United States Court of Appeals For the First Circuit

No. 11-1481

NESTOR ARAMIZ PEREZ-TRUJILLO,

Petitioner,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Respondent.

No. 17-1586

NESTOR ARAMIZ PEREZ-TRUJILLO,

Petitioner,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General Eric H. Holder, Jr. * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General Jefferson B. Sessions III. Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Gregory Romanovsky and SangYeob Kim, with whom Gilles Bissonnette, Romanovsky Law Offices, and American Civil Liberties Union of New Hampshire were on brief, for petitioner. Jonathan Robbins, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. Nancy Kelly and John Willshire-Carrera on brief for Greater Boston Legal Services, amicus curiae. Deirdre M. Giblin on brief for Massachusetts Law Reform Institute, amicus curiae.

June 28, 2021 BARRON, Circuit Judge. At issue are Nestor Perez-

Trujillo's petitions for review of two decisions by the Board of

Immigration Appeals ("BIA"): its 2011 ruling affirming the denial

of his application for asylum, withholding of removal, and

protection under the Convention Against Torture ("CAT"); and its

2017 ruling reversing the grant of his application for adjustment

of status. We deny his 2011 petition and grant his 2017 petition.

I.

Perez-Trujillo is a native of El Salvador who came to

the United States on May 17, 2007, when he was thirteen years old.

He was apprehended close to the U.S. border by immigration

authorities and, on May 19, 2007, was issued a Notice to Appear

for removal proceedings.

Perez-Trujillo timely filed on May 6 of the following

year an application for asylum,

,1 and requested

1"The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee . . . ."

(b)(1)(A). A "refugee" for these purposes is defined as "any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

§ 1101(a)(42)(A).

- 3 - withholding of removal, id. § 1231(b)(3),2 and relief from removal

under the CAT, as implemented by

-.18. Perez-

Trujillo indicated in doing so that he sought asylum and

withholding of removal on the grounds of "political opinion" and

"membership in a particular social group."

(a)(42)(A);

§ 1231(b)(3)(A).

Testifying at his removal proceedings in Boston,

Massachusetts, on April 16, 2009, Perez-Trujillo stated, among

other things, that he had endured several violent encounters in El

Salvador with members of the gang MS-13. He testified that gang

members had, through violent beatings, forced him to join their

ranks; that, when he resisted their orders, gang members responded

with further violence; that gang members came looking for him after

they heard he had spoken to the police; and that, as he made plans

to leave the country and even after he came to the United States,

gang members continued to search for him. He also testified that

he feared that he would be killed by members of the gang if he

returned to El Salvador. To further support his arguments in

support of asylum, withholding of removal, and protection under

2 Subject to exceptions not relevant here, "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."

(b)(3)(A).

- 4 - the CAT, Perez-Trujillo also submitted a number of reports and

articles concerning conditions in El Salvador.

The immigration judge ordered Perez-Trujillo's removal

after denying his application for asylum as well as his request

for withholding of removal and protection under the CAT. Perez-

Trujillo appealed that ruling to the BIA, and the BIA upheld the

order of removal in April 2011. Perez-Trujillo thereafter filed

a petition for review from that decision in this Court. We heard

oral argument in September 2012.

While Perez-Trujillo was challenging his removal on the

grounds just described, he also filed a petition for a "special

immigrant" visa. See

(a)(27)(J), 1153(b)(4).3

Such a visa makes one eligible to apply for adjustment of status

-- a process through which the Attorney General may make a

discretionary determination to adjust a noncitizen's status to

that of a lawfully admitted permanent resident.

§ 1255(a),

(h).

The Immigration and Nationality Act provides that the term 3

"special immigrant" includes one who, among other things, "has been declared dependent on a juvenile court located in the United States . . . and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law" and "for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence."

(a)(27)(J)(i)-(ii). "Certain special immigrants" are eligible for a particular pool of visas. See

§ 1153(b)(4).

- 5 - Following oral argument in our Court on Perez-Trujillo's

2011 petition and while it was still pending with us, the U.S.

Department of Homeland Security ("DHS") granted Perez-Trujillo's

application for a special immigrant visa on October 1, 2012.

Accordingly, on November 1, 2013, we remanded his 2011 petition to

the BIA, while retaining jurisdiction over it, so that Perez-

Trujillo could seek adjustment of status or administrative

closure.

On March 23, 2016, a new immigration judge granted Perez-

Trujillo's application for adjustment of status, finding that,

after balancing "all of the negative and positive factors" in his

case, "the scale tip[ped] in [his] favor." The government then

appealed that ruling to the BIA, which reversed it on May 12, 2017.

The BIA concluded that Perez-Trujillo had "not shown sufficient

equities to overcome his criminal history." Perez-Trujillo filed

a petition for review of the BIA's ruling in our Court on June 6,

2017.

Several years later, on May 6, 2020, new counsel was

appointed to represent Perez-Trujillo on a pro bono basis. We

consolidated the 2011 and 2017 petitions and ordered supplemental

briefing on the issues presented in both. Before us now, then,

are both the 2011 petition for review, which concerns the BIA's

ruling affirming the denial of Perez-Trujillo's applications for

asylum, withholding of removal, and CAT relief; and the 2017

- 6 - petition for review, which concerns the BIA's reversal of the

ruling granting his application for adjustment of status. We

address each of these petitions for review in turn.

II.

With respect to Perez-Trujillo's 2011 petition for

review, we first consider his challenge to the BIA's affirmance of

the immigration judge's denial of his asylum and withholding of

removal claims. We then take up his challenge in that petition

for review to the BIA's affirmance of the immigration judge's

denial of his CAT claim. As we will explain, we find that there

is no merit to any of these challenges.

A.

To be eligible for asylum, Perez-Trujillo "must show

that [he] is unwilling or unable to return to [his] country because

of 'persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion.'" Pojoy-De León v. Barr,

(1st Cir. 2020) (quoting Diaz Ortiz v. Barr,

(1st Cir. 2020)). Perez-Trujillo initially applied for asylum

based on both "political opinion" and "membership in a particular

social group." See

(a)(42)(A), 1158(b)(1)(A).

Before us, however, he pursues the "particular social group" claim

only, and so that is the only one that we address. See Kelly v.

Riverside Partners, LLC,

(1st Cir. 2020)

- 7 - (concluding that appellant waived a challenge by failing to argue

it on appeal).

Perez-Trujillo argues that the BIA's ruling affirming

the immigration judge's denial of his application for asylum cannot

stand because the BIA both treated him as having sought asylum

based on his membership in a "particular social group" defined as

"witnesses who openly reported . . . gang activity to the police"

and then erred in holding that such a group is not a legally

cognizable one. In so arguing, Perez-Trujillo contends that it is

of no moment that he did not actually assert to the BIA, or the

immigration judge, that he was a member of a particular social

group so defined. All that matters, he asserts, is that the BIA

mistakenly proceeded on a different understanding of the

characteristics of the "particular social group" in which he was

claiming to have been a member and then wrongly ruled based on

that mistaken understanding that such a group is not a "particular

social group" at all.

Perez-Trujillo premises this aspect of his challenge on

the fact that the BIA stated in its opinion that he "indicated

that he believes that he was targeted by the gangs for recruitment

because he informed on an MS-13 member," and then pointed out that

the immigration judge, "[b]y way of analogy, . . . noted that the

First Circuit has held that informants to the United States

government working against a drug smuggling ring[] lacked social

- 8 - visibility." But, we do not read these passages to support his

contention that the BIA treated him as having claimed membership

in a witnesses-based "particular social group." Right after making

that statement, the BIA upheld the immigration judge's finding

"that the respondent's social group does not have social

visibility, . . . is indeterminate, and . . . is drawn from the

fact that its members have been targeted for persecution" by

quoting from the portion of the immigration judge's opinion that

clearly addresses only the "particular social group" which Perez-

Trujillo concedes is the only one of which he did claim to be a

member -- namely, the group consisting of "young Salvadoran male

students initiated into gangs against their will who refuse to

carry out gang orders and who leave the gang by fleeing the

country." And because we conclude that the government is right

that the BIA addressed -- and rejected -- Perez-Trujillo's claim

of asylum based on his "membership in a particular social group"

solely on the understanding that his proposed group was that one

and that one alone, we also agree that the government is right

that we have no jurisdiction to address whether he might have any

ground for seeking asylum based on his membership in any other

group, including the one involving witnesses that he contends that

the BIA wrongly deemed not to be a legally cognizable one. See

Samayoa Cabrera v. Barr,

(1st Cir. 2019).

- 9 - We turn, then, to Perez-Trujillo's separate contention

that the BIA erred in rejecting his claim of asylum based on his

membership in the group that we have just referenced and in which

he did plainly claim membership before both the immigration judge

and the BIA: young, male, Salvadoran students who are forcibly

recruited into gangs, refuse gang orders, and leave the gang.

Here, too, though, we conclude that there is no merit to his

challenge to the BIA's ruling affirming the immigration judge's

denial of his application for asylum.

A proposed "particular social group" must satisfy three

requirements to qualify as one: immutability, particularity, and

visibility. See De Pena-Paniagua v. Barr,

(1st

Cir. 2020). The "immutability" requirement is satisfied if the

members of the group "share a common immutable characteristic."

at 96 (quoting Paiz-Morales v. Lynch,

(1st

Cir. 2015)). "Particularity" requires that the group have

"definable boundaries" and that it not be "amorphous, overbroad,

diffuse or subjective." Ramírez-Pérez v. Barr,

(1st Cir. 2019) (quoting Paiz-Morales,

). Finally,

the "visibility" requirement is met if members of the group are

"socially distinct within the society in question," De Pena-

Paniagua,

(quoting Paiz-Morales,

),

which means the group is "external[ly] perce[ived] . . . within a

- 10 - given society," id. at 95 (third alteration in original) (quoting

Matter of M-E-V-G-,

(B.I.A. 2014)).

The government urges us to uphold the BIA's ruling

affirming the immigration judge's denial of Perez-Trujillo's claim

of asylum based on his membership in this claimed "particular

social group" based on our prior decision in Larios v. Holder,

(1st Cir. 2010). There, we denied the petitioner's claim

that "young Guatemalan men recruited by gang members who resist

such recruitment" constitute a valid particular social group.

. We explained that a particular social group "must be

generally recognized in the community as a cohesive group" and

that the petitioner there "ha[d] 'failed to provide even a

scintilla of evidence to this effect.'"

at 109 (quoting

Mendez-Barrera v. Holder,

(1st Cir. 2010)). The

government contends that Larios supports the BIA's ruling, given

that it, too, relies on a finding that the evidence did not suffice

to show that the claimed "particular social group" possessed the

requisite "social visibility."

Reviewing de novo, see Aguilar-De Guillen v. Sessions,

(1st Cir. 2018), we agree with the government that

Perez-Trujillo's case is not appreciably stronger than the

petitioner's in Larios. Perez-Trujillo does identify evidence in

the record that indicates that he personally was known within El

Salvador to have been a former member of the gang and to have

- 11 - resisted pressure by the gang to remain a member of it. He also

points to evidence in the record that bears on whether those

thought to be affiliated with gangs generally -- and, more

specifically, those who are former gang members -- are socially

visible within El Salvador. But, Perez-Trujillo does not argue

that he is entitled to asylum on account of his status as a former

gang member, which is understandable given our precedent. See

Cantarero v. Holder,

(1st Cir. 2013) (upholding

the BIA's rejection of the particular social group consisting of

former members of the 18th Street gang after determining that

"[t]he BIA reasonably concluded that . . . Congress did not mean

to grant asylum to those whose association with a criminal

syndicate has caused them to run into danger"). And, with respect

to the more narrowly defined proposed group on which his asylum

claim does rely, he has failed to identify any evidence in the

record that this specific group -- young, male, Salvadoran students

who are forcibly recruited into gangs, refuse gang orders, and

desert the gang -- is itself socially visible in El Salvador. See

Perez-Rabanales v. Sessions,

(1st Cir. 2018)

(explaining that the visibility requirement "turns on 'whether

members of a particular group "are set apart, or distinct, from

other persons within the society in some significant way"'"

(quoting Vega-Ayala v. Lynch,

(1st Cir. 2016)));

see also Carvalho-Frois v. Holder,

(1st Cir. 2012)

- 12 - ("[T]he relevant question is 'whether the social group is visible

in the society, not whether the alien herself is visible to the

alleged persecutors.'" (quoting Mendez-Barrera,

)).

Thus, because Perez-Trujillo has not shown that his

proposed group is "generally recognized in the community as a

cohesive group," Larios,

(quoting Mendez-Barrera,

), we must deny his 2011 petition for review as to

his application for asylum. And, that being so, we must also deny

his petition with respect to his application for withholding of

removal. See Thile v. Garland,

(1st Cir. 2021).

B.

We next consider Perez-Trujillo's challenge to the BIA's

affirmance of the immigration judge's denial of his application

for CAT protection. To prevail on his CAT claim, Perez-Trujillo

was required to show by a preponderance of the evidence that, if

returned to El Salvador, "he would be subject to torture 'by or

with the acquiescence of a government official.'" Aldana-Ramos v.

Holder,

(1st Cir. 2014) (quoting Nako v. Holder,

(1st Cir. 2010)). Acquiescence includes willful

blindness. See Ramírez-Pérez,

. We review the BIA's

denial of his claim under a two-tiered standard, determining

whether factual findings are supported by substantial evidence and

- 13 - reviewing legal questions de novo. See Settenda v. Ashcroft,

(1st Cir. 2004).4

The BIA did not take issue with Perez-Trujillo's

contention that he would suffer harm sufficiently severe to

constitute torture if he were to return to El Salvador, and the

record contains ample evidence from which the BIA could so find.

In addition to his own testimony about the beatings he endured in

El Salvador at the hands of gang members and the threats to which

they have subjected him since he left that country, Perez-Trujillo

introduced country reports indicating that former gang members in

general face a heightened risk of encountering violence.

For example, one report, from the International Human

Rights Clinic at Harvard Law School, states that "whereas in the

past it [had been] difficult, but feasible, for a gang member to

4 The government contends that Perez-Trujillo waived his CAT claim by failing to raise it in his 2011 petition for review and raising it for the first time in his opening supplemental brief, which was filed in 2020. There is no jurisdictional bar to our considering this claim, because the BIA addressed it. See Mazariegos-Paiz v. Holder,

(1st Cir. 2013). And, while we are generally reluctant to entertain "arguments not raised in a party's initial brief," treating them as waived "except in extraordinary circumstances," United States v. Pizarro-Berríos,

(1st Cir. 2006), here, we ordered supplemental briefing when we consolidated these appeals, and Perez-Trujillo raised the CAT claim in his opening supplemental brief. The government had a full opportunity to respond to his CAT claim on the merits in its own supplemental brief, filed nearly a month after Perez-Trujillo's. We thus "perceive no possibility of prejudice" to the government "and, accordingly, excuse any waiver by" Perez-Trujillo, United States v. Rodríguez-Rosado,

, 125 n.3 (1st Cir. 2017), and so proceed to the merits.

- 14 - disassociate himself safely from a gang," as of 2007, it was

"virtually impossible" to do so. The report also states that

"[g]angs' methods of recruitment, and the sanctions they impose on

members who demonstrate disloyalty or who attempt to withdraw from

active gang life, are increasingly violent," and that "[t]hose who

were once part of gang life and decide to change their life paths

face severe consequences; gangs consider abandoning the gang as a

betrayal that justifies a death sentence." Indeed, one individual

interviewed for the report recounted that "killing people who left

the gang was part of the initiation for new gang members." The

same report explains that there was a "consensus among those [who

were] interviewed that joining a gang is a life commitment" and

that, while migrating is sometimes a way in which an individual

can leave a gang, "those gang members who leave the gang and

migrate to the United States face very serious threats to their

safety if they are deported back to El Salvador."

Perez-Trujillo also submitted another report, from the

Immigration and Refugee Board of Canada. It summarizes a study

that found that "a new [MS-13] recruit becomes a full-fledged

member by 'teaching a lesson' to a member trying to dissociate

from the gang" and quotes a young man who, when initiated into MS-

13 at age thirteen, was told that "[t]he only way out is death."

He submitted as well an article from the Financial Times that

stated that "desertion [from MS-13] is punishable with death."

- 15 - Nonetheless, the BIA rejected Perez-Trujillo's CAT claim

on the ground that the immigration judge did not err in finding

that he had failed to meet his burden to show that any harm that

he might suffer in El Salvador would be "at the instigation or

with the acquiescence (to include the concept of willful blindness)

of a government official." See

(a)(1). To

support that ruling, the BIA "note[d] that difficulty controlling

gangs is not the same as acquiescing in gang activities" and found

that the evidence Perez-Trujillo had submitted, "including his

testimony" and "background documents," "d[id] not show that anyone

in the El Salvadoran government likely would affirmatively consent

or turn a blind eye to his torture."

Perez-Trujillo challenges this conclusion in part based

on an affidavit that he submitted to the immigration judge. It

describes an incident in which MS-13 members allegedly beat him

and forced him to board a bus and demand money from the driver;

the police came; Perez-Trujillo was arrested; he tried to explain

to the police why he had been on the bus; the police "called [him]

a liar and said [he] was a member of the MS-13"; and the police

continued to accuse him of lying, threatened him, and jailed him

even after he denied he was a member of that gang.

This affidavit, however, does not provide a basis for

our overturning the BIA's finding as to acquiescence. The BIA

could have accepted the affidavit as credible and still reasonably

- 16 - concluded that the police disregarded Perez-Trujillo's assertions

that he was not a gang member because the officers did not believe

his story and thought that he was simply trying to evade arrest

rather than because they were willfully blind toward the gang's

abuse of him. Indeed, the fact that the officers were even

investigating what they apparently believed to be gang activity

cuts against Perez-Trujillo's assertion that the police in El

Salvador acquiesce in gang violence.

Perez-Trujillo separately attempts to support his

challenge to the BIA's acquiescence ruling by pointing to testimony

that he provided in his immigration proceedings that there were

other instances in which Salvadoran officers accused him of being

a gang member despite his protestations to the contrary. But, it

does not follow from skepticism by the officers of Perez-Trujillo's

insistence that he did not belong to MS-13 that law enforcement in

El Salvador is likely to turn a blind eye if MS-13 members attempt

to torture him.

Perez-Trujillo next points to evidence in the record

concerning an incident in which he provided the Salvadoran

authorities with information about the location of an MS-13 member

who had left a threatening voicemail on his phone following his

forcible initiation. Perez-Trujillo emphasizes that the

authorities neither prosecuted the member nor arrested any other

MS-13 members based on his tip. However, even where "efforts at

- 17 - managing gang activity [are not] completely effectual," that is

insufficient to sustain a CAT claim unless the record "compel[s]

a conclusion that the government has acquiesced in gang

activities." Mayorga-Vidal v. Holder,

(1st Cir.

2012); see also Cantarero,

. And, we cannot conclude

that the evidence of this isolated incident meets that bar, at

least given the countervailing evidence of governmental efforts to

combat violence in El Salvador, including a report from the U.S.

Agency for International Development describing a "hard-line"

strategy by that government that is "aimed at incarcerating gang

members involved in criminal activity." See Cantarero,

; Mediouni v. INS,

(1st Cir. 2002) (explaining

that where the record "may permit [one] inference" but "does not

compel it," the record does not "require[] us to substitute our

judgment for the [BIA's] . . . pursuant to the substantial

evidence standard of review").

We are similarly unpersuaded by Perez-Trujillo's

contention that the evidence of the country conditions that he

submitted compels us to overturn the BIA's ruling as to

acquiescence. He highlights the Harvard report described above,

which states that gangs like MS-13 "are operating with growing

sophistication and impunity in El Salvador," that gangs are

responsible for close to one in five homicides in El Salvador, and

that the police forces "abandon their posts and disappear when

- 18 - gang members take to the streets." He also emphasizes that the

same report indicates both that "this violence is 'often encouraged

by the police,' especially when the victims are suspected gang

members," and that the government in El Salvador "frequently fails

to investigate and prosecute violence in which the victim is . . .

presumed to be a gang member." But, while Perez-Trujillo argues

that the BIA ignored these reports in ruling as it did as to

acquiescence, the BIA expressly stated in its opinion that it

considered "background documents such as State Department Country

Reports" that he submitted. See Li Sheng Wu v. Holder,

(1st Cir. 2013) ("[T]he BIA is not required 'to dissect

in minute detail every contention that a complaining party

advances,' or to discuss each piece of evidence proffered."

(citation omitted) (quoting Raza v. Gonzales,

(1st Cir. 2007))).

Nor are we persuaded by his assertion in his supplemental

briefing to us that the reports that he submitted -- at least when

viewed in combination with the other record evidence on which he

relies that we have described above -- compel a conclusion as to

governmental acquiescence contrary to the one that the BIA reached.

The bulk of the evidence on which he relies concerns official

tolerance of violence against gang members, rather than of violence

against former gang members like himself. Cf. Rosales Justo v.

Sessions,

(1st Cir. 2018) (explaining, in the

- 19 - context of evaluating whether the government was unable to protect

the petitioner from persecution, that "[a]lthough in some cases

country condition reports can be too generalized," they were

"particularly probative" there "because they closely mirrored the

specific circumstances" of the petitioner). In addition, as we

have noted, the record contains evidence that the government of El

Salvador has made efforts to crack down on gang violence. Thus,

Perez-Trujillo has not explained how the evidence that he

highlights -- in the context of the record as a whole -- suffices

to compel a different finding as to acquiescence from the one that

the BIA made. See Mendez-Barrera,

("Although

[country conditions] reports are sometimes helpful to [a CAT]

claim, their generic nature is such that they are rarely

dispositive.").

Finally, we are not persuaded by Perez-Trujillo's

argument that the BIA incorrectly applied the willful blindness

standard in resolving this claim. Perez-Trujillo argues that the

BIA's statement that "difficulty controlling gangs is not the same

as acquiescing in gang activities" suggests that the BIA concluded

that "if the national-level government is making any effort to

control the gang activities," a CAT applicant cannot establish

acquiescence. But, in context, it is clear that the agency's

statement about evidence regarding the government's "difficulty

controlling gangs" was just a description of a subset of the

- 20 - evidence Perez-Trujillo had submitted and an accurate conclusion

that such evidence does not suffice to establish acquiescence.

See Mayorga-Vidal,

.

III.

Having found no merit to any of the challenges that

Perez-Trujillo advances in his 2011 petition for review in support

of his asylum, withholding of removal, and CAT claims, we now turn

to the 2017 petition. Here, Perez-Trujillo challenges the denial

of his application for adjustment of status.

Perez-Trujillo argues that the BIA committed legal error

in two respects in overruling the immigration judge to deny his

application for adjustment of status. First, he contends that the

BIA failed to consider the hardship that he would suffer if he

were forced to return to El Salvador, which he argues is a

"mandatory factor" that the BIA must consider under its precedent.

Second, he argues that the BIA applied the incorrect standard of

review to the immigration judge's factual determinations.

The government responds first by contending that we lack

jurisdiction to review Perez-Trujillo's claims. Because we reject

that contention, we then move on to address its merits-based

arguments for upholding the BIA's ruling. As we will explain,

here, too, we are not fully persuaded by them.

- 21 - A.

A BIA decision denying adjustment of status is a

discretionary determination. See

(a); Jaquez v.

Holder,

(1st Cir. 2014). As such, we have no

jurisdiction to consider a petition for review challenging such a

decision, see

(a)(2)(B)(i), except to the extent

that the petition raises "constitutional claims or questions of

law,"

§ 1252(a)(2)(D). See also Jaquez,

.

The government argues that although Perez-Trujillo

"purports to raise legal claims, it is apparent that he is actually

attempting to challenge the way the agency weighed the various

factors." But, Perez-Trujillo's first argument in his 2017

petition is that the BIA's past precedent in Matter of Arai,

(B.I.A. 1970), requires the agency to consider the

hardship an individual will suffer if denied adjustment of status

and that it failed to do so here. And, an argument that the BIA

has "departed from its settled course of adjudication" in the

process of making a discretionary determination is a type of legal

challenge that we have previously reviewed. See Thompson v. Barr,

(1st Cir. 2020). We thus see no basis for

concluding that Perez-Trujillo's first argument is not a legal one

- 22 - insofar as it is premised on the contention that the BIA failed to

consider a factor it was legally required to consider.5

B.

Turning to the merits, then, we must determine whether

Perez-Trujillo is right in arguing not only that, in light of

Matter of Arai, the BIA was required to consider in an

individualized manner the hardship that he might suffer if he were

required to return to El Salvador but also that the BIA then failed

to undertake such consideration in reversing the immigration

judge's grant of his application for adjustment of status.6

Notably, in responding to this contention, the government takes no

issue with Perez-Trujillo's contention that Matter of Arai

required the BIA to consider individualized hardship in his case.

5The government also relies on our case law holding that we lack jurisdiction over a petition that could be read to include legal claims if those claims are "not colorable." See Elysee v. Gonzales,

(1st Cir. 2006). To the extent that Perez-Trujillo's claims can be construed as legal ones, the government argues, they are "meritless and belied by the record." But, that is simply a contention that his claims ought to fail on the merits -- a contention that, as we will next explain, we reject -- and so provides no reason for us to conclude that we lack jurisdiction. The government contended at argument that the BIA's decision 6

tracked all of the favorable factors that Perez-Trujillo raised in his brief before the agency. To the extent that the government intended to suggest Perez-Trujillo has waived the argument that he faces an individualized risk of harm in El Salvador, we note that in his brief to the BIA Perez-Trujillo highlighted the evidence supporting the "actual harm" he would face in that country and the circumstances that gave rise to his departure.

- 23 - Rather, it focuses its response on a contention that the BIA in

fact did all that was required here under that prior BIA precedent

with respect to consideration of the individualized hardship

factor.

The government is right that the BIA did account for

Perez-Trujillo's family ties to the United States and lack of any

to El Salvador, his other ties to this country that would be

severed if he were removed there, as well as what the government

describes as the "potential problems of returning to a country

with a high level of crime and violence." So, this is not a case

in which the BIA failed to consider hardship at all in determining

that the equities failed to support an application for adjustment

of status.

But, we do not understand Perez-Trujillo to contend

merely that the BIA erred as a matter of law because it failed to

engage in any hardship inquiry. We understand him to be arguing

that it erred as a matter of law because it ignored altogether a

particularly salient aspect of the hardship showing that he was

trying to make -- namely, that he in particular was at risk of

suffering severe physical harm in El Salvador by virtue of being

a former gang member if he were to be removed to that country.

The government develops no argument that such a failure

would not constitute a legal error, insofar as Matter of Arai

mandates an individualized hardship inquiry. Nor, as we have

- 24 - noted, does the government dispute that Matter of Arai mandates

that inquiry. Thus, the key issue concerns whether the BIA did in

fact consider the evidence of hardship that Perez-Trujillo

contends that it ignored. We cannot agree that it did.

With the possible exception of the portion of the BIA's

opinion that references the "level of crime and violence" in El

Salvador, nothing in that opinion indicates that the BIA considered

any of the evidence that Perez-Trujillo submitted in support of

that critical aspect of his attempt to show hardship in defending

the immigration judge's grant of his adjustment of status

application based on the equities. Rather, at least if we set

that portion aside for the moment, the opinion merely shows that

other aspects of Perez-Trujillo's hardship case were considered.

The government did contend for the first time at oral

argument that the BIA's express acknowledgment in its opinion that

the immigration judge had considered that Perez-Trujillo's "return

to El Salvador will be particularly dangerous given the level of

crime and violence in that country," (emphasis added), is best

understood as an assessment by it of the dangers that Perez-

Trujillo in particular faces upon his return to that country. And,

the government went on to suggest, the BIA thus should be read to

have considered the evidence at issue and merely failed to give it

the weight that Perez-Trujillo would wish.

- 25 - The problem with this contention, though, is that it

ignores the "given the level of crime and violence in that country"

qualifying language in the quoted passage. That qualifying

language prevents us from concluding that the BIA in noting that

returning to El Salvador would be "particularly dangerous" for

Perez-Trujillo was considering the unique threat to his physical

well-being that he contended that he faces due to his past gang

membership. Rather, that qualifying language appears to indicate

that the BIA was considering only the general danger that anyone

would face in that country due to "the level of crime and violence

in that country."

In consequence, we cannot agree with the government that

the BIA gave any consideration in connection with its hardship

inquiry to whether El Salvador would be dangerous for Perez-

Trujillo in particular, given the special risk that he faces of

being severely harmed due to his past gang membership. And that

failure is especially concerning given that, as we have explained,

the record contains substantial evidence to that effect, including

not only evidence concerning the lengths to which the gang that he

testified he had been forced to join while in El Salvador had gone

to pursue him even after he had left that country but also the

country reports' representations concerning the risks of harm that

former gang members face from the gangs they have left. Indeed,

we note in this regard that DHS has granted Perez-Trujillo a

- 26 - special immigrant visa based on a state-court finding that it

"would not be in [his] best interest to be returned" to El

Salvador, see

(a)(27)(J)(ii), and that the

immigration judge, relying in part on the state-court finding

indicating that Perez-Trujillo "has been unable to reunify with

one parent due to abuse, neglect, or abandonment," found that,

after "taking into consideration all of the negative and positive

factors . . . , the scale tips in [Perez-Trujillo's] favor."

To be sure, the government is right that we have no

jurisdiction to re-weigh the evidence of hardship. But, a re-

weighing could only occur if there had been a weighing of that

evidence in the first place. And, here, we conclude that there

was no weighing of that evidence at all. We thus reject the

government's argument that the BIA, in overturning the immigration

judge's ruling granting Perez-Trujillo adjustment of status, did

consider hardship as he contends that it was required to do under

Matter of Arai. And, as the government offers no argument as to

how the BIA's ruling may be sustained notwithstanding that failure

on its part, we must vacate and remand it for further

consideration. See, e.g., Mukamusoni v. Ashcroft,

(1st Cir. 2004) (finding that "[t]he BIA committed errors of

law and misapplied the law by," among other things, "focusing

narrowly on only parts of the record that supported its decision");

see also Aldana-Ramos,

, 18 n.7 (remanding where

- 27 - the BIA had not grappled with salient evidence in the explanation

it provided for its decision).

IV.

Perez-Trujillo's 2011 petition is denied, but his 2017

petition is granted. We thus vacate the BIA's 2017 decision

overturning the ruling by the immigration judge granting him

adjustment of status and remand it to the agency for further

proceedings.

- 28 -