In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 18-1511 & 18-3196 

RAFAEL GIOVANNI HERRERA-GARCIA, 

Petitioner, 

v.

WILLIAM P. BARR, 

Attorney General of the United States, 

Respondent. 

____________________ 

Petitions for Review of Decisions of 

the Board of Immigration Appeals. 

No. A074-211-058 

____________________ 

ARGUED SEPTEMBER 25, 2018 — DECIDED MARCH 18, 2019 

____________________ 

Before KANNE, ROVNER, and BARRETT, Circuit Judges. 

BARRETT, Circuit Judge. Rafael Giovanni Herrera-Garcia 

seeks to avoid removal to El Salvador because he says that he 

will be tortured by gangs or corrupt government authorities 

if he is forced to return there. An immigration judge found 

that Herrera-Garcia had not shown that he, specifically, 

would be in danger and denied his request for relief. The 

judge also concluded that Herrera-Garcia had not established 
2 Nos. 18-1511 & 18-3196 

that the government would have inflicted or allowed the 

alleged torture. The Board adopted and affirmed that 

decision. 

Because the administrative decisions are supported by 

substantial evidence in the record, we deny Herrera-Garcia’s 

petition for review of these decisions. We also reject his 

second petition for review on the denial of his motion for 

reconsideration because we agree with the Board that it was 

untimely. 

I. 

Herrera-Garcia is a native and citizen of El Salvador. He 

entered the United States illegally in 1990 and has remained 

here for the past twenty-seven years. In 2016, the Department 

of Homeland Security initiated removal proceedings against 

him under 8 U.S.C. § 1229a.1 It alleged that he was removable 

as an alien because he was (1) convicted of a crime of moral 

turpitude and (2) present in the United States without being 

admitted or paroled. In his removal proceedings before the 

immigration judge (IJ), Herrera-Garcia denied both claims 

and argued that he qualified for asylum, withholding of 

removal, and relief under the Convention Against Torture 

(CAT). 

Herrera-Garcia’s argument for withholding centered on 

his time growing up in El Salvador. He testified that when he 

was nine years old, guerrillas stopped him and his friends to 

get information about people in his neighborhood who might 

be working for the military—because at that time, the 

 1 Herrera-Garcia had previously been in removal proceedings that are 

not relevant to this appeal. 
Nos. 18-1511 & 18-3196 3

guerillas and the El Salvadoran government were fighting a 

civil war. Herrera-Garcia said that the guerrillas continued to 

stop by every three weeks or so to ask similar questions. He 

admitted, however, that he never saw any of the guerillas 

with guns. He also said that during one encounter, the 

guerrillas stopped him and a few friends and forced his 

friend, Franklin, to smoke marijuana. He claimed that 

although he escaped from the guerillas, they kidnapped 

Franklin. 

Herrera-Garcia also testified that several of his friends 

were forced to join the military. He explained that he didn’t 

want to be involved in the violence between the military and 

the guerillas. Ultimately, out of fear of both the military and 

the guerillas, he fled to the United States in 1990 and has 

remained here illegally since then. 

Herrera-Garcia testified that his fear of living in El 

Salvador is worse today than it was twenty-seven years ago 

because of the growing number of gangs and kidnappings 

there. His parents also testified about the current state of gang 

violence in the country. They said that they worry about El 

Salvadoran gangs kidnapping him for ransom given his 

American accent—because the gangs believe that Americans 

are wealthy. 

The IJ found Herrera-Garcia removable and denied his 

applications for asylum, withholding of removal, and relief 

under CAT. On his CAT claim, the IJ held that Herrera-Garcia 

had failed to show that it was more likely than not that he 

would be tortured if he returned to El Salvador. The IJ also 

found “entirely speculative” his claims that he would be 

tortured by gangs. Lastly, the IJ concluded that HerreraGarcia had failed to provide sufficient evidence that the El 
4 Nos. 18-1511 & 18-3196 

Salvadoran government would participate or acquiesce in the 

alleged torture. 

Herrera-Garcia appealed to the Board of Immigration 

Appeals, which adopted and affirmed the IJ’s decision. 

Herrera-Garcia’s petition for review makes only one 

argument: he claims that he is entitled to relief under CAT. 

Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty 

Doc. No. 100-20 (1990), 1465 U.N.T.S. 85. 

While his petition was pending before us, he filed a 

motion to reconsider with the Board, asserting that a new 

Supreme Court decision, Pereira v. Sessions, 138 S. Ct. 2105 

(2018), affected his case. Pereira held that a notice to appear 

that fails to specify the time or place of a removal hearing does 

not trigger the “stop-time rule” for purposes of cancellation 

of removal. 138 S. Ct. at 2115. Herrera-Garcia argued that 

Pereira should be extended outside the context of the stoptime rule to preclude the agency’s jurisdiction over his 

proceedings. The Board denied his motion, concluding that it 

was both untimely and, in any event, failed on the merits. 

Because he also filed a petition for review from that order, we 

consolidated the two petitions but concluded that oral 

argument was unnecessary for the second. See Khan v. Holder, 

766 F.3d 689, 695 (7th Cir. 2014); FED. R. APP. P. 34(a)(2)(C). 

II. 

When the Board adopts and supplements an IJ’s decision, 

we review the IJ’s decision as well as any additional reasoning 

provided by the Board. Ndonyi v. Mukasey, 541 F.3d 702, 709 

(7th Cir. 2008). We consider the decisions “under the 

deferential substantial evidence standard, meaning that we 
Nos. 18-1511 & 18-3196 5

may only reverse their factual findings if the facts compel an 

opposite conclusion.” Minghai Tian v. Holder, 745 F.3d 822, 828 

(7th Cir. 2014). 

To qualify for relief under CAT, an alien must prove that 

he would more likely than not be tortured if removed. 8 C.F.R. 

§ 1208.16(c)(2); see Perez-Montes v. Sessions, 880 F.3d 849, 850 

(7th Cir. 2018). Torture is defined as the intentional infliction 

of “‘severe pain or suffering’ for the purpose of coercion, 

punishment, or discrimination.” Borovsky v. Holder, 612 F.3d 

917, 923 (7th Cir. 2010) (citing § 1208.18(a)(1)). We consider 

several factors in assessing possible future torture: “evidence 

of past torture; evidence that the applicant could relocate to a 

different part of [his] home country; evidence of ‘gross, 

flagrant or mass violations of human rights within the 

country of removal’; and other relevant country conditions.” 

Tchemkou v. Gonzales, 495 F.3d 785, 795 (7th Cir. 2007) (citing 8 

C.F.R. § 208.16(c)(3)(i)–(iv)). To receive protection under CAT, 

an alien must also prove that he would be tortured by the 

government or with its acquiescence. Jabateh v. Lynch, 845 F.3d 

332, 342 (7th Cir. 2017). We agree with both the Board and the 

IJ that Herrera-Garcia failed to meet this standard. 

For one, as the IJ pointed out, Herrera-Garcia provided no 

evidence of past torture or persecution. See 8 C.F.R. 

§ 1208.16(c)(3)(i). Though his interactions with guerillas when 

he was a child may have been stressful, they do not rise to the 

level of “severe pain or suffering.” 

More importantly, we agree with the IJ that HerreraGarcia’s allegation of future torture is too speculative. He 

argues that he fears both corrupt government authorities and 

the growing number of gangs in El Salvador. But this has 

nothing to do with his experience in El Salvador over twenty-
6 Nos. 18-1511 & 18-3196 

seven years ago. His argument instead focuses on a general 

fear of violence that any person moving to El Salvador might 

have. And as we have said before, “[e]vidence of generalized 

violence is not enough”; there must be “a substantial risk that 

the petitioner will be targeted specifically.” Bernard v. Sessions, 

881 F.3d 1042, 1047 (7th Cir. 2018) (emphasis added); see 

Ramos-Braga v. Sessions, 900 F.3d 871, 882 (7th Cir. 2018) 

(explaining that “fear of generalized violence is insufficient to 

establish that [the petitioner] in particular is more likely than 

not to be tortured”); Rashiah v. Ashcroft, 388 F.3d 1126, 1133 

(7th Cir. 2004). 

Herrera-Garcia does claim that gangs will target him 

because of his American accent. And although there is some 

evidence in the record showing that gangs have extorted 

Americans, we agree with the IJ that this allegation is again 

too speculative. There is insufficient evidence to show that it 

is likely that Herrera-Garcia specifically will be extorted or that 

any extortion would rise to the level of torture. See AR at 422, 

441, 460, 501. And as the IJ also pointed out, no one in HerreraGarcia’s extended family has been harmed while living in El 

Salvador. Nor have his parents, who are American citizens, 

been harmed on any of their regular trips there. 

Finally, Herrera-Garcia fails to tie his claims of future 

torture to government action. To receive relief under CAT, the 

government must inflict or acquiesce in the torture. 8 C.F.R 

§ 1208.18(a)(1); id. § 1208.18(a)(8) (“Acquiescence of a public 

official requires that the public official, prior to the activity 

constituting torture, have awareness of such activity and 

thereafter breach his or her legal responsibility to intervene to 

prevent such activity.”) The IJ emphasized that the El 

Salvadoran government recently put in place “extraordinary 
Nos. 18-1511 & 18-3196 7

measures” to thwart the rising gang violence, including 

focusing “on moving gang members to maximum security 

prisons, putting up cell phone signal blockers around the 

prisons, and conducting coordinated law enforcement 

operations.” Although not dispositive of a lack of government 

acquiescence, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 

1139 (7th Cir. 2015), these efforts contradict Herrera-Garcia’s 

claim that the El Salvadoran government is generally 

complicit with the ongoing gang violence. And HerreraGarcia hasn’t provided any other evidence—besides broad 

allegations that “gangs operate with impunity throughout El 

Salvador”—that would indicate that it is likely that the 

government would acquiesce in Herrera-Garcia’s torture. Cf. 

id. at 1138–39 (finding acquiescence when petitioner provided 

evidence that he had been previously tortured by Mexican 

police). 

In short, Herrera-Garcia fails to prove that if he returned 

to El Salvador (1) he would be specifically targeted by gangs 

or the military or (2) that the government would acquiesce in 

any torture. There is thus substantial evidence to support the 

IJ’s and Board’s decisions, and so we deny Herrera-Garcia’s 

petition. 

III. 

Herrera-Garcia contends in his second petition that the 

Board erred in denying his motion for reconsideration. We 

review the Board’s decision under the deferential abuse of 

discretion standard and “will uphold the BIA’s decision 

unless it ‘was made without a rational explanation, 

inexplicably departed from established policies, or rested on 

an impermissible basis such as invidious discrimination 

against a particular race or group.’” Khan, 766 F.3d at 696 
8 Nos. 18-1511 & 18-3196 

(citation omitted). We agree with the Board that HerreraGarcia’s motion was untimely because it was filed over four 

months after the due date. See 8 C.F.R. 1003.2(b)(2) (stating 

that motions to reconsider a Board decision must be filed 

within 30 days of that decision). 

And Herrera-Garcia has not established that equitable 

tolling excused this failure. See Holland v. Florida, 560 U.S. 631, 

649 (2010) (explaining that to prove equitable tolling, one 

must show diligence and extraordinary circumstances). He 

has provided no evidence that he acted diligently in 

preserving his rights over the initial 30 days or the fourmonths after. See El-Gazawy v. Holder, 690 F.3d 852, 860 (7th 

Cir. 2012) (“In light of his failure to offer any support for his 

claim that he acted diligently to preserve his rights during 

that time, we cannot say that the BIA abused its discretion in 

finding that [the petitioner] failed to meet the standard for 

due diligence.”). Nor has he shown that extraordinary 

circumstances prevented him from filing. He implies that he 

was prevented from filing as long as Pereira v. Sessions, 138 S. 

Ct. 2105 (2018), remained pending. But Herrera-Garcia 

ignores the fact that he could have raised the issue under 

consideration in Pereira with the IJ or the Board earlier or at 

least requested a stay until the case was decided. Cf. Gonzalez 

v. Crosby, 545 U.S. 524, 536 (2005) (“It is hardly extraordinary 

that subsequently, after petitioner’s case was no longer 

pending, this Court arrived at a different interpretation.”). 

In sum, we do not think that the Board abused its 

discretion in concluding that Herrera-Garcia’s motion was 

untimely and that no exception applied. 
Nos. 18-1511 & 18-3196 9

* * * 

We DENY both petitions for review.