Abner Perez-Morales v. William Barr

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2019
• Docket: 18-1617
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1617

ABNER VENTURA PEREZ-MORALES,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: March 21, 2019 Decided: July 29, 2019

Before WYNN, DIAZ, and THACKER, Circuit Judges.

Petition for review granted in part and case remanded by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Wynn and Judge Thacker joined.

ARGUED: Arnedo Silvano Valera, LAW OFFICES OF VALERA & ASSOCIATES, Fairfax, Virginia, for Petitioner. Colette Jabes Winston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:

Abner Perez-Morales seeks review of a decision by the Board of Immigration

Appeals dismissing his applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). The Board determined that Perez-Morales

was ineligible for asylum because he failed to establish a sufficient nexus between

persecution he experienced and his membership in a particular social group. Because that

ruling is not supported by substantial evidence, we grant the petition for review in part and

remand to the Board for further proceedings. We also remand Perez-Morales’s CAT claim

for further consideration in light of our recent decisions addressing how a petitioner may

show that a government will likely acquiesce in his torture. We affirm the Board’s decision

on the remaining claims.

I.

A.

Perez-Morales is a native and citizen of Guatemala. He entered the United States

without inspection in December 2013. Two days later, the Department of Homeland

Security (“DHS”) detained him and initiated removal proceedings. Perez-Morales

conceded his removability, but sought asylum, withholding of removal, and CAT

protection, claiming that he would be unsafe in Guatemala for two separate reasons.

First, Perez-Morales fears that Los Zetas, a gang that operates in Guatemala, will

target him because he witnessed the gang commit several murders. In October 2013, Perez-

Morales was delivering bread for a bakery when he saw members of the gang decapitate

2 and dismember several men on the side of a rural road—an event he described as a

“massacre.” A.R. 193, 246. The Zetas chased Perez-Morales, stopped his car, beat him

and robbed him, and threatened to kill him if he filed a police report. They told him “[t]his

is just a warning so that you see the next time, it will be worse.” A.R. 105. Perez-Morales

didn’t go to the police because he believed that they had been bought off by the Zetas, and

that the gang would retaliate by killing him. He went into hiding in another part of

Guatemala, and two months later fled to the United States.

Second, Perez-Morales fears retaliation by Guatemalan police because his brother

Urbano, a former police officer, refused to participate in corruption. Around 2007, Urbano

was jailed for three months in retaliation for investigating whether his supervisor possessed

illegal drugs. After his release, Urbano continued to face threats that he and his family

would be killed. About eleven months later, he fled to the United States. Urbano testified

that the reason Perez-Morales came to the United States in 2013 was because people were

following him. Urbano believed these were his former colleagues seeking to retaliate

against Perez-Morales because they could no longer reach Urbano. However, Urbano’s

ex-colleagues didn’t harm Perez-Morales during the five years he remained in Guatemala

after Urbano left, nor have they harmed Perez-Morales’s three sisters who remain there.

B.

In his application for asylum and withholding of removal, Perez-Morales contended

that he experienced past persecution (the death threats and beating) and fears future

persecution on account of both his membership in a particular social group (roughly

defined as witnesses of crimes committed by the Zetas) and his familial relationship to

3 Urbano. He also sought protection under the CAT, claiming that he’s likely to be tortured

by the Zetas and Urbano’s former colleagues if he’s removed to Guatemala.

The Immigration Judge denied Perez-Morales’s applications in an oral decision. He

opined that Perez-Morales’s story about the gang murders “is somewhat implausible” and

that he didn’t “fully believe” it, but declined to make an adverse credibility determination.

A.R. 46–47. Although the judge believed Perez-Morales “could be exaggerating” his story,

he found that Perez-Morales “saw something, and that he was threatened, and he was

afraid.” A.R. 47.

However, the Immigration Judge concluded that Perez-Morales had failed to

establish a nexus between the alleged persecution and his membership in a particular social

group of gang crime witnesses. The judge also dismissed Perez-Morales’s claim based on

his relationship to Urbano, finding that this didn’t support a well-founded fear of

persecution. The judge dismissed the CAT claim, in part because Perez-Morales hadn’t

established that the Guatemalan government was likely to acquiesce in any torture he

would suffer at the hands of the Zetas. Finally, the Immigration Judge found that all three

claims could be dismissed on alternative grounds because Perez-Morales could reasonably

be expected to avoid persecution by relocating within Guatemala.

Perez-Morales unsuccessfully appealed to the Board. Regarding the gang murders

claim, the Board concluded that Perez-Morales’s “testimony did not reveal any motivation

other than the criminal intent to take his property and to threaten retribution if he reported

what he had witnessed to the police.” A.R. 4. The Board also upheld the denial of the

4 remaining claims, as well as the alternative finding that Perez-Morales could relocate

within Guatemala.

This petition for review followed.

II.

An applicant is eligible for asylum if he has a well-founded fear of persecution “on

account of” certain enumerated grounds, including “membership in a particular social

group.” 8 C.F.R. § 1208.13(b). Persecution is “on account of” membership in a group,

satisfying what is often called the nexus requirement, if the group membership is “at least

one central reason for” the persecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127

(4th Cir. 2011) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). If the applicant has experienced

qualifying persecution in the past, he is entitled to a presumption of eligibility. 8 C.F.R.

§ 1208.13(b)(1). DHS can rebut this presumption by showing either that a fundamental

change in circumstances has negated the applicant’s well-founded fear of persecution, or

that the applicant could reasonably be expected to avoid future persecution by relocating

to another part of his home country. Id. § 1208.13(b)(1)(i).

We review the Board’s legal determinations de novo and its factual findings for

substantial evidence, Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014), which means

they are “conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). The Board’s ultimate discretionary judgment to

grant or deny asylum is “conclusive unless manifestly contrary to law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D).

5 Here, we vacate the Board’s denial of Perez-Morales’s gang murders claim because

we reject both the finding that he failed the nexus requirement and the alternative finding

that he could safely relocate within Guatemala. Next, we affirm the Board’s determination

that Perez-Morales hasn’t established a well-founded fear of persecution on account of his

relationship to Urbano. Finally, we remand the CAT claim for further consideration in

light of our recent precedents.

We first consider the Board’s finding that Perez-Morales failed to establish a

sufficient nexus between his membership in the particular social group of witnesses to the

Zetas’ crimes and the beating and threats that he experienced. 1 This is a factual

determination that we review for substantial evidence. Cruz v. Sessions, 853 F.3d 122, 128

(4th Cir. 2017).

Our nexus decisions have firmly established a core principle that resolves this case:

A sufficient nexus exists where membership in a particular social group is why the

applicant, rather than some other person, is targeted for persecution. E.g., Hernandez-

Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015). This principle applies whether the

persecution is motivated by freestanding animus against the group, or by some other motive

1 Neither the Immigration Judge nor the Board addressed whether the beating and threats qualify as persecution or whether Perez-Morales’s proposed group qualifies as a particular social group. We assume for purposes of this petition that these requirements are satisfied, since we may only affirm the denial of asylum based on the reasons given by the agency. See Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009) (citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).

6 like gang recruitment, extortion, or revenge. See id. at 949–50. Rather than focusing on

the persecutors’ reasons for targeting the group, we ask whether membership in the group

explains the decision to target the applicant instead of someone else. See Salgado-Sosa v.

Sessions, 882 F.3d 451, 458–59 (4th Cir. 2018). And a sufficient nexus can exist where

there are multiple or intertwined central reasons for the persecution, so long as group

membership is one of them. Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015).

In this case, the Board found that the Zetas’ motive for attacking Perez-Morales was

“to threaten retribution if he reported what he had witnessed to the police.” A.R. 4. This

finding compels the conclusion that membership in the group of witnesses to the Zetas’

crimes was a central reason why the gang targeted Perez-Morales instead of someone else.

Simply put, the gang could not have targeted Perez-Morales based on “what he had

witnessed” without also targeting him based on the fact that he was a witness.

This conclusion is not altered by the fact that the Zetas sought to cover up a

particular crime, rather than to systematically persecute crime witnesses. The situation is

analogous to Hernandez-Avalos, where the applicant refused to let her son join a gang and

was then threatened by gang members who sought to change her mind. 784 F.3d at 949–

50. Although the gang had no generalized campaign to persecute the families of potential

recruits, they nonetheless targeted the applicant, “rather than another person, because of

her family connection to her son.” Id. The family tie was a central reason for the

persecution, even though the gang’s efforts to recruit the son were also a central reason and

even though the two were intertwined. So too here. Covering up the murders that Perez-

Morales witnessed may be a central reason for persecuting him, and this reason may be

7 closely intertwined with Perez-Morales’s membership in the proposed social group as it

has been defined, 2 but the group membership is nonetheless a central element in explaining

why he was targeted instead of someone else.

In finding otherwise, the Board incorrectly relied on a line of decisions that say

asylum eligibility can’t be established solely by fears of general crime and unrest, or of

violence arising from a purely private dispute. See A.R. 4 (citing Velasquez v. Sessions,

866 F.3d 188, 194–95 (4th Cir. 2017)). Those cases don’t control here because, unlike a

victim of indiscriminate crime or private violence, Perez-Morales would not have been

targeted by the gang but for his membership in the proposed group. Moreover, in

Velasquez we distinguished the private, intrafamilial custody dispute at issue from cases

involving “outside or non-familial actors engaged in persecution for non-personal reasons,

such as gang recruitment or revenge.” 866 F.3d at 195–96. Perez-Morales’s case falls

squarely in the latter category. Like gang recruitment, the Zetas’ efforts to cover up their

crimes reach beyond a single family and aren’t personally motivated.

Nor are we persuaded by the Board’s observations that Perez-Morales “did not

report the incident to the police” or have further contact with the Zetas. A.R. 4. Because

Perez-Morales asserts he experienced past persecution (and the Board has made no

2 Of course, a particular social group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Oliva, 807 F.3d at 61 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). We express no opinion about whether Perez-Morales’s proposed group satisfies these requirements—an issue the Board did not address.

8 contrary finding), he is entitled to a presumption of asylum eligibility regardless of what

followed that persecution. 8 C.F.R. § 1208.13(b)(1).

We therefore vacate the Board’s nexus finding. 3

We also reject the Board’s alternative ground for denying asylum—that Perez-

Morales could safely relocate within Guatemala—as it relates to the gang murders claim.

In cases of past persecution, we presume that the applicant is eligible for asylum. 8

C.F.R. § 1208.13(b)(1). DHS may rebut this presumption by (1) identifying a specific area

of the applicant’s home country where the risk of persecution would not support a well-

founded fear, and (2) showing that it would be reasonable to expect the applicant to relocate

there. Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 33–34 (B.I.A. 2012). DHS bears the

burden to establish the possibility and reasonableness of such relocation by a

preponderance of the evidence. 8 C.F.R. § 1208.13(b)(1)(ii).

The Immigration Judge found that Perez-Morales could safely relocate within

Guatemala because “[t]he people who saw him at this murder scene are obviously restricted

to a small part of the country.” A.R. 48. The Board affirmed this finding, stating that

Perez-Morales “did not carry his burden of establishing that it would be unreasonable for

him to internally relocate.” A.R. 4.

3 The Board dismissed Perez-Morales’s claim for withholding of removal based on the same reasoning it used to dismiss his asylum claim. Accordingly, we also vacate the Board’s decision on withholding of removal and remand for further consideration.

9 We vacate this finding because the Board committed legal error by placing the

burden of proof on Perez-Morales. Moreover, the record evidence on relocation suggests

that DHS hasn’t met its burden. Perez-Morales testified that gangs operate in countrywide

networks in Guatemala, such that the Zetas could find him even if he relocated internally.

DHS offered no evidence to rebut this testimony, and the Immigration Judge’s assumption

that those present at the murder scene are restricted to a small part of the country wouldn’t

mean that Perez-Morales could safely relocate if other members of the Zetas’ network are

present throughout the country.

C.

Perez-Morales also claims that he fears persecution based on his family relationship

to his brother Urbano, who refused to participate in police corruption. We affirm the

Board’s finding that Perez-Morales did not establish a well-founded fear of persecution

based on this relationship.

Although we have held that death threats qualify as persecution, Hernandez-Avalos,

784 F.3d at 949, the alleged threats to kill Urbano’s family don’t support Perez-Morales’s

claim that he has a well-founded fear of persecution. First, the threats were directed

broadly at Urbano’s family, rather than specifically “targeted” at Perez-Morales. See

Crespin-Valladares, 632 F.3d at 127 (distinguishing targeted threats from general crime

and intimidation). And nothing in the record suggests that the threats were credible or that

the unidentified parties making them intended to carry them out. See generally Cortez-

Mendez v. Whitaker, 912 F.3d 205, 209 n.* (4th Cir. 2019) (discussing circumstances that

bear on whether death threats are direct and credible enough to constitute persecution).

10 Most importantly, Perez-Morales remained in Guatemala for five years after Urbano

fled the country and was never harmed by Urbano’s former colleagues during this period.

Perez-Morales’s three sisters have also remained in Guatemala unharmed, casting further

doubt on the likelihood that Urbano’s ex-colleagues will act on their threats against the

family.

Urbano’s speculation that Perez-Morales came to America to flee his ex-colleagues

doesn’t compel a contrary conclusion. This testimony was based on limited personal

knowledge, since Urbano was in the United States while most of the relevant events

occurred in Guatemala, and it doesn’t overcome the fact that Perez-Morales lived safely in

Guatemala for years.

D.

Finally, Perez-Morales seeks protection under the Convention Against Torture. To

succeed on this claim, he must prove (1) that he is more likely than not to be tortured if

removed to Guatemala, and (2) that this torture will occur at the hands of the government

or with its consent or acquiescence. Turkson v. Holder, 667 F.3d 523, 526 (4th Cir. 2012)

(citing 8 C.F.R. § 1208.16(c)(2)). We review the Board’s denial of CAT relief for

substantial evidence. Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).

We agree with the Board that Perez-Morales is unlikely to be tortured by Urbano’s

ex-colleagues, for the reasons discussed above. However, we remand the CAT claim for

the agency to further consider whether the Zetas are likely to torture Perez-Morales with

the government’s consent or acquiescence. The Board apparently reasoned that Perez-

Morales didn’t establish a likelihood of government acquiescence in any such torture

11 because he “failed to report his encounter with the gang members in 2013 to the police.”

A.R. 5; see also A.R. 47–48 (decision of Immigration Judge). The implicit premise is that

a petitioner can’t establish government acquiescence unless he has notified government

officials of the threats or encounters that give rise to his fear of torture.

The Board’s premise has been called into question by some of our recent decisions,

which recognize the troubling reality of police corruption in Guatemala and certain other

Central American countries. These decisions make clear that, at least in some

circumstances, a petitioner can establish a likelihood of acquiescence without going to the

police if corruption or collusion with gangs could make it futile or dangerous to do so. See,

e.g., Orellana v. Barr, 925 F.3d 145, 153 (4th Cir. 2019) (“[T]here is no requirement that

an applicant persist in seeking government assistance when doing so (1) ‘would have been

futile’ or (2) ‘have subjected [her] to further abuse.’” (quoting Ornelas-Chavez v. Gonzales,

458 F.3d 1052, 1058 (9th Cir. 2006))); Alvarez Lagos v. Barr, 927 F.3d 236, 256 (4th Cir.

2019) (vacating denial of CAT claim where the Immigration Judge “omitted any mention

of the substantial evidence marshalled by Alvarez Lagos to show that local government

police officials acquiesce and indeed actively collude with [a gang] in her neighborhood”);

Rodriguez-Arias v. Whitaker, 915 F.3d 968, 974–75 (4th Cir. 2019) (granting review of

CAT claim based on the Board’s failure to consider evidence of country conditions relating

to police involvement in torture).

Perez-Morales has offered evidence of such futility here. He testified that he didn’t

report the Zetas incident to the police because he believed they had been bought off by the

gang. In his credible fear interview, Perez-Morales stated that a friend was killed after

12 reporting gang members to the police. And he argues that Urbano’s experience as a police

officer and the State Department’s country condition reports further establish police

corruption that could rise to the level of acquiescence in torture.

The Board did not discuss this relevant evidence in its opinion. We thus vacate and

remand the CAT claim for the agency to fully consider the evidence and determine, in

accordance with our precedents, whether Perez-Morales can show a likelihood of

government acquiescence despite not having reported the Zetas’ threats to the police. See

Nken, 585 F.3d at 822 (“[W]hen a BIA order does not demonstrate that the agency has

considered an issue, ‘the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.’” (quoting INS v. Orlando Ventura, 537

U.S. 12, 16 (2002))).

III.

For the foregoing reasons, we grant Perez-Morales’s petition for review with respect

to his claims for asylum and withholding of removal based on past persecution by the Zetas,

as well as his CAT claim based on government acquiescence in torture by the Zetas. We

remand for the agency to reevaluate these claims. We deny the petition for review with

respect to the remaining claims.

PETITION FOR REVIEW GRANTED IN PART AND CASE REMANDED