FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTOS RAFAEL IRAHETAMARTINEZ, AKA “Jose Benigno,” 

AKA “Santos Climaco,”

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 18-72692

Agency No.

A098-912-596

OPINION

On Petition for Review of an Order of the 

Board of Immigration Appeals

Argued and Submitted February 11, 2021

San Francisco, California

Filed September 7, 2021

Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit 

Judges, and Gary Feinerman,

* District Judge.

Opinion by Judge Feinerman

* The Honorable Gary Feinerman, United States District Judge for 

the Northern District of Illinois, sitting by designation.
2 IRAHETA-MARTINEZ V. GARLAND

SUMMARY**

Immigration

Denying Santos Iraheta-Martinez’s petition for review of 

a decision of the Board of Immigration Appeals, the panel 

held that: (1) because Iraheta’s prior removal order was 

reinstated, he had no right under the Immigration and 

Nationality Act (“INA”) to seek asylum, and no 

constitutional right to have the Department of Homeland 

Security consider whether as a discretionary matter to 

decline to reinstate that removal order; and (2) the Board 

applied the correct frameworks governing the denial of 

withholding and protection under the Convention Against 

Torture, and its factual basis for denying such relief was 

supported by the record. 

Iraheta raised a statutory and constitutional claim 

concerning his eligibility for asylum relief in reinstatement 

proceedings. As an initial matter, the panel concluded that 

there was no need to decide whether Iraheta had exhausted 

these arguments because doing so would have been futile, 

given regulatory limitations on reinstatement proceedings, 

and circuit precedent holding that the agency lacks authority 

to disregard those regulations.

Iraheta’s statutory claim rested on the interplay of 

several INA provisions providing and limiting the right to 

apply for asylum. Under 8 U.S.C § 1158(a): “Any alien who 

is physically present in the United States or who arrives in 

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

has been prepared by court staff for the convenience of the reader.
IRAHETA-MARTINEZ V. GARLAND 3

the United States . . . , irrespective of such alien’s status, may 

apply for asylum.” That broad authorization, however, is 

subject to exceptions set forth in §§ 1158(a)(2)(B) & (C)—

the one-year and previous denial bars. Those bars in turn are 

subject to their own exception in § 1158(a)(2)(D), upon a 

showing of material “changed circumstances.” For 

noncitizens subject to reinstatement of a prior removal order, 

§ 1231(a)(5) provides that they are not eligible and may not 

apply for “any relief” under this chapter. Iraheta argued that 

notwithstanding § 1231(a)(5), he was eligible to seek asylum 

under § 1158(a)(2)(D)’s exception if he could show changed 

circumstances.

The panel observed that Perez-Guzman v. Lynch, 835 

F.3d 1066 (9th Cir. 2016), left open the question, at issue 

here, of how § 1158(a)(2)(D) might affect § 1231(a)(5), 

where a noncitizen asserts changed circumstances. Looking 

to the statutory language and various textual clues, the panel 

concluded that the INA makes clear that noncitizens with 

reinstated removal orders, while eligible to seek withholding 

and CAT relief, are not eligible to seek asylum. The panel 

rejected Iraheta’s invocation of the general-specific canon, 

under which he argued that § 1158(a)(2)(D) more 

specifically governs his asylum eligibility than does 

§ 1231(a)(5). The panel explained that the determining 

which statute is “general” and which is “specific” is an 

unilluminating exercise, rendering the canon inapplicable, 

and a close reading of both provisions reveals that there is 

no conflict, also rendering the canon inapplicable. 

The panel also rejected Iraheta’s argument that because 

the INA allows noncitizens with reinstated removal orders 

to seek withholding and CAT relief despite § 1231(a)(5), 

asylum should be available, as well. The panel explained 

that the availability of certain relief notwithstanding 
4 IRAHETA-MARTINEZ V. GARLAND

§ 1231(a)(5) only underscores that the INA and its 

implementing regulations offer a comprehensive set of rules 

governing which noncitizens are eligible for what forms of 

relief, and the INA makes clear that noncitizens with 

reinstated removal orders are not eligible for asylum. The 

panel also rejected Iraheta’s contentions that his reading of 

the statutes was required under the constitutional avoidance 

canon and to avoid running afoul of the United States’s 

treaty obligations, explaining that neither principle came into 

play here, because there is no ambiguity in the relationship 

between §§ 1158(a)(2)(D) and 1231(a)(5).

Relying on Villa-Anguiano v. Holder, 727 F.3d 873 (9th 

Cir. 2013) (noting that nothing in 8 U.S.C. § 1231(a)(5) or 

its implementing regulations deprives the agency of 

discretion to afford a new plenary removal hearing), Iraheta 

argued in the alternative that even if the INA did not afford 

him a statutory right to seek asylum, because DHS has the 

discretion to overlook a prior removal order rather than 

reinstate it, due process required DHS to consider his 

changed circumstances before deciding whether to reinstate 

the order or place him in ordinary removal proceedings. The 

panel rejected that argument, explaining that Villa-Anguiano

did not create a due process right to present an argument that 

may sway DHS in the exercise of its purely discretionary 

authority to overlook a prior removal order, and that 

recognizing such a right would undermine the agency’s 

plenary discretion over when to exercise that form of 

leniency.

Turning to Iraheta’s claims for withholding of removal 

and CAT protection, the panel concluded that the evidentiary 

record supported the denial of relief. Both the Board and IJ 

assumed that the abuse Iraheta faced in his youth by his 

father qualified as persecution due to his perceived sexual 
IRAHETA-MARTINEZ V. GARLAND 5

orientation, thus creating a presumption that he would be 

persecuted in the future as well. The panel concluded that 

the agency properly applied the burden-shifting framework 

in determining that the government had rebutted the 

presumption of future persecution with evidence that 

circumstances have changed now that Iraheta is a grown man 

who no longer needs to live with his father. 

The panel also held that the evidence did not compel the 

conclusion that Iraheta would more likely than not be 

persecuted by anyone else on account of his perceived sexual 

orientation, or by gang members or his brother based on his 

anti-gang beliefs. The panel concluded that the Board also 

adequately considered the aggregate risk of torture in 

denying CAT protection.

COUNSEL

Etan Newman (argued), Pangea Legal Services, San 

Francisco, California, for Petitioner.

Mona Maria Yousif (argued), Attorney; Brianne Whelan 

Cohen, Senior Litigation Counsel; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.
6 IRAHETA-MARTINEZ V. GARLAND

OPINION

FEINERMAN, District Judge:

Santos Rafael Iraheta-Martinez petitions for review of a 

Board of Immigration Appeals (“BIA”) order denying his 

application for withholding of removal and relief under the 

Convention Against Torture (“CAT”). We find no error in 

the BIA’s denial of that relief. Iraheta also challenges the 

BIA’s refusal to allow him to seek asylum in light of the 

reinstatement of his prior order of removal, arguing that he 

had a right to seek asylum under the Immigration and 

Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and in the 

alternative that he had a procedural due process right to 

reasoned consideration by the Department of Homeland 

Security (“DHS”) of whether to forego reinstating his prior 

removal order and thereby allow him to seek asylum. We 

disagree and hold that a noncitizen in Iraheta’s 

circumstances enjoys neither right. We therefore deny his 

petition for review.

I

A

Iraheta grew up in El Salvador as one of eleven children. 

His father, Victor, was physically and emotionally abusive 

toward all his children, and was especially harsh with Iraheta 

because he believed that Iraheta was gay. In addition to 

subjecting Iraheta to beatings, Victor routinely berated him 

with homophobic slurs.

When Iraheta was about 18 years old, he suffered a 

particularly severe public beating from his father and felt he 

could no longer return home. In 2005, Iraheta fled El 

Salvador, entered the United States unlawfully, and was 
IRAHETA-MARTINEZ V. GARLAND 7

apprehended. He did not appear at his April 2006 removal 

hearing, and the immigration judge (“IJ”) entered a removal 

order against him in absentia. Iraheta ultimately was 

apprehended and removed in 2009, but reentered the United 

States days later. Over the next two years, Iraheta reentered 

the United States twice more and was removed both times.

After his latest removal in September 2010, Iraheta 

returned to his parents’ home in El Salvador. Victor became 

outraged when he saw that Iraheta was wearing an earring, 

“yelling something like, ‘I never thought I’d have a fucking 

faggot in my house.’” Victor ripped the earring out of 

Iraheta’s ear and told him he never wanted to see Iraheta in 

his home again. Iraheta fled once again to the United States, 

where he now resides with his wife and their two sons.

In 2016, Iraheta’s brother Valentin, who still lives in El 

Salvador, informed Iraheta that he had become involved 

with the MS-13 gang. Iraheta expressed disapproval and 

urged his brother to stop associating with the gang. Valentin 

became angry and told Iraheta that if he were to return to El 

Salvador and continue to criticize Valentin’s membership in 

MS-13, Valentin would “do whatever he wanted” to Iraheta. 

Iraheta asked if Valentin would murder his own brother, and 

Valentin responded that if Iraheta returned to El Salvador, 

Valentin would “‘either kill you myself or send my homies 

to kill you.’”

B

1

In May 2017, Iraheta was taken back into custody, and 

DHS reinstated his prior removal order. See 8 U.S.C. 

§ 1231(a)(5) (authorizing reinstatement of a prior removal 

order “[i]f the Attorney General finds that an alien has 
8 IRAHETA-MARTINEZ V. GARLAND

reentered the United States illegally after having been 

removed”); 8 C.F.R. § 1241.8(a) (“An alien who illegally 

reenters the United States after having been removed, or 

having departed voluntarily, while under an order of 

exclusion, deportation, or removal shall be removed from the 

United States by reinstating the prior order. The alien has no 

right to a hearing before an immigration judge in such 

circumstances.”).

Iraheta expressed a reasonable fear of returning to El 

Salvador, so an asylum officer referred his case to an IJ for 

“withholding-only” removal proceedings to determine his 

eligibility for withholding of removal and relief under CAT. 

See 8 C.F.R. § 208.31(e); Alvarado-Herrera v. Garland, 

993 F.3d 1187, 1190 (9th Cir. 2021) (“If the asylum officer 

determines that the non-citizen [with a reinstated removal 

order] has established a reasonable fear, the non-citizen is 

placed in ‘withholding only’ proceedings before an 

immigration judge, during which the judge will hold a 

hearing on whether to grant the non-citizen withholding of 

removal or protection under CAT.”) (citing 8 C.F.R. 

§ 208.2(c)(2)–(3)).

Before the IJ, Iraheta filed a “motion to preserve his right 

to apply for asylum,” purporting to “preserve the argument 

that he remains eligible for asylum even though he is in 

withholding-only proceedings” and asking that the “record 

. . . reflect that [he] does not concede that he is not eligible 

for asylum.” Iraheta conceded that he was asylum-ineligible 

under Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 

2016), but argued that he might become eligible if his prior 

removal order were reopened or if the Supreme Court 

reversed Perez-Guzman.

The IJ denied Iraheta’s motion, stating that he “is not 

eligible for asylum because he is in ‘withholding only’ 
IRAHETA-MARTINEZ V. GARLAND 9

proceedings,” and noting that he “has presented the legal 

issue . . . should there be a change in the law.” The IJ then 

addressed whether Iraheta was entitled to withholding of 

removal or CAT relief. As to Iraheta’s claim for withholding 

based on persecution by Victor for being perceived as gay, 

the IJ observed that “[i]f an alien demonstrates that he 

suffered past persecution in the proposed country of 

removal, the burden shifts to [DHS] to demonstrate that a 

fundamental change in circumstances has occurred in that 

country, or that [he] could safely relocate to another area in 

the proposed country of removal.” See 8 C.F.R. 

§ 1208.16(b)(1). Applying that standard, the IJ found that 

even if Iraheta had suffered past persecution, “circumstances 

have changed” because, while Victor had abused Iraheta 

when he was a youth, Iraheta was now “a grown man” who 

was “not required to live in his father’s house.” The IJ added 

that Victor “is an aging man” and that Iraheta’s brothers, 

including one still living with Victor, no longer faced abuse.

As to Iraheta’s claim that he was likely to face 

persecution from his brother Valentin on account of his antigang political opinion, the IJ found that “a singular threat 

from his brother is insufficient to sustain his burden of 

demonstrating that he is likely to be persecuted or harmed in 

any way by his brother upon return to El Salvador.” 

Concluding that Iraheta had not shown that he was likely to 

be persecuted by either his father or his brother, the IJ denied 

withholding of removal.

Turning to CAT relief, the IJ held that Iraheta “ha[d] 

failed to demonstrate that he is likely to be harmed by his 

father, his brother, or members of MS-13 upon removal to 

El Salvador,” and that he therefore “is not likely to be 

harmed for purposes of the [CAT].” The IJ further found 
10 IRAHETA-MARTINEZ V. GARLAND

that Iraheta “ha[d] failed to establish the acquiescence piece 

of his [CAT] claim.” See 8 C.F.R. § 208.18(a)(1).

2

Iraheta appealed. The BIA dismissed the appeal, 

reasoning as to Iraheta’s withholding claim that the IJ did 

not clearly err in finding a fundamental change of 

circumstances sufficient to rebut the presumption of future 

persecution, and discerning no clear error in the IJ’s finding 

that he could relocate within El Salvador. See 8 C.F.R. 

§ 1003.1(d)(3)(i). In particular, the BIA held that the IJ “did 

not clearly err in finding that the applicant’s father has aged, 

the applicant is now an independent adult man with a family 

of his own, and the applicant need not live with or associate 

with his father upon return to El Salvador.” The BIA thus 

concluded that, “even assuming, as the Immigration Judge 

did, that [Iraheta] suffered past persecution by his father on 

account of a protected ground, [DHS] has rebutted the 

presumption that [his] life or freedom will be threatened in 

the future on the basis of the original claim.”

As for Iraheta’s CAT claim, the BIA agreed with the IJ 

that “the single, unfulfilled threat by his brother 

approximately 2 years ago is [in]sufficient to establish that 

he will more likely than not be tortured upon return to El 

Salvador by his brother or the MS-13.” The BIA also agreed 

with the IJ that the evidence of past abuse by Iraheta’s father 

was not enough to show a likelihood of torture on account of 

his perceived sexual orientation. The BIA therefore rejected 

Iraheta’s CAT claim without addressing the acquiescence 

issue.

The BIA said nothing about asylum. In a footnote in his 

BIA brief, Iraheta argued that he was eligible for asylum and 

that he wished to “preserve[] the argument that [he] should 
IRAHETA-MARTINEZ V. GARLAND 11

be considered for asylum.” As he did before the IJ, Iraheta 

acknowledged “the controlling precedent [Perez-Guzman] 

holding that individuals with reinstated removal orders are 

ineligible for asylum,” but asserted that it “was wrongly 

decided.”

II

The BIA had jurisdiction to review Iraheta’s removal 

order under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have 

jurisdiction over this petition for review under 8 U.S.C.

§ 1252(a)(5). We review de novo the BIA’s conclusions on 

pure questions of law. See Conde Quevedo v. Barr, 947 F.3d 

1238, 1241 (9th Cir. 2020). We review the BIA’s factual 

findings for substantial evidence. See Medina-Rodriguez v. 

Barr, 979 F.3d 738, 744 (9th Cir. 2020).

III

After DHS reinstated Iraheta’s removal order in May 

2017, Iraheta expressed a fear of persecution, and an asylum 

officer assigned his case to an IJ for a “withholding-only” 

proceeding, in which Iraheta was given the opportunity to 

seek withholding of removal and CAT relief, but not asylum. 

See 8 C.F.R. § 1208.31(e) (limiting such proceedings to 

“consideration of the request for withholding of removal 

only”). Iraheta claims that the agency’s refusal to consider 

whether he was entitled to asylum in light of circumstances 

that arose after the removal order was first issued violated 

both the INA and the Constitution.

A

The fact that the BIA did not expressly address Iraheta’s 

eligibility for asylum does not by itself raise jurisdictional 

concerns, as the BIA cannot preclude judicial review of a 
12 IRAHETA-MARTINEZ V. GARLAND

properly raised issue by not mentioning it. But given the 

BIA’s silence, we must ensure either that Iraheta exhausted 

the asylum issue or that exhaustion is excused, for if he did 

not exhaust and exhaustion is not excused, we lack 

jurisdiction to consider the issue. See Alvarado v. Holder, 

759 F.3d 1121, 1127 & n.5 (9th Cir. 2014) (“Generally, 

8 U.S.C. § 1252(d)(1) ‘mandates exhaustion and therefore 

. . . bars us, for lack of subject-matter jurisdiction, from 

reaching the merits of a legal claim not presented in 

administrative proceedings below.’”) (alteration in original) 

(quoting Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 

2004)); Vasquez-Rodriguez v. Garland, —F.4th —, 2021 

WL 3413164, at *5 (9th Cir. Aug. 5, 2021) (“[A]liens need 

not exhaust in cases ‘where resort to the agency would be 

futile.’”) (quoting Sun v. Ashcroft, 370 F.3d 932, 943 (9th 

Cir. 2004)).

Iraheta presents two claims regarding asylum, one being 

that the INA allowed him to seek asylum given the 

circumstances that arose after his prior order of removal was 

entered, and the other, stated in the alternative, being that he 

had a procedural due process right to DHS’s consideration 

of whether, given those changed circumstances, his prior 

order of removal should have been reinstated. These are 

analytically distinct claims. If Iraheta is correct on his 

statutory argument, then he may apply for asylum, period. 

But if he is correct only on his due process argument, then 

he wins only the right to have DHS consider whether to give 

him fresh removal proceedings rather than reinstating his 

prior removal order.

There is no need to decide whether Iraheta exhausted his 

statutory claim because the futility exception would excuse 

any failure to do so. The governing regulation provides that 

noncitizens with reinstated removal orders who express a 
IRAHETA-MARTINEZ V. GARLAND 13

reasonable fear of persecution or torture if returned to their 

country of removal may pursue before the IJ “withholding 

of removal only.” 8 C.F.R. § 1208.31(e) (emphasis added). 

As we explained in Perez-Guzman, “the BIA ha[s] no 

authority to disregard this regulation.” 835 F.3d at 1073. 

Accordingly, it would have been futile for Iraheta to urge the 

BIA (or the IJ) to disregard the regulation, and allow him to 

seek asylum, on the ground that the INA allows noncitizens 

with reinstated removal orders to seek asylum if they can 

show a change in pertinent circumstances since entry of the 

prior removal order. See Coyt v. Holder, 593 F.3d 902, 905 

(9th Cir. 2010) (“Because the BIA has no authority to 

declare a regulation invalid, ‘the exhaustion doctrine does 

not bar review of a question concerning the validity of an 

INS regulation because of a conflict with a statute.’”) 

(quoting Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273 

(9th Cir. 1996)); see also Perez-Guzman, 835 F.3d at 1073 

(citing Coyt in holding that “exhaustion would have been 

futile” for a noncitizen with a reinstated removal order to 

urge the BIA to disregard § 1208.31(e) and allow him to seek 

asylum).

A possible fly in the ointment is that Iraheta conceded 

before the IJ and the BIA that his statutory claim was 

foreclosed by Perez-Guzman, while here he effectively 

withdraws that concession, arguing that he is eligible for 

asylum notwithstanding Perez-Guzman. But the 

government does not press a waiver argument, so we need 

not decide whether Iraheta’s concession before the agency 

that Perez-Guzman forecloses his asylum eligibility waived 

his right to argue here that Perez-Guzman does no such 

thing. See United States v. Tercero, 734 F.3d 979, 981 (9th 

Cir. 2013) (“It is well-established that the government can 

waive waiver implicitly by failing to assert it.”) (quoting 

Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010)).
14 IRAHETA-MARTINEZ V. GARLAND

The futility exception likewise excuses Iraheta’s failure 

to press his due process claim before the IJ or the BIA. “An 

exception to the exhaustion requirement has been carved for 

constitutional challenges to . . . [DHS] procedures.” Sola v. 

Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) 

(first alteration in original) (quoting Rashtabadi v. INS, 

23 F.3d 1562, 1567 (9th Cir. 1994)). As to due process 

claims in particular, “[t]he key is to distinguish the 

procedural errors, constitutional or otherwise, that are 

correctable by the administrative tribunal from those that lie 

outside the BIA’s ken.” Id. (quoting Liu v. Waters, 55 F.3d 

421, 426 (9th Cir. 1995)). Thus, the question here is whether 

the BIA could have granted Iraheta relief on his due process 

claim had he raised it in his agency appeal.

The answer is no. The governing regulation provides 

that “[t]he scope of review in [withholding of removal] 

proceedings . . . shall be limited to a determination of 

whether the alien is eligible for withholding or deferral of 

removal,” and that, “[d]uring such proceedings, all parties 

are prohibited from raising or considering any other issues, 

including but not limited to issues of admissibility, 

deportability, eligibility for waivers, and eligibility for any 

other form of relief.” 8 C.F.R. § 1208.2(c)(3)(i) (emphasis 

added). Fairly read, this regulation would have precluded 

the IJ or the BIA from correcting what Iraheta now contends 

is the constitutional error, i.e., DHS’s failure to consider 

whether, in light of his particular circumstances, it should 

overlook rather than reinstate the prior removal order. See 

Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2283 (2021) 

(holding that reasonable fear proceedings for a noncitizen 

with a reinstated order of removal “are ‘limited to a 

determination of whether the alien is eligible for withholding 

or deferral of removal,’ and as such, ‘all parties are 

prohibited from raising or considering any other issues, 
IRAHETA-MARTINEZ V. GARLAND 15

including but not limited to issues of admissibility, 

deportability, eligibility for waivers, and eligibility for any 

other form of relief’”) (quoting 8 C.F.R. §§ 208.2(c)(3)(i), 

1208.2(c)(3)(i)). We therefore are not deprived of 

jurisdiction to consider Iraheta’s due process claim.

B

1

Iraheta’s statutory argument rests on the interplay of 

several INA provisions, some giving the right to apply for 

asylum and others limiting or taking away that right. The 

question is which of these provisions has the last word 

where, as here, the noncitizen has a prior order of removal 

reinstated after unlawfully reentering the United States.

Section 1158(a), which governs “[a]uthority to apply for 

asylum,” reads in pertinent part as follows:

(1) In general

Any alien who is physically present in the 

United States or who arrives in the United 

States (whether or not at a designated port of 

arrival and including an alien who is brought 

to the United States after having been 

interdicted in international or United States 

waters), irrespective of such alien’s status, 

may apply for asylum in accordance with this 

section or, where applicable, [8 U.S.C. 

§ 1225(b)].
16 IRAHETA-MARTINEZ V. GARLAND

(2) Exceptions

(A) Safe third country

Paragraph (1) shall not apply to an alien 

if the Attorney General determines that 

the alien may be removed, pursuant to a 

bilateral or multilateral agreement, to a 

country (other than the country of the 

alien’s nationality or, in the case of an 

alien having no nationality, the country of 

the alien’s last habitual residence) in 

which the alien’s life or freedom would 

not be threatened on account of race, 

religion, nationality, membership in a 

particular social group, or political 

opinion, and where the alien would have 

access to a full and fair procedure for 

determining a claim to asylum or 

equivalent temporary protection, unless 

the Attorney General finds that it is in the 

public interest for the alien to receive 

asylum in the United States.

(B) Time limit

Subject to subparagraph (D), paragraph 

(1) shall not apply to an alien unless the 

alien demonstrates by clear and 

convincing evidence that the application 

has been filed within 1 year after the date 

of the alien’s arrival in the United States.
IRAHETA-MARTINEZ V. GARLAND 17

(C) Previous asylum applications

Subject to subparagraph (D), paragraph 

(1) shall not apply to an alien if the alien 

has previously applied for asylum and 

had such application denied.

(D) Changed circumstances

An application for asylum of an alien may 

be considered, notwithstanding 

subparagraphs (B) and (C), if the alien 

demonstrates to the satisfaction of the 

Attorney General either the existence of 

changed circumstances which materially 

affect the applicant’s eligibility for 

asylum or extraordinary circumstances 

relating to the delay in filing an 

application within the period specified in 

subparagraph (B).

(E) Applicability

Subparagraphs (A) and (B) shall not 

apply to an unaccompanied alien child (as 

defined in [6 U.S.C. § 279(g)].

8 U.S.C. § 1158(a).

Subparagraph (a)(1) broadly grants the right to apply for 

asylum: “Any alien who is physically present in the United 

States or who arrives in the United States . . . , irrespective 

of such alien’s status, may apply for asylum . . . .” Id. 

§ 1158(a)(1); see United States v. Shill, 740 F.3d 1347, 1352 

(9th Cir. 2014) (holding that the statutory term “any” 
18 IRAHETA-MARTINEZ V. GARLAND

indicates “that Congress intended the statute’s reach to be 

broad”). That broad authorization, however, is subject to 

several “[e]xceptions” in the next subparagraph, 

§ 1158(a)(2). Most relevant here, asylum applications may 

not be filed more than one year after a noncitizen’s arrival in 

the United States, see 8 U.S.C. § 1158(a)(2)(B), and a 

noncitizen may not seek asylum if a prior application had 

been denied, see id. § 1158(a)(2)(C). Those two exceptions 

are subject to an exception of their own, providing that a 

noncitizen may apply for asylum, “notwithstanding” the 

one-year and previous-denial bars, upon a showing of 

material “changed circumstances.” Id. § 1158(a)(2)(D).

Another provision, § 1231(a)(5), addresses what 

happens upon the reinstatement of a prior removal order 

upon a noncitizen’s unlawful reentry to the United 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 of removal, 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 under this 

chapter, and the alien shall be removed under 

the prior order at any time after the reentry.

Id. § 1231(a)(5); see Perez-Guzman, 835 F.3d at 1073 

(noting that asylum is a form of “relief under this chapter” 

for § 1231(a)(5) purposes). Section 1231(a)(5) thus takes 

away what otherwise would be the right under § 1158(a)(1) 

to apply for asylum by precluding a noncitizen with a 

reinstated removal order from applying.
IRAHETA-MARTINEZ V. GARLAND 19

Because Iraheta’s current removal proceedings arose out 

of the reinstatement of his prior removal order, if 

§ 1231(a)(5) governs, he is barred from seeking asylum. 

However, if § 1158(a)(2)(D) governs, then he is eligible to 

seek asylum so long as he can demonstrate “changed 

circumstances” since the prior removal order. The pertinent 

question, then, is this: if a noncitizen has a prior removal 

order reinstated after unlawfully reentering the United 

States, but can show changed circumstances since the prior 

order was issued, is he eligible to seek asylum? Iraheta says 

yes, arguing that § 1158(a)(2)(D) controls, while the 

government says no, arguing that § 1231(a)(5) controls. The 

government is correct.

We touched on the interplay between §§ 1158(a) and 

1231(a)(5) in Perez-Guzman. That case did not involve 

changed circumstances, so we had no reason to examine 

§ 1158(a)(2)(D) in detail. Instead, we addressed the 

dissonance between § 1158(a)(1)’s rule that “[a]ny” alien 

can apply for asylum and § 1231(a)(5)’s bar on asylum 

applications by noncitizens with reinstated removal orders. 

See Perez-Guzman, 835 F.3d at 1071. Unable to resolve the 

conflict with ordinary tools of statutory construction, we 

gave Chevron deference to the Attorney General’s 

interpretation, reflected in 8 C.F.R. § 1208.31(e), that when 

a noncitizen with a reinstated removal order expresses a 

credible fear of persecution, his hearing before an IJ is 

limited “to consideration of the request for withholding of 

removal only.” Perez-Guzman, 835 F.3d at 1074–82. We

held that § 1231(a)(5) takes precedence over § 1158(a)(1), 

and thus that a noncitizen “is not eligible to apply for asylum 

under § 1158 as long as he is subject to a reinstated removal 

order.” Id. at 1082. We bracketed, however, noncitizens 

potentially covered by § 1158(a)(2)(D). Because the 

applicant in Perez-Guzman was “a first-time asylum 
20 IRAHETA-MARTINEZ V. GARLAND

claimant” who “allege[d] no circumstances that materially 

changed between his removal from the United States and his 

subsequent reentry,” we had “no opportunity . . . to 

determine how § 1158(a)(2)(D) might affect § 1231(a)(5) in 

a case where those two provisions are actually in conflict.” 

Id. at 1082 & n.10.

That question is now before us. Two textual clues 

convince us that the changed-circumstances rule of 

§ 1158(a)(2)(D) applies only within the closed universe of 

§ 1158(a)(2)(B)–(D); that is, § 1158(a)(2)(D)’s grant of the 

right to apply for asylum comes into play only when that 

right would otherwise be revoked by § 1158(a)(2)(B) or (C), 

and not when the revocation is effected by § 1231(a)(5) or 

any other INA provision.

The first clue is § 1158(a)(2)(D)’s placement within the 

INA generally and within § 1158(a) in particular. Recall that 

§ 1158(a) begins with a broad permissive rule—any 

noncitizen in the United States may apply for asylum. 

Section 1158(a)(2) cuts back on that rule by carving 

exceptions, including those in § 1158(a)(2)(B) and (C). But 

then § 1158(a)(2) adds the changed-circumstances 

provision, § 1158(a)(2)(D), another permissive rule. If 

Congress meant § 1158(a)(2)(D) to apply broadly—

overriding not just the asylum-eligibility bars imposed by 

§ 1158(a)(2)(B) and (C), but other restrictive provisions in 

the INA as well—why did it place § 1158(a)(2)(D) within 

§ 1158(a)(2)? See Pub. L. 104-208, § 604, 110 Stat. 3009, 

690–91 (1996) (enacting the language codified at 

§ 1158(a)(2)). Iraheta provides no answer, and none is 

apparent to us, particularly given the “notwithstanding 

subparagraphs (B) and (C)” clause of § 1158(a)(2)(D), 

which confirms its limited scope.
IRAHETA-MARTINEZ V. GARLAND 21

The second textual clue is the phrase “[s]ubject to 

subparagraph (D)” at the beginning of both § 1158(a)(2)(B) 

and (C). That phrase is the mirror image of the 

“notwithstanding” clause in § 1158(a)(2)(D), creating a 

closed loop of exceptions (to § 1158(a)(1)’s broad grant of 

asylum eligibility) and an exception-to-the-exceptions. The 

“subject to” clauses in § 1158(a)(2)(B) and (C) confirm that 

those two prohibitions are absolute except for the 

changed-circumstances exception-to-the-exceptions in

§ 1158(a)(2)(D), and the “notwithstanding” clause in 

§ 1158(a)(2)(D) confirms that it carves only a narrow 

exception to the exceptions that appear above it in 

§ 1158(a)(2)(B) and (C). If Iraheta’s broad reading of 

§ 1158(a)(2)(D)—that it carves exceptions to all limitations 

in the INA on the right to apply for asylum, and not just those 

in § 1158(a)(2)(B) and (C)—were correct, what purpose 

would the “subject to” clauses in § 1158(a)(2)(B) and (C) 

serve? If Iraheta were right, why does § 1231(a)(5) not have 

a clause that reads, “subject to subparagraph (a)(2)(D) of 

section 1158”? And if Iraheta were right, why does 

§ 1158(a)(2)(D) begin with “notwithstanding subparagraphs 

(B) and (C)” rather than “notwithstanding any other 

provision of this chapter”? Again, Iraheta provides no 

answer, and none is apparent to us.

Granted, a “notwithstanding” clause preceding a 

statutory rule does not necessarily limit the rule’s application 

to situations where the rule clashes with the provisions 

referenced by the clause. See NLRB v. SW Gen., Inc., 

137 S. Ct. 929, 940 (2017) (“A ‘notwithstanding’ clause . . .

just shows which of two or more provisions prevails in the 

event of a conflict. Such a clause confirms rather than 

constrains breadth. Singling out one potential conflict might 

suggest that Congress thought the conflict was particularly 

difficult to resolve, or was quite likely to arise. But doing so 
22 IRAHETA-MARTINEZ V. GARLAND

generally does not imply anything about other, unaddressed 

conflicts, much less that they should be resolved in the 

opposite manner.”). So Iraheta is correct in arguing that 

§ 1158(a)(2)(D)’s notwithstanding clause must be read in 

context. But the context of § 1158(a)(2)(D)—specifically, 

its placement within § 1158(a)(2) and its mutually 

reinforcing cross-references with § 1158(a)(2)(B) and (C)—

shows that it does not override asylum-restrictive provisions 

in the INA other than § 1158(a)(2)(B) and (C). See LaraAguilar v. Sessions, 889 F.3d 134, 140–43 (4th Cir. 2018) 

(reaching the same conclusion).

Pressing the opposite result, Iraheta invokes the generalspecific canon, arguing that § 1158(a)(2)(D) more 

specifically governs his asylum eligibility than does 

§ 1231(a)(5). See In re Border Infrastructure Env’t Litig., 

915 F.3d 1213, 1225 (9th Cir. 2019) (“The ‘general/specific 

canon’ of statutory construction . . . provides that when two 

conflicting provisions cannot be reconciled, the more 

specific provision should be treated as an exception to the 

general rule.”). The argument is unpersuasive. As is often 

the case, determining which of §§ 1158(a)(2)(D) and 

1231(a)(5) is “general” and which is “specific” is an 

unilluminating exercise, rendering the canon inapplicable. 

See Perez-Guzman, 835 F.3d at 1075 (“As Scalia and Garner 

acknowledge, . . . it is ‘[s]ometimes . . . difficult to 

determine whether a provision is a general or a specific one.’ 

Here, the difficulty is that each subsection is specific in 

certain respects and general in others.”) (second and third 

alterations in original) (citation omitted). In any event, a 

close reading of both provisions reveals that there is no 

conflict, rendering the canon inapplicable on that ground as 

well. See Lara-Aguilar, 889 F.3d at 141–43 (holding that 

“there is no irremediable conflict [between §§ 1158(a)(2)(D) 
IRAHETA-MARTINEZ V. GARLAND 23

and 1231(a)(5)] requiring us to invoke the general-specific 

rule of interpretation”).

Iraheta next argues that because the INA allows 

noncitizens with reinstated removal orders to seek 

withholding and CAT relief despite the broad bar imposed 

by § 1231(a)(5), see Perez-Guzman, 835 F.3d at 1075 

(“[O]ur well-settled interpretation of § 1231(a)(5) 

recognizes that, notwithstanding the prohibition on ‘any 

relief,’ withholding of removal and CAT protection are 

available to individuals in reinstatement proceedings.”), 

asylum should be available as well. But the availability of 

certain relief notwithstanding § 1231(a)(5) only underscores 

that the INA and its implementing regulations offer a 

comprehensive set of rules governing which noncitizens are 

eligible for what forms of relief. See 8 C.F.R. § 1208.31(e) 

(allowing an alien with a reinstated removal order to apply 

for withholding of removal); 8 C.F.R. § 1208.16(c)(4) 

(allowing applications for CAT protection). The INA makes 

clear that noncitizens with reinstated removal orders, while 

eligible to seek withholding and CAT relief, are not eligible 

to seek asylum.

Iraheta next invokes several presumptions we sometimes 

apply when encountering ambiguous statutes. For example, 

he argues that we should adopt his reading of 

§ 1158(a)(2)(D) to avoid running afoul of the United States’s 

treaty obligations. See Trans World Airlines, Inc. v. 

Franklin Mint Corp., 466 U.S. 243, 252 (1984) (“A treaty 

will not be deemed to have been abrogated or modified by a 

later statute unless such purpose on the part of Congress has 

been clearly expressed.”) (citation omitted). He also argues 

that his reading is necessary to avoid serious due process 

questions. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 

(2018) (“Under the constitutional-avoidance canon, when 
24 IRAHETA-MARTINEZ V. GARLAND

statutory language is susceptible of multiple interpretations, 

a court may shun an interpretation that raises serious 

constitutional doubts and instead may adopt an alternative 

that avoids those problems.”). Neither principle comes into 

play here, because, as explained, there is no ambiguity in the 

relationship between §§ 1158(a)(2)(D) and 1231(a)(5). See 

Jennings, 138 S. Ct. at 836 (“[A] court relying on th[e] 

[constitutional-avoidance] canon still must interpret the 

statute, not rewrite it.”); Swinomish Indian Tribal Cmty. v. 

BNSF Ry. Co., 951 F.3d 1142, 1160 (9th Cir. 2020) (holding 

that a statute’s “unambiguous language” overcomes the 

presumption against abrogating treaty rights).

2

Iraheta claims in the alternative that even if the INA did 

not afford him a statutory right to seek asylum, due process 

required DHS to consider whether to let him do so anyway. 

Iraheta observes that DHS has the discretion to overlook a 

noncitizen’s prior removal order rather than reinstate it, 

which results in the noncitizen entering ordinary removal 

proceedings, where he can apply for asylum, rather than 

withholding-only proceedings, where he cannot. See PerezGuzman, 835 F.3d at 1081 (“[T]he government has 

discretion to forgo reinstatement and instead place an 

individual in ordinary removal proceedings. Once in

ordinary proceedings, the individual can raise an asylum 

application without implicating § 1231(a)(5)’s bar.”); VillaAnguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013) 

(“Even though an alien is not entitled to a hearing before an 

immigration judge on the issue of reinstatement of a prior 

removal order, nothing in 8 U.S.C. § 1231(a)(5) or its 

implementing regulations deprives the agency of discretion 

to afford an alien a new plenary removal hearing.”). And as 

Iraheta notes, we held in Villa-Anguiano that “[d]ue process 
IRAHETA-MARTINEZ V. GARLAND 25

. . . entitles an unlawfully present alien to consideration of 

issues relevant to the exercise of an immigration officer’s 

discretion” in deciding whether to reinstate a prior removal 

order. 727 F.3d at 881. Invoking Villa-Anguiano, Iraheta 

argues that by failing to consider his changed circumstances 

before reinstating his removal order and thereby depriving 

him of the ability to seek asylum, DHS violated his 

procedural due process rights.

Iraheta reads Villa-Anguiano too broadly. Our due 

process discussion there concerned only a noncitizen’s right 

to contest the factual predicates for reinstating a prior 

removal order—i.e., whether the noncitizen in fact was 

subject to the removal order and whether his reentry in fact 

was unlawful—not the right to present arguments why the 

immigration officer should, as a discretionary matter, 

decline to reinstate a prior removal order whose factual 

predicates are clear. See id. at 877–81. The immigration 

officer in Villa-Anguiano reinstated a noncitizen’s prior 

removal order, but instead of removing him, the government 

criminally charged him with illegal reentry under 8 U.S.C. 

§ 1326. See id. at 876–77. During the criminal proceedings, 

the noncitizen lodged a successful collateral challenge to the 

prior removal order, resulting in its invalidation and the 

dismissal of his criminal charges. See id. Nonetheless, the 

noncitizen was later removed without being given the 

opportunity to argue that, because his prior removal order 

had been invalidated, it was not subject to reinstatement. See 

id. at 877. We held that the noncitizen’s due process rights 

were violated because he was not given a chance to 

challenge an essential predicate for placing him into 

reinstatement proceedings—the existence of a valid, prior 

order of removal. See id. at 877–81.
26 IRAHETA-MARTINEZ V. GARLAND

Here, by contrast, Iraheta does not dispute the predicates 

rendering him lawfully subject to reinstatement. Rather, he 

contends that due process required DHS to consider whether 

to forego reinstatement of his prior removal order in light of 

the facts supporting what he hoped would be his new asylum 

claim. But Villa-Anguiano does not give a noncitizen a due 

process right to present an argument that may sway DHS in 

the exercise of its purely discretionary authority to overlook 

a prior removal order. Indeed, recognizing such a right 

would undermine the agency’s plenary discretion over when 

to exercise that form of leniency. See Heckler v. Chaney, 

470 U.S. 821, 831 (1985) (“This Court has recognized on 

several occasions over many years that an agency’s decision 

not to prosecute or enforce, whether through civil or criminal 

process, is a decision generally committed to an agency’s 

absolute discretion.”) (citing cases). The fact of DHS’s 

discretion does not mean that every noncitizen with a prior 

removal order has a due process right to make his case to 

DHS for why its discretion should be exercised in his favor.

* * *

In sum, Iraheta does not have the right to seek asylum 

under the INA, and he did not have a constitutional right to 

have DHS consider whether, as a discretionary matter, to 

overlook his prior removal order and thereby allow him to 

seek asylum. Iraheta is ineligible for asylum, and the BIA 

did not err in declining to allow him to seek asylum.

IV

We turn next to our review of what the BIA did address 

on the merits: Iraheta’s claims for statutory withholding of 

removal and CAT relief.
IRAHETA-MARTINEZ V. GARLAND 27

A

A noncitizen in removal proceedings may seek 

withholding of removal under § 1231(b)(3), which prohibits 

removal to a country where the noncitizen’s “life or freedom 

would be threatened” on account of his “race, religion, 

nationality, membership in a particular social group, or 

political opinion.” 8 U.S.C. § 1231(b)(3)(A); see Bare v. 

Barr, 975 F.3d 952, 961 (9th Cir. 2020); Diaz-Reynoso v. 

Barr, 968 F.3d 1070, 1084–85 (9th Cir. 2020). To prevail, 

the noncitizen must show, by a preponderance of the 

evidence, that he will face persecution on account of a 

protected ground if removed. See 8 C.F.R. § 1208.16(b); 

Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013).

Iraheta sought withholding of removal on account of 

(1) his perceived or imputed membership in the social group 

of Salvadoran gay men and (2) his anti-gang political 

opinion.

1

Iraheta first challenges the BIA’s conclusion that he is 

not likely to face persecution in El Salvador on account of 

his imputed sexual orientation. Both the IJ and the BIA 

assumed that the abuse Iraheta faced in his youth by his 

father qualifies as persecution due to his perceived sexual 

orientation, creating a “presumption” that he would be 

persecuted in the future as well. 8 C.F.R. § 1208.16(b)(1)(i). 

Because the agency assumed that Iraheta faced past 

persecution, we do so as well. See Hanna v. Keisler, 

506 F.3d 933, 938 (9th Cir. 2007).

Once the presumption of future persecution arises, DHS 

bears the burden to rebut it by demonstrating that either: 

(1) due to a “fundamental change of circumstances,” the 
28 IRAHETA-MARTINEZ V. GARLAND

noncitizen would not be persecuted on account of a protected 

ground; or (2) the noncitizen could avoid future persecution 

by relocating to another part of the country, and it would be 

reasonable to expect the noncitizen to relocate. 8 C.F.R. 

§ 1208.16(b)(1)(i)–(ii); see Vitug v. Holder, 723 F.3d 1056, 

1065 (9th Cir. 2013). Iraheta argues that the agency did not 

properly recognize the presumption of future persecution. 

We disagree.

The IJ correctly stated the governing framework, noting 

that “[i]f an alien demonstrates that he suffered past 

persecution in the proposed country of removal, the burden 

shifts to [DHS] to demonstrate that a fundamental change in 

circumstances has occurred in that country, or that the 

applicant could safely relocate to another area in the 

proposed country of removal.” See 8 C.F.R. 

§ 1208.16(b)(1)). The IJ then found, as a factual matter, that 

“circumstances have changed,” as Iraheta was now “a grown 

man” who had no need to live with his father. Given that 

finding, the IJ concluded that Iraheta was not likely to face 

persecution by his father in the future. The BIA adopted that 

factual conclusion, discerning no clear error.

Iraheta’s attempts to poke holes in the BIA’s reasoning 

are unavailing. First, he contends that the IJ did not properly 

apply the burden-shifting framework, and thus never 

actually made a finding of changed circumstances to which 

the BIA could defer. We disagree. True enough, at one point 

in her opinion, the IJ referred to “[Iraheta’s] burden of 

demonstrating that he is likely to suffer persecution by his 

father in the future.” That statement’s overall context, 

however, makes clear that the IJ was referring to Iraheta’s 

ultimate burden of showing his entitlement to statutory 

withholding, and further that she properly understood and 

held DHS to its burden of showing a change in 
IRAHETA-MARTINEZ V. GARLAND 29

circumstances. She then made a factual finding that DHS 

met its burden, and the BIA was within its rights to defer to 

that finding.

Iraheta next argues that even if the IJ found changed 

circumstances that could rebut the presumption of future 

persecution, the BIA “misapplied its own standard of 

review,” since “[w]hether DHS met its burden to show a 

fundamental change by a preponderance of the evidence is a 

mixed question of law and fact subject to de novo, not clear 

error, review.” But the BIA set forth the correct standard of 

review at the outset of its opinion, citing 8 C.F.R. 

§ 1003.1(d)(3), and Iraheta does not point to, and we cannot 

find, any portion of the opinion that strayed from this 

standard.

Next, Iraheta argues that the agency could not possibly 

have carried its burden to show changed circumstances 

because it was “obligated to introduce evidence” but did not 

do so. In support, Iraheta cites Rios v. Ashcroft, 287 F.3d 

895 (9th Cir. 2002), which holds that the agency, to defeat 

the presumption of future persecution, must “introduce 

evidence that, on an individualized basis, rebuts a particular 

applicant’s specific grounds for his well-founded fear of 

future persecution.” Id. at 901 (quoting Ernesto Navas v. 

INS, 217 F.3d 646, 662 (9th Cir. 2000)). Iraheta interprets 

Rios to establish that DHS can demonstrate changed 

circumstances only by introducing new evidence of its own, 

as opposed to drawing inferences from evidence already in 

the record. But there is no reason why DHS cannot use 

evidence introduced by the noncitizen to rebut the 

presumption. DHS did so here by pointing to Iraheta’s and 

Victor’s respective ages and life circumstances.

Iraheta also attempts to cast doubt on the BIA’s ultimate 

factual finding that there has been a fundamental change in 
30 IRAHETA-MARTINEZ V. GARLAND

his circumstances, arguing that it “misconstrued the 

evidence.” Whether there has been a change in 

circumstances is a question of fact that we review for 

substantial evidence. See Singh v. Holder, 753 F.3d 826, 

830 (9th Cir. 2014). Under that deferential standard, we 

reject Iraheta’s argument, as the record does not compel a 

conclusion different from the one the IJ reached and to which 

the BIA deferred. See Mairena v. Barr, 917 F.3d 1119, 1123 

(9th Cir. 2019) (per curiam); Jie Shi Liu v. Sessions, 

891 F.3d 834, 837 (9th Cir. 2018).

Iraheta first contends that the IJ erred in treating Victor’s 

advanced age as a relevant change in circumstances. He 

points out that his father has continued to call him “faggot” 

over the phone since he last left El Salvador, and that there 

was evidence in the record (an affidavit from one of Iraheta’s 

brothers) that Victor would beat Iraheta if he returned to El 

Salvador. In so arguing, Iraheta misconstrues the reasoning 

behind the IJ’s finding of changed circumstances. That 

finding was based only in part on Victor having aged, 

making him less able to exert physical dominion over 

Iraheta. The finding was based as well on the fact that 

Iraheta himself had aged—specifically, that he had become 

a “grown man” who was no longer “required to live on his 

father’s property.” Iraheta does not point to record evidence 

suggesting that he will be required to live with his father if 

removed to El Salvador, so we cannot find fault with the IJ’s 

conclusion that Iraheta, having become an adult, faces 

materially changed circumstances.

To undermine the conclusion that the passage of time is 

a relevant changed circumstance, Iraheta points out that his 

father assaulted him when he was last in El Salvador, in 

2010, when he was about 24 years old. The IJ discounted 

that incident as falling short of persecution “because at the 
IRAHETA-MARTINEZ V. GARLAND 31

time of the incident [Iraheta] was an adult man, free to go 

about his business, free to relocate to wherever he chooses 

in El Salvador.” The IJ’s broader logic holds, as there was 

no evidence that Iraheta was compelled to visit his father 

when he was last in El Salvador, that he would be compelled 

to visit his father if removed to El Salvador, or that his father 

would seek him out and abuse him. We thus have no basis 

for disturbing the BIA’s agreement with the IJ that Iraheta’s 

age is a material changed circumstance.

Iraheta maintains that the 2010 incident with his father 

“demonstrates that [his] family status has not changed his 

father’s will and ability to harm him.” The question, though, 

is not whether Iraheta’s father has the desire to harm him; 

rather, it is whether Iraheta is more likely than not to be 

abused by him if returned to El Salvador. Even if Iraheta 

were likely to face abuse if he visited his father’s house, that 

would not compel the more general conclusion that he is 

likely to face abuse if removed to El Salvador.

Finally, Iraheta contends that even if the BIA were 

correct that DHS rebutted the presumption of future 

persecution from his father, the BIA failed to apply that

presumption to other Salvadoran actors who might also 

persecute him for being or appearing to be gay. In Iraheta’s 

view, “[b]ecause the BIA assumed Mr. Iraheta established 

past persecution on the basis of his imputed homosexuality, 

it should have required [the government] to show a change 

in circumstances such that Mr. Iraheta would not be harmed 

by his father or others for this reason.”

Iraheta invokes Hanna v. Keisler to support his position, 

but he misreads that decision. Hanna involved an Iraqi 

national who had been persecuted in his home country, 

before the Iraq War, by forces loyal to Saddam Hussein. See 

506 F.3d at 936–37. The BIA assumed past persecution, 
32 IRAHETA-MARTINEZ V. GARLAND

shifting the burden to DHS, but found that the regime change 

following Saddam’s ouster effected a fundamental change of 

circumstances that rebutted the presumption of future 

persecution. Id. at 938. We disagreed, noting that the regime 

change “alone d[id] not satisfy the government’s burden to 

show that circumstances have changed.” Id. We held, 

rather, that “the government[’s] show[ing] . . . that Hanna 

would not be persecuted on account of his religion by a 

government led by Saddam Hussein” did not establish that 

he would not be persecuted by others on that basis. Id.; see 

id. at 938 n.1 (“If anything, the changed circumstances in 

Iraq would seem to make it more likely, not less likely, that 

Hanna would suffer persecution in Iraq on account of his 

religion.”).

Hanna does not stand for the proposition that whenever 

an applicant for withholding of removal shows past 

persecution, DHS can defeat the presumption of future 

persecution only by affirmatively proving that no one else 

will persecute the applicant on the same basis. Rather, 

Hanna is a straightforward application of the burden-shifting 

framework: to rebut the presumption, DHS must show not 

just any change of circumstances, but a change of 

circumstances “such that the applicant’s life or freedom 

would not be threatened on account of any of the five 

[protected] grounds.” 8 C.F.R. § 1208.16(b)(1)(i)(A). Here, 

DHS did just that, showing that the only person who had ever 

persecuted Iraheta on account of his imputed sexual 

orientation—in fact, the only person in El Salvador who 

even perceived him to be gay—would no longer able to do 

so because Iraheta was no longer compelled to live in his 

father’s home. In the BIA’s view, that change in 

circumstances made it unlikely that Iraheta would face 

further persecution on that ground. As the IJ explained in 

the portion of her opinion denying CAT relief: “There is not 
IRAHETA-MARTINEZ V. GARLAND 33

sufficient evidence in the record to indicate or to conclude 

that a community would even perceive [Iraheta] to be gay. 

It seems that only two people may have perceived him as 

such, his father, and a man he got into an argument with in 

the United States.”

Iraheta also argues that the country-conditions evidence 

showed that violence against LGBT individuals in El 

Salvador is rampant, and thus that substantial evidence did 

not support the BIA’s conclusion that he would not be 

persecuted by others on account of his perceived sexual 

orientation. But the record does not compel Iraheta’s view 

of the evidence, particularly since it supports a finding that 

others in El Salvador did not perceive Iraheta to be gay. The 

same rationale sinks Iraheta’s argument that he is likely to 

be persecuted if he returned to his hometown because 

“[c]ommunity assumptions about sexuality are informed by 

a person’s family, and Mr. Iraheta’s treatment by his father 

was well-known.” The fact remains that there was no

evidence of anyone else perceiving Iraheta as gay in all his 

years in El Salvador.

Because the BIA’s finding of changed circumstances 

was sound and sufficient to rebut the presumption of future 

persecution on account of Iraheta’s perceived sexual 

orientation, there is no need to address the BIA’s finding that 

Iraheta could safely relocate within El Salvador.

2

Iraheta’s claim of persecution based on political opinion 

rests on a telephonic threat made by his brother Valentin 

when Iraheta was in the United States. Iraheta does not 

claim that he faced persecution on this basis in the past, so 

there is no presumption of future persecution. He therefore 

bears the burden of showing that he is more likely than not 
34 IRAHETA-MARTINEZ V. GARLAND

to be persecuted on the basis of his anti-gang beliefs if 

removed to El Salvador.

The IJ concluded, after considering the phone call and 

country-conditions evidence, that it was not more likely than 

not that MS-13 or Valentin would harm Iraheta if he returned 

to El Salvador. The BIA found no clear error in this factual 

determination. The record does not compel a different 

conclusion.

In pressing the opposite result, Iraheta focuses on one 

aspect of the BIA’s reasoning: that “[t]here is no evidence in 

the record that his brother has tried to harm [Iraheta] while 

in the United States.” Iraheta correctly suggests that this 

point is not compelling, as there is no reason to think 

Valentin has either the will or capacity to harm Iraheta 

outside of El Salvador. But that one possible misstep does 

not doom the BIA’s ultimate finding, for the record as a 

whole offers sufficient support for the IJ’s conclusion that 

Valentin’s threat does not demonstrate that he or MS-13 is 

more likely than not to harm Iraheta. It certainly does not 

compel the conclusion that if Iraheta is removed to El 

Salvador, the threat is likely to be carried out.

Iraheta responds with evidence showing how dangerous 

it can be for those who vocally oppose MS-13. Perhaps 

Iraheta is right that “return to El Salvador is a death sentence 

for those willing to vocally oppose the MS-13.” But Iraheta 

is far from a vocal opponent of Salvadoran gangs. Rather, 

the evidence shows only that he once tried to convince his 

brother to leave the gang. Absent more, we will not 

“substitute our view of the matter for that of the [agency].” 

Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995).
IRAHETA-MARTINEZ V. GARLAND 35

3

Iraheta also argued in the agency proceedings that he 

would be persecuted in El Salvador on account of his 

membership in several other social groups—as someone 

who attends a Pentecostal church, as a brother of Valentin, 

as a son of his parents, and as a “Salvadoran son[] viewed as 

property by virtue of [his] position within the domestic 

relationship.” Before the BIA, however, Iraheta addressed 

only the latter two groups, and the BIA rejected his claims, 

finding that he was not persecuted on the basis of being a son 

of his parents and that “Salvadoran sons viewed as property 

by virtue of their position within the domestic relationship” 

is not a cognizable social group.

In a footnote in his briefing before us, Iraheta explains 

that he “does not concede the correctness of the BIA’s 

determination on these issues,” apparently because he 

disagrees with an Attorney General opinion on which the 

BIA relied. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 

2018). But by failing to develop the argument in his opening 

brief, Iraheta forfeited it. See Cachil Dehe Band of Wintun 

Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 606 

(9th Cir. 2018); WildEarth Guardians v. U.S. EPA, 759 F.3d 

1064, 1072 n.3 (9th Cir. 2014).

* * *

In sum, there is no basis for upsetting the BIA’s denial 

of Iraheta’s application for withholding of removal.

B

In denying Iraheta’s request for CAT relief, the IJ found 

that Iraheta was not likely to face torture in El Salvador for 

“the same reasons” he was not likely to face persecution for 
36 IRAHETA-MARTINEZ V. GARLAND

withholding purposes. The BIA “discern[ed] no clear error” 

in that determination. The IJ also found that Iraheta had not 

demonstrated that any torture would occur with the 

acquiescence of the Salvadoran government, but the BIA 

declined to reach the acquiescence issue given its agreement 

with the IJ that Iraheta had failed to show a likelihood of 

torture. We find no fault with the BIA’s decision.

To obtain CAT relief, the applicant must show that it is 

more likely than not that he will face torture in the country 

of removal. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 

1183 (9th Cir. 2020). “In considering a CAT application, the 

IJ and BIA must consider ‘all evidence relevant to the 

possibility of future torture,’ and must ‘consider the 

aggregate risk that [the applicant] would face.’” Guerra v. 

Barr, 951 F.3d 1128, 1133 (9th Cir. 2020) (alteration in 

original) (citations omitted) (quoting Cole v. Holder, 

659 F.3d 762, 770, 775 (9th Cir. 2011)), amended in other 

part, 974 F.3d 909 (9th Cir. 2020); see also QuijadaAguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015) 

(“CAT claims must be considered in terms of the aggregate 

risk of torture from all sources, and not as separate, divisible 

CAT claims.”).

Iraheta argues that the BIA’s factual finding that he was 

not likely to be tortured in El Salvador was flawed because 

it “erroneously failed to undertake an aggregate analysis” of 

all potential sources of torture. True enough, the BIA did 

not make it perfectly clear that it was performing an 

aggregate analysis. On balance, though, the BIA said 

enough to convince us that it did, in fact, find that there is 

less than a 50% chance that Iraheta will be tortured by all 

potential sources of torture (Victor and MS-13) in the 

aggregate.
IRAHETA-MARTINEZ V. GARLAND 37

The BIA bookended its CAT analysis with generalized 

statements about the overall risk of torture. At the outset, the 

BIA explained that it “discern[ed] no clear error in the 

Immigration Judge’s factual finding that [Iraheta] has not 

shown that he will more likely than not be tortured by, at the 

instigation of, or with the consent or acquiescence of a public 

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

summary is fairly read as approving the IJ’s finding that the 

probability of torture is less than 50% in the aggregate. The 

BIA proceeded to analyze the possibilities of torture by MS13 and Victor separately, but its main point remained in 

focus: Iraheta failed to establish an overall likelihood of 

torture of greater than 50%. And that becomes clear again 

at the end of its analysis, when the BIA summed things up 

as follows: “[Iraheta] has not demonstrated that he is more 

likely than not to be tortured in El Salvador . . . .” The BIA 

did enough here for its analysis to survive review. See 

Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021) (“[A] 

reviewing court must ‘uphold’ even ‘a decision of less than 

ideal clarity if the agency’s path may reasonably be 

discerned.’”) (quoting Bowman Transp., Inc. v. Ark.-Best 

Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

V

Because Iraheta’s prior removal order was reinstated, he 

had no right under the INA to seek asylum and no 

constitutional right to have DHS consider whether, as a 

discretionary matter, to decline to reinstate that order. The 

BIA correctly applied the frameworks governing Iraheta’s 

requests for withholding of removal and CAT relief, and the 

factual basis for the BIA’s decisions finds support in the 

evidentiary record.

PETITION FOR REVIEW DENIED.