Nelson Martinez Manzanares v. William Barr, U. S. , 925 F.3d 222 ( 2019 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60315 May 24, 2019
Lyle W. Cayce
NELSON ESIMAR MARTINEZ MANZANARES, Clerk
Petitioner,
v.
WILLIAM P. BARR, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
Nelson Esimar Martinez Manzanares (“Martinez”) unsuccessfully
applied for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). He now asks us to review the
government’s decision and to vacate the removal order. We deny the petition.
I.
In May 2014, Martinez entered the United States near McAllen, Texas,
without the necessary entry documents. The Department of Homeland
Security (“DHS”) began removal proceedings. Martinez applied for asylum,
withholding of removal, and CAT protection. He argued he had suffered
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persecution in Honduras based on his membership in a particular social group
related to his former work in law enforcement.
A.
Before an Immigration Judge (“IJ”), Martinez testified that he worked
as a volunteer auxiliary police officer from 2005 to 2009 in the Honduran
village of San Isidro, a small community located in the city of Victoria, in the
department of Yoro. On May 14, 2009, he arrested Edwin Giovanni Megdoreta
Montcodo, known as Edis, who was suspected of killing a man with a machete.
Honduran authorities detained Edis for seventeen days before releasing him.
According to Martinez, once released, Edis fled San Isidro for several years to
avoid being tried and convicted for murder.
Nearly five years later, however, Edis returned to San Isidro. In January
2014, as Martinez was about to leave church, people informed him Edis was
outside. When Martinez left the building, Edis pulled out a gun. Bystanders
intervened, however, and “didn’t allow [Edis] to do anything to [Martinez].”
About a month later, Edis threatened Martinez again. Martinez was
driving with his uncle and brother when he saw Edis outside of a bar-like
establishment. Edis yelled that he was going to kill Martinez, pulled out a
gun, and fired shots at the car. The bullets missed Martinez and the car.
Martinez then pulled out his own gun, and Edis fled.
Approximately two weeks later, on February 14, 2014, Martinez was
riding a motorcycle to work when Edis emerged from tall grass with a shotgun.
Edis pointed the shotgun at him. Martinez jumped into a nearby lake. When
Edis approached the lake, Martinez swam away.
Martinez testified before the IJ that he never reported any of the
incidents to the police because the Honduran police do “not function.” Martinez
did, however, report the first two incidents to a local mayor. Both times the
mayor told Martinez that he could “take vengeance in [his] own hands” and
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that he “had the authority to kill [Edis] if [he] wanted to.”
After the third incident, Martinez moved to an apartment in the building
where he worked. When asked whether he had any more problems with Edis
there, Martinez said no. He explained security guards protect the building so
“nothing happens there.” For the remaining month and a half Martinez
remained in Honduras, Edis did not bother him again. On April 4, 2014,
Martinez left Honduras and traveled to the United States.
Martinez sought immigration relief based on persecution on account of
membership in a particular social group. Specifically, Martinez alleged
membership in three possible groups:
(1) ex-law enforcement officials of San Isidro, Victoria, Yoro,
Honduras who are persecuted for having performed their law
enforcement duties; (2) ex-law enforcement officials of San Isidro,
Victoria, Yoro, Honduras who participated in the capture of [Edis];
and (3) ex-law enforcement officials of San Isidro, Victoria, Yoro,
Honduras who participated in the capture of persons accused of
committing a crime.
Resp’t’s Submission in Supp. of Appl., Ex. M. The IJ concluded these groups
are not cognizable as particular social groups under the Immigration and
Nationality Act (“INA”). But even if they were, the IJ determined Martinez
failed to demonstrate persecution on account of membership in these proposed
groups. It found Martinez “is not being singled out because of his status as a
former law enforcement officer, but instead for his role in arresting a particular
individual.” Accordingly, the IJ denied relief.
B.
Martinez appealed to the Board of Immigration Appeals (“BIA”). The
BIA dismissed, concluding the IJ correctly denied the asylum and withholding
claims because Martinez failed to “show . . . the requisite nexus between the
harm he suffered and a protected ground for asylum or withholding of
removal.” Regarding the nexus requirement, Martinez admitted he had been
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harmed because of specific actions he took, not because he belonged to a certain
group. Regarding the protected ground, Martinez failed to show his proposed
social groups are “socially distinct groups in Honduras.” The BIA additionally
upheld the IJ’s conclusion that Martinez did not show the Honduran
government was unable and unwilling to protect him. It further noted
Martinez did not suffer harm rising to the level of persecution.
The BIA likewise upheld the IJ’s determination that Martinez did not
qualify for CAT protection. It noted the Honduran police “initially arrested
and detained Edis,” and the mayor “effectively authorized” Martinez to kill
Edis. Based on “these circumstances,” the BIA concluded Martinez “did not
show that it is more likely than not that he will be subject to mistreatment
rising to the level of torture by Edis by or with the acquiescence of public
officials in Honduras.”
C.
Martinez petitioned this Court for review. But before the Court could
reach the issues presented, Martinez and the government filed a joint motion
to remand. The parties wanted the BIA to (1) explain the apparent assumption
that Martinez’s authorization to kill Edis made it less likely Martinez would
suffer harm, (2) reconsider its reasoning regarding Martinez’s failure to
establish a particular social group and nexus, and (3) “consider whether the
alleged harm suffered by [Martinez] ‘rises to the level’ of persecution.” Over
Judge Jones’s dissent, the Court granted the parties’ joint motion without
discussion.
On remand, the BIA said the parties misinterpreted its original decision.
Regarding the parties’ first remand issue, the BIA said it did not assume
permission to kill Edis made it less likely Martinez would be killed. The BIA
explained the authorization to kill Edis was only one basis for its conclusion
that Martinez didn’t establish the “Honduran authorities would acquiesce or
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be willfully blind to any harm inflicted on [Martinez] that rose to the level of
torture.” Regarding the second issue, the BIA declined to reconsider its
analysis regarding Martinez’s alleged group because, “regardless of whether
former Auxiliary Policemen constitute a cognizable particular social group,
[Martinez] did not show that he was harmed on account of his membership in
that group.” Finally, regarding the third issue, the BIA explained it properly
concluded Martinez’s harm did not rise to the level of persecution despite the
IJ’s failure to make that explicit finding. It further noted that conclusion was
ultimately immaterial because Martinez could not connect any alleged
persecution to a protected ground. Therefore, the BIA again dismissed
Martinez’s appeal. Martinez again petitioned this Court for review.
II.
We review the BIA’s decision; we consider the IJ’s decision only to the
extent it influenced the BIA. See Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir.
2018) (per curiam). We will reverse the BIA’s factual determinations “only if
the evidence is so compelling that no reasonable fact finder could fail to find
the petitioner statutorily eligible for relief.” Qorane v. Barr, 919 F.3d 904, 909
(5th Cir. 2019) (quotation omitted). In contrast, we “review[ ] the BIA’s legal
determinations de novo.” Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir.
2019).
We begin by addressing Martinez’s claims for asylum and withholding of
removal before turning to his CAT claim. We deny the petition on each ground.
A.
To be eligible for asylum, Martinez must establish he is a refugee. 8
U.S.C. § 1158(b)(1)(B)(i). That requires showing “[past] persecution or a well-
founded fear of [future] persecution on account of . . . membership in a
particular social group.” Id. § 1101(a)(42)(A). Similarly, to obtain withholding
of removal, he must show his “life or freedom would be threatened” in
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Honduras “because of . . . membership in a particular social group.” Id.
§ 1231(b)(3)(A); accord 8 C.F.R. § 208.16(b).
1.
A “particular social group” must be “a group of persons [who] share a
common immutable characteristic that they either cannot change or should not
be required to change.” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786
(5th Cir. 2016) (quotation omitted). Furthermore, the relevant society must
“perceive those with the characteristic in question as members of a social
group” (social distinction), and the proposed group must be a limited, “discrete
class of persons” (particularity). Id. at 786–87.
We doubt any of Martinez’s proposed groups qualify as a particular social
group. After all, “[w]hen the harm visited upon members of a group is
attributable to the incentives presented to ordinary criminals rather than to
persecution, the scales are tipped away from considering those people a
‘particular social group’ within the meaning of the INA.” Ucelo-Gomez v.
Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam).
At least one proposed group, “ex-law enforcement officials of San Isidro,
Victoria, Yoro, Honduras who participated in the capture of [Edis],” is clearly
not cognizable. As the BIA noted, there is no record evidence this group is
socially distinct. Likewise, it is not clear from the record that anyone other
than Martinez would fall into that group. But a “particular social group”
necessarily requires “more than one person.” Fatin v. INS, 12 F.3d 1233, 1238
(3d Cir. 1993) (Alito, J.) (emphasis added); see also Memoglu v. Holder, 556 F.
App’x 52, 53 (2d Cir. 2014) (summary order) (concluding a proposed social
group of one “lacks the requisite social visibility”).
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2.
Even if Martinez’s proffered groups are cognizable, substantial evidence
supports the BIA’s determination that Martinez failed to show a nexus
between the alleged persecution and his membership in the groups.
To show persecution was “on account of ” a protected ground for asylum
and withholding of removal, Martinez must prove the protected ground was
“at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i);
Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018). The protected ground
“cannot be incidental, tangential, superficial, or subordinate to another reason
for harm.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quotation
omitted).
Martinez did not make this showing. He never once stated Edis
persecuted him because he was an ex-law enforcement officer. Instead, all the
testimony demonstrates Martinez was targeted because of his specific
involvement in Edis’s arrest, not his general status as an ex-law enforcement
official. Martinez testified that Edis “retaliated against [him]” because he
“turned [Edis] over to the authorities.” He also described the threats as being
“personal, because [he] captured and arrested [Edis] some time back.”
Persecution motivated by a personal vendetta or desire for revenge is not
persecution “on account of ” a protected ground. See Hernandez-Rivera v.
Sessions, 721 F. App’x 401, 402 (5th Cir. 2018) (per curiam) (agreeing applicant
did not establish nexus when persecution was based on “revenge,” not
applicant’s “former police officer” status); Sanjaa v. Sessions, 863 F.3d 1161,
1165 (9th Cir. 2017) (“The personal retribution [applicant] suffered . . . because
of his role in the drug-trafficking investigation is not cognizable under the
INA.”); Marin-Portillo v. Lynch, 834 F.3d 99, 101 (1st Cir. 2016) (concluding no
nexus when threats were motivated by “a personal dispute”); Rodriguez-Leiva
v. Holder, 607 F. App’x 807, 810–11 (10th Cir. 2015) (concluding a witness to a
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murder “was targeted by criminals because he posed a threat to their interest
in avoiding prosecution,” not “on account of his social status”); Costa v. Holder,
733 F.3d 13, 17 (1st Cir. 2013) (concluding persecution based on a “personal
vendetta” is “not due to . . . membership in a social group”); Ayala v. Holder,
640 F.3d 1095, 1098 (9th Cir. 2011) (per curiam) (concluding persecution based
on prior arrest of a drug dealer “is not cognizable under the INA”); Pavlyk v.
Gonzales, 469 F.3d 1082, 1088–89 (7th Cir. 2006) (concluding applicant cannot
demonstrate nexus when “persecution stemmed from his conduct in [two]
particular investigations”).
At most, Edis’s desire for retribution is only tangentially related to
Martinez’s status as an ex-law enforcement officer. Martinez thus cannot show
he was persecuted on account of that status. See Shaikh, 588 F.3d at 864.
Martinez attempts to escape this conclusion by relying on Madrigal v.
Holder, 716 F.3d 499 (9th Cir. 2013). Of course, that decision is not binding on
us, and in any event, it’s readily distinguishable. In that case, the Ninth
Circuit concluded the applicant established a nexus between a protected
ground and persecution because, “even if revenge partially motivated [the gang
members’] mistreatment of him, the record makes clear that their desire to
intimidate members of his social group was another central reason for the
persecution.” Id. at 505–06. Martinez offered no similar evidence that Edis
had a reason for threatening him other than revenge, much less another
central reason.
And even if we disagreed with the agency’s factual conclusion that Edis
was motivated by personal reasons, we still could not say “a reasonable
factfinder would be compelled to conclude to the contrary.” See Thuri v.
Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (per curiam). Because substantial
evidence supports the BIA’s conclusion that Martinez didn’t show the alleged
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persecution was “on account of ” a protected ground, he is not entitled to asylum
or withholding of removal.
B.
We turn now to whether Martinez established his eligibility for CAT
protection. To be eligible for CAT relief, Martinez must show it is “more likely
than not” he will be tortured if he returns to Honduras. Tamara-Gomez v.
Gonzales, 447 F.3d 343, 350 (5th Cir. 2006). In assessing whether Martinez
has made this showing, we look for record evidence regarding any past torture
he suffered, whether he could relocate within Honduras to avoid torture, and
relevant conditions in Honduras, such as whether there are flagrant human
rights violations. See Zhang v. Gonzales, 432 F.3d 339, 345 n.4 (5th Cir. 2005)
(citing 8 C.F.R. § 208.16(c)(3)).
Moreover, an applicant must demonstrate there would be “sufficient
state action involved in that torture” to be eligible for CAT relief. Tamara-
Gomez, 447 F.3d at 351. That’s because torture is defined to include only “pain
or suffering . . . inflicted by[,] at the instigation of[,] or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1).
Substantial evidence supports the BIA’s denial of CAT relief. Even if
Edis threatened Martinez with a sufficiently “extreme form of cruel and
inhuman treatment” to constitute torture, id. § 208.18(a)(2), Martinez failed to
show it was “more likely than not” he will be tortured if he returns to
Honduras, id. § 208.16(c)(2). For starters, the record demonstrates it is likely
he could relocate within Honduras to avoid Edis’s mistreatment. See id.
§ 208.16(c)(3)(ii). Indeed, before he left Honduras, he was able to avoid Edis
for a month and a half by relocating a short distance away, close to where he
worked. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 2015)
(agreeing torture was not likely when evidence suggested “any danger of harm
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could be mitigated through relocation” because a family member had “not been
harmed since moving to another part of Honduras”).
Martinez also failed to show he suffered past torture. See 8 C.F.R.
§ 208.16(c)(3)(i). The record evidence does not prove public officials acquiesced
to any pain or suffering inflicted by Edis. Before the IJ, Martinez testified he
never reported Edis’s threats to the police. Nevertheless, he argues in his brief
that the Honduran government was “willfully blind” to his persecution,
because the “Mayor failed to mobilize law enforcement or do anything to
protect [him].” Martinez offered no testimony, however, showing the mayor of
his community could mobilize the police. Nor did Martinez testify that he
asked the mayor to have the police investigate the incident—much less that
the mayor refused. Instead, he asks this Court to infer the “Mayor of San Isidro
is akin to the mayor of a city in the U.S.” with “the authority to mobilize the
local police.” Even if these are reasonable inferences, the IJ and BIA were not
required to draw them. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007);
Tesfamichael v. Gonzales, 469 F.3d 109, 117 (5th Cir. 2006).
Furthermore, Martinez provided evidence demonstrating public officials
did not consent to previous harm Edis caused, but rather attempted to combat
it. See Chen v. Gonzales, 470 F.3d 1131, 1142 (5th Cir. 2006) (noting it is proper
to consider government efforts “to combat [criminal activity] in the willful
blindness inquiry”). He testified the Honduran authorities detained Edis for
seventeen days on suspicion of murder in 2009. And they were planning to
prosecute Edis—or at least Edis believed they were, because he fled for nearly
five years to avoid it. Record evidence also indicates Honduras had been taking
steps to reform its criminal justice institutions and better “tackle the crime
situation.”
At most, Martinez demonstrated Honduras was unable to provide
Martinez and other citizens complete protection from criminals like Edis. But
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that does not suffice because “a government’s inability to protect its citizens
does not amount to acquiescence.” Qorane, 919 F.3d at 911; see also Miah v.
Mukasey, 519 F.3d 784, 788 (8th Cir. 2008) (explaining “evidence that
Bangladeshi officials have been unable to control the activities of [a] criminal
gang” is “insufficient to compel a finding of willful blindness toward the torture
of citizens by third parties” (quotation omitted)); Tamara-Gomez, 447 F.3d at
351 (concluding “neither the failure to apprehend the persons threatening the
alien, nor the lack of financial resources to eradicate the threat or risk of
torture constitute[s] sufficient state action for [CAT] purposes”).
The record evidence does not compel the conclusion that Martinez was
eligible for CAT relief.
The petition is DENIED.
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