Ruben Huezo-Cedillos v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN HUEZO-CEDILLOS, No. 19-70732
Petitioner, Agency No. A078-465-876
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2021
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Ruben Huezo-Cedillos, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (BIA) order affirming, without
opinion, an Immigration Judge’s (IJ) decision denying Huezo’s applications for
withholding of removal and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we dismiss the
petition in part, deny in part, grant in part, and remand to the agency with
instructions to grant CAT relief.
Where “the BIA summarily affirms the IJ’s decision, we review the IJ’s
decision as the final agency action.” Zehatye v. Gonzales, 453 F.3d 1182, 1184
(9th Cir. 2006). “We review the [IJ’s] legal determinations de novo and its factual
findings for substantial evidence.” Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir.
2011). “Under the substantial evidence standard, we will uphold the agency’s
decision ‘if the decision is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Id. (quoting Tampubolon v.
Holder, 610 F.3d 1056, 1059 (9th Cir. 2010)). “We will reverse the agency when
the evidence in the record compels a reasonable factfinder to conclude that the
agency’s decision is incorrect.” Id. at 1051–52 (citation, internal quotation marks,
and alteration omitted).
1. Our jurisdiction to review removal orders is limited by the
requirement that the petitioner “exhaust[] all administrative remedies available.”
8 U.S.C. § 1252(d)(1). “[T]he principle of exhaustion may exclude certain
constitutional challenges that are not within the competence of administrative
agencies to decide,” such as due process claims, “but only if they involve more
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than ‘mere procedural error’ that an administrative tribunal could remedy.” Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (citation omitted). Huezo did not
exhaust his argument that his due process rights were violated by the IJ’s failure to
inform him in 2014 of his apparent eligibility for cancellation of removal, and we
dismiss this portion of the petition for lack of jurisdiction. Id. at 677.
2. Huezo’s withholding of removal claim was premised on his
membership in two proposed particular social groups: (1) “former members of the
[gang] MS-13”; and (2) “[i]ndividuals with tattoos indicating their . . . former gang
membership.” The IJ explained that “[t]he country conditions evidence in the
record does not establish that ex-gang members, or those with tattoos that indicate
membership in a gang, are singled out for persecution,” and determined that neither
of these two proposed groups were cognizable. We conclude the IJ’s
determination was supported by substantial evidence. See Reyes v. Lynch, 842
F.3d 1125, 1137–38 (9th Cir. 2016) (upholding BIA’s determination that “former
members of the Mara 18 gang in El Salvador who have renounced their
membership” was not cognizable); Arteaga v. Mukasey, 511 F.3d 940, 945 (9th
Cir. 2007) (explaining that “‘[t]attooed gang member’ falls outside the Ninth
Circuit’s definition of social group”). To the extent Huezo proposes a new social
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group in his petition for review, we lack jurisdiction to consider it. 8 U.S.C. § 1252(d)(1).
3. “To qualify for CAT relief, an alien must establish that ‘it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014)
(quoting 8 C.F.R. § 208.16(c)(2)). “Past torture is the first factor we consider in
evaluating the likelihood of future torture because past conduct frequently tells us
much about how an individual or a government will behave in the future.” Nuru v.
Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005). “[I]f an individual has been
tortured and has escaped to another country, it is likely that he will be tortured
again if returned to the site of his prior suffering, unless circumstances or
conditions have changed significantly, not just in general, but with respect to the
particular individual.” Id. at 1217–18.
The IJ found that it was not “more likely than not that [Huezo] would be
harmed at all if returned to El Salvador,” and denied Huezo’s CAT claim. The IJ
also found that Huezo “did not establish that any harm done by gang members
would be with the acquiescence of the El Salvador government.” We conclude the
record compels a contrary conclusion.
When Huezo was about thirteen years old, gang members in El Salvador cut
his throat when he refused to do something they wanted him to do. Huezo nearly
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died as a result of the attack, and a stent was placed in his throat. Only a few days
later, gang members shot and robbed Huezo’s father after his father intervened to
keep Huezo out of harm’s way. Though the IJ found that Huezo “began sporting a
number of gang-related tattoos” while in El Salvador, Huezo’s unchallenged
testimony was that gang members forcibly tattooed him. When Huezo was
seventeen, after he was implicated in and exonerated of a murder, a vigilante group
called the Black Shadow broadcast his name over the radio and threatened to kill
him if he did not leave El Salvador. Huezo then fled El Salvador for the United
States.
“[U]nless circumstances or conditions have changed significantly, not just in
general, but with respect to the particular individual,” it is likely that a person who
has suffered past torture “will be tortured again if returned to the site of his prior
suffering.” Nuru, 404 F.3d at 1217–18. There is no evidence in the record that
country conditions have changed. Current country-conditions evidence shows that
extrajudicial killings of suspected gang members are one of the “most significant
human rights issues” in El Salvador. Indeed, this court has frequently noted the
dire conditions in El Salvador. See, e.g., J.R. v. Barr, 975 F.3d 778, 783 (9th Cir.
2020) (noting country-conditions evidence that “El Salvador became the most
homicidal nation . . . in the world not at war” and that “in many neighborhoods,
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armed groups and gangs targeted certain persons . . . and created a climate of fear
that the authorities were not capable of restoring to normal” (internal quotation
marks and alteration omitted)); Parada v. Sessions, 902 F.3d 901, 916 (9th Cir.
2018) (noting reports of “rampant violence and murder” perpetrated by gangs in El
Salvador (internal quotation marks omitted)). In response to Huezo’s credible
testimony that Salvadoran police officers force suspected gang members to remove
their shirts to expose any tattoos, and then use the tattoos as justification for
extrajudicial killings, the IJ stated “it seems reasonable to believe that [Huezo]
would be able to explain to the officers that he was a member of MS-13 as a young
man and is no longer active with that gang.” There is no evidence in the record to
support the IJ’s speculation that police would accept such an explanation.
Country-conditions reports confirm that “[i]n an attempt to eradicate gangs, the
Salvadoran government has de facto sanctioned extrajudicial killings,” and
“investigation[s] revealed that police and military officers [have] committed
extrajudicial executions” in an attempt to fight gangs.
The IJ’s supposition that Huezo will not face danger in El Salvador is further
undermined by evidence that Huezo himself has continued to be recognized as a
former gang member since his name was broadcast over the radio, and country
conditions have therefore not significantly changed regarding Huezo in particular.
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See Nuru, 404 F.3d at 1217–18. The IJ found that Huezo’s “case is weakened [] by
the passage of time” because Huezo had “not spent any appreciable time in El
Salvador since the mid- to late 1990s,” and asserted that “[i]t is very clear that 40-
year-olds are viewed by society much differently than 18-year-olds are.” But the
evidence does not support the statement that 40-year-olds are treated differently,
and the IJ failed to grapple with evidence that in 2017, after Huezo was removed
from the United States to El Salvador, a government official at the arrival facility
in El Salvador told Huezo that if he walked out of the facility he would be killed by
the 18th Street gang, a rival gang to MS-13. The official told Huezo that if
someone tried to kill him, Huezo would not be permitted to reenter the facility.
Huezo took a bus from the facility to his father’s house, where he hid for one
month before returning to the United States. Back in the United States, while
Huezo was detained, he met with a Salvadoran consulate official and overheard the
official inform a different detainee that Huezo should be worried about returning to
El Salvador because Huezo was “the bad guy, he’s the gang member.”
The pattern established by this evidence compels the conclusion that it is
more likely than not Huezo will be tortured by or with the acquiescence of a
government official if he is removed to El Salvador. Accordingly, we remand with
instructions to grant CAT relief.
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PETITION DISMISSED IN PART, DENIED IN PART, GRANTED IN
PART, AND REMANDED.
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