Byron Rodolfo Recinos-Coronado v. U.S. Attorney General , 698 F. App'x 578 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12073
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Agency No. A029-140-203
BYRON RODOLFO RECINOS-CORONADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(September 29, 2017)
Before WILSON and NEWSOM, Circuit Judges, and WOOD, * District Judge.
PER CURIAM:
Byron Rodolfo Recinos-Coronado petitions this Court for review of the
decision of the Board of Immigration Appeals. The BIA dismissed his appeal from
*
Honorable Lisa Godbey Wood, United States District Judge for the Southern District of
Georgia sitting by designation.
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the denial of his petitions for asylum, withholding of removal, and relief under the
Convention Against Torture. After oral argument, we grant the petition for review
in part and deny it in part.
I
We grant the petition for review on Recinos-Coronado’s petitions for asylum
and withholding of removal. The BIA erred as a matter of law when it excluded
from its past-persecution analysis the sexual abuse that Recinos-Coronado suffered
at the hands of his uncle on the ground that Recinos-Coronado failed to report it.
We have treated an applicant’s failure to report abuse as separate from the question
whether the applicant suffered past persecution. See Lopez v. U.S. Att’y Gen., 504
F.3d 1341, 1344–45 (11th Cir. 2007). And in previously determining that an
applicant suffered persecution based on cumulative incidents, we included in the
past-persecution analysis (without discussion) an incident that the applicant failed
to report—there, threatening “graffiti at his wife’s farm which alluded to
[guerillas’] presence in the area, and referenced him specifically.” Mejia v. U.S.
Att’y Gen., 498 F.3d 1253, 1255–57 (11th Cir. 2007). By refusing to consider the
uncle’s abuse solely on the ground that Recinos-Coronado failed to report it, the
BIA erred.
It is not for us, at this stage, to decide on the merits the question whether
Recinos-Coronado experienced past persecution. See Immigration &
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Naturalization Serv. v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam)
(summarily reversing a Ninth Circuit decision that, following partial reversal of the
BIA’s asylum decision, impermissibly decided persecution issue rather that
remanding to agency for determination in the first instance). Rather, the BIA
should (after correcting for the legal error that we have identified) consider in the
first instance whether Recinos-Coronado suffered past persecution “on account of”
a protected characteristic, as well as his eligibility for asylum and withholding of
removal.
II
We deny the petition for review on Recinos-Coronado’s petition for
protection under the Convention Against Torture. An applicant is entitled to
protection under the Convention Against Torture if he shows “that it is more likely
than not that he . . . would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). To qualify an applicant for relief, the alleged
torture must both constitute “an extreme form of cruel and inhuman treatment,” id.§ 1208.18(a)(2), and 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,” id.
§ 1208.18(a)(1).
The BIA’s determination that Recinos-Coronado is not entitled to relief
under the Convention Against Torture is supported by substantial evidence.
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Recinos-Coronado, a homosexual man, contends that LGBT individuals face
dismal conditions in his native Guatemala, but even the conditions he alleges do
not rise to the level of “torture,” let alone torture at the hands (or with the
acquiescence of) the Guatemalan government.
* * *
For the foregoing reasons, we GRANT the petition in part and DENY the
petition in part.
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