Flores-Barahona v. Garland ( 2021 )

Case: 19-60574 Document: 00515829426 Page: 1 Date Filed: 04/20/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 19-60574
Summary Calendar FILED
April 20, 2021
Lyle W. Cayce
Roberto Carlos Flores Barahona, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A202 001 168
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Roberto Carlos Flores Barahona seeks review of the Board of
Immigration Appeals’ order, which affirmed the Immigration Judge’s denial
of his application for withholding of removal under the Convention Against
Torture. We deny his petition for review.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-60574 Document: 00515829426 Page: 2 Date Filed: 04/20/2021
No. 19-60574
I
Flores, a native and citizen of El Salvador, entered the United States
in July 2014. The next month, he was charged with being removable from the
United States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). In January 2019, Flores
filed an application for withholding of removal under the Convention Against
Torture (CAT). 1
At his hearing before an Immigration Judge, Flores testified and
submitted evidence to support his application. He claimed that, in 2011, he
received an extortion demand and death threat from a gang; he believed that
corrupt police worked with this gang. Flores reported the extortion demand
and death threat to the police in a neighboring town. The police offered him
protection for three years in exchange for help with finding gang members.
Flores testified that nothing happened to him while he was under police
protection. In 2014, he received another extortion demand and death threat
from the gang, at which point he left El Salvador for the United States. In
2015, Flores learned that he was the subject of an Interpol Red Notice, in
which the El Salvador government charged him with criminal gang activity in
El Salvador. Flores claimed that the corrupt police officers who worked with
the gang falsely charged him so that he would be detained in prison and
tortured upon his return to El Salvador.
Based on Flores’s testimony and the evidence presented, the IJ found
that “it [wa]s likely [Flores] could suffer torture at the hands of” the gang in
El Salvador. However, the IJ determined that Flores was not eligible for
protection under the CAT because he had failed to demonstrate that a public
1
Flores also filed applications for asylum under 8 U.S.C. § 1158(a)(1) and
withholding of removal under 8 U.S.C. § 1231(b)(3)(A), which the Immigration Judge
denied. Because Flores did not appeal the denial of these two applications before the BIA,
we do not address them.
2
Case: 19-60574 Document: 00515829426 Page: 3 Date Filed: 04/20/2021
No. 19-60574
official in El Salvador would be involved in his torture. The IJ therefore
denied Flores’s application.
Flores appealed to the Board of Immigration Appeals, arguing that he
had shown sufficient state involvement in his torture and was therefore
eligible for protection under the CAT. The BIA adopted and affirmed the
IJ’s finding that Flores had not established that a public official in El Salvador
would torture him, acquiesce in his torture, or be willfully blind to his torture
by others. The BIA therefore dismissed Flores’s appeal. Flores timely filed
this petition for review.
II
We review the BIA’s decision and “consider the IJ’s decision only to
the extent it influenced the BIA.” Martinez Manzanares v. Barr, 925 F.3d
222, 226 (5th Cir. 2019). We review the BIA’s legal determinations de novo.
Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017). And we review its
factual findings “to determine if they are supported by substantial evidence
in the record.” Id. Under this substantial evidence standard, “[w]e 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.” Martinez Manzanares, 925 F.3d at 226
(quotation marks and citation omitted).
III
Flores first contends that he is eligible for withholding of removal
under the CAT. He next argues that the BIA engaged in impermissible
3
Case: 19-60574 Document: 00515829426 Page: 4 Date Filed: 04/20/2021
No. 19-60574
factfinding and applied the incorrect legal standard when reviewing the IJ’s
factual findings. We address and reject each argument.
A
To be eligible for relief under the CAT, an applicant must show that
(1) it is “more likely than not” that he will be tortured if he returns to the
proposed country of removal and (2) there would be “sufficient state action
involved in that torture.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 350–51
(5th Cir. 2006). Only the second requirement is at issue.
To satisfy that second requirement, an applicant must demonstrate
that his torture would be “inflicted by, or at the instigation of, or with the
consent or acquiescence of, a public official acting in an official capacity or
other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). A
public official “acquiesces to torture when he or she has prior awareness of
such activity and thereafter breaches his or her legal responsibility to
intervene to prevent such activity.” Iruegas-Valdez, 846 F.3d at 812 (cleaned
up). An applicant may also satisfy his burden of showing acquiescence by
demonstrating the “government’s willful blindness of tortuous activity.”
Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010).
Flores argues that his testimony and the 2017 El Salvador Human
Rights Report, which he submitted in support of his application, 2 show that
the police in El Salvador will acquiesce in his torture by gang members.
Specifically, he claims that the police in his town were aware of gang
members’ efforts to extort money from him, those corrupt police helped the
2
Flores also relies on the 2018 El Salvador Human Rights report. However, Flores
did not submit that report as evidence in support of his application. Since the report is not
part of the administrative record, we may not consider it. See Terrazas-Hernandez v. Barr,
924 F.3d 768, 774 (5th Cir. 2019).
4
Case: 19-60574 Document: 00515829426 Page: 5 Date Filed: 04/20/2021
No. 19-60574
gang members to avoid arrest, and they instead falsely charged Flores so that
he would be detained and tortured upon his return to El Salvador.
Flores has not met his burden to show that the record compels us to
reverse the BIA’s finding that he did not satisfy the state action requirement.
When asked why he believed the police were corrupt and involved with the
gang that threatened and extorted him, Flores did not offer any specific
details but instead testified that he knew corrupt police worked with the gang
“[b]ecause it would be shown on the news.” Flores relies on the 2017 El
Salvador Human Rights Report to show that police corruption is widespread
in El Salvador. But he does not demonstrate how the report supports his
claim that the police from his town were working with the gang that
threatened him. Flores also argues that he has shown acquiescence because
the police in the neighboring town did not arrest any of the gang members
who threatened him. However, “failure to apprehend the persons
threatening” an individual does not constitute sufficient state action for
purposes of the CAT. Tamara-Gomez, 447 F.3d at 351. Moreover, the
protection that Flores received from the police for the three years that he
served as a protected witness further belies an inference that public officials
in El Salvador would acquiesce in his torture. See id.B
Flores also argues that the BIA applied an incorrect standard of
review and engaged in improper factfinding. When reviewing an order from
an IJ, the BIA reviews questions of law de novo and findings of fact for clear
error. 8 C.F.R. § 1003.1(d)(3)(i)–(ii). The BIA cannot engage in
factfinding, except to administratively notice common facts or official
documents. Id. § 1003.1(d)(3)(iv).
The record refutes Flores’s argument. The BIA reviewed the IJ’s
finding of insufficient state action for clear error, the correct standard of
5
Case: 19-60574 Document: 00515829426 Page: 6 Date Filed: 04/20/2021
No. 19-60574
review. And the BIA did not engage in any factfinding—it adopted the
findings of the IJ and introduced no new evidence.
For these reasons, we DENY the petition for review.
6