Mynor Martinez-Hernandez v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1113
______
MYNOR YOBANY MARTINEZ-HERNANDEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(BIA No. A077-387-630)
Immigration Judge: Kuyomars Q. Golparvar
____________
Argued: October 29, 2019
Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges.
(Filed: March 23, 2020)
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OPINION *
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Wayne P. Sachs [ARGUED]
Sachs Law Group
1518 Walnut Street
Suite 610
Philadelphia, PA 19102
Counsel for Petitioner
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Suzanne Nardone [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
PHIPPS, Circuit Judge.
Mynor Martinez-Hernandez, a native and citizen of Guatemala, unlawfully entered
the United States, and the Department of Homeland Security initiated regular removal
proceedings against him. Martinez applied for asylum, mandatory withholding of
removal, and protection under the Convention Against Torture. Underlying each of those
requests for relief is Martinez’s assertion that his life would be in jeopardy upon his
return to Guatemala. According to Martinez, a cartel will kill him because the cartel’s
previous leader, Hector Guerra Nova, had extreme animosity toward the Martinez-Palma
family, committing multiple acts of violence against them. Martinez also fears for his life
because he provided information to United States law enforcement authorities about
William Leonidas Alarcon, the current leader of the cartel and cousin of the now-
deceased Guerra Nova.
To date, Martinez has not obtained any of the relief he requested. After hearing
testimony and receiving evidence, an Immigration Judge (“IJ”) sustained the charge of
removability and denied Martinez’s application, issuing a written decision and order.
Martinez then sought administrative review before the Board of Immigration Appeals
(“BIA”), which affirmed the IJ’s order.
2
Martinez now petitions for review of the BIA’s order. Because he seeks review of
a final order of removal, we have jurisdiction. See 8 U.S.C. § 1252(a). For the reasons
below, in reviewing questions of law de novo and the factual record for substantial
evidence, we will deny Martinez’s petition.
I
Martinez argues that the BIA erred by denying his request for asylum. Asylum is
a discretionary form of relief, available upon timely request to aliens who qualify as
refugees. See 8 U.S.C. § 1158(a)(1)-(2), (b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S.
421, 428 n.5 (1987). 1 Absent special circumstances not present here, to meet the
statutory definition of a “refugee,” an alien must be unable or unwilling to avail himself
of his home country’s protection “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.” 8 U.S.C. § 1101(a)(42)(A). An applicant bears the burden
of proving refugee status. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.
2003); 8 C.F.R. § 208.13(a). And here Martinez argues that he qualifies as a refugee
under both formulations: past persecution as well as a well-founded fear of persecution
upon his return to his country of nationality.
A
To be eligible for asylum based on past persecution, an applicant must make three
showings. Those are (i) an incident or incidents rising to the level of persecution; (ii) on
1
Although the IJ determined that Martinez’s application for asylum was untimely, the
Government does not raise that defense because the BIA did not rely on that
determination as a basis for affirming the decision of the IJ.
3
account of a statutorily protected ground; and (iii) committed by the government or
forces that the government is unable or unwilling to control. See Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002) (quotation marks and citation omitted). In affirming the
IJ’s decision, the BIA concluded that there was insufficient evidence to show that
Martinez experienced past persecution on account of his family membership. On appeal,
Martinez attempts to prove past persecution by relying on the death threat that he
received from the cartel in 2006 and by advancing a cumulative persecution theory.
Neither prevails.
Martinez contends that he endured past persecution based on unfulfilled death
threats that he received from the cartel in 2006. The BIA recognized that Martinez’s life
was threatened but then agreed with the IJ that those threats were not on account of his
family status; rather those threats arose because he declined an invitation to join the
cartel. Martinez counters that he was targeted to join the cartel based on his family
membership, and therefore, the threats Martinez received for declining the invitation
were on account of his family status. Relying on the analysis of the IJ, the BIA instead
concluded that the cartel recruited Martinez to increase its ranks. Even so, Martinez
rejoins, his burden of proof requires only that he show that his family status provided one
central reason for the persecution. See generally 8 U.S.C. § 1158(b)(1)(B)(i); Gonzalez-
Posadas v. Att’y Gen., 781 F.3d 677, 684-85 (3d Cir. 2015); see also Ndayshimiye v.
Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009) (explaining that under the one-central-
reason standard, the protected ground must play something more than “an incidental,
tangential, or superficial role in persecution”). And to make that showing, Martinez cites
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his own testimony that the cartel recruited him to prevent him from complaining to
authorities about his sister.
Here, the IJ’s decision, which the BIA affirmed, provides countervailing factual
findings. The IJ accepted both that Martinez’s father had been murdered in 2012 as a
reprisal for Martinez’s sister leaving Guerra Nova and that his mother and sister had been
victims of an attempted murder for the same reason in 2013. But the IJ concluded that
the cartel threatened Martinez in 2006 solely because he refused to join the cartel and not
due to his relationship with his sister. When asked by the IJ whether there was any
special reason the cartel recruited Martinez, Martinez’s other sister testified that Guerra
Nova “just wanted to recruit as many people as he could in his cartel.” While the BIA
did not specifically reference those findings in affirming the IJ’s determination, the BIA
did adequately articulate its rationale, and therefore, those factual findings, as part of the
administrative record, may be considered in evaluating the BIA’s final order. See Luziga
v. Att’y Gen., 937 F.3d 244, 251 (3d Cir. 2019) (explaining that the BIA decision is
reviewed “generally” while the IJ’s determination is reviewed “when necessary”);
Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir. 2012); Dong v. Att’y Gen., 638 F.3d
223, 229 n.1 (3d Cir. 2011); see also 8 U.S.C. § 1252(b)(4)(A) (generally limiting review
to the administrative record); Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir. 2003) (en banc)
(allowing judicial review of only the grounds invoked by the agency for its decision).
And those factual findings constitute substantial evidence for the BIA’s conclusion
because a reasonable adjudicator would not be compelled to conclude that Martinez’s
family status was a central reason for the cartel’s recruitment of, and threats to, him. See
8 U.S.C. § 1252(b)(4)(B) (providing that “the administrative findings of fact are
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conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary”); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
As a final effort to demonstrate past persecution, Martinez advances a cumulative
persecution theory. He argues that the acts of violence against his family combined with
the threats he received rise to the level of past persecution. The trouble started in 2005,
when Guerra Nova, a powerful cartel leader, kidnapped Martinez’s sister at gunpoint,
brought her to a hotel, and violently raped her. This began a long, abusive relationship,
in which Guerra Nova frequently beat, raped, and threatened to kill Martinez’s sister and
her entire family. In November 2011, Martinez’s sister filed a restraining order against
Guerra Nova, which his men later warned her to retract. She did not, and the following
day Martinez’s father was murdered at a bus stop. The attempted killing of Martinez’s
mother and sister followed in 2013, after they relocated to a new town.
But in this Circuit, the cumulative persecution theory applies only as a means of
proving conduct extreme and severe enough to constitute persecution. See Cheng v. Att’y
Gen., 623 F.3d 175, 192-93 (3d Cir. 2010). And here the severity of the acts is not in
question; the issue is whether those acts were committed against Martinez on account of
family membership. In that vein, even if those acts were aggregated to prove more
severe and extreme conduct, that alone could not overcome the evidentiary shortcoming
identified above, viz., that Martinez was not threatened on account of his family
membership.
B
As to future persecution, Martinez contends that he has a well-founded fear of
persecution on account of the combination of his memberships in two particular social
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groups: his family and his status as a known confidential informant. 2 See generally
8 U.S.C. § 1101(a)(42)(B) (recognizing membership in a particular social group as basis
for refugee status). To be successful, Martinez must demonstrate that upon return to his
native country (i) a reasonable person in his situation would fear persecution and (ii) he
would have a genuine fear of persecution as well. See Valdiviezo-Galdamez v. Att’y
Gen., 663 F.3d 582, 590-91 (3d Cir. 2011); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d
Cir. 2003).
In arguing that he has a well-founded fear of future persecution on account of
family membership, Martinez relies on the same facts as he did to establish past
persecution. He cannot prevail on that record. As the BIA recognized, members of
Martinez’s family, including his mother and two younger sisters, have resided in
Guatemala without being threatened or harmed for several years. See Lie v. Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005) (explaining that “when family members remain in
petitioner’s native country without meeting harm, and there is no individualized showing
that petitioner would be singled out for persecution, the reasonableness of a petitioner’s
well-founded fear of future persecution is diminished.”). And without more evidence, the
BIA did not err in determining that Martinez did not meet his burden of proving a well-
founded fear of future persecution on this basis.
Martinez next contends that he has a well-founded fear of future persecution based
on his known informant activities. The record does not reveal the precise information
2
Although the IJ concluded that Martinez’s claimed social group consisting of known
law-enforcement informants does not constitute a cognizable particular social group, the
Government does not raise that defense here because the BIA did not invoke that ground
in affirming the IJ’s decision.
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that Martinez provided to law enforcement or the value, if any, of that information to law
enforcement. Nonetheless, Martinez asserts that his informant activities have come to the
attention of the whole cartel and that, as a consequence, the cartel will kill him upon his
return to Guatemala. Without evaluating whether Martinez genuinely believes that
message, the BIA concluded that the evidence was not sufficient to establish that the
cartel knew of his informant activities. Martinez testified that, through a barber, the
cartel leader, Alarcon, knew that Martinez’s family had been asking about Alarcon. He
also testified that a cousin of Guerra Nova, the former cartel leader, called Martinez’s
friend and told him to tell Martinez that he was waiting to kill Martinez upon his return to
Guatemala. Martinez’s sister, Mayra, likewise testified that cartel members are waiting
for her brother to return to Guatemala so they can kill him.
Those accounts rest on multiple layers of hearsay. And although the IJ determined
that both Martinez and his sister testified credibly, that finding does not extend to
statements by the hearsay declarants. 3 But even crediting those layers of hearsay, the
administrative record does not establish that the cartel knew that Martinez was providing
information about Alarcon to law enforcement. Without that evidence, Martinez cannot
place himself within the particular social group he identifies: known informants. For
these reasons, a reasonable adjudicator would not be compelled to conclude that the BIA
decided incorrectly. See 8 U.S.C. § 1252(b)(4)(B).
3
Because those hearsay statements do not constitute “otherwise credible testimony,”
8 U.S.C. § 1158(b)(1)(B)(ii), they do not require an opportunity for corroboration, see
Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001); see also Saravia v. Att’y Gen.,
905 F.3d 729, 737-38 (3d Cir. 2018).
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II
Martinez’s asylum application also constitutes a request for withholding of
removal. See 8 C.F.R. § 1208.3(b). But the showing needed for withholding of removal
requires greater certainty: future persecution must be “more likely than not.” INS v.
Cardoza-Fonseca, 480 U.S. at 430; see also 8 U.S.C. § 1231(b)(3)(A).
Under that legal standard, the analysis of a withholding-of-removal petition
simplifies in instances, such as the one here, where an alien has been denied asylum for
failing to prove a well-founded fear of future prosecution. Without meeting the burden of
proof for asylum, Martinez cannot satisfy the more stringent more-likely-than-not
standard necessary for withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463,
469-70 (3d Cir. 2003) (“[I]f an alien fails to establish the well-founded fear of
persecution required for a grant of asylum, he or she will, by definition, have failed to
establish the clear probability of persecution required for withholding of deportation.”).
III
Martinez also seeks relief under the Convention Against Torture. One of the
Convention’s requirements is that the feared torture must be carried out directly or
indirectly by the government. See Auguste v. Ridge, 395 F.3d 123, 130 (3d Cir. 2005)
(explaining that the torture must be inflicted “by or at the instigation of or within the
consent or acquiescence of a public official or other person acting in an official
capacity”); see also 8 C.F.R. § 1208.18(a)(1)-(2) (explaining that the purported threats
must be carried out “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity”). But here, the
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administrative record does not demonstrate that Guatemalan governmental officials
would be involved, actively or passively, in any potential torture of Martinez.
Martinez disagrees, arguing that he meets this requirement because the
Guatemalan government has no ability to control organized crime groups like this cartel.
But the administrative record demonstrates that the Guatemalan government arrested and
incarcerated the prior cartel leader, Guerra Nova, and it placed members of Martinez’s
family into a witness protection program for a period of time. Thus, despite the BIA’s
terse explanation (that Martinez failed to meaningfully articulate a basis for relief under
the Convention), the administrative record contains substantial evidence to deny relief
under the Convention.
IV
For the foregoing reasons, we will deny Martinez’s petition for review.
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