Denis Zelaya v. Eric Holder, Jr. , 668 F.3d 159 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DENIS JAVIER ZELAYA, 
Petitioner,
v.
 No. 10-2401
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: October 27, 2011
Decided: January 11, 2012
Before DAVIS and FLOYD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Petition for review denied in part, granted in part; vacated in
part and remanded by published opinion. Senior Judge Hamil-
ton wrote the opinion, in which Judge Davis and Judge Floyd
joined. Judge Floyd wrote a separate concurring opinion in
which Judge Davis joined.
COUNSEL
ARGUED: Bryan Myerson Ward, SUTHERLAND ASBILL
& BRENNAN, LLP, Atlanta, Georgia, for Petitioner. Kerry
2 ZELAYA v. HOLDER
Ann Monaco, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Respondent. ON BRIEF: Ame-
lia T. Rudolph, Roshal L. Erskine, SUTHERLAND ASBILL
& BRENNAN, LLP, Atlanta, Georgia, for Petitioner. Tony
West, Assistant Attorney General, Civil Division, Linda S.
Wernery, Assistant Director, Office of Immigration Litiga-
tion, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
HAMILTON, Senior Circuit Judge:
Denis Javier Zelaya (Zelaya), a native and citizen of Hon-
duras, petitions for review of the final order of the Board of
Immigration Appeals (the BIA) affirming the denial of his
claims for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Punishment (the CAT or
CAT). We deny Zelaya’s petition for review with respect to
his asylum claim and his withholding of removal claim. How-
ever, we grant his petition for review with respect to his CAT
claim, vacate the BIA’s final order with respect to such claim,
and remand for further proceedings in accordance with this
opinion.
I.
A.
In order to provide the necessary context for our statement
of the relevant facts and procedural history, we now set forth
an overview of the legal landscape relevant to Zelaya’s peti-
tion for review.
Under the Immigration and Nationality Act (the INA), the
Attorney General has discretionary authority to "grant asylum
ZELAYA v. HOLDER 3
to an alien . . . if . . . the Attorney General determines that
such alien is a refugee within the meaning of section
1101(a)(42)(A) of [Title 8]." 8 U.S.C. § 1158(b)(1)(A). Sec-
tion 1101(a)(42)(A) in turn defines the term "refugee" as "any
person who is outside any country of such person’s national-
ity . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself . . . of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of . . . membership in a particular
social group . . . ." Id. § 1101(a)(42)(A). "The burden of proof
is on the applicant [for asylum] to establish that the applicant
is a refugee, within the meaning of section 1101(a)(42)(A)."
Id. § 1158(b)(1)(B).
Unlike in the asylum context, if an alien qualifies for with-
holding of removal under the INA, the Attorney General can-
not remove him to his native country. Id. § 1231(b)(3)(A);
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
"Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that h[is] life or freedom would be threatened in the country
of removal because of h[is] ‘. . . membership in a particular
social group . . . .’" Gomis v. Holder, 571 F.3d 353, 359 (4th
Cir. 2009) (quoting 8 U.S.C. § 1231(b)(3)(A)), cert. denied,
130 S. Ct. 1048 (2010). This is a higher burden of proof than
for an asylum claim, although the facts that must be proven
are the same. Camara, 378 F.3d at 367. Accordingly, an alien
who cannot meet his burden of proof on an asylum claim
under the INA necessarily cannot meet his burden of proof on
a withholding of removal claim under the INA. Id.
The CAT, pursuant to its implementing regulations, prohib-
its the United States from returning any person to a country
where the person has demonstrated that it is more likely than
not that he will be tortured if returned to such country. United
Nations Convention Against Torture, and Other Cruel, Inhu-
man or Degrading Treatment or Punishment, art. 3, Dec. 10,
1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U.N.T.S. 85,
4 ZELAYA v. HOLDER
114. For purposes of obtaining protection under the CAT in
the United States, torture is defined as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other per-
son acting in an official capacity.
8 C.F.R. §§ 208.18(a)(1) (Department of Homeland Security
regulation), 1208.18(a)(1) (Executive Office for Immigration
Review regulation).1 A public official acquiesces to torture if,
"prior to the activity constituting torture, [the public official]
ha[s] awareness of such activity and thereafter breach[es] his
or her legal responsibility to intervene to prevent such activ-
ity." Id. § 1208.18(a)(7). "The testimony of the applicant" for
withholding of removal under the CAT, "if credible, may be
1
The abolishment of the Immigration and Naturalization Service in
2003 and the concomitant transfer of its enforcement functions to the
Department of Homeland Security led to the creation of a parallel set of
immigration regulations for the Executive Office of Immigration Review,
which office remains part of the Department of Justice. Homeland Secur-
ity Act of 2002, Pub. L. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135,
2192 (Nov. 25, 2002), as amended; 68 Fed. Reg. 9824-01 (February 28,
2003); Anwen Hughes, Asylum and Withholding of Removal—A Brief
Overview of the Substantive Law, 205 Practicing Law Inst./NY 445, 477
n.1 (2011). Because Zelaya’s asylum application took its path through the
Executive Office of Immigration Review, from here forward, with the
exception of our discussion in footnote 2, infra, we will only cite to the
regulatory version specifically applicable to the Executive Office of Immi-
gration Review.
ZELAYA v. HOLDER 5
sufficient to sustain the burden of proof without corrobora-
tion." Id. § 1208.16(c)(2).2
B.
On January 19, 2007, Zelaya entered the United States ille-
gally at the age of sixteen. Zelaya conceded his removability
as charged in his notice to appear, but sought relief from
removal by seeking asylum, withholding of removal, and pro-
tection under the CAT (collectively Zelaya’s asylum applica-
tion). Zelaya applied for asylum and withholding of removal
2
During oral argument in the present appeal, the government adamantly
denied that 8 C.F.R. § 208.16(c)(2), which is identical to 8 C.F.R.
§ 1208.16(c)(2), applies to CAT claims; instructing us that such regulation
only applies in the asylum context. The government then went on to
instruct us that the entirety of 8 C.F.R. § 208.16, which again is identical
to 8 C.F.R. § 1208.16, applies only in the asylum context and that "there
is nothing in the regulations that talk about corroboration in the CAT
claim." We are baffled by the government’s position in this regard because
§§ 208.16 and 1208.16 could not be clearer that their respective subpara-
graph (c)(2)s apply to an application for withholding of removal under the
CAT. Their main headings announce that their topics of coverage are
"Withholding of removal under section 241(b)(3)(B) of the [INA] and
withholding of removal under the Convention Against Torture." 8 C.F.R.
§§ 208.16, 1208.16 (underscore emphasis added). Drilling down, their
respective headings of paragraph (c) state "Eligibility for withholding of
removal under the Convention Against Torture." Id. §§ 208.16(c),
1208.16(c). And, the entirety of their respective subparagraph (c)(2)s each
state:
The burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely
than not that he or she would be tortured if removed to the pro-
posed country of removal. The testimony of the applicant, if cred-
ible, may be sufficient to sustain the burden of proof without
corroboration.
Id. §§ 208.16(c)(2), 1208.16(c)(2) (emphasis added). In short, the govern-
ment’s position that the testimony of an applicant for withholding of
removal under the CAT, if credible, is never sufficient to sustain his bur-
den of proof without corroboration is unequivocally wrong in the face of
the plain language of §§ 208.16(c)(2) and 1208.16(c)(2).
6 ZELAYA v. HOLDER
under the INA based upon his membership in a particular
social group.3
On December 16, 2009, the immigration judge (the IJ) held
an evidentiary hearing on Zelaya’s asylum application.
According to Zelaya’s pre-hearing brief, he is entitled to asy-
lum or withholding of removal under the INA because he has
a well-founded fear of persecution on account of his member-
ship in a particular social group consisting of young Hondu-
ran males who (1) refuse to join the Mara Salvatrucha 13
gang (MS-13), (2) have notified the authorities of MS-13’s
harassment tactics, and (3) have an identifiable tormentor
within MS-13.
Zelaya grew up in the Honduran town of El Progresso, in
the department of Yoro. Zelaya testified on his own behalf
before the IJ during a hearing on his asylum application.
When asked by his counsel to describe his life in El Pro-
gresso, Zelaya testified, as summarized in the IJ’s written
decision, that:
[H]is life was horrible. From age 11 years old until
he left he was pursued by gangs. He said that there
were gangs everywhere he went. The MS-13 was the
name of the gang. He is afraid of the gangs. He said
the gangs threatened to kill him on several occa-
sions. He said they threatened him because he does
not want to join. He began to speak about being
threatened because they accused him of dating a
young girl. He said they wanted him to join the gang.
They would hit him and beat him when they con-
fronted him about his lack of desire to join the gang.
3
He also applied for asylum and withholding of removal under the INA
based upon his political opinions. Zelaya does not press his political opin-
ions as a ground for asylum or withholding of removal under the INA in
his petition for review of the BIA’s final order. Accordingly, we do not
address it further.
ZELAYA v. HOLDER 7
They threatened they would kill his brother if he did
not join the gang. [Zelaya] continued to say that on
one occasion they approached him in a park. They
put a gun to his head and shot the gun. The gun was
shot in front of his face. He said that he was bleed-
ing. He testified that the gang member told him you
are lucky I only have one bullet otherwise you would
be dead. [Zelaya] said that he wanted to tell the
police and he went to the police station and he filed
a report. He said that the police told him that they
could not help him because the gang members would
hurt them as well. [Zelaya] said there was another
incident when his friend Manuel called him to come
out and meet him in a wooded area. He said when he
arrived there he saw that Manuel was being beaten
up by the gang. That Manuel’s face was bruised and
swollen. They hit him, meaning [Zelaya], in the
stomach and threatened to kill him and his brother if
he did not join the gang.
(J.A. 54-55).
Zelaya testified that all of the MS-13 gang members in his
neighborhood were involved in harassing him. Although all
nine would hit him, the "boss of the whole gang" in his neigh-
borhood, named Jeffrey, would seek Zelaya out in particular.
(J.A. 137). After the incident in the wooded area, Zelaya told
MS-13 that he would think about joining. MS-13 then assured
him that his friend Manuel would be fine.
Zelaya then went home and started thinking about coming
to the United States, because he "was afraid they were going
to kill [his] brother because [he] grew up with [his] brother
and [his] mother." (J.A. 145). Zelaya fled Honduras for the
United States soon thereafter. According to Zelaya, sometime
after he arrived in the United States, he learned through a tele-
phone call to his grandmother back in Honduras that MS-13
8 ZELAYA v. HOLDER
had shot and killed his friend Manuel because the gang
wanted to know his whereabouts.
In addition to his own testimony, Zelaya submitted numer-
ous documents in support of his asylum application, includ-
ing, inter alia: (1) a copy of a March 11, 2009, press release
issued by Campbell University recounting the 1997 kidnap-
ping and murder of the son of then Honduran President
Ricardo Maduro by MS-13 in Honduras; (2) an affidavit by
Zelaya in which he describes in detail, inter alia, his early life
in Honduras and MS-13’s violent efforts at recruiting him and
his friend Manuel; (3) an affidavit by Magdaleno Rose-Avilia,
Chief of Party for the Miami Project of the International
Relief Development Agency and researcher of gang life in
Central America, opining, inter alia, that, given the attention
and threats that Zelaya drew from MS-13 communicated to
him through the targeting of his friends and relatives, Zelaya’s
"life is in danger and it is clear that [MS-13] has neither for-
gotten nor forgiven him," (J.A. 221); (4) the 2008 State
Department country report on human rights practices in Hon-
duras, reporting, inter alia, that abuse of youth and children
by gangs in Honduras and corruption within all security
forces in Honduras are serious problems; (5) a September 11,
2008 article published by the World Markets Research Cen-
ter, reporting that Honduras is battling a high crime rate and
violence, mainly blamed on the gangs; (6) written certifica-
tion, dated September 25, 2007, by the Head of the Director-
ate General of Criminal Investigation for the city of El
Progresso that, in the spring of 2006, Zelaya twice reported to
the police that members of MS-13 had threatened to kill him
if he did not join their gang; (7) a written certification, dated
September 25, 2007, by a Honduran attorney named Olvin
David Martinez Zelaya, stating that he accompanied Zelaya to
the police station when he reported the death threats by MS-
13 in the spring of 2006; and (8) a six-page report by a
licensed psychologist, Max Nunez, MA, acknowledging, inter
alia, Zelaya’s accounts of MS-13’s violent recruitment efforts
toward him including the shooting incident in the park in the
ZELAYA v. HOLDER 9
spring of 2006 and concluding, inter alia, as a consequence
of MS-13’s assaults and threats against Zelaya, his family,
and his friends, Zelaya had symptoms suggestive of post trau-
matic stress disorder.
In her written decision on Zelaya’s asylum application, the
IJ found Zelaya credible and stated her belief that Zelaya had
been pursued by MS-13 prior to fleeing Honduras. She also
stated that she was "very concerned about [Zelaya being
killed if he returned to Honduras] and it is unfortunate, but the
Court is not able to grant asylum merely because [Zelaya] is
in fear of a gang." (J.A. 59). She went on to state:
Unfortunately, there are gangs throughout Central
America in all the countries there, and here even in
the United States. The fear alone does not place
[Zelaya] as a person eligible for political asylum. I
find that the evidence presented today is clear about
the troubling country conditions in Honduras. There
is no dispute between either side or in the Court’s
mind that Honduras is a place full of violence, reck-
lessness, and ineffective law enforcement officials.
However, the law of asylum remains clear. [Zelaya]
must establish that he is a member of a particular
social group . . . in order to be granted political asy-
lum. [Zelaya] has not demonstrated as such. He has
not met his burden of proof in that regard.
(J.A. 59-60). The IJ then went on to deny Zelaya’s withhold-
ing of removal claim because it was based upon the same
facts as his asylum claim and a withholding of removal claim
requires the applicant to meet a higher standard of proof than
in the asylum context. The IJ denied Zelaya’s CAT claim on
the basis that Zelaya had not described events showing that it
is more likely than not that he would be subject to torture if
returned to Honduras. In this regard, the IJ pointed out that
torture under the CAT requires the acquiescence or consent of
a public official, which Zelaya had failed to demonstrate.
10 ZELAYA v. HOLDER
Zelaya appealed the IJ’s decision to the BIA, continuing to
press his asylum and withholding of removal claims under the
INA based upon his membership in a particular social group
and continuing to press his CAT claim. In a written decision
and final order spanning less than two full pages, the BIA
affirmed the IJ’s decision on a de novo review of the issues
presented and dismissed Zelaya’s appeal. Notably, the BIA
did not find any of the IJ’s findings of fact or her credibility
determination to be clearly erroneous. Zelaya timely filed his
petition for review of the BIA’s final order. In his petition for
review, Zelaya challenges the BIA’s affirmance of the IJ’s
denial of his claims for asylum and withholding of removal
under the INA and his claim for protection against torture
under the CAT. We address each in turn.
II.
The BIA affirmed the IJ’s denial of Zelaya’s asylum claim
on the ground that young Honduran males who refuse to join
MS-13, have notified the authorities of MS-13’s harassment
tactics, and have an identifiable tormentor within MS-13 do
not qualify as a "particular social group" under
§ 1101(a)(42)(A). According to the BIA, Zelaya’s argument
to the contrary is foreclosed by its precedential decision in
Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).
In Matter of S-E-G, two brothers who had fled El Salvador
in 2004, sought asylum in the United States on the ground that
they had suffered persecution and had a well-founded fear of
future persecution by the MS-13 gang in El Salvador on
account of their being in the particular social group of young
Salvadoran males who have resisted gang recruitment. Id. at
581. The BIA held that this proposed social group did not
constitute a particular social group within the meaning of the
INA because it lacked particularity and social visibility. Id. at
585-87.
In his petition for review, Zelaya does not challenge Matter
of S-E-G as wrongly decided; rather, he argues that his pro-
ZELAYA v. HOLDER 11
posed social group is distinguishable from the proposed social
group the BIA rejected in Matter of S-E-G because his pro-
posed social group includes persons who notified the police
of MS-13’s harassment tactics and have a specific tormenter
within MS-13. Indeed, he goes on to argue that the particular
social group that we recently recognized in Crespin-
Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) compels
the conclusion that his proposed social group constitutes a
particular social group under the INA, and thus, the BIA
should have granted his asylum claim.
We must uphold the denial of Zelaya’s asylum claim unless
such denial is "manifestly contrary to the law and an abuse of
discretion." 8 U.S.C. § 1252(b)(4)(D). Here, the BIA’s affir-
mance of the IJ’s denial of Zelaya’s asylum claim on the
ground that his proposed social group does not constitute a
particular social group under the INA is not manifestly con-
trary to the law nor an abuse of discretion. The BIA has
defined persecution on account of membership in a particular
social group, within the meaning of the INA, to mean "perse-
cution that is directed toward an individual who is a member
of a group of persons all of whom share a common, immuta-
ble characteristic[,] . . . one that the members of the group
either cannot change, or should not be required to change
because it is fundamental to their individual identities or con-
sciences." Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA
1985), overruled on other grounds by Matter of Mogharrabi,
19 I. & N. Dec. 439 (BIA 1987) (internal quotation marks
omitted). Furthermore, in addition to immutability, the BIA
requires that a particular social group have social visibility,
meaning that members possess characteristics visible and rec-
ognizable by others in the native country; be defined with suf-
ficient particularity to avoid indeterminacy; and not be
defined exclusively by the fact that its members have been
targeted for persecution.4 Scatambuli v. Holder, 558 F.3d 53,
59 (1st Cir. 2009).
4
Although the Seventh Circuit has rejected the BIA’s social visibility
requirement, Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009), the
Fourth Circuit has not yet decided whether such requirement comports
with the INA. Crespin-Valladares, 632 F.3d at 125 n.5. We have no occa-
sion to do so in the present case.
12 ZELAYA v. HOLDER
The particular social group propounded by Zelaya is not
materially distinguishable from the one rejected by the BIA in
Matter of S-E-G and is materially distinguishable from the
one we recognized in Crespin-Valladares. For analytical pur-
poses, we begin with Crespin-Valladares.
In Crespin-Valladares, we considered whether the pro-
posed group of family members of those who actively oppose
gangs in El Salvador by agreeing to be prosecutorial wit-
nesses against the gangs qualify as a particular social group
within the meaning of the INA. 632 F.3d at 124-26. We held
that it does. Id. In reaching this holding, we held that the fam-
ily bonds of the proposed group satisfied the BIA’s immuta-
ble characteristic requirement, id. at 124-25, the self-limiting
nature of the family unit satisfied the particularity require-
ment, id. at 125, and the easily recognizable innate character-
istic of family relationship satisfied the social visibility
requirement, id. at 125-26.
In contrast to the social group recognized in Crespin-
Valladares, Zelaya’s proposed social group does not have the
immutable characteristic of family bonds. Similarly, Zelaya’s
proposed social group does not have the self-limiting feature
of the family unit, which feature was critical to our holding
in Crespin-Valladares that the proposed social group in that
case had particular and well-defined boundaries, such that it
constituted a discrete class of persons. Id. at 125. Finally,
Zelaya’s proposed social group does not have the easily rec-
ognizable innate characteristic of family relationship.
Zelaya never comes to grips with these material distinctions
between his proposed social group and the one we recognized
in Crespin-Valladares. Rather, he seems to be under the mis-
impression that, in addition to recognizing the social group of
family members of those who actively oppose gangs in El
Salvador by agreeing to be prosecutorial witnesses against the
gangs, we also recognized in Crespin-Valladares that the
complaining witness himself was part of the protected social
ZELAYA v. HOLDER 13
group. Zelaya patently misreads Crespin-Valladares in this
regard. Indeed, we made clear in Crespin-Valladares that the
particular social group proposed by the alien family in that
case did not include the family member who agreed to be the
prosecutorial witness; rather, it only included the family
members of such witness. Id. at 125 ("Crespins’ proposed
group excludes persons who merely testify against MS–13;
the Crespins’ group instead encompasses only the relatives of
such witnesses, testifying against MS–13, who suffer persecu-
tion on account of their family ties.").
The critical problem with Zelaya’s proposed social group
for purposes of seeking asylum is that it fails the BIA’s partic-
ularity requirement. First, as we have previously recognized,
opposition to gangs is an amorphous characteristic providing
neither an adequate benchmark for determining group mem-
bership nor embodying a concrete trait that would readily
identify a person as possessing such a characteristic. Lizama
v. Holder, 629 F.3d 440, 447 (4th Cir. 2011). Resisting gang
recruitment is similarly amorphous, id., and the fact that
Zelaya’s conduct in resisting recruitment included complain-
ing twice to the police adds little to the particularity equation
in the face of the common sense proposition that MS-13
would look unfavorably upon anyone who complained about
its harassment tactics to the police. Similarly, the concept that
a person who is victimized by one gang member more than
by other gang members somehow serves to particularize all
such persons into a targeted social group is just nonsensical.
For these reasons, Zelaya’s proposed social group is materi-
ally indistinguishable from the one rejected by the BIA in
Matter of S-E-G.
In sum, the BIA’s conclusion that Zelaya’s proposed social
group of young Honduran males who refuse to join MS-13,
have notified the police of MS-13’s harassment tactics, and
have an identifiable tormentor within the gang does not qual-
ify as a particular social group within the INA is not mani-
festly contrary to the law or an abuse of discretion. Cf.
14 ZELAYA v. HOLDER
Ramos-Lopez v. Holder, 563 F.3d 855, 859-61 (9th Cir. 2009)
(upholding BIA’s determination that young Honduran men
who resist being recruited into gangs do not constitute a par-
ticular social group within the INA). Accordingly, we affirm
the BIA’s affirmance of the IJ’s denial of Zelaya’s asylum
claim.
III.
Because Zelaya is ineligible for asylum under the INA, he
necessarily fails the more stringent standard of proof for with-
holding of removal under the INA. Yi Ni v. Holder, 613 F.3d
415, 427 (4th Cir. 2010); Camara, 378 F.3d at 367. Accord-
ingly, we affirm the BIA’s affirmance of the IJ’s denial of
Zelaya’s withholding of removal claim under the INA.
IV.
Lastly, we address Zelaya’s CAT claim. We begin by reit-
erating that, unlike his claims for asylum and withholding of
removal under the INA, Zelaya qualifies for protection under
the CAT if he can prove that, whatever the motivation, it is
more likely than not that he would be tortured if removed to
Honduras. Jian Tao Lin v. Holder, 611 F.3d 228, 236 (4th Cir.
2010); 8 C.F.R. § 1208.16(c)(2). For purposes of obtaining
protection under the CAT in the United States, torture is
defined, in relevant part, as "any act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as . . . punishing him
. . . for an act he . . . has committed . . . , or intimidating or
coercing him . . . , when such pain or suffering is inflicted . . .
with the . . . acquiescence of a public official or other person
acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). And
a public official acquiesces in torture if, "prior to the activity
constituting torture, [the public official] ha[s] awareness of
such activity and thereafter breach[es] his or her legal respon-
sibility to intervene to prevent such activity." Id.
§ 1208.18(a)(7).
 ZELAYA v. HOLDER 15
Here, based upon the documentary evidence submitted by
Zelaya and Zelaya’s testimony, the IJ made the following
findings of fact which are relevant to Zelaya’s CAT claim: (1)
Zelaya is a credible witness; (2) Zelaya consistently resisted
MS-13’s recruitment efforts and, as a result, MS-13 consis-
tently pursued him until he fled Honduras at the age of six-
teen, including beating him, threatening to kill him on several
occasions, threatening to kill his brother, and shooting at him;
(3) Zelaya continues to be in fear of MS-13; (4) when Zelaya
reported the shooting incident in person to the local police
with blood streaming down his face, a police officer told him
that the police could not help him because MS-13’s members
would hurt them as well; (5) Honduras is a place full of vio-
lence, recklessness, and ineffective law enforcement officials;
and (6) the IJ was very concerned that Zelaya would be killed
by MS-13 if he is returned to Honduras.
Having found none of the IJ’s findings of fact to be clearly
erroneous, the BIA conducted a de novo review of Zelaya’s
CAT claim. The entirety of the BIA’s specific discussion of
Zelaya’s CAT claim in its written decision is as follows:
We also affirm the Immigration Judge’s denial of
protection under the Convention Against Torture
("CAT"). We agree with the Immigration Judge that
the respondent has failed to establish that it is more
likely than not that he will be subject to torture in
Honduras that would be inflicted by or with the
acquiescence (to include the concept of willful blind-
ness) of a public official or other persons acting in
an official capacity (I.J. at 17). See 8 C.F.R.
§§ 1208.16(c)(2) and 1208.18(a)(1).
(J.A. 4).
What is clear to us is that the BIA did not take issue with
the IJ’s grave concern that Zelaya would be killed by MS-13
if he is removed to Honduras. What is not clear to us, how-
16 ZELAYA v. HOLDER
ever, is why the police officer’s ultimate refusal to help
Zelaya in any way when he reported that he had just been
threatened with a gunshot by a member of MS-13 for resisting
MS-13’s recruitment efforts does not satisfy Zelaya’s burden
of proving that it is more likely than not that if Zelaya is
removed to Honduras, he would endure severe pain or suffer-
ing, whether physical or mental, intentionally inflicted on him
for such purposes as punishing him for resisting MS-13
recruitment or coercing him into joining MS-13, with the
awareness of the local police that this would take place and
the breach of the local police’s legal responsibility to inter-
vene to prevent it from happening. See 8 C.F.R.
§ 1208.16(c)(2) ("The testimony of the applicant" for with-
holding of removal under the CAT, "if credible, may be suffi-
cient to sustain the burden of proof without corroboration.").
The BIA’s answer to this issue and reasoned explanation is
necessary before we can meaningfully review the BIA’s deci-
sion regarding Zelaya’s CAT claim. The BIA abused its dis-
cretion by failing to address the critical issue we have outlined
and by failing to give a reasoned explanation for why the facts
of this case do not satisfy the regulatory definition of
"[a]quiescence of a public official," for purposes of analyzing
a CAT claim. Id. § 1208.18(a)(7). See Tassi v. Holder, 660
F.3d 710, 719 (4th Cir. 2011) ("The BIA may be held to have
abused its discretion if it failed to offer a reasoned explanation
for its decision, or if it distorted or disregarded important
aspects of the applicant’s claim."). Where "a BIA order does
not demonstrate that the agency has considered an issue, the
proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation." Nken
v. Holder, 585 F.3d 818, 822 (4th Cir. 2009) (internal quota-
tion marks omitted). See also SEC v. Chenery Corp., 318 U.S.
80, 94 (1943) (requiring that "the grounds upon which the
administrative agency acted be clearly disclosed and ade-
quately sustained"). Here, the proper course is to send
Zelaya’s CAT claim back to the BIA for additional investiga-
tion and explanation as we have outlined.
ZELAYA v. HOLDER 17
V.
In conclusion, we: (1) deny Zelaya’s petition for review
with respect to his asylum and withholding of removal claims
under the INA; (2) grant Zelaya’s petition for review with
respect to his CAT claim; (3) vacate the BIA’s decision to the
extent it denies Zelaya’s CAT claim; and (4) remand for fur-
ther proceedings consistent with this opinion.
PETITION FOR REVIEW DENIED
IN PART, GRANTED IN PART;
VACATED IN PART AND REMANDED
FLOYD, Circuit Judge, concurring:
I concur in the well-crafted majority opinion. I write sepa-
rately simply to address what I perceive as lingering confu-
sion regarding the implications of our holding in Crespin-
Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). In my
view, Judges Bea and Ripple, concurring in Henriquez-Rivas
v. Holder, No. 09–71571, 2011 WL 3915529 (9th Cir. Sept.
7, 2011) (unpublished), were correct in the following observa-
tion:
It should be noted that the proposed social group in
Crespin included only family members of [prosecu-
tion witnesses against gangs] and not the witnesses
themselves. However, to my mind, if the family
members of witnesses are deemed socially visible
and particular, the witnesses themselves—a more
particular and socially visible and smaller class of
people—must, a fortiori, meet those requirements as
well.
Id. at *5 n.5. That is, to the extent members of a particular,
socially visible group are defined by their relationship to
another person or group of people, this person or group pre-
sumably also satisfies the particularity and social visibility
18 ZELAYA v. HOLDER
criteria. It may be, of course, that "prosecution witnesses
against gangs" do not constitute a "particular social group" for
some reason other than particularity or social visibility, but I
am of the opinion that Crespin-Valladares is properly read to
indicate that such a group satisfies these criteria in the same
manner that "family members of prosecution witnesses
against gangs" do.*
Thus, while I agree that Zelaya’s proposed social group is
insufficiently particular, I reach this conclusion not because
the members of the proposed group lack kinship ties, but
rather because the characteristics of the group are, in my
view, broader and more amorphous than a group consisting of
individuals who have testified for the government in formal
prosecutions of gangs. As the lead opinion deftly explicates,
Zelaya’s conduct in twice contacting the police has failed to
materially distinguish this case from Matter of S-E-G-, 24 I.
& N. Dec. 579 (BIA 2008). For this reason, I concur in the
denial of Zelaya’s petition for review with respect to his asy-
lum and withholding of removal claims.
Judge Davis has authorized me to indicate that he joins in
this opinion.
*To be clear, I am not expressing an opinion on whether we should find
that the social visibility requirement comports with the INA or, alterna-
tively, should join the Seventh Circuit in rejecting this requirement, see
Gatimi v. Holder, 578 F.3d 611, 615–16 (7th Cir. 2009). We did not reach
this issue in Crespin-Valladares, 632 F.3d at 125 n.5, and we have no
occasion do so here. In Crespin-Valladares, we determined only that, if a
cognizable social group must be socially visible, the "family members"
group fulfills this criterion. Id. at 125–26 & n.5. I believe it follows from
Crespin-Valladares that, to the extent we impose a social visibility
requirement, the group "prosecution witnesses against gangs" also satisfies
this criterion.