Luis Estupinan-Gonzalez v. Jefferson B. Sessions, III ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0171n.06
No. 17-3965
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
LUIS ESTUPINAN-GONZALEZ, ) Apr 02, 2018
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
JEFFERSON B. SESSIONS, III, Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
Before: SILER and LARSEN, Circuit Judges; BLACK, District Judge.*
SILER, Circuit Judge. Petitioner Luis Alberto Estupinan-Gonzalez (“Estupinan”) seeks
review of the Board of Immigration Appeals’ (“BIA”) denial of his application for protection
under the Convention Against Torture (“CAT”). For the reasons stated below, we DENY
Estupinan’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
Estupinan, a Mexican national, first came to the United States illegally in 1996 when he
was seven years old. (R. 37). He grew up and attended schools in Nashville, Tennessee. Id. In
2007, Estupinan was convicted of “forgery and two DUIs” and was placed in removal
proceedings. (R. 37, 62, 100-01). He accepted an order of voluntary departure and returned to
Mexico. (R. 9, 101). However, when Estupinan returned to his family’s hometown in
Zacatecas, Mexico, members of the Zetas—an organized criminal enterprise—noticed that he
spoke Spanish with an American accent and wore American clothing. (R. 14, 108). Estupinan
*
Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting by designation.
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was approached by the Zetas on three separate occasions, beginning in 2008. (R. 63, 109-13).
The first two times he was not threatened or harmed. (R. 63, 111, 112). Then, in 2009,
Estupinan and his friend, Martin Diaz,1 were abducted at gunpoint by the Zetas, held in a
warehouse, and severely beaten. (R. 63-64, 113-18). The Zetas offered to allow Estupinan to
work for them in exchange for protection. (R. 64, 117). In response to this job offer, Estupinan
said he “would see.” Id. The Zetas told him they knew where he lived and would be looking for
him. Id. Two months later, after he had recovered from his injuries, Estupinan illegally
reentered the United States. (R. 64-65, 120). Three years later Estupinan was stopped by police
in 2012 for a broken vehicle light. (R. 40, 132). The police officer discovered that Estupinan
had an outstanding arrest warrant stemming from unpaid fines in his DUI charges. (R. 40).
Immigration Judge’s Decision
The Department of Homeland Security (“the Department”) initiated removal proceedings
against Estupinan in 2012. (R. 61). He applied for withholding of removal under Section
241(b)(3) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1231(b)(3).
He also sought protection under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”) art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20,
1465 U.N.T.S. 85. (R. 61). An immigration judge (“IJ”) denied Estupinan’s application in 2017.
(R. 61-82).
The IJ determined that Estupinan was credible, had sufficiently corroborated his
withholding application, and had established that the harm he experienced at the hands of the
Zetas rose to a level severe enough to constitute past persecution. (R. 73-74). However, the IJ
also held that Estupinan failed to demonstrate the persecution he experienced was on account of
1
Subsequent to this attack, in 2011, the Zetas shot and killed Martin Diaz. (R. 65, 126).
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his (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or
(5) political opinion. (R. 74-76); see Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir.
2015). Assuming that the BIA might disagree and hold that Estupinan was a member of a
cognizable social group (Mexican-American expatriates), the IJ found, in the alternative, that
Estupinan had not proven that the Mexican government was unable or unwilling to control the
Zetas who targeted him. (R. 77-78). Additionally, the IJ found that Estupinan failed to carry his
burden of establishing that it would not be reasonable for him to relocate and that his fear of
future persecution was objectively reasonable. (R. 78-81).
The IJ also denied Estupinan’s CAT claim. (R. 81-82). The IJ noted that the most
important difference between an application for withholding of removal and a claim under the
CAT is “that in order to succeed pursuant to the [CAT], it is not necessary to link the harm faced
with any of the five protected grounds enumerated in relation to applications for asylum and
withholding.” (R. 71) (quoting Castellano-Chacon v. I.N.S., 341 F.3d 533, 551 (6th Cir. 2003)).
Yet, in a seemingly contradictory statement, the IJ declared that, “[a]s Respondent failed to meet
his burden to show his eligibility for withholding of removal, he has necessarily failed to meet
the higher burden required to demonstrate eligibility for CAT.” (R. 82). The IJ clarified that
“Respondent has failed to show that he would be tortured by, at the instigation of, or with the
consent or acquiescence of a public official or a person acting in an official capacity.” Id. With
respect to the country conditions evidence, the IJ held that:
The violence committed by criminal groups against the public is
still a concern in Mexico generally, however, [Estupinan] did not
give the Mexican government an opportunity to take action in his
case, and he has not demonstrated that had he stayed in Mexico
and reported [the Zetas] abuse to the police, that the Mexican
government would not have intervened.
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(R. 52). Thus, the IJ concluded that Estupinan “failed to meet his burden of establishing that the
Mexican government is unable or unwilling to control the [Zetas’] acts of violence.” (R. 53).
BIA’s Decision
On appeal to the BIA, Estupinan argued that the IJ applied an incorrect standard of proof
in evaluating his CAT claim. (R. 8-12). The BIA “acknowledge[d] that one sentence of the
[IJ’s] decision equates a failure of proof for withholding of removal with a failure of proof for
protection under the [CAT].” (R. 4). However, the BIA found that this “appear[ed] to be little
more than a clerical error,” because the IJ otherwise correctly stated CAT law principles, found
petitioner to be credible, and concluded petitioner failed to show he would be tortured by, at the
instigation of, or with the consent or acquiescence of a public official. (R. 4). And, because
Estupinan did not identify any evidence that supported a claim for protection under the CAT, the
BIA was not persuaded that the IJ’s decision in that regard should be reversed or remanded. Id.
JURISDICTION AND THE STANDARD OF REVIEW
Under 8 U.S.C. § 1252, we may review “a final order of removal.” In removal matters,
we review factual findings “under the highly deferential substantial-evidence standard.” Harmon
v. Holder, 758 F.3d 728, 732 (6th Cir. 2014) (citing Khalili v. Holder, 557 F.3d 429, 435 (6th
Cir. 2009)); see 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary[.]”).
However, “[w]e review the legal conclusions of the BIA de novo.” Harmon, 758 F.3d at 732.
“The BIA’s decisions are final agency determinations for purposes of judicial review, and
[the courts] are also empowered to review the IJ’s opinion to the extent that the BIA adopts that
opinion.” Gaye v. Lynch, 788 F.3d 519, 526 (6th Cir. 2015). To reverse determinations of the IJ
and the BIA, the court “must find that the evidence ‘not only supports a contrary conclusion, but
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indeed compels it.’” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006) (quoting Yu v.
Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004)).
Claims under the CAT require consideration of the possibility of future torture. Mapouya
v. Gonzales, 487 F.3d 396, 414-15 (6th Cir. 2007). “In reviewing the Board’s decision to deny
withholding of removal under the CAT, we reverse only where the decision is manifestly
contrary to law and not only supports a contrary conclusion, but indeed compels it.” Zaldana
Menijar v. Lynch, 812 F.3d 491, 501 n.5 (6th Cir. 2015) (citations omitted).
DISCUSSION
(1) Withholding of Removal under INA § 241
An alien can request withholding of removal in two ways: under the INA or the CAT.
Almuhtaseb, 453 F.3d at 749. INA § 241(b)(3) provides that:
[T]he Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion.
8 U.S.C. § 1231. To prevail on a petition for withholding of removal under the INA, an alien
must show that there is a “clear probability,” that is, “it is more likely than not,” he would be
subject to persecution on the basis of one of these five grounds (race, religion, nationality,
membership in a particular social group, or political opinion) were he removed from this country.
See Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)).
(2) Relief Under the Convention Against Torture
By contrast, to be eligible for relief under the CAT, “the applicant bears the burden of
establishing ‘it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.’” Liti, 411 F.3d at 641 (quoting 8 C.F.R. § 1208.16(c)(2)
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(emphasis added)). Importantly, the torture must be “inflicted by or 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. § 1208.18(a)(1); see Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). Moreover,
“an application for withholding of removal under the INA differs from one filed under [the CAT]
because the latter focuses on a ‘particularized threat of torture’ without requiring a linkage to one
of the five protected grounds.” Mapouya, 487 F.3d at 414.
To assess the risk of future torture, an IJ considers: (1) evidence of past torture inflicted
upon the applicant; (2) evidence that the applicant can relocate to a part of the country of
removal where he is not likely to be tortured; (3) evidence of gross, flagrant, or mass violations
of human rights within the country of removal; and (4) other relevant information regarding
conditions in the country of removal. Ali v. Reno, 237 F.3d 591, 596-97 (6th Cir. 2001).
IJ Properly Denied CAT Protection
Estupinan argues that the IJ and BIA improperly analyzed his claims for INA
withholding of removal and CAT protection as one, relying on the same analytical framework
for both. He further argues that the CAT standard is “more inclusive than the withholding
standard—not more restrictive as the IJ wrongly concluded.”
We reject Estupinan’s argument. In this case, the IJ articulated the proper legal standard
for protection under the CAT. (R. 71-72). The IJ expressly found that Estupinan failed to
establish that it was more likely than not that he would be tortured by or with the acquiescence of
the Mexican government if he returned to Mexico. (R. 82). Nonetheless, Estupinan claims the
“CAT analysis was little more than an afterthought” and assigns error to the IJ’s statement that:
As Respondent failed to meet his burden to show his eligibility for
withholding of removal, he has necessarily failed to meet the
higher burden required to demonstrate eligibility for CAT.
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(R. 82). He argues that “[w]hen comparing § 241 withholding relief with CAT relief, it is
incorrect to assert that one claim serves as a proxy for the other.” Although it is true that
withholding of removal under INA § 241 and relief under the CAT require separate analyses, the
factors do overlap. Furthermore, as the BIA noted, the IJ committed a mere “clerical error” by
framing Estupinan’s ineligibility for CAT relief in terms of his ineligibility for withholding of
removal under INA § 241. (R. 4). The BIA held:
We acknowledge that one sentence of the Immigration Judge’s
decision equates a failure of proof for withholding of removal with
a failure of proof for protection under the Convention Against
Torture. However, this sentence appears to be little more than a
clerical error, given that the Immigration Judge otherwise provides
a correct statement of the law for eligibility for protection under
the Convention Against Torture.
(R. 4). Despite the IJ’s awkwardly worded comparison between INA withholding and CAT
protection, that decision recognized both forms of relief as distinct requests. The IJ correctly
held “that in order to succeed pursuant to the [CAT], it is not necessary to link the harm faced
with any of the five protected grounds enumerated in relation to applications for asylum and
withholding.” (R. 71) (quoting Castellano, 341 F.3d at 551). Even Estupinan concedes that “the
IJ [gave] a correct recitation of the law on the CAT.”
The IJ did not, as Estupinan contends, “conflate[] the legal standards for CAT and
withholding.” Rather, in ruling on Estupinan’s CAT request, the IJ simply referenced the denial
of INA § 241 relief so as to incorporate the same underlying factual findings. Our prior
decisions have likewise discussed CAT relief in relation to the denial of § 241 withholding of
removal. See, e.g., Berri v. Gonzales, 468 F.3d 390, 397-98 (6th Cir. 2006) (“Just as they fail to
demonstrate that persecution is more likely than not, [Petitioners] likewise fail to demonstrate
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that torture is more likely than not. Therefore, we deny relief under the Convention Against
Torture.”).
The IJ’s decision is supported by substantial evidence in the record. Torture is “any act
by which severe pain or suffering, whether physical or mental, is intentionally inflicted . . . when
such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.” Haider v. Holder, 595 F.3d
276, 289 (6th Cir. 2010) (quoting 8 C.F.R. § 1208.18(a)(1)).
Estupinan testified that he was tortured, not by government actors, but by members of a
violent drug cartel. Importantly, the CAT does not afford protection to torturous acts inflicted by
wholly private actors. Ali, 237 F.3d at 597. Estupinan alleged that the cartel’s activities are
tacitly sanctioned by local police because he had witnessed police trucks pass through cartel
check points several times. (R. 28, 121-22). However, Estupinan never identified “a public
official or other person acting in an official capacity” who instigated or acquiesced in his torture.
The IJ found Estupinan’s testimony and documentary evidence to be credible, but also
found that, “although corruption still remains a serious concern, the government of Mexico is
cracking down on police officers tied to the cartels.” (R. 77). Estupinan failed to prove it was
more likely than not he would be persecuted if he returned to Mexico. Similarly, he failed to
show that he is more likely than not to be tortured in Mexico by or with the acquiescence of a
government official. In the words of the Department, this case “amounts to a dispute over the
agency’s weighing of evidence.” However, the court only reverses the BIA’s decision if it is
manifestly contrary to law and the record evidence “not only supports a contrary conclusion, but
indeed compels it.” Zaldana Menijar, 812 F.3d at 501 n.5.
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Accordingly, we deny Estupinan’s petition for review because neither the IJ nor the BIA
erred by entering an order of removal.
REVIEW DENIED.
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