Andres Garcia-Meza v. Eric Holder, Jr. , 448 F. App'x 448 ( 2011 )

Case: 11-60263 Document: 00511649677 Page: 1 Date Filed: 10/31/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2011
No. 11-60263
Summary Calendar Lyle W. Cayce
Clerk
ANDRES O. GARCIA-MEZA, also known as Enrique Mesa-Orlando, also known
as Jose Garcia, also known as Jose Meza-Orlando,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 182 047
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Andres O. Garcia-Meza petitions for review of the Board of Immigration
Appeals’s (BIA) determination that he is not entitled to deferral of removal
under the Convention Against Torture (CAT). Garcia-Meza contends that he
will be tortured if he returns to Honduras because he is a homosexual and was
a gang member. The respondent moves for summary affirmance.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60263 Document: 00511649677 Page: 2 Date Filed: 10/31/2011
No. 11-60263
The conclusion that an alien is not eligible for relief under the CAT is a
factual finding reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005). For a petitioner to be entitled to deferral of removal
under the CAT, he or she must show that “it is more likely than not that he or
she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). “Torture is defined as any act by which severe pain or suffering
. . . is intentionally inflicted on a person . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” Id. § 1208.18(a)(1). “Thus relief under the [CAT] requires a two part
analysis-first, is it more likely than not that the alien will be tortured upon
return to his homeland; and second, is there sufficient state action involved in
that torture.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006).
While Garcia-Meza proffered evidence of mistreatment found to be credible
by the immigration judge, this evidence is insufficient to meet the high burden
imposed by the relevant section of the CAT. Although Garcia-Meza was raped
when he was a child in Honduras, he did not report the assault to authorities,
so this terrible incident does not support the conclusion that he will be tortured
by or with the acquiescence of the Honduran Government. Garcia-Meza does not
point to any evidence of government involvement in the murder of his uncle nor
any evidence that the government is likely to be involved in any future gang
violence. The acts of government-sanctioned discrimination and intimidation
documented in the State Department’s 2009 Human Rights Report on Honduras,
while deplorable, do not rise to the level of torture. See 8 C.F.R. § 1208.18(a)(1).
The Human Rights Report does not provide sufficient evidence about violence
committed or threatened against homosexuals by security forces and police to
overturn the Board of Immigration Appeals’ decision. Cf. Chen v. Gonzales, 470
F.3d 1131, 1140-41 (5th Cir. 2006). Without more, the alleged failure of police
to investigate the murders and hate crimes committed by unknown actors
against homosexuals does not amount to government acquiescence as defined by
2
Case: 11-60263 Document: 00511649677 Page: 3 Date Filed: 10/31/2011
No. 11-60263
CAT. See Demiraj v. Holder, 631 F.3d 194, 201 (5th Cir. 2011), petition for cert.
filed (June 20, 2011) (No. 10-1545).
To the extent that Garcia-Meza asserts that he was also eligible for asylum
relief, he has waived any challenge to the determination that he was statutorily
ineligible for such relief by failing to brief the issue. See Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
The decision to deny Garcia-Meza deferral of removal under the CAT is
supported by substantial evidence. See Zhang, 432 F.3d at 344. Garcia-Meza’s
petition for review is DENIED, and the respondent’s motion for summary
affirmance is GRANTED.
3