Salmeron v. Garland ( 2021 )

19-3590
Salmeron v. Garland
BIA
Nelson, IJ
A206 487 485
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 2nd day of June, two thousand twenty-one.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
WALMER SALMERON, AKA ENRICO
PALLAZO, AKA ENRIQUE ROSALES,
Petitioner,
v. 19-3590
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Andrea A. Saenz, Bridget P.
Kessler, Brooklyn Defender
Services, Brooklyn, New York;
Allen W. Burton, Ethan M.
Scapellati, Colleen Powers, Redwan
Saleh, O’Melveny & Myers LLP, New
York, NY.
FOR RESPONDENT: Joseph D. Hardy, Trial Attorney,
Office of Immigration Litigation,
Joseph H. Hunt, Assistant Attorney
General; Anthony C. Payne,
Assistant Director; United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that this petition for review of a decision of
the Board of Immigration Appeals (“BIA”) is DENIED.
Petitioner Walmer Salmeron, a native and citizen of
Nicaragua, seeks review of an October 16, 2019 decision of
the BIA affirming a February 6, 2018 decision of an
Immigration Judge (“IJ”), which denied his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Walmer Salmeron,
No. A206 487 485 (B.I.A. Oct. 16, 2019), aff’g No. A206 487
485 (Immigr. Ct. N.Y.C. Feb. 6, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, reaching only the
grounds for denying relief on which the BIA relied, i.e., the
Nicaraguan government’s ability to protect Salmeron and
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Salmeron’s failure to meet his burden for CAT relief. See
Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
Cir. 2005); Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104,
122 (2d Cir. 2007). Contrary to Salmeron’s position, the BIA
was not required to address changed circumstances related to
the timeliness of his asylum application or the nexus
determination because the agency’s other grounds for the
denial of relief were dispositive. See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general rule courts and agencies
are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.”); Lecaj v. Holder,
616 F.3d 111, 114 (2d Cir. 2010).
Salmeron claimed that members of the Zavala family
attacked his mother and brothers with machetes, killing his
mother, and that the Zavalas will kill him if he returns to
Nicaragua. As to asylum and withholding of removal, the
agency denied relief because Salmeron did not establish that
the Nicaraguan government would be unable or unwilling to
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protect him. Substantial evidence supports that
determination.
Where, as here, an applicant for asylum and withholding
of removal did not experience past persecution, he has the
burden to demonstrate a well-founded fear or likelihood of
future persecution. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
§§ 1208.13(b), 1208.16(b)(2). “To qualify as persecution the
conduct at issue must be attributable to the government,
whether directly because engaged in by government officials,
or indirectly because engaged in by private persons whom the
government is unable or unwilling to control.” Scarlett v.
Barr, 957 F.3d 316, 328 (2d Cir. 2020) (internal quotation
marks omitted); see also Matter of A-B-, 27 I. & N. Dec. 316,
337 (A.G. 2018) (“The applicant must show that the government
condoned the private actions or at least demonstrated a
complete helplessness to protect the victims.” (internal
quotation marks omitted)).
Salmeron testified that two of his mother’s killers fled
and remain at large, but the third was convicted and received
a sentence of more than ten years. He said that, after the
attack, one of the attackers who remains at large continued
to make threats, causing his brother and sister to obtain
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protective orders. But there were no additional physical
attacks. Based on this testimony, the agency reasonably
concluded that Salmeron did not establish that the Nicaraguan
government was unable or unwilling to protect him. The
prosecution and conviction of one of the attackers and the
issuance of protective orders showed the Nicaraguan
government’s willingness to protect Salmeron’s family. See
Scarlett, 957 F.3d at 330–32; cf. Pan v. Holder, 777 F.3d
540, 544-45 (2d Cir. 2015).
Additionally, the record does not support Salmeron’s
argument that the Nicaraguan government is unable to protect
him because, in defiance of the protective orders, the Zavalas
“continued to assault the Salmeron family” after the murder.
Pet’r’s Br. at 26. Salmeron testified that the Zavalas had
not physically attacked his family since the 2014 attack and,
while his brother attested to additional threats before the
protective orders were issued, he did not state that the
protective orders were ever violated. In sum, Salmeron
provided no evidence to support his speculative contention
that the Nicaraguan government will be either unable or
unwilling to protect him. See Scarlett, 957 F.3d at 332
(concluding that to establish an inability or unwillingness
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to protect, “an alien must show either that the government
condoned the action or, even if it did not, that it was
completely helpless to protect the victims”); Jian Xing Huang
v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
of solid support in the record . . . [applicant’s] fear is
speculative at best.”).
Salmeron also argues that the agency ignored evidence
that the Zavalas could act with impunity because several of
their family members were government or police officials.
But he has not explained how these official relationships
were relevant, given the prosecution and conviction of one of
the attackers notwithstanding these relationships. Salmeron
further argues that the agency ignored evidence of widespread
corruption in the Nicaraguan government. But the IJ
reasonably concluded that much of the evidence submitted by
Salmeron in support of this argument was not relevant to his
situation. In any event, “generalized language culled from”
these sources does not constitute the “particularized
evidence” necessary to support his claim. Mu Xiang Lin v.
U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005).
Finally, Salmeron has not identified error in the
agency’s denial of CAT relief. He had the burden to show
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that he will “more likely than not” be tortured in Nicaragua
and that such torture would be “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a
public official . . . or other person acting in an official
capacity.” 8 C.F.R. §§ 1208.16(c), 1208.17, 1208.18(a)(1);
see Khouzam v. Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004).
Acquiescence “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.” 8
C.F.R. § 1208.18(a)(7). “A private actor’s behavior can
constitute torture under the CAT without a government’s
specific intent to inflict it if a government official is
aware of the persecutor’s conduct and intent and acquiesces
in violation of the official’s duty to intervene.” Pierre v.
Gonzales, 502 F.3d 109, 118 (2d Cir. 2007); see also Khouzam,
361 F.3d at 171.
Contrary to Salmeron’s argument that the agency did not
adequately address his CAT claim, the agency’s decisions
provided the “certain minimum level of analysis” required for
meaningful judicial review, Poradisova v. Gonzales, 420 F.3d
70, 77 (2d Cir. 2005), particularly given the overlap with
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the ground for the denial of asylum and withholding of
removal. Substantial evidence supports the agency’s
determination that Salmeron did not meet his burden to provide
particularized evidence that he was likely to be tortured
with the Nicaraguan government’s acquiescence. The same
evidence that supported the agency’s conclusion about the
Nicaraguan government’s ability to protect also forecloses
Salmeron’s CAT claim. In sum, Salmeron’s evidence did not
establish “that government officials kn[e]w of or remain[ed]
willfully blind to an act and thereafter breach[ed] their
legal responsibility to prevent it.” Khouzam, 361 F.3d at
171.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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