Luis Cuellar Manzano v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1939
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LUIS ALONZO CUELLAR MANZANO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A088-016-885)
Immigration Judge: Honorable Daniel A. Morris
Submitted under Third Circuit L.A.R. 34.1(a)
January 23, 2019
Before: CHAGARES, BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge*
(Filed: March 22, 2019)
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OPINION
____________
*
The Honorable Juan R. Sánchez, Chief District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
SÁNCHEZ, District Judge.
Luis Alonzo Cuellar Manzano petitions for review of an order of the Board of
Immigration Appeals (the “Board”) affirming an immigration judge’s denial of his
application for withholding of removal pursuant to the Immigration and Naturalization
Act (“INA”) and relief pursuant to the Convention Against Torture (“CAT”). For the
following reasons, we will deny the petition in part, and dismiss it in part.
I.
As we write mainly for the parties, we only briefly recite the facts. On or about
October 17, 2006, Cuellar Manzano, a native and citizen of El Salvador, entered the
United States without proper documentation, seeking protection from gang violence and
attempted recruitment. He was apprehended by the Department of Homeland Security
shortly thereafter. On November 9, 2006, an immigration judge (IJ) ordered Cuellar
Manzano removed pursuant to Cuellar Manzano’s “Stipulated Request for Order and
Waiver of Hearing.” The Immigration and Naturalization Service deported Cuellar
Manzano on December 12, 2006.
On or about January 12, 2007, Cuellar Manzano reentered the United States. More
than ten years later, on May 1, 2017, he was arrested by Immigration and Customs
Enforcement in Long Branch, New Jersey. The same day, his 2006 order of removal was
reinstated. On July 17, 2017, Cuellar Manzano was referred to an IJ for further
proceedings after he credibly expressed a reasonable fear of persecution or torture to an
asylum officer.
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After a hearing at which Cuellar Manzano testified and was represented by
counsel, the IJ denied Cuellar Manzano’s request for withholding of removal and
application for relief under CAT. As to his withholding claim, the IJ found Cuellar
Manzano failed to establish past or likely future persecution on account of his
membership in a particular social group. Addressing future persecution, the IJ found
Cuellar Manzano was not entitled to relief because his proposed social group—
"individuals in El Salvador targeted by gangs as a result of conflict with the gangs in their
rule”—lacked social distinction. App. 16. The IJ also rejected Cuellar Manzano’s claim
for withholding based on likely future political persecution. The IJ found there was
insufficient evidence “the gangs viewed [Cuellar Manzano’s] resistance to gang
recruitment as an expression of political opinion.” App. 17. Finally, the IJ rejected
Cuellar Manzano’s claim for CAT relief, noting he failed to establish by a preponderance
of the evidence the government of El Salvador would torture him, or acquiesce in his
torture by gangs, upon his return.
Cuellar Manzano then appealed the IJ’s decision to the Board, which affirmed the
IJ’s decision in its entirety. With respect to his application for withholding on the basis of
his membership in a particular social group, the Board concurred with the IJ’s
determination that Cuellar Manzano’s claimed social group lacked social distinction, and
also found the group definition was not based on an “immutable characteristic” or
defined with adequate “particularity.” App. 6. It also affirmed the IJ’s decision with
respect to Cuellar Manzano’s claim for withholding on account of his political beliefs,
noting Cuellar Manzano failed to establish the gangs were aware of his political
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opposition to their existence. As to Cuellar Manzano’s bid for CAT relief, the Board
found he did not demonstrate the government of El Salvador would acquiesce in his
torture if he were to return to the country. Finally, the Board rejected a constitutional
challenge by Cuellar Manzano to the fairness of his hearing before the IJ, noting he had
failed to establish a constitutional error or prejudice resulting from such an error. Cuellar
Manzano then petitioned for review of the Board’s decision by this Court.
II.
Subject to the exception discussed below, we possess jurisdiction to hear this
petition for review of a final order of removal pursuant to 8 U.S.C. § 1252(a)(1).1 We
review the Board’s decision as the final agency decision; however, to the extent it adopts
the IJ’s reasoning, the IJ’s decision is treated as the final agency decision. Garcia v. Att’y
Gen., 665 F.3d 496, 502 (3d Cir. 2011). We must apply the “substantial evidence”
standard, which requires us to affirm findings of fact “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also
Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir. 2005). The Board’s interpretation of the
1
The Attorney General argues we lack subject matter jurisdiction to hear Cuellar
Manzano’s claim for withholding of removal based on his membership in a particular
social group because he presented a new definition of the particular social group at issue
on appeal. The INA requires administrative exhaustion. 8 U.S.C. § 1252(d); see also
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“A petitioner’s failure to exhaust
an issue by presenting it to the BIA deprives us of jurisdiction to consider that issue.”).
Nevertheless, we assume, without deciding, Cuellar Manzano’s claim is exhausted
because even if we were to reject the Attorney General’s argument, we would affirm the
Board’s decision. See Jordon v. Att’y Gen., 424 F.3d 320, 325 n.8 (3d Cir. 2005) (noting
the question of exhaustion under 8 U.S.C. § 1252(d), although jurisdictional, is statutory
in nature, and thus need not always be resolved).
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INA is given deference, but our review of the Board’s legal conclusions is de novo.
Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005).
Cuellar Manzano argues the Board erred in finding he failed to qualify for
withholding of removal or relief pursuant to CAT. He also claims the IJ and Board
proceedings violated his constitutional right to due process. Because we find the Board’s
factual conclusions to be supported by substantial evidence, and concur with its
application of the law to those facts after a de novo review, we will deny Cuellar
Manzano’s petition.
First, we consider Cuellar Manzano’s claim of error as it pertains to his application
for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), which prohibits removal if
the petitioner’s “life or freedom would be threatened . . . because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.” A
petitioner for withholding of removal “bears the burden of proving that he will more
likely than not face persecution on account of one of those protected grounds.” Gonzalez-
Posadas v. Att’y Gen., 781 F.3d 677, 684 (3d Cir. 2015).
If a petitioner establishes past persecution on a protected basis, the petitioner is
entitled to a rebuttable presumption he will be persecuted in the future. 8 C.F.R. §
1208.16(b)(1)(i). If the petitioner fails to establish past persecution, he may nevertheless
be entitled to withholding of removal if he can establish “it is more likely than not” he
would be persecuted in the future on a protected basis if returned. Gonzalez-Posadas, 781
F.3d at 687. Cuellar Manzano claims, if removed, he would be persecuted on the basis of
his membership in a cognizable social group, the iterations of which can be fairly
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summarized as “individuals in El Salvador who oppose gangs and gang membership.” He
also claims likely persecution on account of his political opposition to the gangs.
Persecution on the basis of membership in a “particular social group” requires a
petitioner to establish his proposed social group is “(1) composed of members who share
a common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir.
2018) (quoting Matter of M-E-V-G, 26 I. & N. Dec. 227, 237 (BIA 2014)). “Particularity”
requires showing the alleged social group has “‘discrete and . . . definable boundaries’
that are not ‘amorphous, overbroad, diffuse, or subjective.’” S.E.R.L., 894 F.3d at 552-53
(quoting M-E-V-G, 26 I. & N. Dec. at 239). “Social distinction,” requires “evidence that
the society in question recognizes a proposed group as distinct.” S.E.R.L., 894.3d at 551.
As to the difference between particularity and social distinction
the former is essentially an objective inquiry, asking whether a reasonable
person could look at the proposed definition of a social group and determine
who falls within it, whereas the latter poses a more subjective question,
whether the alien’s home society actually does recognize that group as being
a “distinct” and identifiable group.
Id. at 553.
In Cuellar Manzano’s case, the Board found that even if the gang violence he
claimed to have suffered as a child qualified as persecution within the meaning of the
INA, “the harm was not imposed on account of a protected ground” because he failed to
establish the group in which he claimed membership “shares a common immutable
characteristic, is defined with particularity, and is socially distinct within Salvadoran
society.” App. 6.
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We find no basis to disturb the Board’s decision. The Board correctly noted
Cuellar Manzano’s claimed social group—which, no matter how phrased, rests
exclusively on his opposition to gangs and gang membership—fails as a matter of law.
Even assuming opposition to gang recruitment is an “immutable” characteristic,
“individuals opposed to gang membership,” in isolation, is simply too general and
amorphous a group to sustain a claim for withholding of removal. See Lizama v. Holder,
629 F.3d 440, 447 (4th Cir. 2011). Based on the absence of specificity from which the IJ,
Board, or this Court, could have found “discrete and definable boundaries” of the
proposed group, and the lack of evidence Salvadorans consider those opposed to gangs to
be distinct from the rest of their society, we agree with the Board’s conclusion. Cuellar
Manzano failed to adequately establish membership in a cognizable social group.
Accordingly, the Court will deny this aspect of his petition for review.
We will also deny Cuellar Manzano’s petition as it pertains to his claim for
withholding of removal based on future persecution for his professed anti-gang political
beliefs. Both the IJ and the Board rejected this claim because there was insufficient
evidence the gangs were aware of Cuellar Manzano’s beliefs. More specifically, the IJ
noted, “[o]ther than refusing to join the gang, [Cuellar Manzano] did not testify that he
expressed to the gang[s] that he had anti-gang beliefs.” App. 17-18. The Board affirmed
on this basis, citing this Court’s decision in Valdiviezo-Galdamez v. Attorney General,
which held, in part, that an “internally held political opinion” cannot support a claim of
persecution based on such an opinion. 663 F.3d 582, 609 (3d Cir. 2011). Rather, “[t]here
must be evidence that the gang knew of [the petitioner’s] political opinion and targeted
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him because of it.” Id. Having reviewed Cuellar Manzano’s testimony, we find the
factual conclusion Cuellar Manzano failed to communicate his political opposition to the
gangs—as distinct from his desire to avoid joining their ranks—to be supported by the
record. See App. 172 (“I opposed [the gangs] by the way of saying that I used to like to
study. But they did not stop insisting [that I join the gang].”). Moreover, we discern no
error in the Board’s reliance on Valdiviezo-Galdamez for the cited proposition.
Accordingly, we affirm the Board’s decision on this issue.
Second, we find no basis to disturb the Board’s determination as to Cuellar
Manzano’s failure to establish a basis for CAT relief. A petitioner for relief “on the
merits under the Convention Against Torture bears the burden of establishing ‘that it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R.
§ 208.16(c)(2)). A court must consider all relevant evidence, including circumstantial
evidence, when assessing the possibility of future torture. See 8 C.F.R. § 208.16(c)(3).
We have adopted a five-part test to determine whether an act is considered “torture” for
removal purposes. In order to constitute torture, the act must be “(1) an act causing severe
physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed
purpose; (4) by or at the instigation of or with the consent or acquiescence of a public
official who has custody or physical control of the victim; and (5) not arising from lawful
sanctions.” Auguste v. Ridge, 395 F.3d 123, 135 (3d Cir. 2005) (quoting Matter of J-E, 23
I. & N. Dec. 291, 297 (BIA 2002)).
8
To establish the government’s acquiescence, a petitioner “must demonstrate that,
prior to the activity constituting torture, a public official was aware of it and thereafter
breached the legal responsibility to intervene and prevent it.” Myrie v. Att’y Gen., 855
F.3d 509, 516 (3d Cir. 2017). The petitioner may satisfy the knowledge requirement by
producing “sufficient evidence that the government [] is willfully blind” to the torturous
conduct. Id. (alteration in original) (quoting Silva-Rengifo, 473 F.3d at 65).
Here, the IJ found Cuellar Manzano failed to qualify for CAT protection because
he failed to establish it was more likely than not he would be tortured if he returned to El
Salvador or the government would acquiesce to his torture. The Board affirmed each of
these findings and determined the IJ’s opinion was not clearly erroneous.
We find substantial evidence supports the Board’s determination. Specifically,
Cuellar Manzano has not reported a threat from the gangs in ten years, nor has he offered
any evidence suggesting any member of the Salvadoran government ever sought, or is
presently seeking, to torture him, or would consent to his torture.2 Cuellar Manzano’s
CAT claim is further undercut by the Salvadoran government’s recent anti-crime
measures (despite their disputed effectiveness), the existence of which suggests the
government would not acquiesce to his torture. As a result, we find the Board’s decision
to be supported by substantial evidence and will deny this aspect of Cuellar Manzano’s
petition.
2
In fact, Cuellar Manzano testified before the IJ that his mother reported a beating he
suffered to the police, who promised to “check the town.” App. 176.
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Finally, we will dismiss in part and deny in part Cuellar Manzano’s constitutional
claim. We will dismiss the claim as it pertains to the 2006 removal order because we lack
jurisdiction. A petitioner must seek judicial review of a final order of removal within
thirty days of its entry. 8 U.S.C. § 1252(b)(1). Notwithstanding the timeliness of a
challenge to a reinstated order of removal, the thirty-day time limit applies to
constitutional challenges to original orders of removal. Verde-Rodriguez v. Att’y Gen.,
734 F.3d 198, 203 (3d Cir. 2013). Thus, Cuellar Manzano’s timely challenge to his
reinstated order cannot salvage the untimeliness of his constitutional attack on his
original order—the period for which passed many years ago. As a result, we lack
jurisdiction to hear this aspect of his claim and will dismiss it.
We will deny Cuellar Manzano’s claim as it concerns the 2017 proceedings
(which we do possess jurisdiction to hear). He asserts the IJ lacked jurisdiction based on
Pereira v. Sessions, 138 S. Ct. 2105 (2018) because the 2017 Notice of Referral to the
Immigration Judge failed to specify the date and time of Cuellar Manzano’s hearing.
Pet’r Br. 27. We decline the invitation to assess the impact of Pereira, other than to note
the Supreme Court’s decision was a “narrow” one, addressing what information must be
contained in a notice to appear in order to trigger the “stop-time” rule applicable when a
petitioner seeks cancellation of removal pursuant to 8 U.S.C. § 1229b—an issue far afield
from the due process violations alleged in Manzano’s petition. Pereira, 138 S. Ct. at
2110. For this reason, we find Pereira to be distinguishable and Manzano’s citation to it
unavailing. Because Cuellar Manzano has failed to establish a cognizable constitutional
violation, this aspect of his petition will be denied.
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III.
For the foregoing reasons, Cuellar Manzano’s petition for review will be denied
in part and dismissed in part. The Government’s January 7, 2019, request to hold this
matter in abeyance in light of the lapse in appropriations will be dismissed as moot.
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