Franklin Lopez-Santos v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 19-1703, 19-1704
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FRANKLIN OMAR LOPEZ-SANTOS,
EDWIN JAIVER LOPEZ SANTOS,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the Board of Immigration Appeals
(Agency Nos. A098-964-936, 088-367-049)
Immigration Judge: John P. Ellington
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Argued: March 10, 2020
Before: McKEE, AMBRO, and PHIPPS, Circuit Judges
(Opinion Filed: September 30, 2020)
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Bridget Cambria
Cambria & Kline
532 Walnut Street
Reading PA, 19601
Robert Jackel [ARGUED]
Suite 360
399 Market Street
Philadelphia, PA 19106
Counsel for Petitioners
1
Margot L. Carter
Corey L. Farrell [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Stations
Washington, DC 20044
Counsel for Respondent
_______________
OPINION*
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McKee, Circuit Judge.
In this consolidated immigration appeal, Franklin and Edwin Lopez-Santos,
brothers and natives of Honduras, petition for review of the BIA’s denial of their
applications for withholding of removal and relief under the Convention Against Torture
(“CAT”). The Government has conceded that the BIA improperly applied Myrie v.
Attorney General1 as to Franklin’s CAT claim and asks for that claim to be remanded for
review under the proper standard.2 We agree and will remand for the BIA to reconsider
Franklin’s CAT claim under a de novo standard of review instead of the clear error
standard used. As to Franklin’s withholding from removal claim and Edwin’s
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
855 F.3d 509, 515-16 (3d Cir. 2017).
2
Appellee Br. at 36 n. 8; accord Appellants’ Op. Br. at 47-48.
2
withholding and CAT claims, we will affirm and must dismiss Franklin’s petition for
review in part, and Edwin’s in total.3
I.
Where, as here, the BIA adopted the reasoning of the IJ in its decision, we review
the factual determinations in both decisions for substantial evidence. 4 We reverse only if
a reasonable factfinder would be “compelled to conclude otherwise.”5 We review de
novo any legal conclusions.6
Edwin claims that the BIA erred in determining he was not entitled to withholding
of relief.7 He argues the BIA reached this incorrect conclusion by relying on the IJ’s
incomplete review of the record, excluding certain corroborating affidavits from family
members, thereby improperly determining that the Honduran government would be able
to protect him despite evidence of his cousin’s brutal torture and murder. Though we
acknowledge the tragic events surrounding his cousin’s death, Edwin gives insufficient
weight to the adverse credibility determination reached by the IJ and affirmed in the
BIA’s thorough opinion.8 But setting that determination aside, as the IJ and BIA did in
3
The BIA had appellate jurisdiction of the IJ’s decisions under 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction over the BIA’s order pursuant to 8 U.S.C. § 1252(a).
4
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
5
Id.6
Id.7
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (“In order to obtain mandatory
withholding of deportation under § 243(h), the alien must first establish by a ‘clear
probability’ that his/her life or freedom would be threatened in the proposed country of
deportation.”).
8
JA10-14.
3
their analyses, Edwin’s case is severely undermined by (1) his statement to Border Patrol
upon entering the United States that he was coming here to “get ahead in life” and (2) his
family’s continued residence in Honduras since he left.9 Edwin simply has not
demonstrated that it is “more likely than not” that he will be subjected to persecution if
returned to Honduras10 due to the Honduran government’s alleged acquiescence to MS-
13’s violence.11 In a point-by-point review of Edwin’s evidence, the BIA determined the
IJ’s unchallenged factual findings were not clearly erroneous while bearing in mind the
country conditions reports submitted by the Petitioners.12 We find the BIA’s review is
supported by substantial evidence.
As to Edwin’s CAT claim,13 the BIA’s opinion evidences a substantially similar
thorough review of the record before affirming the IJ’s factual findings regarding no past
torture or government acquiescence.14 There is substantial record evidence supporting
the BIA’s factual findings and no legal error with the BIA’s ultimate conclusion that
Edwin failed to demonstrate an entitlement to relief under CAT.
9
Franklin A.R. at 235.
10
See Zubeda, 333 F.3d at 469.
11
JA10-14.
12
Id.13
Myrie, 855 F.3d at 515 (deferring removal is mandatory where a noncitizen produces
sufficient evidence establishing he suffered “(1) an act causing severe physical or mental
pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a public official who has
custody or control of the victim; and (5) not arising from lawful sanctions”) (quoting
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)).
14
Id. at 515-16.
4
Thus, as to Edwin’s withholding-of-removal and CAT claims, we hold that he
failed to demonstrate an entitlement to either by a preponderance of the evidence.
Finally, as to Franklin’s remaining claim for withholding of removal, he argues
that the BIA erred in denying him relief due to a misplaced reliance on Matter of A-B-15
when considering what constitutes government acquiescence.16 Franklin’s primary
argument is that Matter of A-B- is no longer good law after the injunction issued in Grace
v. Whitaker,17 where the District Court of the District of Columbia held that the case
evidences the Attorney General’s inaccurate interpretation of the Administrative
Procedures Act and Immigration and Nationality Act under Chevron v. Natural
Resources Defense Council.18 We need not address that claim here to affirm the BIA’s
order. Whether we apply the “unable or unwilling to control,” “condoned,” or “complete
helplessness” standards for government acquiescence, substantial evidence supports the
unchallenged findings relied upon by the BIA when determining that the evidence
presented by Franklin on this element failed to demonstrate an entitlement to withholding
of relief.
15
27 I. & N. Dec. 316 (A.G. 2018).
16
Appellees’ Br. at 45, 56.
17
344 F. Supp. 3d 96, 105 (D.D.C. 2018).
18
467 U.S. 837 (1984).
5
II.
For the foregoing reasons, we will dismiss Franklin’s petition for review as to his
withholding claim and grant his petition as to his CAT claim while remanding for further
review in accordance with this Opinion. We will dismiss Edwin’s petition for review in
total.19
19
The Respondent’s motion to waive filing paper copies of the transcript is granted.
6