United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-1249

___________________________ 

Eduardo Escobar

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States and the Executive 

Office of Immigration Review

 Respondent

____________

Petition for Review of an Order of the

Board of Immigration Appeals

____________ 

Submitted: October 18, 2022

Filed: December 15, 2022

____________ 

Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

Eduardo Escobar is a 31-year-old man alleged to be a native and citizen of 

Honduras present in the United States without being lawfully admitted. Escobar

petitions for review of an order of the Board of Immigration Appeals (BIA)

upholding the decision of an immigration judge (IJ) that found Escobar removable
-2- 

and denied his application for deferral of removal under the Convention Against 

Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

I. 

Escobar entered the United States as a child but claims to know little about 

the circumstances of his birth or his entry into the country. Escobar has also 

struggled with mental illness, having been diagnosed with schizophrenia, and he has 

a significant criminal record. 

While Escobar has offered little information about his past, the record 

indicates that he was brought to the United States as a young child by his mother, 

Maria Elsomina Escobar, a Honduran citizen. Soon after her entry into the United 

States in the early 1990s, Maria Escobar stole the identity of an American citizen

named Maria Mateo. In 2013, Maria Escobar accepted a plea agreement on charges 

of possessing and falsifying immigration documents. In sworn statements included 

in her plea agreement, Maria Escobar stated that all but one of her children, including 

Eduardo Escobar, were born in Honduras. She also admitted that she was born in 

Honduras and has been residing illegally in the United States since she entered the 

country.

Between 2010 and 2021, Eduardo Escobar sustained multiple convictions: a 

first-degree assault charge, two burglary charges, a drug possession charge, a felonin-possession charge, and a second-degree robbery charge. In May 2021, after years 

of investigation, the Department of Homeland Security (DHS) initiated removal 

proceedings against Escobar while he was serving a term of involuntary commitment 

at a Missouri mental health facility.

In the Notice to Appear (NTA), DHS alleged that Escobar is a native and 

citizen of Honduras who entered the United States unlawfully at an unknown 

location and date. The NTA also detailed Escobar’s criminal history dating back to 

2010: six charges resulting in an aggregate sentence of 16 years incarceration. The 
-3- 

NTA charged Escobar with removability under the Immigration and Nationality Act 

as an alien present in the United States without being admitted or paroled, 8 U.S.C. 

§ 1182(a)(6)(A)(i); as an alien convicted of a controlled substance-related offense, 

id. § 1182(a)(2)(A)(i)(II); and as an alien convicted of two or more offenses for 

which the aggregate sentence is five or more years of incarceration, id.

§ 1182(a)(2)(B). In June 2021, DHS added further grounds for removability as an 

alien who has been convicted of a crime involving moral turpitude. Id.

§ 1182(a)(2)(A)(i)(I). Escobar appeared before an IJ and, through counsel, filed a 

motion to terminate the proceedings, arguing that DHS had not met its burden of 

proof to establish alienage by clear and convincing evidence.

After finding Escobar competent to participate in the proceedings, the IJ 

considered evidence and heard testimony from Escobar and DHS on the issue of 

removability. Escobar objected to some of the evidence offered by DHS, including 

his mother’s sworn statement in her 2013 plea agreement. The IJ overruled these 

objections, finding that all the contested evidence met the threshold for admissibility 

in removal proceedings. Moreover, the IJ noted that any inconsistencies in the 

evidence spoke to the weight to be given to that evidence, not its admissibility.

After reviewing the evidence, the IJ found that DHS had satisfied its burden 

to prove Escobar’s removability by clear and convincing evidence. The IJ’s analysis 

focused primarily on Escobar’s argument that DHS failed to establish alienage. The 

IJ found that, unlike a typical removal case, the Form I-213 submitted by DHS was 

“not, by itself, sufficient proof of [Escobar’s] alienage.” Thus, the IJ turned to other 

evidence submitted by DHS, including Escobar’s mother’s plea agreement, evidence 

of Escobar’s relationship with his mother, and several Honduran birth documents

allegedly identifying Escobar and his family members. The IJ found that, though 

these documents “individually[] may not be sufficient to meet [DHS’s] burden,” 

together they provided clear and convincing evidence of Escobar’s alienage. The IJ 

noted that, in making this determination, he used “common sense inferences” to 

piece together documents that were not always “perfectly congruent.” Thus, the IJ 

concluded that DHS had satisfied its burden of proof and that Escobar had come
-4- 

forward with no evidence demonstrating that he was lawfully present in the United

States. Accordingly, the IJ denied Escobar’s motion to terminate and found Escobar 

to be removable to Honduras.

Escobar also sought deferral of removal under CAT, arguing that he would be 

subject to torture upon his arrival in Honduras. Specifically, Escobar pointed to his 

schizophrenia and the inhumane conditions to which he would be subject within

Honduran prisons and mental health hospitals. However, the IJ rejected Escobar’s 

CAT argument, finding that though “conditions in Honduran psychiatric hospitals 

and prisons are far below the standard of care found in the United States, they do not 

satisfy the threshold for torture under CAT.” In particular, the IJ found that 

Escobar’s torture argument was speculative because it relied on a “series of events 

that he contends will lead to his torture.” Further, the IJ found that Escobar could 

not show that the Honduran government will specifically intend to torture him or 

acquiesce in that torture. Thus, the IJ denied CAT relief.

Escobar appealed to the BIA. Before the BIA, he challenged the IJ’s decision 

to admit certain documents into the record, the IJ’s finding that DHS had proven 

alienage by clear and convincing evidence, and the IJ’s denial of deferral of removal 

under CAT. In a brief three-page opinion, the BIA largely adopted the IJ’s reasoning 

and findings but supplemented the IJ’s decision with its own analysis. In particular, 

the BIA rejected Escobar’s argument that the IJ improperly relied on inferences to

find that DHS had carried its burden to prove alienage. The BIA agreed with the IJ 

that the evidence was “not perfectly congruent” but found that Escobar could not 

show that the IJ’s alienage finding was clearly erroneous, as required for reversal. 

See 8 C.F.R. § 1003.1(d)(3)(i). The BIA also affirmed the IJ’s conclusion that 

Escobar had not demonstrated entitlement to CAT relief because he had not shown

that he would be tortured within the meaning of the regulations. Accordingly, the 

BIA affirmed the IJ on all claims and dismissed Escobar’s appeal. Escobar now 

petitions this Court for review.
-5- 

II. 

Before us, Escobar asserts that the BIA erred both with respect to the alienage 

determination and the denial of CAT relief. In removal cases, we review “questions 

of law de novo” and “factual determinations under the substantial evidence standard, 

reversing only if ‘the evidence is so compelling that no reasonable factfinder could 

fail to find in favor of the petitioner.’” Gilbertson v. Garland, 7 F.4th 700, 704 (8th 

Cir. 2021) (citation omitted). Put differently, we must affirm the BIA’s factual 

findings “unless any reasonable adjudicator would be compelled to conclude to the 

contrary.” Etchu-Njang v. Gonzales, 403 F.3d 577, 580 (8th Cir. 2005) (quoting 8 

U.S.C. § 1252(b)(4)(B)). “Though we ordinarily review only the BIA’s decision, 

‘we also review the IJ’s decision as part of the final agency action’ if ‘the BIA 

adopted the findings or the reasoning of the IJ.’” Etenyi v. Lynch, 799 F.3d 1003, 

1006 (8th Cir. 2015) (citation omitted). Because the BIA adopted the findings and 

reasoning of the IJ here, we consider both decisions on this petition for review.

A.

Escobar first argues that the IJ and BIA erred in finding that DHS sufficiently 

proved Escobar’s alienage. In removal proceedings, DHS “bears the burden of 

establishing removability by clear and convincing evidence.” Garcia-Torres v. 

Holder, 660 F.3d 333, 335 (8th Cir. 2011). In the case of a noncitizen allegedly 

present in the United States without being lawfully admitted, DHS “must first 

establish the alienage” of that individual by “clear and convincing evidence.” 8 

C.F.R. § 1240.8(a), (c). If DHS establishes alienage by clear and convincing 

evidence, “then the burden shifts to the alien to prove he is lawfully present in the 

United States pursuant to a prior admission.” Puc-Ruiz v. Holder, 629 F.3d 771, 781 

(8th Cir. 2010) (citation omitted).

As a preliminary matter, Escobar contends that the IJ violated his due process 

rights by admitting unreliable evidence. For example, the birth certificates provided 

by DHS included inconsistencies in name and date of birth, and Escobar insists that 
-6- 

the form of the birth certificates indicates possible fraud. Further, Escobar argues 

that the sworn statements by Maria Escobar are inherently unreliable because she 

later admitted to using a false identity.

We disagree. It is well established that “traditional rules of evidence do not 

apply in immigration proceedings, except to the extent that due process is 

implicated.” Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009). To satisfy due 

process in a removal proceeding, “evidence must be probative and its admission 

must be fundamentally fair.” Id.; see also Patel v. Sessions, 868 F.3d 719, 723 (8th 

Cir. 2017) (describing this standard as the “sole test for admission of evidence” in 

removal proceedings). Here, the evidence submitted by DHS meets this standard. 

While some of the evidence includes undeniable inconsistencies, it is all probative 

of Escobar’s alienage. And there is no indication that its admission was 

fundamentally unfair. For example, Escobar was not “prevented from submitting 

evidence to refute” DHS’s evidence, Lybesha, 569 F.3d at 882; there was no 

exclusion of “clearly admissible and highly probative testimony,” Tun v. Gonzales, 

485 F.3d 1014, 1026 (8th Cir. 2007); and there was no admission of “[h]ighly 

unreliable hearsay” testimony, Banat v. Holder, 557 F.3d 886, 892 (8th Cir. 2009)

(alteration in original) (citation omitted). In the absence of fundamental unfairness 

in the admission of evidence, Escobar’s due process argument must fail. Any 

inconsistencies speak to the weight of the evidence, not its admissibility. Cf. United 

States v. Rodriguez, 484 F.3d 1006, 1014 (8th Cir. 2007). 

Escobar’s primary argument is that the IJ improperly relied on inferences in 

finding that DHS proved alienage by clear and convincing evidence. The BIA has 

held—and we have confirmed—that IJs may make “reasonable inferences from 

direct and circumstantial evidence of the record as a whole.” See Matter of D-R-, 

25 I. & N. Dec. 445, 454 (BIA 2011); Etenyi v. Lynch, 799 F.3d 1003, 1007 (8th 

Cir. 2015) (citing Matter of D-R-, 25 I. & N. Dec. at 454). “An inference is not 

impermissible as long as it is supported by ‘record facts, or even a single fact, viewed 

in the light of common sense and ordinary experience.’” Matter of D-R-, 25 I. & N. 

Dec. at 454 (citation omitted).
-7- 

Escobar contends that IJs may properly rely on inferences only when 

considering witness credibility, not when determining whether DHS met its burden 

to prove alienage. For support, Escobar cites Matter of Guevara, 20 I. & N. Dec. 

238 (BIA 1990), in which the BIA held that the government had not established the 

respondent’s removability by clear and convincing evidence when the government 

relied on nothing more than the respondent’s silence in the face of questioning. Id.

at 244-45. Escobar argues that Matter of Guevara requires DHS to “establish a prima 

facie case of alienage” separate from any inferences drawn. Id. at 242. However, 

Escobar overreads the case. Matter of Guevara merely stands for the proposition 

that “the respondent’s silence alone does not provide sufficient evidence, in the 

absence of any other evidence of record at all, to establish a prima facie case of 

alienage.” Id. (emphasis added). It does not flatly bar the use of inferences in 

assessing the evidence put forward by DHS to prove alienage. Indeed, the Ninth 

Circuit has held that while silence alone is “insufficient to meet the government’s 

burden of proving alienage,” inferences may be used when assessing alienage, even 

allowing an “adverse inference” to be drawn from a petitioner’s refusal to deny 

alienage. Torres-Chavez v. Holder, 567 F.3d 1096, 1102 (9th Cir. 2009) (citing 

Matter of Guevara, 20 I. & N. Dec. at 241). We read our precedent, out-of-circuit 

precedent, and BIA precedent to allow an IJ to use common-sense inferences when 

reviewing evidence to determine whether DHS met its burden of proving alienage.

Having established that the IJ did not err as a matter of law in using 

common-sense inferences when reviewing the record, we hold that substantial 

evidence supports the IJ’s conclusion—affirmed and adopted by the BIA—that DHS 

satisfied its burden to prove Escobar’s alienage by clear and convincing evidence. 

“The substantial evidence standard that we employ when reviewing BIA factual 

determinations is extremely deferential.” Eusebio v. Ashcroft, 361 F.3d 1088, 1091 

(8th Cir. 2004). Reversal is appropriate only if, based on the factual record before 

us, “any reasonable adjudicator would be compelled to conclude” that DHS had not 

established by clear and convincing evidence that Escobar is a Honduran national. 

Etchu-Njang, 403 F.3d at 580 (emphasis added) (quoting 8 U.S.C. § 1252(b)(4)(B)). 
-8- 

The IJ and BIA concluded that DHS met its burden, and the record before us does 

not compel a contrary result.

Several parts of the record inform this conclusion. First and foremost, Maria 

Escobar’s sworn statement to officers, recounted in her 2013 plea agreement, 

identified her five children by name, including Eduardo Escobar. Maria “stated that 

all of her children, with the exception of [her youngest daughter], were born in 

Honduras.” Further, Maria “stated that Eduardo Escobar was six months old when 

she left Honduras and entered the United States, without inspection by an 

Immigration Officer, sometime around 1992.” While Maria later admitted to 

identity theft, the IJ viewed Maria’s statements together with other evidence in the 

record to infer that the statements were sufficiently reliable. For example, Escobar 

has stated in interviews that he believes Maria to be his mother, even once using her 

stolen surname: Mateo. Moreover, some of Escobar’s past criminal records list 

Maria’s address as his own. Maria’s statements are also consistent with Escobar’s 

documented date of birth in 1991. Viewed in light of the whole record, the IJ 

reasonably inferred that Maria’s statements about Escobar’s birth and nationality

were truthful. 

Additional evidence corroborates Maria’s sworn statement regarding 

Escobar’s Honduran birth, though there are some inconsistencies. For example, 

DHS provided several birth documents, including a Honduran birth certificate for 

“Edward Argenis Martinez Escobar,” dated October 8, 1990. However, Escobar’s 

name is misspelled, the date of birth is over a year removed from Escobar’s 

documented date of birth, and Escobar disputes the authenticity of the document. In 

response, DHS provided a sworn affidavit corroborating the birth certificate as well 

as additional certification from the Honduran government. And the date of birth, 

while inconsistent with the rest of the record, is roughly consistent with Escobar’s 

current age. We recognize, as the IJ noted, that the evidence is “not perfectly 

congruent.” But our review at this stage is “extremely deferential.” Eusebio, 361 

F.3d at 1091. We will reverse the factual findings of the BIA only if “it would not 

be possible for a reasonable fact-finder to adopt the BIA’s position.” Id. Because 
-9- 

the inconsistencies here are not so significant as to compel a different result, we must 

affirm. 

B. 

Next, Escobar challenges the IJ’s denial of CAT relief—affirmed and adopted 

by the BIA—arguing that he properly demonstrated that he would more likely than 

not be subjected to torture in Honduras because of his mental illness. As with 

findings of alienage, “[w]e review the BIA’s [factual] determinations regarding . . . 

CAT relief under the substantial evidence standard” and its “legal determinations de 

novo.” Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011).

To be eligible for deferral of removal under CAT, the petitioner must 

“establish that it is more likely than not that he . . . would be tortured if removed to 

the proposed country of removal.” Jama v. Wilkinson, 990 F.3d 1109, 1118 (8th 

Cir. 2021) (alteration in original) (quoting 8 C.F.R. § 1208.16(c)(2)), cert. denied

142 S. Ct. 773 (2022).

1

 “In order to constitute torture, an act must be specifically 

intended to inflict severe physical or mental pain or suffering.” 8 C.F.R.

§ 1208.18(a)(5). Because of the specific intent requirement, the “petitioner may not 

obtain relief under the CAT unless he can show that his prospective torturer has the 

goal or intent of inflicting severe physical or mental pain or suffering upon him,” not 

1

CAT contemplates two forms of relief for noncitizens: deferral of removal 

and withholding of removal. See Jama, 990 F.3d at 1117 n.6; 8 C.F.R. 

§ 1208.16(c)(4). If the applicant meets his burden under CAT, withholding of 

removal is the mandated form of relief unless the applicant is subject to mandatory 

denial of withholding of removal. 8 C.F.R. § 1208.16(c)(4). Mandatory denial of 

withholding applies if, for example, the applicant “has been convicted of a 

particularly serious crime.” Id. § 1208.16(d)(2). An applicant otherwise barred from 

withholding of removal is still entitled to deferral of removal if he meets the initial 

burden of proof. Id. §§ 1208.16(c)(4), 1208.17(a). Here, Escobar seeks only 

deferral of removal, not withholding of removal. Either way, the legal question 

remains the same: whether Escobar has demonstrated that he would “more likely 

than not . . . be tortured in the country of removal.” Id. § 1208.16(c)(4).
-10- 

merely that “pain or suffering is practically certain to occur.” Cherichel v. Holder, 

591 F.3d 1002, 1013-14 (8th Cir. 2010), abrogated on other grounds by Nasrallah v. 

Barr, 140 S. Ct. 1683 (2020). In addition, the petitioner must show that “such torture

would be at the hands of or acquiescence of” the government. Jama, 990 F.3d 

at 1118 (citing 8 C.F.R. § 1208.18(a)(1)). “A government does not acquiesce in the 

torture of its citizens merely because it is aware of torture but powerless to stop it, 

but it does cross the line into acquiescence when it shows willful blindness toward 

the torture of citizens by third parties.” Id. at 1119 (citation omitted).

Escobar’s CAT claim fails because he cannot show that the Honduran 

government specifically intends to inflict torture or would otherwise acquiesce in 

torture committed by third parties. Before the IJ and the BIA, Escobar insisted that, 

upon his removal to Honduras, he would be screamed at, publicly mocked, stoned, 

and even raped or beaten at the hands of prison and hospital staff because of his 

severe mental illness. Indeed, Escobar has presented much evidence indicating that 

Honduran psychiatric hospitals and prisons are overcrowded, unsanitary, and 

altogether substantially below the standards of the United States. Even assuming 

that Escobar would be subject to harsh conditions upon his removal to Honduras, 

Escobar cannot obtain CAT relief because those conditions are due to a “lack of 

resources” rather than a “specific intent to cause severe pain or suffering.” Gonzales 

v. Garland, 29 F.4th 989, 997 (8th Cir. 2022) (citation omitted). “It is not enough to 

allege that prison conditions constitute torture when they are the result of neglect 

and underfunding rather than intentional and targeted.” Id. Based on Escobar’s own 

evidence, the Honduran mental health system “does not adequately address its 

population’s need and demand for services” due to “insufficient funding,” an 

“unequal distribution of resources,” and a “lack of adequate strategies for 

decentralizing health services.” Under our precedent, such evidence is inadequate 

to demonstrate a specific intent to inflict torture. See id. 

Nor has Escobar demonstrated government acquiescence in torture by third 

parties. The IJ found that the Honduran government was not “willfully blind to 

abuse” because it has “taken actual steps” to improve the harsh conditions in its 
-11- 

mental health facilities and remove abusive police officers. Such a finding that “the 

government itself has participated in the development of mental health care systems” 

cuts against a finding of government acquiescence in torture. Jama, 990 F.3d 

at 1119. And nothing in the record before us compels a different result.

In sum, we find that substantial evidence supports the IJ and BIA’s conclusion 

that Escobar failed to show that he would more likely than not be subject to torture 

in Honduras. Thus, we must affirm the BIA’s denial of Escobar’s CAT claim.

III. 

For the foregoing reasons, we deny the petition for review.

______________________________