Carcamo Estrada v. Barr ( 2020 )

18‐805
Carcamo Estrada v. Barr
BIA
Kolbe, IJ
A206 316 916
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 12th day of March, two thousand twenty.
PRESENT:
PETER W. HALL,
SUSAN L. CARNEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
ANGEL ERNESTO CARCAMO
ESTRADA, AKA ALEXIS VALLADARES
RODRIGUEZ,
Petitioner,
v. 18‐805
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Craig Relles, Esq., White Plains, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
Holly M. Smith, Senior Litigation Counsel;
Jesse D. Lorenz, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED in part and GRANTED in part.
Petitioner Angel Ernesto Carcamo Estrada, a native and citizen of
Honduras, seeks review of a February 20, 2018, decision of the BIA affirming a
September 12, 2017, decision of an Immigration Judge (“IJ”) denying his
application for withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Carcamo Estrada, No. A 206 316 916 (B.I.A. Feb. 20, 2018),
aff’g No. A 206 316 916 (Immig. Ct. N.Y. City Sept. 12, 2017). We assume the
parties’ familiarity with the underlying facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the agency’s legal conclusions de novo and its factual findings
under the substantial evidence standard. Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
2
2013).
Withholding of Removal
In order to demonstrate eligibility for withholding of removal, an “applicant
must establish that race, religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Matter of C‐
T‐L‐, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).
The agency did not err in concluding that Carcamo Estrada’s religious or
political belief in opposition to selling drugs was not “one central reason” that he
was targeted by gangs. Carcamo Estrada’s testimony did not show that the gang
was aware of his opposition to selling drugs (whether characterized as a religious
belief or a political opinion), or that it targeted him on that basis. Moreover,
Carcamo Estrada’s country conditions evidence reflects widespread extortion and
gang violence in Honduras and does not demonstrate that Christians or people
opposed to selling drugs are at unique risk. See Ucelo‐Gomez v. Mukasey, 509 F.3d
70, 74 (2d Cir. 2007) (applicant has burden of demonstrating that persecutors
“ha[ve] any motive other than increasing their own wealth at the expense of” the
applicant (internal quotation marks omitted)); Melgar de Torres v. Reno, 191 F.3d
3
307, 314 (2d Cir. 1999) (harm suffered as a result of “general crime conditions”
does not constitute persecution on account of a protected ground). Carcamo
Estrada argues here that the agency should have considered whether his resistance
to the gang’s demands, which he asserts that the gang viewed as political opinion,
motivated the threats against him. But he testified that he was targeted and
threatened before he ever refused a gang demand, and the record reflects that the
gang targets people for extortion and violence indiscriminately. Accordingly,
Carcamo Estrada failed to establish a nexus between the gang’s actions and his
religion or political opinion. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Melgar
de Torres, 191 F.3d at 314.
The agency also did not err in finding that Carcamo Estrada’s proposed
social groups of “business owners” or “business owners who have been extorted
by MS‐13” were not sufficiently particular or socially distinct to constitute
cognizable particular social groups. To constitute a particular social group, a
group must be: “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question.” Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting
Matter of M‐E‐V‐G‐, 26 I. & N. Dec. 227, 237 (BIA 2014)). A social group lacks the
4
required particularity where it is made up of “a potentially large and diffuse
segment of society, and the motivation of gang members in recruiting and
targeting [members of the group] could arise from motivations quite apart from
any perception that [their targets] were members of a class.” Matter of S‐E‐G‐, 24
I. & N. Dec. 579, 585 (BIA 2008). A proposed social group fails the social
distinction test if the record evidence does not demonstrate that the group would
be perceived as a group by society or subject to a greater threat from gang violence
than the general population. Id. at 586–87; see also Ucelo‐Gomez, 509 F.3d at 73(“When the harm visited upon members of a group is attributable to the incentives
presented to ordinary criminals rather than to persecution, the scales are tipped
away from considering those people a ‘particular social group’ within the meaning
of the INA.”).
The agency reasonably concluded that “business owners” constitute a large
and diffuse portion of Honduran society and that the record did not support the
conclusion that Honduran society views business owners as a discrete group. Cf.
Ucelo‐Gomez, 509 F.3d at 73–74 (deferring to BIA’s conclusion that “affluent
Guatemalans” are not sufficiently particular or socially distinct, in part because it
would be impractical to distinguish petitioners who are targeted because of their
5
group membership from those who are targeted “merely because that’s where the
money is”). Carcamo Estrada’s argument that business owners are a socially
distinct group in Honduras because gangs are able to identify and target business
owners is misplaced because the distinction must be recognized by society at large.
See Matter of M‐E‐V‐G‐, 26 I. & N. Dec. at 242 (“a group’s recognition . . . is
determined by the perception of the society in question, rather than by the
perception of the persecutor”); see also Paloka, 762 F.3d at 196 (“[A] persecutor’s
perception alone is not enough to establish a cognizable social group.”). The
record also lacks evidence that the proposed group of business owners who have
been extorted by gangs are viewed as a socially distinct group in Honduras. To
the contrary, Carcamo Estrada testified that this group included all business
owners in his neighborhood. See also Matter of M‐E‐V‐G‐, 26 I. & N. Dec. at 232
(“a ‘particular social group’ cannot be defined exclusively by the claimed
persecution”).
Because Carcamo Estrada failed to establish that he more likely than not
would be persecuted on the basis of his religion, political opinion, or membership
in these proposed social groups, the agency did not err in denying withholding of
removal. 8 U.S.C. § 1231(b)(3)(A). Contrary to Carcamo Estrada’s argument, the
6
BIA did not err in declining to consider a proposed social group consisting of
business owners who have refused to pay “taxes” to the gang because that
argument was presented for the first time on appeal. See Matter of W‐Y‐C‐ & H‐
O‐B‐, 27 I. & N. Dec. 189, 191 (BIA 2018) (requiring asylum applicants to articulate
each proposed social group to the IJ in the first instance); see also Prabhudial v.
Holder, 780 F.3d 553, 555 (2d Cir. 2015) (holding that BIA may decline to consider
issue not raised before IJ).
CAT Relief
To receive protection under the CAT, an applicant must “establish 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). Unlike withholding of removal,
CAT relief does not require a nexus to any ground. See id. “Torture is defined
as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . 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. § 1208.18(a)(1); see also Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir.
2007). Government acquiescence “requires only that government officials know
of or remain willfully blind to an act and thereafter breach their legal responsibility
7
to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004); see 8 C.F.R.
§ 1208.18(a)(7). The agency must consider “all evidence relevant to the possibility
of future torture,” including: “[e]vidence of past torture,” evidence regarding the
possibility of internal relocation, “[e]vidence of gross, flagrant or mass violations
of human rights,” and “[o]ther relevant information regarding conditions in the
country of removal.” 8 C.F.R. § 1208.16(c)(3)(i)–(iv).
The agency denied Carcamo Estrada’s CAT claim solely on the ground that
he failed to demonstrate that the Honduran government was more likely than not
to acquiesce to his torture. See De La Rosa v. Holder, 598 F.3d 103, 108–09 (2d Cir.
2010) (recognizing that failure to establish likelihood of torture is an alternative
dispositive basis for denying CAT relief from the requirement of establishing
government acquiescence). We review the agency’s determination regarding the
likelihood of government acquiescence to torture for substantial evidence and
“review de novo questions of law regarding what evidence will suffice to carry
[the] applicant’s burden of proof.” Joaquin‐Porras v. Gonzales, 435 F.3d 172, 181
(2d Cir. 2006) (internal quotation marks omitted); see Hui Lin Huang v. Holder, 677
F.3d 130, 134 (2d Cir. 2012) (“A determination of what will occur in the future and
the degree of likelihood of the occurrence has been regularly regarded as fact‐
8
finding . . . .”).1 We remand for further consideration of Carcamo Estrada’s CAT
claim because the agency provided insufficient analysis to support its conclusion
regarding the absence of government acquiescence. See Poradisova v. Gonzales, 420
F.3d 70, 77 (2d Cir. 2005) (“[W]e require a certain minimum level of analysis from
the IJ and BIA opinions . . . , and indeed must require such if judicial review is to
be meaningful.”).
First, the agency did not address the affidavit from Carcamo Estrada’s wife,
which corroborated and added detail to his claim that that the local police were
connected to and complicit with the gang that threatened him. The agency is not
required to “expressly parse or refute on the record each individual argument or
piece of evidence offered by the petitioner as long as it has given reasoned
consideration to the petition, and made adequate findings.” Zhi Yun Gao v.
Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (internal quotation marks omitted). But
here, where the agency’s decision turned on whether Carcamo Estrada’s evidence
was sufficiently detailed on an issue that his wife addressed, the agency erred by
omitting an evaluation of the wife’s affidavit. The agency also failed to address
1 Contrary to Carcamo Estrada’s argument, the BIA applied the correct standard of
review to the IJ’s denial of CAT relief, properly reviewing the IJ’s factual findings for clear
error. 8 C.F.R. § 1003.1(d)(3)(i); Hui Lin Huang, 677 F.3d at 134.
9
whether Carcamo Estrada’s testimony that the local gang has successfully
maintained an extortion scheme reaching “every” business in the neighborhood—
including Carcamo Estrada’s business—for a period of many years and has
murdered at least one business owner who failed to comply with the gang’s
demands supports a finding that the local police force acquiesces to the gang’s
activities. Cf. Khouzam, 361 F.3d at 171 (finding the “routine” nature of torture
supported the conclusion that officials either knew of the torture or remained
willfully blind to it).
Second, the agency erred in concluding that Carcamo Estrada’s testimony
was too vague to satisfy his burden because he did not provide more details,
including the officer’s name to establish a familial relationship between the local
gang leader and a police officer. Carcamo Estrada did not claim to have had any
past interactions with the gang leader’s police officer brother, so it is not clear why
he necessarily would know the officer’s name. Further, the IJ failed to develop
the record to elicit an explanation for why Carcamo Estrada did not know the
name or to establish the basis of his knowledge of the gang’s connections to the
police. Cf. Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000) (explaining that the
agency is entitled to find that credible testimony does not satisfy an applicant’s
10
burden of proof because it is not adequately corroborated only if it “explain[s]
specifically” why it is reasonable to expect such corroboration and why the
applicant’s explanations for the lack of corroboration are insufficient); Jin Chen v.
U.S. Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005) (credible testimony is not too
vague to satisfy an applicant’s burden of proof if it includes facts corresponding
to each of the elements on which the applicant has the burden of proof).2
Third, although the agency acknowledged country conditions evidence
concerning gang violence, police corruption, and authorities’ capacity to control
gangs, it appears to have discounted this evidence as not relevant to the likelihood
of government acquiescence to torture in Carcamo Estrada’s “particular area.”
To the extent that it did so, this was error. While we have deferred to the agency’s
requirement that an applicant present evidence showing country conditions in a
particular area where the record reflects that conditions vary by region, the agency
2 The BIA and the Government both note that the record compiled in De La Rosa
contained more detailed evidence than adduced here connecting the government with
the alleged torturer. Even so, in that case, we remanded because the agency appeared
to assume—incorrectly—that the efforts made by some officials to prevent torture
necessarily precluded a finding of government acquiescence. 598 F.3d at 109‐11. In De
La Rosa we did not opine, however, on the extent of government complicity that is
required to satisfy a CAT applicant’s burden to show government acquiescence in the
fact of contrary evidence of protective government acts. So De La Rosa remains
persuasive authority here and hardly precludes remand.
11
did not find that there was local variation in conditions in Honduras. Cf. Santoso
v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of pattern or
practice claim where evidence reflected that conditions varied across Indonesia’s
approximately 6,000 inhabited islands); Jian Hui Shao v. Mukasey, 546 F.3d 138, 149,
169–70 (2d Cir. 2008) (finding no error in the agency’s requirement that an
applicant demonstrate a well‐founded fear of persecution specific to Fujian
Province when persecutory acts in China vary according to province). Here, the
record does not establish local variation with respect to police corruption and
incapacity to control gang violence, and the country conditions evidence is
probative of the likelihood of government acquiescence to Carcamo Estrada’s
torture.
For the foregoing reasons, the petition for review is DENIED in part and
GRANTED in part, and the case is REMANDED for further proceedings consistent
with this order. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
12