiv e Of f ice o f Im m ig ratio n Rev iew

.A N D R A D E -G A R

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Court has noted that an illeg ally retur n i n g alien subject to a

remova l o r der may seek withholding of removal under 8 U.S.C. § 1231(b)(3)( A ), “[ n] otwithstanding the absolute
terms in which the b ar on relief is stated” in § 1231(a)(5). Fernandez-Vargas v. Gonzales

, 548 U.S. 30, 35 n.4 (2006).

B e cause an alien s u b

j ect to a reinstated removal order
may b e able to obtain CAT protection o r other withholding o f removal if elig ible, the g overnment has promul ga ted
reg ulations providing a dministrative review of these claims. Under 8 C

. F. R

. § 241.8(e), if an alien “ex presses a f e ar o f returning to the country desig nated” in the reinstated order o f removal, the alien must be “immediately referred to an asy lum officer for an interview to determine whether the alien has a reasonable fear o f persecution o r torture.” I f the asy lum officer c oncludes that the alien has demonstrated “a reasonable possibility

that he or she would be persecuted on

a c count o f h is or her race, relig ion, nationality

, membership in a particular social g r oup or political o p i nion, or a reasonable possibility that he or she would b e tortured in the country of removal,” 8 C.F .R. §§ 2 08

. 3 1 ( c), 1208.31(c), the
asy lum officer must refer the case t o a n i m mig ration judg e (I J ), see id. §§ 208.31(e)

, 1208.31(e). These provisions a re intended to g ive al iens subject to a r einstated removal order under § 1231(a)(5) the o pportunity to seek w i thholding o f removal and protection under CAT. See 8 C.F .R. § 241.8(e) (providing a

n ex ce p tion to the immediate reinstatement of a

re m o v al order to allow an alien to seek withholding o f removal); id. § 208.16 ( providing f or withholding of removal under 8 U.S.C. § 1 2 31(b)(3)(B ) a n d CAT); see a l

so Reg ulations Concerning the Convention Ag ainst Torture, 64 F ed. Reg

. 8478, 8485 (F eb. 19, 1 999) (stating that the “new reasonable fear of p ersecution or torture screening
process will ensure p roper consi d eration of applications forA N D R A D E -G A R

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withholding under [ § 1231(b)(3)] and under the Convention Ag ainst T orture, and o f deferral of r emoval when appropriate, in cases subject t o r e i nstatement of a previous removal order”).

The alien m a y appeal a

n asy lum officer’s determination that there is not a reasonable possibility of p e r secution o r torture t o an I J

. 8 C.F

. R. §§ 208.31(f)–(g ), 1208.31(f)–(g ). I f the I J con c u r s with the asy lum officer’s conclusion, the alien may not appeal the d ecision to the B oard of I mmig r ation Appeals. Id. § § 208.31(g ) (1), 1208.31(g )(1). I f the I J disag rees with the a sy lum officer, the I J m u s t gi v e the alien

a full hearing on the merits of the alien’s withholding or CAT claim. I d. §§ 208.31(g )(2), 1208.31(g )(2).

I I

Nels on Andrade-Garcia is a native and citiz en o f Guatemala who entered the United States i lleg ally in 1998, 2005, a nd 2013. He was apprehended and ordered removed on J une 19, 2013, and was removed a day later.

Two w e eks later, on J uly 4, 2013, Andrade-Garcia reentered the United States ag a in and was apprehended near the border. He conceded that he entered the country illeg ally and admitted that he had previously been remo v ed pursuant to a removal order. The g overnment issued him a notice o f in t e n t to reinstate the prior removal order. Andrade-Garcia

ex p ressed a fear of returning to Guat e m a l a , so the
g overnment referred his c ase to an asy lum o f f i c e r for a reasonable fear hearing

.

At the he a r i ng , Andrade-Garcia testified that he h ad decided to return to the U nited States to avoid pay ing theA N D R A D E -G A R

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members o f a Guatemalan g ang the 50,000 quetz a ls (about $6,500) that they demanded in phone c alls to him. He stated he was afraid to return because the g ang me m b e r s h ad threatened to shoot him and cut o ff his arm. He believed this threat because they

had killed his aunt three y ears before for
not pay i n g the money they demanded. Andrade-Garcia testified that t h e p o lice had investig ated his aunt’s murder, but his cousin decided “not to do any thing because s h e was already d ead and they thoug ht t h at they would not find
any thing out.” I n response to the asy lum officer’s questions, Andrade-Garcia t e s t i fied that h e had not been phy sically harmed, nor had he suffered any psy cholog ical or emotional harm. He also testified that he would not be harmed because of his relig ion, political opinion, membership in a ny g roup o r org aniz ation, or fami l y r e lationships. F urther, he testified that his parents, wife, and children remai n e d in Guatemala and had not been phy sically harmed or threatened. Althoug h Andrade-Garcia stated that h e did no t k now of any connection between the g ang members a nd the Gua t e m a l an g overnment, h e speculated that the g ang members a re able to influence the police b ecause the Guatema l a n g overnment is corrupt and he had seen cases where a robber is caug ht a nd then released the same day after bribing

the police.

T h e a s y l u m o f f i cer determined that Andrade-Garcia failed to demonstrate either a reasonable f ear of future persecution

on a ccount of a protected g round or a reasonable fear o f
torture. On appeal, the I J concurred with the asy lum officer’s determination. T he I J ruled t h a t Andrade-Garcia failed to demonstrate a reasonable possibility of past o r future persecution on acco u n t o f a protected g round and d id not demonstrate a reasonable possibility of fu t u re torture under CAT because he did not establish torture by the g overnment or torture inflicted with the g overnment’s acquiescence.A N D R A D E -G A R

C I A V

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Andrade-Garcia ti m e l y petitioned for r eview on the
g round that t h e I J e r

red in concluding that he had failed to demonstrate that the Guatemalan g o vernment had acquiesced in any torturous actions ag ainst him.

I I I

Althoug h “[ r] einstatement orders are not literally orders of removal,” we have jurisdicti o n to review them under 8 U.S.C. § 1252(a)(1). Castro-Cortez v. INS
, 239 F .3d 1037, 1044 (9th Cir. 2001), a b rogated on other g rounds by Fernand ez -Vargas
, 548 U.S. 30. W e may therefore r eview “constitutional claims or questions of law” that are “raised in the contex t of reinstated removal orders.” Garcia de Rincon

v. Dep’t o f Homeland Sec.
, 5 3 9 F .3d 1133, 1137 (9th Cir. 2008); see also Villa-Anguiano v. H older

, 727 F .3d 8 73, 875 (9th Cir. 2013). An I J ’s neg ative determination reg arding the alien’s r easonable fear makes the reinstatement orde r final,

see 8 C.F

. R. § 208.31(g )(1), and thus subject to review under 8 U.S.C. § 1 252. See V

illa-Anguiano

, 7 2 7 F. 3 d at 875; see also Ortiz-Alfaro

, 694 F .3d a t 958. Und e r § 1 2 52, we may decide the petition for review “only on the administrative record on which the order of removal is ba s e d.” 8 U .S.C. § 1252(b)(4)(A). W e review “factual f inding s underly

ing the [ I J ] ’ s denial o f CAT rel i ef,” as well as determinations for withholding of remova l

, f o r substantial evidence. Vinh Tan Nguyen v. Holder

, 763 F .3d 1022, 1029 (9th Cir. 2 014); Garcia v. Holder

, 749 F .3d 785, 791 (9th Cir. 2014). Therefore, we must uphold the I J ’s conclusion that AndradeGarcia did not establish a reasonable f ear of torture unless, based on the evidence, “any reasonable adjudicator would be compelled to conclude to the contrary

. ” Ai Jun Zhi v. H older

, 751 F .3d 1088, 1091 (9th Cir. 2014).A N D R A D E -G A R

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The g overnment arg ues that rather than reviewing the I J ’s
neg ative rea s o n a b le fear determination under § 1252 for substantial evidence, we should apply a more de f erential standard and u

phold the I J ’ s d etermination so long as there is

a “ facially leg itimate and bona f ide reason” for determin i n g that Andrade-Garcia did n o t have a reasonab l e f e ar o f persecution or torture. W e disag ree.

The “facially leg itimate” standard of review soug ht by the
g overnment h a s been applied in a related, but different,
contex t. The Supreme Court has “long r ecog niz ed the power to ex pel or ex clude aliens as a fundamental sovereig n attribute ex ercised by the Governme n t ’ s p olitical departments larg e ly immune fr o m j udicial control.” Fiallo v. B ell

, 430 U.S. 787, 792 (197 7 ) ( q u oting Shaughnessy v. Mezei
, 345 U.S. 2 06, 210 (1953)). Cong ress has “plenary power to make rules for the admission o f aliens and to ex c l u d e those

w h o possess those characteristics which Cong ress h as forbidden.” M

andel

, 408 U.S. at 766 (q u o ting Boutilier v

. INS
, 387 U.S. 118, 123 (1967)). W hen Congr e s s d eleg ates this plenary power to the Ex ecutive, the Ex ec utive’s decisions

are likewise g enerally shielded from admi n i s t r a t ive or judicial review. Li Hing of Hong Kong, Inc. v. Levin , 800 F .2d 970, 971 (9th Cir. 1986). As we have ex plained, “ [ t] he doctrine o f nonreviewability of a consul’s decision to g rant or deny a visa
stems f rom the Supreme Court’s confirming t h at the leg islative power of Cong ress over the admission of a liens is virtually complete.” Id. at 970.

Despite these ru l i n gs , “courts have identified a limited

ex c e ption to the do c t rine [ o f consular nonreviewability ] where the denial of a visa implicates the constitutional rig hts of A merican citiz ens.” Bustamante v. Mukasey

, 531 F .3d 1059, 1061 (9th Cir. 2008). I n Mandel

, the Court consideredA N D R A D E -G A R

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the reviewability of the A ttorney Gen e r a l ’ s decision not to waive the inadmissibility of a B elg ian revol u t ionary a nd therefore not to issue him a temporary v isa to enter the United States. 408 U.S. at 7 6 6

– 70. Certain American citiz ens wishing to communicate with the B e lg ian revolutionary h ad challeng ed the Attorney Gene r a l ’ s denial on F irst Amendment g rounds. Id. at 762. The Court indicated that a decision in this contex t was subject to o nly limited r eview: so long as the Ex ecutive ex ercises its broad authority “on the basis of a facially leg itimate and bona fide reason, the courts will neither look behind the ex ercise of that dis c r e tion, nor test it by balancing its justification ag ainst” the constitutional rig hts of American citiz e ns. Id. at 7 7 0

. 3 A ccording ly

, we have held “t h a t u n d er Mandel

, a U.S. citiz en raising a constitutional challeng e to the denial of a visa is entitled to a limited judicial inquiry reg a rding the reason for the decision,” and “[ a] s long as the reason g iven is f acially leg itimate a

nd bona fide the d ecision will not be disturbed. ” Bustamante
, 531 F .3d at 1062 ; see also Noh v. INS
, 248 F .3d 938, 942 (9th Cir. 2001) (“W e need not decide whether the Sec r e t a r y ’s [ visa] revocation decision would be unreviewable in all cases,

3 T h e Co u rt h as ap plied th e sam e t est to Co n g ress’ s d irect ex ercise o f its

au th ority to ad m it o r ex clu d e alien s an d w ill u p h old “ co n g ressio n al p o licy ch o ices in th e im m i g ratio n co n tex t” ag ain st a co n stitu tio n al ch allen g e if Co n g ress h as ex ercised its b ro ad p o w e r “ o n th e b asis o f a f acially leg i tim ate an d b o n a f

id e reaso n .” Fia llo

, 4 3 0 U.S. at 79 3 –9 5

. Fo llo w in g Fia llo

, w e h av e also ap p lied t he “ f acially leg itim ate” stan d ard to

c o n stitu t io n al ch allen g es t o im

m ig ratio n statu t es. S

ee An Na Pen g v

. Ho ld er , 6 7 3 F.3 d 1 2 4 8
, 1 2 5 8

– 5 9 (9 th Cir. 2 01 2 ) (ap p ly in g th e f acially leg i tim ate stan d ard w

h ere an alien b ro u g h t an eq u al p ro tectio n ch allen g e to a statu te im

p o sin g a c o n tin

u ou s- p resen ce req u irem en t o n l aw f u l
p erm an en t resid en ts (L P R s) b u t n o t o n n o n

- L P Rs); Pa d illa -Pa d illa v. Go n za les

, 4 6 3 F.3 d 9 7 2
, 9 7 8

– 7 9 (9 th Cir. 2 0 0 6) (ap p l y i n g th e facially leg i tim ate stan d ard w

h ere an alien b ro u g h t a du e p ro cess ch allen g e to a statu te im p o sin g a ten

- y ear p resen ce req u i rem en t f o r relief f ro m rem o v al).A N D R A D E -G A R

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N C H 11

because the Secre t ary o ffered a f acially leg itimate and bona fide reason for revoking Noh’s visa, namely that the visa h ad been obtained illeg a lly

, thereby rendering his decision in this

case unreviewable.”). We h ave ex tended the reason i n g o f Mandel to adjudicate an official’s decision to deny an alien’s request to be g ranted t emporary admission into this country by m e ans of parole. See Nadarajah v

. Gonzales

, 443 F .3d 1069, 1082 (9th Cir. 2006) ( “ [I ] mmig ration officials clearly have the authority to deny parole to u nadmitted aliens if they

can advance a facially leg itimate and bona f ide r e ason for doing so.” (quoting Jean v. Nelson

, 4 7 2 U.S. 846, 853 (1985))); Mason v. Brooks

, 862 F.2d 190, 193–94 (9th Cir. 1988) (“[ A ] rejec t i o n o f parole will be u pheld if the ag ency

a d v a nced a f

acially leg itimate and bona fide reason for t h e denial.”).

These principles a

re not applicable, however, to an alien’s challeng e to a reinstated order of removal. Al t h o u g h Cong r ess has indicated its intent to deleg ate discretionary authority to the Attorney General to ma k e visa and parole decisions, 4 see, e.g. , 8 U.S.C. § 1229 (initiation o f r emoval

4 S ee, e.g

. , 8 U.S.C. § 1 1 8 2 (d )(3 )(A ) (“ [A ]n alien

. . . m ay , af ter ap p ro v al b y t h e A tto rn ey Gen eral o f a reco m m en d atio n b y th e Secretary o f State or b y th e co n su l ar o f

f icer th at th e alien b e ad m itted tem p o rarily d esp ite h is in ad m issib ility

, be g ran ted su ch a v isa an d m ay b e a d m itted in to th e Un i ted States t em

p o rarily as a n on im

m i g ran t in t

h e d iscretio n o

f th e A t t o r n e y G e n e r a l

. ” ( e m p h asis ad d ed )); i d

. § 1 1 8 2 (d )(5 )(A ) (“ T h e A t to rn e y Gen eral m ay , ex cep t as p ro v id ed in su b parag rap h (B ) [ex clu d in g ref u g ees

“ u n less th e A tto rn ey Gen eral d eterm in es th at co m p ellin g reaso n s

. . . req u ire th at th e alien b e p aro led ”] o r i n sectio n 1 1 8 4 (f ) o f t h is title [ex clu d in g crew

m em b ers i n certain lab o r d isp u

tes], i n h i s d i s c r e tio n paro le in to th e Un i ted S tates tem p orarily u n d er su c h c o nd itio n s as h e m ay p rescrib e o n l y o n a case- b y

- case b asis f o r u rg en t h u m an itarian reaso n s or sig n if ican t p u b l ic b en e fit an y alien ap p ly in g f or ad m issio n to th e Un ited States.” (em

p h asis ad d ed )).A N D R A D E -G A R

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proceeding s); id. § 1229a (removal proceeding s); id. §§ 1158, 1229b (re l i e f from removal), Cong ress limited the Ex ecutive’s discretion to impose a reinstat ed order o f removal by authoriz ing alien s to seek relief under CAT, see F ARRA, Pub. L

. No. 105–277, Div. G., Title X X I I
, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C

. F. R

. § § 208.18, 1208.18, and possibly o ther forms o f relief, see Fernandez-Vargas

, 548 U.S. at 35 n.4. And if the alien h a s met the relevant b urden of proof, both CAT protection and withholding of removal are mandatory f orms of relief. Nuru v. Gonzales

, 404 F .3d 1207, 1216 ( 9 th Cir. 2005) (CAT relief); Al-Harbi v. INS
, 242 F .3d 882, 8 88 (9th Cir. 2001) (withholding of removal).

Moreover, while Cong ress h as limited courts’ authority to review discretionary visa and parole d ecisions, 5 Cong ress has

ex p ressly provided f

or judicial review of a final order o f removal. See 8 U.S.C. § 1252(a). B ecause we treat reinstatement orders as final o r ders of removal

, s e e CastroCortez
, 239 F .3d at 1044, reinstatement orders are subject to judicial review u n der 8 U.S.C. § 1252. S e e , e

. g. , VillaAnguiano , 727 F .3d at 875; O rtiz-Alfaro , 694 F .3d at 958.

B e cause there is n o basis for holding that rei n stated removal orders a

re subje c t t o the consular nonreviewability doctrine, see Li Hing of Hong Kong, Inc.
, 8 00 F

. 2d at 971, there is also no basis f

o r limi t i n g judicial review of the

5 S ee 8 U.S.C. § 1 2 52 (a)(2 )(B ) (statin g th at “n o co u rt sh all h av e j u risd ictio n t o rev iew ” certain d en ials o f d iscretio n ary relief

, i n clu d in g

“ an y o t h er d ecisio n

o r actio n o f th e A tto rn ey Gen eral o r th e Secretary of Ho m elan d Secu rity t h e a u th o rity f o r w h ich is sp ecif

ied u n d er th is

su b ch ap ter to b e in th e d iscretio n o f th e A tto rn ey Gen eral o r th e Secretary

o f Ho m elan d Secu rity ”).A N D R A D E -G A R

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N C H 13

immig ration judg e’s determination to the “facially leg itimate and bona fide” standard. A ccording ly

, we review reinstated removal orders under the standard applicable to final orders of removal.

I V

W e now t u r n to the I J ’s neg ative r easonable fear determination

, and we conclude that substantial evidence in the record supports the I J ’s conclusion that Andrade-Garcia fa i led to demonstrate a reasonable fear of torture. W e therefore deny

Andrade-Garcia’s petition.

The reg u l a t ions provide that, in accordance with the United States’ oblig ations under CAT, “[ t] he alien sha ll 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 o r her race, r e l i gion, nationality

, membership in a particular so c i a l g roup o r political opinion, o r a reasonable possibility t h a t h e or she would b e t ortured in the c ountry of removal.” 8 C.F .R. §§ 208.31(c), 1208.31(c); s ee a lso id. § 208.16(c) (implementin g CAT). Under CAT, a person must demonstrate that the torture was “inflicted by or at the instig a tion of or with the consent o r acquiescence o f a public official or other person acting in an official capacity .” Zheng

v. Ashcroft

, 332 F .3d 1186, 1188 (9th Cir. 200 3 ) (quoting 8 C.F

. R. § 208.18(a)(1)) ( emphasis omitted). “Acquiescence of a public official r e q u i r es that the public official, prior to the activity constituting torture, have awareness o f such activity and thereafter breach h is or her leg al responsibility to intervene to prevent such activity .” 8 C.F .R. § 208.18(a)(7). Here, the I J ’ s determinat i o n that Andrade-Garcia had not shown that the p olice were a ware of the g ang ’s ex tortionA N D R A D E -G A R

C I A V

. L Y

N C H 14

activities a

nd breached their leg a l responsibility to stop it was supported by substant i a l e vidence. We have stated that a g eneral ineffective n e ss on the g overnment’s part to i n vestig ate and prevent crime will n o t suffice to s h o w acquiescence. Garcia-Milian v

. Holder

, 755 F .3d 1026, 1034 ( 9 th Cir. 2013). B y Andrade-Garcia’s own testimony

, the police actively investig ated his aunt’s death, but stopped that investig ation in accorda n ce with his cousin’s decision because “they thoug ht that they would not find any thing out.” The inability to bring the criminals to justice is not evidence of acquiescence, as defined by the applicable reg ulations. Id. Nor does Andrade-Garcia’s testimony that a G u a t e malan police officer took a bribe from a robber and released him demonstrate that the g ov e r n m e nt was aware of a nd acquiesced in the torturous activity that constitutes the basis for Andrade-Garcia’s claim. S e e Madrigal v. H

older

, 716 F .3d 499, 509 (9th Cir. 2013) (o f f icial need not have “actual knowledg e of the specific incide n t of torture” but
must have “‘awareness’ of the torturous activity ”); Afriyie v

. Holder

, 613 F .3d 924, 937 (9th Cir. 2010) (remanding for reconsi d e r a tion of CAT claim when petitioner presented “evidence indicating that the g overnment of G hana w as a ware of the dang er [ he] was facing ”). W e have r e v e r sed ag ency determinations that future torture is not likely only when the
ag ency failed to t a k e into account sig nificant evidence establishing go v ernment complicity in the c riminal a ctivity

. See, e.g. , Madrigal

, 716 F .3d a t 5 1 0 ( evidence that police officers and prison g u ards often worked directly on behalf o f the c artels); Zhe n g , 3 3 2 F .3d at 1190–91 (petitioner personally saw smug g lers g ive three c artons of cig ar et t e s to police before they were all o w e d to board their b oat in the harbor, and he often saw smug g lers f e a s ting a

nd

n i gh tclubbing with local police). Andrade-Garcia points to no such evidence here.A N D R A D E -G A R

C I A V

. L Y

N C H 15

W e therefore hold that substantial evidence supports the I J ’s conclusion that Andrade-Garcia failed to demonstrate
g overnm e n t acquiescence in torture sufficient to establish a reasonable possibility

of future torture under CAT.

P ETITION DENIED.