Eduardo Escobar v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 22-1249
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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
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Submitted: October 18, 2022
Filed: December 15, 2022
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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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

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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 felon-
in-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

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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

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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.

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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

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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).

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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)).

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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

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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).

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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

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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.
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