Perez Fuentes v. Garland ( 2023 )

20-2796
Perez Fuentes v. Garland
BIA
Farber, IJ
A216 557 785
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 A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 28th day of July, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD J. SULLIVAN,
9 EUNICE C. LEE,
10 BETH ROBINSON,
11 Circuit Judges.
12 _________________________________________
13
14 JOSUE ARMANDO PEREZ FUENTES,
15 Petitioner,
16
17 v. 20-2796
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Craig Relles, Esq., White Plains,
25 NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Sabatino F. Leo,
1 Assistant Director; Madeline
2 Henley, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED in part and GRANTED in part.
11 Petitioner Josue Armando Perez Fuentes, a native and
12 citizen of El Salvador, seeks review of an August 13, 2020
13 decision of the BIA, affirming a February 28, 2020 decision
14 of an Immigration Judge (“IJ”), denying withholding of
15 removal and relief under the Convention Against Torture
16 (“CAT”). In re Josue Armando Perez Fuentes, No. A216 557 785
17 (B.I.A. Aug. 13, 2020), aff’g No. A216 557 785 (Immigr. Ct.
18 N.Y. City Feb. 28, 2020). We assume the parties’ familiarity
19 with the underlying facts and procedural history.
20 We have reviewed the IJ’s decision as modified by the
21 BIA, i.e., minus the findings that the BIA did not reach.
22 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
23 (2d Cir. 2005). “We review factual findings under the
24 substantial evidence standard,” while “[q]uestions of law, as
25 well as the application of legal principles to undisputed
2
1 facts, are reviewed de novo.” Paloka v. Holder, 762 F.3d
2 191, 195 (2d Cir. 2014); see 8 U.S.C. § 1252(b)(4)(B).
3 A. Withholding of Removal
4 To establish eligibility for withholding of removal, an
5 applicant must show that he “will more likely than not” be
6 persecuted “on account of race, religion, nationality,
7 membership in a particular social group, or political
8 opinion.” 8 C.F.R. § 1208.16(b)(1), (2); see also 8 U.S.C.
9 §§ 1101(a)(42), 1231(b)(3)(A). The agency did not err in
10 finding that Perez Fuentes failed to establish either a
11 likelihood that he would be targeted on account of an imputed
12 political opinion or that his proposed group – consisting of,
13 as Perez Fuentes phrased it, “men with . . . tattoos who would
14 be perceived as criminal[s] or associated with a gang that
15 will be targeted by police and gang members in El Salvador”
16 – was a cognizable social group. Certified Admin. Record
17 at 65.
18 1. Political Opinion
19 To demonstrate that past or prospective persecution bears
20 a nexus to an applicant’s political opinion, “[t]he applicant
21 must . . . show, through direct or circumstantial evidence,
22 that the persecutor’s motive to persecute arises from the
3
1 applicant’s political beliefs.” Yueqing Zhang v. Gonzales,
2 426 F.3d 540, 545 (2d Cir. 2005). “The persecution may also
3 be on account of an opinion imputed to the applicant by the
4 persecutor, regardless of whether or not this imputation is
5 accurate.” Hernandez-Chacon v. Barr, 948 F.3d 94, 102
6 (2d Cir. 2020) (emphasis omitted). “[O]pposition to criminal
7 elements such as gangs, even when such opposition incurs the
8 enmity of these elements, does not thereby become political
9 opposition simply by virtue of the gang’s reaction.” Zelaya-
10 Moreno v. Wilkinson, 989 F.3d 190, 201 (2d Cir. 2021).
11 The agency reasonably concluded that Perez Fuentes failed
12 to demonstrate that gang members or the police would likely
13 target him on account of his political opinion, real or
14 imputed. He has never expressed a political opinion related
15 to gangs in the past, and he admitted that he did not know
16 what he would do if a gang approached him in El Salvador.
17 Further, he did not allege that the gangs he fears “possess[]
18 an ideology or stance that he opposes, that he has a
19 particular stake in how gangs operate, or [that he has] a
20 position on how governance in [El Salvador] ought to occur,”
21 as might have established that his resistance “took on a
22 political dimension by transcending mere self-protection.”
4
1 Id. at 203 (internal quotation marks omitted). Accordingly,
2 the agency did not err in rejecting his claim that he would
3 be targeted on account of an imputed anti-gang political
4 opinion as speculative. See id. at 202–03; see also Jian
5 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)
6 (holding that a fear is “speculative at best” if it lacks
7 “solid support” in the record). Similarly, Perez Fuentes’s
8 claim that police would target him as a suspected gang member
9 does not show a likelihood of persecution on account of
10 political opinion because membership or suspected membership
11 in a criminal gang is not political in nature. See Zelaya-
12 Moreno, 989 F.3d at 201.
13 2. Social Group
14 To constitute a particular social group, a group must be
15 “(1) composed of members who share a common immutable
16 characteristic, (2) defined with particularity, and
17 (3) socially distinct within the society in question.”
18 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014);
19 see also Paloka, 762 F.3d at 196.
20 We find no error in the BIA’s determination that Perez
21 Fuentes waived his challenge to the IJ’s conclusion that he
22 failed to define his proposed group with particularity. At
5
1 most, Perez Fuentes offered conclusory assertions without
2 identifying any error in the IJ’s specific findings. Because
3 the BIA did not err in finding that Perez Fuentes waived a
4 challenge to that dispositive finding, see Yueqing Zhang, 426
5 F.3d at 541 n.1, 545 n.7, we do not consider that unexhausted
6 claim, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
7 120–22 (2d Cir. 2007).
8 We therefore conclude that the agency did not err in
9 denying withholding of removal, since Perez Fuentes did not
10 satisfy his burden of showing that the harm he fears would be
11 on account of a protected ground. See 8 U.S.C.
12 §§ 1101(a)(42), 1231(b)(3); Paloka, 762 F.3d at 195.
13 Accordingly, we do not reach Perez Fuentes’s remaining
14 challenges to the denial of withholding of removal. See INS
15 v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
16 courts and agencies are not required to make findings on
17 issues the decision of which is unnecessary to the results
18 they reach.”).
19 B. CAT Relief
20 To be eligible for CAT relief, an applicant must show
21 that he would “more likely than not” be tortured by or with
22 the acquiescence of government officials. 8 C.F.R.
6
1 §§ 1208.16(c)(2), 1208.18(a)(1); Khouzam v. Ashcroft, 361
2 F.3d 161, 170–71 (2d Cir. 2004). In assessing whether an
3 applicant has satisfied his burden of proof, the agency may
4 consider “[e]vidence of past torture,” the applicant’s
5 ability to relocate, violations of human rights within the
6 country of removal, and “[o]ther relevant information
7 regarding conditions in the country of removal.” 8 C.F.R.
8 § 1208.16(c)(3). Unlike withholding of removal, CAT relief
9 does not require a nexus to any protected ground. See id.
10 § 1208.16(c)(2).
11 Here, the IJ’s conclusion that Perez Fuentes failed to
12 establish a likelihood of torture is erroneous for three
13 reasons. First, the IJ stated that the CAT claim failed
14 because Perez Fuentes did not “meet his burden of proof in
15 demonstrating [a] clear probability of persecution for
16 purposes of withholding.” CAR at 72. But the IJ denied the
17 withholding claim based on Perez Fuentes’s failure to
18 establish any “nexus” to a protected ground and did not make
19 a finding regarding the likelihood of persecution. Because
20 a claim under CAT – “[u]nlike asylum and withholding of
21 removal [–] does not require a nexus to a protected ground,”
22 the IJ erred in relying on her withholding findings in denying
7
1 Perez Fuentes’s CAT claim. Hong Fei Gao v. Sessions, 891
2 F.3d 67, 76 (2d Cir. 2018).
3 Second, the IJ surmised that Perez Fuentes could avoid
4 gangs and corrupt authorities in El Salvador by travelling
5 only “from his job to home,” just as he “ha[d] been able to
6 keep out of the way of gangs while at Brentwood High School
7 and after leaving school” in the United States. CAR at 73.
8 But there is nothing in the record to suggest that the
9 conditions in El Salvador are comparable to those in the
10 United States, or that the IJ could logically infer Perez
11 Fuentes’s ability to avoid gangs and corrupt authorities in
12 the former from his experience in the latter. Siewe v.
13 Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (“[W]e will reject
14 a deduction made by an IJ . . . when there is a complete
15 absence of probative facts to support it – that is, when the
16 speculation is ‘bald.’”). Because “there is a complete
17 absence of probative facts to support” the IJ’s speculation,
18 we remand the case to the BIA.
19 The agency compounded this error by failing to adequately
20 explain its conclusion with respect to the issues of
21 likelihood and acquiescence. While the agency “need not
22 expressly parse or refute on the record each piece of evidence
8
1 offered by the petitioner, there must be some indication of
2 reasoned consideration and adequate findings.” Scarlett v.
3 Barr, 957 F.3d 316, 329 (2d Cir. 2020) (internal quotation
4 marks and alteration omitted). There is evidence in the
5 record that gangs and government officials associate tattoos
6 with gang membership and that tattoos are the most common
7 factor among deportees who are murdered. The record also
8 contains testimony and news articles providing accounts of
9 police and gang violence against tattooed individuals. The
10 agency must analyze this evidence and make a finding as to
11 whether it establishes that Perez Fuentes has a greater than
12 50 percent chance of being tortured. See Scarlett, 957 F.3d
13 at 329; see also Poradisova, 420 F.3d at 77.
14 Finally, in evaluating whether Salvadoran officials
15 would acquiesce in Perez Fuentes’s torture, the IJ relied
16 entirely on statements in a State Department report
17 describing two instances in which the government took action
18 against gang members and extrajudicial violence. But the IJ
19 did not address statements in the same report that impunity
20 persists despite such actions and that gangs control
21 territory within the country. The agency’s failure to
22 sufficiently explain its rejection of material evidence
9
1 contrary to its conclusions requires remand. See De La Rosa
2 v. Holder, 598 F.3d 103, 110 (2d Cir. 2010) (“[I]t is not
3 clear to this Court why the preventative efforts of some
4 government actors should foreclose the possibility of
5 government acquiescence, as a matter of law, under the CAT.
6 Where a government contains officials that would be complicit
7 in torture, and that government, on the whole, is admittedly
8 incapable of actually preventing that torture, the fact that
9 some officials take action to prevent the torture would seem
10 neither inconsistent with a finding of government
11 acquiescence nor necessarily responsive to the question of
12 whether torture would be ‘inflicted by or at the instigation
13 of or with the consent or acquiescence of a public official
14 or other person acting in an official capacity.’” (quoting
15 Article 1, 1465 U.N.T.S. 85(CAT))).
16 For the foregoing reasons, the petition for review is
17 DENIED in part and GRANTED in part, and the case is REMANDED
18 to the BIA with respect to Perez Fuentes’s CAT claim. All
19 pending motions and applications are DENIED and stays
20 VACATED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe,
23 Clerk of Court
10