FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSUE UMANA-ESCOBAR, 

Petitioner,

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70964 

Agency No.

A205-474-027 

ORDER AND 

AMENDED 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted January 11, 2023

Pasadena, California

Filed March 17, 2023

Amended May 23, 2023

Before: Paul J. Watford, Michelle T. Friedland, and Mark 

J. Bennett, Circuit Judges.

Order;

Opinion by Judge Bennett
2 UMANA-ESCOBAR V. GARLAND

SUMMARY*

Immigration 

The panel filed: 1) an order withdrawing the opinion 

filed March 17, 2023, and reported at 62 F.4th 1223 (9th Cir. 

2023), replacing that opinion with a concurrently filed 

amended opinion and, with these amendments, denying the 

government’s motion to amend; and 2) an amended opinion 

denying in part and granting in part Josue Umana-Escobar’s 

petition for review of a decision of the Board of Immigration 

Appeals, and remanding. 

In the amended opinion, the panel: (1) denied the petition 

as to Umana-Escobar’s unexhausted argument that the 

omission of required time and place information in his 

Notice to Appear (“NTA”) amounted to a claim-processing 

error; (2) remanded Umana-Escobar’s administrative 

closure claim for further consideration in light of intervening 

precedent; and (3) remanded Umana-Escobar’s asylum and 

withholding claims because the BIA erroneously reviewed 

the immigration judge’s nexus determination for clear error, 

rather than de novo. 

Before the agency, Umana-Escobar argued that because 

his NTA omitted required time and place information the IJ 

lacked jurisdiction. Before this court, however, UmanaEscobar raised a different argument, contending the BIA 

should have terminated his proceedings because the 

defective NTA amounted to a claim-processing 

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

been prepared by court staff for the convenience of the reader.
UMANA-ESCOBAR V. GARLAND 3

violation. The panel observed that in his counseled brief on 

appeal to the BIA, Umana-Escobar argued exclusively that 

an NTA that lacks either the time or place of a removal 

proceeding cannot vest an immigration court with 

jurisdiction. Umana-Escobar also told the BIA that it did not 

have to consider whether his claim had been waived because 

“jurisdiction cannot be waived.” The panel wrote that it was 

therefore clear that Umana-Escobar’s NTA argument 

sounded exclusively in jurisdiction and that the BIA thus had 

no reason to consider whether the NTA’s defects could 

constitute some other type of violation which might be 

subject to waiver, such as a claim-processing 

violation. Because the panel agreed with the government 

that Umana-Escobar failed to exhaust the alleged claimprocessing violation as required under 8 U.S.C. 

§ 1252(d)(1), the panel denied this portion of the petition. In 

doing so, the panel cited the Supreme Court’s recent opinion 

in Santos-Zacaria v. Garland, 598 U.S. ----, 2023 WL 

3356525 (2023), which held that 8 U.S.C. § 1252(d)(1)’s 

exhaustion requirement is a claim-processing rule.

The BIA denied Umana-Escobar administrative closure 

after concluding that it had no authority to grant such relief 

under Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 

2018). However, while this petition was pending, the 

Attorney General issued Matter of Cruz-Valdez, 28 I. & N. 

Dec. 326 (A.G. 2021), which overruled Matter of CastroTum and reinstated the BIA’s authority to grant 

administrative closure pending the Department of Justice’s 

review of a regulation concerning the issue. Given this 

change, the panel agreed with the government’s unopposed 

recommendation to remand the administrative closure issue 

to the BIA for further consideration.
4 UMANA-ESCOBAR V. GARLAND

The BIA upheld the immigration judge’s denial of 

asylum and withholding of removal solely based on UmanaEscobar’s failure to establish the required nexus between a 

protected ground and past or future harm. Umana-Escobar 

first argued that the IJ applied the wrong nexus standard to 

his withholding of removal claim because, rather than 

determine whether a protected ground was a reason for the 

harm, the IJ stated that the evidence was insufficient to show 

that family was the reason for any threats. The panel 

rejected Umana-Escobar’s contention, concluding that the 

IJ’s allegedly problematic statement, when read in context 

with other statements in the decision, demonstrated that the 

IJ knew and applied the correct a reason nexus standard to 

the withholding of removal claim.

Umana-Escobar additionally argued that the BIA erred 

by reviewing the IJ’s nexus determination for clear error, 

rather than de novo. The panel agreed. The panel explained 

that in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), 

the BIA stated that the nexus determination was a legal 

determination subject to de novo review. As support for its 

statement, Matter of S-E-G-cited among other authorities: 

(1) 8 C.F.R. § 1003.1(d)(3), the regulation setting forth the 

BIA’s standards for reviewing an IJ’s decision, and (2) the 

Department of Justice’s commentary on the regulation, 

which discusses the interplay between the clearly erroneous 

standard of review applicable to an IJ’s factual findings and 

the BIA’s de novo authority. The DOJ Guidance explains 

that the nexus determination is not a factual determination 

subject to clear error review. Thus, the panel explained that 

the BIA reviews the IJ’s underlying factual findings, such as 

what a persecutor’s motive may be, for clear error. But the 

BIA must review de novo whether a persecutor’s motives 

meet the nexus legal standards, i.e., whether a protected 
UMANA-ESCOBAR V. GARLAND 5 

ground was “one central reason” (for asylum) or “a reason” 

(for withholding of removal) for the past or feared harm. 

Here, the BIA stated: “[T]here is no clear error in the 

Immigration Judge’s determination that [Umana-Escobar] 

did not establish the requisite nexus between a protected 

ground . . . and the harm he fears in El Salvador.” The panel 

found significant that the BIA expressly conflated the clear 

error standard with its review of the IJ’s nexus 

determination. The panel explained that while this statement 

from the BIA must be read in context, there was insufficient 

indication from the rest of the BIA decision that the BIA’s 

clear error review pertained to the IJ’s factual determinations 

relating to the lack of persecutory motive, as opposed to the 

ultimate nexus determination. Thus, the panel remanded 

Umana-Escobar’s asylum and withholding of removal 

claims for application of the proper standard. 

Finally, the panel concluded that substantial evidence 

supported the agency’s determination that Umana-Escobar 

failed to establish the requisite government involvement, or 

government acquiescence to, any torture. 

COUNSEL

Sabrina R. Damast (argued) and Jose Medrano, Law Office 

of Sabrina Damast Inc., Los Angeles, California; for 

Petitioner.

Krishana Patel (argued), Trial Attorney; Brett F. Kinney, 

Attorney; Emily A. Radford and Holly M. Smith, Assistant 

Directors; Brian M. Boynton, Principal Deputy Assistant 

Attorney General; Joseph H. Hunt, Assistant Attorney 

General; Office of Immigration Litigation, Civil Division, 
6 UMANA-ESCOBAR V. GARLAND

United States Department of Justice, Washington, D.C.; for 

Respondent. 

ORDER

The Opinion filed March 17, 2023, and reported at 62 

F.4th 1223 (9th Cir. 2023), is withdrawn and replaced by the 

Amended Opinion filed concurrently with this order. 

With these amendments, the panel votes to deny the 

government’s motion to amend the opinion. Dkt. 69. 

The mandate shall issue forthwith.

OPINION

BENNETT, Circuit Judge: 

Josue Umana-Escobar petitions for review of the Board 

of Immigration Appeals (“BIA”) order upholding the 

immigration judge’s (“IJ”) denial of asylum, withholding of 

removal, and protection under the Convention Against 

Torture (“CAT”). He also challenges the BIA’s 

determinations that defects in the Notice to Appear (“NTA”) 

did not require termination of his proceedings and that the 

BIA lacked authority to administratively close his case. 

We have jurisdiction under 8 U.S.C. § 1252. We deny 

the petition as to the defective NTA claim and the CAT 

claim. We grant the petition and remand as to the 

administrative closure issue, given the government’s 
UMANA-ESCOBAR V. GARLAND 7

recommendation that we should do so based on an 

intervening decision by the Attorney General. We also grant 

the petition and remand as to the asylum and withholding of 

removal claims because the BIA applied the wrong standard 

in reviewing the IJ’s determination that the evidence failed 

to establish the requisite nexus between a protected ground 

and past or future harm.

I

A

Umana-Escobar, a native and citizen of El Salvador, 

unlawfully entered the United States in May 2012. 

Following a credible fear interview, in which an asylum 

officer determined that Umana-Escobar had demonstrated 

credible fear, the Department of Homeland Security 

(“DHS”) initiated removal proceedings against him. DHS 

served Umana-Escobar with an NTA, charging him as 

removable for being present in the United States without 

being admitted or paroled by an immigration officer. The 

NTA ordered Umana-Escobar to appear before an IJ at a date 

and time “to be determined.”

Subsequently, the immigration court sent UmanaEscobar a Notice of Hearing, scheduling his hearing for 

January 23, 2013. He appeared at the hearing, and the IJ 

continued his case so that he could obtain counsel. The next 

hearing occurred on June 28, 2013. At that hearing, UmanaEscobar, represented by counsel, admitted to the allegations 

in the NTA and conceded removability. He also conceded 

that he had been properly served with the NTA, and he made 

no argument that his case should be terminated based on a 

defective NTA. From 2013 to 2017, Umana-Escobar 

appeared at multiple hearings until his merits hearing, which 

was held on July 28, 2017. He never objected to the 
8 UMANA-ESCOBAR V. GARLAND

omission of date and time information from his NTA during 

his proceedings before the IJ.

Before the IJ, Umana-Escobar sought CAT relief as well 

as asylum and withholding of removal on account of an 

imputed political opinion and membership in two particular 

social groups: “immediate relatives of his father” and 

“children of civil servants.” His claims were based on the 

February 2009 murder of his father; the January 2011 

attempted murder of his brother, Carlos Alonso UmanaEscobar (“Carlos”); and a threat against his family, which 

was made shortly after the attack on Carlos.

Umana-Escobar’s father was a municipal councilman; 

he also owned a jewelry business. Carlos operated the 

family’s jewelry business. Around January 2009, people 

with masks robbed the business and threatened Carlos. One 

month later, in February 2009, gang members shot and killed 

Umana-Escobar’s father. The police arrested three people 

for the murder—all three were prosecuted and incarcerated. 

Umana-Escobar testified before the IJ that, according to the 

investigation, the town mayor ordered his father’s killing.1 

His father and the mayor belonged to the same political 

party. According to Umana-Escobar, shortly before his 

father was shot, a woman told him that “a gang member was 

going to hurt [his] father as ordered by the [mayor],” and that 

“[a]pparently the [mayor] . . . was no longer on good terms 

with [his] father.” But Umana-Escobar admitted that he did 

not know why the mayor would want his father dead or why 

they were no longer on good terms. And although the mayor 

and his father disagreed over a project, Umana-Escobar 

1 Umana-Escobar provided no details about how he knew the 

investigation implicated the mayor.
UMANA-ESCOBAR V. GARLAND 9

testified that he did not know if his father’s death was due to 

that disagreement.

About two years after his father’s death, in January 2011, 

gang members shot at Carlos while he was driving to work. 

Umana-Escobar claimed that the gang members thought that 

he, his mom, and his nephew were also inside the vehicle. 

Umana-Escobar believed that the gang behind Carlos’s 

attack was the same gang that killed his father. UmanaEscobar initially testified before the IJ that the shooting 

could have been an attempted robbery, but later testified that 

the shooters wanted to kill Carlos rather than rob him. The 

police investigated the shooting. But other than a threat 

against the family (discussed below), Carlos did not disclose 

any details related to the investigation. Carlos decided to sell 

the jewelry business after the shooting.

Umana-Escobar testified before the IJ that, while Carlos 

was recovering in the hospital, “somebody called [his] 

mother, and they told her that they wanted to kill us all.” 

Carlos also told him that the detectives reiterated that the 

gang wanted to kill their family. But Umana-Escobar did 

not know how the detectives obtained that information, nor 

did he know the conclusions of the police investigation.

Carlos told Umana-Escobar to leave the country, and 

Umana-Escobar left El Salvador around March 2012. He 

had never been harmed in El Salvador. And the only threat 

against him was the one communicated to his mother around 

January 2011, after the attack on Carlos. Carlos and UmanaEscobar’s mother are still living in El Salvador, although in 

hiding, and Umana-Escobar does not dispute the IJ’s finding 

that they have faced no further threats in El Salvador.
10 UMANA-ESCOBAR V. GARLAND

B

The IJ found Umana-Escobar credible but denied all 

relief. Umana-Escobar appealed to the BIA, challenging the 

IJ’s denial of relief. He also moved to terminate the 

proceedings, arguing that the IJ lacked jurisdiction because 

the NTA omitted the required date and time information. He 

also requested administrative closure so that he could seek a 

waiver of his unlawful presence from the U.S. Citizenship 

and Immigration Services. See 8 C.F.R. § 212.7(e)(4)(iii) 

(an alien is ineligible for a provisional unlawful presence 

waiver if “[t]he alien is in removal proceedings, in which no 

final order has been entered, unless the removal proceedings 

are administratively closed” (emphasis added)). 

The BIA dismissed the appeal. It rejected the 

jurisdictional argument based on the defective NTA because 

the omitted information did not give rise to a jurisdictional 

defect under BIA and Ninth Circuit precedent. The BIA also 

declined to administratively close the case, including 

because it lacked the authority to do so under Matter of 

Castro-Tum, 27 I. & N. Dec. 271, 287 n.9 (A.G. 2018). 

On the merits, the BIA determined that the IJ properly 

denied asylum and withholding of removal because UmanaEscobar failed to establish the required nexus between a 

protected ground and any feared harm: “[T]here [was] no 

clear error in the Immigration Judge’s determination that 

[Umana-Escobar] did not establish the requisite nexus 

between a protected ground in the [Immigration and 

Nationality] Act and the harm he fears in El Salvador.” The 

BIA also affirmed the denial of CAT relief because the 

evidence was insufficient to establish the requisite 

government involvement.
UMANA-ESCOBAR V. GARLAND 11

Umana-Escobar timely petitioned for review of the 

BIA’s decision.

II

We review the BIA’s decision and those parts of the IJ’s 

decision that the BIA expressly adopted. See Garcia v. 

Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). We review 

the BIA’s legal determinations de novo, including whether 

the BIA applied the wrong legal standard. Id. at 1142, 1146. 

We review the BIA’s factual determinations for substantial 

evidence, meaning we may reverse only if the evidence 

compels a conclusion contrary to the BIA’s. Id. at 1142.

III

A

Before the BIA, Umana-Escobar argued that it should 

terminate the proceedings because the NTA omitted required 

information and thus deprived the IJ of jurisdiction. On 

appeal, however, he presents a different justification for his 

argument that his NTA did not include all of the required 

information. He now argues that the BIA should have 

terminated his proceedings because the defective NTA 

amounted to a claim-processing violation. But UmanaEscobar failed to exhaust this alleged claim-processing 

violation. See 8 U.S.C. § 1252(d)(1).

“Exhaustion requires a non-constitutional legal claim to 

the court on appeal to have first been raised in the 

administrative proceedings below, and to have been 

sufficient to put the BIA on notice of what was being 

challenged.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) 

(citation omitted). A petitioner “need not use precise legal 

terminology to exhaust his claim. Nor must he provide a 

well developed argument.” Arsdi v. Holder, 659 F.3d 925, 
12 UMANA-ESCOBAR V. GARLAND

929 (9th Cir. 2011) (citation omitted). “What matters is that 

the BIA was sufficiently on notice so that it ‘had an 

opportunity to pass on th[e] issue.’” Bare, 975 F.3d at 960 

(quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 

2004)).

Umana-Escobar’s counseled BIA brief raised the defects 

in the NTA but made only a jurisdictional argument based 

on such defects, arguing exclusively that an NTA that lacks 

either the time or place of a removal proceeding cannot vest 

an immigration court with jurisdiction. Umana-Escobar also 

told the BIA that it did not have to consider whether his 

claim had been waived because “jurisdiction cannot be 

waived.” It is therefore clear that Umana-Escobar’s NTA 

argument sounded exclusively in jurisdiction and that the 

BIA thus had no reason to consider whether the NTA’s 

defects could constitute some other type of violation which 

might be subject to waiver, such as a claim-processing 

violation. See Fort Bend County, Texas v. Davis, 139 S. Ct. 

1843, 1849 (2019) (“[A]n objection based on a mandatory 

claim-processing rule may be forfeited if the party asserting 

the rule waits too long to raise the point.” (quotation marks 

and citation omitted)). Because we agree with the 

government that Umana-Escobar failed to exhaust the 

alleged claim-processing violation as required under 8 

U.S.C. § 1252(d)(1), we deny this portion of the petition. 

See Santos-Zacaria v. Garland, 598 U.S. ----, 2023 WL 

3356525, at *5 (2023) (holding that 8 U.S.C. § 1252(d)(1) is 

a claim-processing rule); Fort Bend, 139 S. Ct. at 1849 (“A 

claim-processing rule may be ‘mandatory’ in the sense that 

a court must enforce the rule if a party ‘properly raises’ it.” 

(alterations omitted) (quoting Eberhart v. United States, 546 

U.S. 12, 19 (2005) (per curiam))).
UMANA-ESCOBAR V. GARLAND 13

B

Umana-Escobar challenges the BIA’s refusal to 

administratively close his case. The BIA held that it had no 

authority to grant administrative closure under Matter of 

Castro-Tum, 27 I. & N. Dec. at 287 n.9. But while this 

appeal was pending, the Attorney General issued Matter of 

Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 2021), which 

overruled Matter of Castro-Tum and reinstated the BIA’s 

authority to grant administrative closure pending the 

Department of Justice’s review of a regulation concerning 

the issue. Given this change, we agree with the 

government’s unopposed recommendation to remand the 

administrative closure issue to the BIA for further 

consideration.

C

The BIA upheld the IJ’s denial of asylum and 

withholding of removal solely based on Umana-Escobar’s 

failure to establish the required nexus between a protected 

ground and past or future harm. Umana-Escobar challenges 

that determination, arguing that the IJ applied the wrong 

nexus standard to his withholding of removal claim because, 

rather than determine whether a protected ground was a 

reason for the harm, the IJ stated that the evidence was 

insufficient to show that “family was the reason for [the] 

threats.” (emphasis added). 

A nexus between the harm and a protected ground is a 

necessary element of asylum and withholding of removal. 

Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 

2017). But the nexus standards for asylum and withholding 

of removal differ. For asylum, “the protected characteristic 

must be ‘a central reason’ for the past or feared harm.” 

Garcia, 988 F.3d at 1143. “[A] motive is a ‘central reason’ 
14 UMANA-ESCOBAR V. GARLAND

if that motive, standing alone, would have led the persecutor 

to harm the applicant.” Parussimova v. Mukasey, 555 F.3d 

734, 741 (9th Cir. 2009). For withholding of removal, an 

applicant must show only that a “protected ground is ‘a 

reason’ for future persecution.” Garcia, 988 F.3d at 1146 

(quoting Barajas-Romero, 846 F.3d at 359).

Umana-Escobar fails to read the IJ’s allegedly 

problematic statement in context. Just before stating that the 

evidence was insufficient to show that “family was the 

reason for [the] threats,” the IJ stated that he had to 

determine whether a protected ground was “a reason for the 

harm” and that the evidence was insufficient under “this 

broader nexus” standard. Additionally, earlier in his 

decision, the IJ recited the proper nexus standards for asylum 

and withholding of removal, noting that “the nexus for 

withholding has been clarified to be not a central reason, but 

a reason only.” The IJ knew and applied the correct nexus 

standard to the withholding of removal claim. 

D

Umana-Escobar also argues that the BIA should have 

reviewed the IJ’s nexus determination de novo, not for clear 

error. We agree.2 

In Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), the 

BIA stated that the 

2 The government initially argued that the correct standard was clear 

error. But after we ordered supplemental briefing, the government 

conceded that whether a protected ground meets the required nexus 

standard is a legal determination that the BIA is required to review de 

novo.
UMANA-ESCOBAR V. GARLAND 15

nexus determination is a legal determination subject to 

de novo review. Id. at 588 n.5 (“The record before us is 

adequate to allow us to perform de novo review of the legal 

issues presented, specifically, whether the respondents 

established that they were persecuted ‘on account of’ a 

protected ground.”). As support for its statement, the BIA 

cited among other authorities: (1) 8 C.F.R. § 1003.1(d)(3), 

the regulation setting forth the BIA’s standards for reviewing 

an IJ’s decision3; and (2) the Department of Justice’s 

commentary on the regulation, which discusses the interplay 

between the clearly erroneous standard of review applicable 

to an IJ’s factual findings and the BIA’s de novo authority. 

Id. (citing Board of Immigration Appeals: Procedural 

Reforms To Improve Case Management (“DOJ Guidance”), 

67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)).4

3 The regulation provides, in relevant part:

(3) Scope of review.

(i) The Board will not engage in de novo review of 

findings of fact determined by an immigration judge. 

Facts determined by the immigration judge, including 

findings as to the credibility of testimony, shall be 

reviewed only to determine whether the findings of the 

immigration judge are clearly erroneous.

(ii) The Board may review questions of law,

discretion, and judgment and all other issuesin appeals

from decisions of immigration judges de novo.

8 C.F.R. § 1003.1(d)(3)(i)–(ii).

4 In Matter of S-E-G-, 24 I. & N. Dec. at 588 n.5, the BIA also cited 

Matter of V-K-, 24 I. & N. Dec. 500 (BIA 2008), and Matter of A-S-B-, 

24 I. & N. Dec. 493 (BIA 2008). Those cases have been overruled only 

to the extent that they held that “predictive findings of what may or may 

not occur in the future” are not factual findings. Matter of Z-Z-O-, 26 I. 
16 UMANA-ESCOBAR V. GARLAND

The DOJ Guidance explains that the nexus determination 

is not a factual determination subject to clear error review: 

The immigration judge’s determination of 

“what happened” to the individual is a factual 

determination that will be reviewed under the 

clearly erroneous standard. The immigration 

judge’s determinations of whether these facts 

demonstrate harm that rises to the level of 

“persecution,” and whether the harm inflicted 

was “on account of” a protected ground, are 

questions that will not be limited by the 

“clearly erroneous” standard.

DOJ Guidance, 67 Fed. Reg. at 54,890. 

Thus, the BIA reviews the IJ’s underlying factual 

findings, such as what a persecutor’s motive may be, for 

clear error. See, e.g., Matter of N-M-, 25 I. & N. Dec. 526, 

532 (BIA 2011) (“A persecutor’s actual motive is a matter 

of fact to be determined by the Immigration Judge and 

reviewed by [the BIA] for clear error.”). But the BIA must 

review de novo whether a persecutor’s motives meet the 

nexus legal standards, i.e., whether a protected ground was 

“one central reason” (for asylum) or “a reason” (for 

withholding of removal) for the past or feared harm. Garcia, 

988 F.3d at 1146 (quoting 8 U.S.C. § 1158(b)(1)(B)(i) and 

Barajas-Romero, 846 F.3d at 359).

Here, the BIA stated that it reviewed the IJ’s nexus 

determination for clear error: “[T]here is no clear error in the 

& N. Dec. 586, 590 (BIA 2015). Thus, Matter of V-K- and Matter of AS-B- remain good law for the proposition that the IJ’s nexus 

determination is a legal question subject to de novo review by the BIA.
UMANA-ESCOBAR V. GARLAND 17

Immigration Judge’s determination that [Umana-Escobar] 

did not establish the requisite nexus between a protected 

ground . . . and the harm he fears in El Salvador.” We find 

significant that the BIA expressly conflated the clear error 

standard with its review of the IJ’s nexus 

determination. And while this statement from the BIA must 

be read in context, here, there is insufficient indication from 

the rest of the BIA decision that the BIA’s clear error review 

pertained to the IJ’s factual determinations relating to the 

lack of persecutory motive, as opposed to the ultimate nexus 

determination.5 Thus, we remand the asylum and 

withholding of removal claims so that the BIA can apply the 

proper standard. See Ridore v. Holder, 696 F.3d 907, 909 

(9th Cir. 2012) (remanding to the BIA when it applied the 

wrong legal standard under the agency’s regulations); 

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 

2006) (“[W]here the BIA applies the wrong legal standard to 

an applicant’s claim, the appropriate relief from this court is 

remand for reconsideration under the correct standard, not 

independent review of the evidence.”). In reviewing the IJ’s 

nexus determination de novo, the BIA should consider 

whether the IJ improperly disregarded Umana-Escobar’s 

testimony that his family members were in hiding and 

5 The government’s supplemental brief argues that the BIA applied the 

correct standard of review because a persecutor’s motive is reviewed for 

clear error and the BIA limited its clear error review to the IJ’s factual 

determination that there was no evidence about what motive drove 

Umana-Escobar’s persecutors. The government’s argument is 

unpersuasive because it fails to reconcile its position with the BIA’s 

express statement that it applied clear error review to the nexus 

determination more broadly. Moreover, the government argued in its 

answering brief that the BIA had properly reviewed the nexus 

determination for clear error. And the government maintained that 

position at oral argument. Oral Arg. at 12:11–13:32.
18 UMANA-ESCOBAR V. GARLAND

whether considering that changes the likelihood that he 

would be persecuted if returned to El Salvador. See Akosung 

v. Barr, 970 F.3d 1095, 1105 (9th Cir. 2020).

E

Umana-Escobar argues that the BIA erred in denying 

CAT relief. For CAT relief, an applicant must prove “that it 

is more likely than not that he or she would be tortured if 

removed to the proposed country of removal.” 8 C.F.R. 

§ 1208.16(c)(2). The applicant must also prove that the 

torture would be “inflicted by, or at the instigation of, or with 

the consent or acquiescence of, a public official acting in an 

official capacity or other person acting in an official 

capacity.” 8 C.F.R. § 1208.18(a)(1). Acquiescence occurs 

when “‘prior to the activity constituting torture,’ the 

officials: (1) have awareness of the activity (or consciously 

close their eyes to the fact it is going on); and (2) breach their 

legal responsibility to intervene to prevent the activity 

because they are unable or unwilling to oppose it.” GarciaMilian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) 

(quoting Ornelas-Chavez, 458 F.3d at 1059).

The BIA denied CAT relief because the evidence failed 

to prove the required government involvement. The BIA’s 

determination is supported by substantial evidence. See id.

at 1031. The record supports that the El Salvadoran 

government would not acquiesce in torture against UmanaEscobar. The authorities investigated his father’s murder 

and prosecuted three men. The men were convicted and 

sentenced to prison. Authorities also investigated the attack 

on Carlos. Umana-Escobar points to a news article 

supporting that many authorities collude with criminals. But 

given the evidence supporting that the government would 

not acquiesce in torture against him, this article does not 
UMANA-ESCOBAR V. GARLAND 19

compel the conclusion that the government would acquiesce 

in torture against him. See id. at 1034.

The record also supports that there was insufficient 

evidence to show that any torture would be inflicted by or at 

the instigation of or with the consent of a government 

official. Although Umana-Escobar testified that he was told 

that the mayor was involved in his father’s murder, he never 

claimed that the mayor participated in the attack on Carlos 

or the threat against his family. Nor did he offer any 

evidence to support that the mayor had a motive to harm him. 

Given the lack of evidence showing that the mayor had any 

desire to harm Umana-Escobar, the BIA reasonably 

concluded that he did not show the requisite government 

involvement for CAT relief.

IV

We grant the petition and remand as to the administrative 

closure issue and the asylum and withholding of removal 

claims. We deny the petition as to the alleged claimprocessing violation based on the defective NTA and the 

CAT claim.

PETITION GRANTED IN PART, DENIED IN 

PART, and REMANDED.6

6 The parties shall bear their own costs on appeal.