Eder Romero-Donado v. Jefferson Sessions III

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 12, 2018
• Docket: 16-2395
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-2395

EDER ENRIQUE ROMERO-DONADO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted: January 23, 2018 Decided: April 12, 2018

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Keenan joined.

Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, Gregory M. Kelch, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.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

Petitioner Eder Enrique Romero-Donado, a native and citizen of El Salvador,

seeks protection under the Convention Against Torture (the “CAT”). He argues that if he

returns to El Salvador he will be tortured by MS-13 as punishment for leaving the gang in

2001. An immigration judge ultimately granted Romero’s application, but the Board of

Immigration Appeals reversed, adopting its own factual findings and concluding there

was insufficient evidence to justify protection under the CAT. As we explain, we deny

the petition for review.

I.

A.

Romero was raised in San Miguel, El Salvador by his mother and maternal

grandparents. At eighteen, he was pressured into joining the local “clique” of Mara

Salvatrucha, also known as “MS-13.” Romero initially maintained a low profile in the

gang, attending weekly meetings and looking for rival gang members (he never found

any). Things changed in November 2001 after Romero refused to get an MS-13 tattoo

because of concerns about being publicly linked to the gang. Instead, Romero stopped

attending the gang’s weekly meetings entirely, abruptly ending his nine-month affiliation.

Soon after, a friend and fellow MS-13 member, Antonio, informed Romero that

local clique leaders had ordered his execution. When Romero’s grandfather learned of

the threat, he sent Romero to live with family in San Salvador, roughly two-and-a-half

hours away. Although Romero’s former clique learned of the move, it never carried out

2 its threat while Romero lived in San Salvador. In 2004, Romero returned to San Miguel

to visit with family. While home, he also met with Antonio, who warned him that the

gang had learned he was back and planned to murder him as punishment for leaving three

years earlier.

Romero returned safely to San Salvador, where he lived without incident until

entering the United States illegally in January 2007. Sometime after March 2010, MS-13

discovered that Romero had moved to the United States. Romero received two online

threats from the gang, one in 2011 and another in 2012. Both threats were relayed by

Antonio over Facebook, and stated that Romero would be killed if he returns to El

Salvador and ended by requesting money.

B.

In February 2010, police in Manassas, Virginia arrested Romero on charges of

public intoxication, obstruction of justice, felony assault on a police officer, and

destruction of property. Following his arrest, the Department of Homeland Security

served Romero with a notice to appear, charging him as an alien who had not been

admitted or paroled in violation of section 212(a)(6)(A)(i) of the Immigration and

Nationality Act. Romero conceded removability on this basis but was granted several

continuances to file applications for relief.

On January 30, 2012, Romero filed an application for asylum, withholding of

removal, and protection under the CAT. Romero subsequently withdrew his asylum

application and an immigration judge then considered his eligibility for withholding of

removal and CAT protection. Romero testified to and presented evidence regarding the

3 events that led to his departing El Salvador. Noting that MS-13 continues to ask about

his whereabouts and the threats he received from the gang in 2011 and 2012, Romero

testified that he fears he will be killed if he returns to his mother’s home in San Miguel.

Romero also presented evidence of country conditions in El Salvador and the testimony

of Dr. Thomas J. Boerman, an expert on organized crime in Central America. Dr.

Boerman opined that based on an interview with Romero, his review of the evidence in

this case, his knowledge of how MS-13 operates, the nature of Salvadoran communities,

and changed conditions in El Salvador since 2007, “it is a foregone conclusion that MS-

13 would learn of [Romero’s] return and it is also a foregone conclusion that they would

subject him to reprisals over circumstances in the past.” J.A. 332.

The immigration judge denied Romero’s application for withholding of removal

but granted relief under the CAT, which requires a petitioner to show that, if removed, it

is “more likely than not that he or she would be tortured” with the consent or

acquiescence of the government. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Salgado-

Sosa v. Sessions, 882 F.3d 451, 456 (4th Cir. 2018). 1

The government appealed, and the Board of Immigration Appeals affirmed the

denial of Romero’s application for withholding of removal and remanded his CAT

application for further consideration. Specifically, the Board instructed the immigration

1 A public official acquiesces to torture if he or she is aware of the activity constituting torture but breaches his or her legal obligation to intervene or otherwise turns a blind eye to such activity. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013); 8 C.F.R. § 1208.18(a)(7).

4 judge to address Romero’s ability to safely relocate to other parts of El Salvador and the

Salvadoran government’s recent efforts to combat gang violence.

On remand, the immigration judge again granted Romero protection under the

CAT. The judge rejected the argument that Romero’s previous time living in San

Salvador without incident established his ability to safely relocate to other parts of El

Salvador, viewing it instead as an indication that “gang members continued to look for

[Romero] and had not found him yet.” J.A. 96. And the immigration judge added that

Dr. Boerman’s testimony suggested that Romero’s former clique could more easily find

him in San Salvador than it could in the past. Finally, the immigration judge concluded

that although the Salvadoran government had announced new policies to combat gangs,

“the laws will be meaningless” absent sufficient financing. J.A. 99.

The government appealed once again, arguing that the immigration judge’s

findings as to the likelihood of future torture were clearly erroneous. The Board agreed

and denied Romero relief under the CAT. The Board focused on Romero’s ability to

relocate safely to the capital, San Salvador, as he had in the past, which was not

sufficiently rebutted by Dr. Boerman’s testimony. Additionally, the Board held that the

immigration judge’s conclusion that the government’s new anti-gang policies would be

inadequately financed was “speculative, especially considering the laws had only been

enacted in 2015.” J.A. 5. Moreover, these new policies supported an opposite

conclusion from the one reached by the immigration judge: that the Salvadoran

government “is vigilant in combating [] gang members” and that “they are not

acquiescing to harm that victims suffer.” Id.

5 This petition for review followed.

II.

Where, as here, the Board reverses an immigration judge and issues its own

opinion, we review only the Board’s decision. See Mena v. Lynch, 820 F.3d 114, 116

(4th Cir. 2016). We must uphold that decision if it is supported by substantial evidence.

Mulyani v. Holder, 771 F.3d 190, 200 (4th Cir. 2014). The Board in turn reviews the

immigration judge’s factual findings, such as the likelihood of future events, for clear

error and his legal conclusions, including whether the burden of proof has been met, de

novo. 8 C.F.R. § 1003.1(d)(3)(i)–(ii); see also Turkson v. Holder, 667 F.3d 523, 529 (4th

Cir. 2012).

We will uphold the Board’s “reversal of the IJ’s grant of CAT relief if there is

substantial evidence supporting the BIA’s conclusion that the IJ clearly erred in finding a

likelihood of torture.” Kang v. Att’y Gen. of U.S., 611 F.3d 157, 164 (3d Cir. 2010).

“Conversely, we will reverse the BIA’s determination if the evidence compels a finding

that it is more likely than not that the petitioner will be tortured if removed.” Id.

(emphasis added). In this case, substantial evidence supports the Board’s conclusion that

the immigration judge clearly erred in finding Romero will more likely than not be

tortured by MS-13 if he returns to El Salvador and that the government will acquiesce to

his torture. Either of these findings provides a sufficient basis for denying relief under

the CAT.

III.

6 A.

Romero may establish the likelihood of his torture through the use of any relevant

evidence, though federal regulations provide a list of nonexclusive factors to consider.

These include: (i) “[e]vidence of past torture”; (ii) the applicant’s ability to “relocate to a

part of the country of removal where he or she is not likely to be tortured”; and (iii)

“[e]vidence of gross, flagrant or mass violations of human rights.” 8 C.F.R. §

1208.16(c)(3)(i)‒(iii). Focusing on the second factor, the Board noted that Romero had

avoided MS-13 the entire time he lived in San Salvador. And though Romero stated he

would return to San Miguel, where MS-13’s threats originated, he admitted that

relocating to San Salvador remained a possibility. The Board therefore concluded that

even if “gang members would seek him out” there was no indication “that they would

find him.” J.A. 4. We conclude that substantial evidence supports this finding.

Romero relies on Dr. Boerman’s testimony to argue that he can no longer avoid

MS-13 by simply moving to another city, as he did in the past. But Dr. Boerman’s risk

assessment was based on the assumption that Romero would return to live with his

mother in San Miguel. Dr. Boerman did not consider Romero’s ability to relocate to San

Salvador even though he conceded that it would affect the risk profile. Nor did Dr.

Boerman explain how Romero lived for nearly six years in San Salvador without

incident.

The Board also questioned whether MS-13 continues to have interest in Romero

given that he has not had any recent communications with the gang. The last time

Romero was threatened by MS-13 was in 2012 over Facebook. Before that, he received

7 an online threat in 2011 and an oral threat in 2004 when he returned to his mother’s home

in San Miguel. And while MS-13 has continued to ask Romero’s family about his

whereabouts, none of his family members were told to relay any threats to Romero nor

have they been harmed or extorted because of Romero’s choice to leave the gang. 2

Though these events are admittedly concerning, “[w]e are acutely aware that our

job as a reviewing court is not to reweigh the evidence before the IJ.” Baharon v. Holder,

588 F.3d 228, 233 (4th Cir. 2009). Instead, it is “our responsibility to ensure that []

legally significant evidence is not arbitrarily ignored by the factfinder.” Id. Here, the

Board addressed the competing evidence but determined that Dr. Boerman’s opinion and

Romero’s testimony were insufficient to establish the probability of torture in light of the

time that has passed and the roughly six years Romero lived safely in San Salvador.

Given our deferential standard of review, we have no cause to disturb this conclusion.

Romero also failed to establish that the Salvadoran government would acquiesce

to his torture. Here, Romero relies on the testimony of Dr. Boerman and country

condition reports, which describe widespread gang violence and incidents of police

corruption alongside escalating tension between the Salvadoran army and street gangs.

2 Romero’s son has been pressured into joining a different clique of MS-13 in another part of El Salvador but for reasons unrelated to his father’s past membership. Romero testified that his son is being targeted because he is a young man with an absent father, making him generally vulnerable to street gang recruitment.

8 But we have previously noted such generalized evidence is insufficient to establish a

government’s acquiescence to torture carried out by criminal organizations. See

Lizama v. Holder, 629 F.3d 440, 449–50 (4th Cir. 2011) (holding country condition

reports on El Salvador were insufficient to establish the Salvadoran government’s

acquiescence to torture).

The record discloses new efforts by the government of El Salvador to tackle the

gang epidemic, including suspending a truce with MS-13 and Mara-18, creating a

rehabilitation program for former gang members, partnering with the FBI to modernize

the national police force, and increasing prosecutions of public corruption. Romero

attacks the efficacy of these policies, but we are a court of review, not a policymaking

body. Our task is not to “determine which of the competing views is more compelling. It

is instead to ensure that substantial evidence supports the BIA’s judgment.” Mulyani,

771 F.3d at 200. In this regard, the country conditions evidence does not establish that

the government is willfully blind to the violence inflicted by MS-13 but is instead

actively trying to address the problem.

Romero is also required to prove that public officials “prior to the activity

constituting torture, have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). While this

standard does not require actual knowledge, only willful blindness, it still requires

particularized evidence with respect to the petitioner, rather than the public generally.

See Mulyani, 771 F.3d at 200; see also Alvizures-Gomes v. Lynch, 830 F.3d 49, 55

(1st Cir. 2016); Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003).

9 Here, neither Romero nor his family reported the threats he received from MS-13

to the authorities. Although Romero argues that doing so would be futile, on the record

before us it would be entirely speculative to conclude that government officials would

turn a blind eye to Romero’s safety if made aware of the threats and dangers he faces.

Thus the Board’s finding is supported by substantial evidence.

IV.

For the reasons given, we deny the petition for review.

PETITION DENIED