Francisco Matos-Almonte v. Attorney General United States

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-3036 ___________

FRANCISCO ALBERTO MATOS-ALMONTE, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A062-737-285) Immigration Judge: Alice Song Hartye ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 8, 2022

Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges

(Opinion filed August 2, 2022) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Francisco Alberto Matos-Almonte, proceeding pro se, petitions for review of a

final order of removal issued by the Board of Immigration Appeals (“BIA”). For the

reasons stated below, we will deny the petition.

I.

Matos-Almonte is a citizen of the Dominican Republic who entered the United

States in 2012. He was later convicted of conspiracy with intent to distribute one

kilogram or more of heroin in violation of 21 U.S.C. § 846 and sentenced to 48 months’

incarceration. Based on that conviction, the Department of Homeland Security charged

Matos-Almonte with being removable for having been convicted of an aggravated felony,

see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(B) & (U), and a controlled substance

offense, see 8 U.S.C. § 1227(a)(2)(B)(i). Matos-Almonte, proceeding pro se, appeared

before the Immigration Judge (“IJ”), admitted the allegations in the notice to appear, and

conceded the charges of removability. He applied for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”).

Following a hearing, the IJ concluded that Matos-Almonte was ineligible for

asylum and withholding of removal because of his criminal conviction, and that he failed

to demonstrate entitlement to relief under CAT. Matos-Almonte appealed, and the BIA

adopted and affirmed the IJ’s decision. Matos-Almonte filed a timely petition for review.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA

affirmed and adopted the IJ’s opinion, we review both the IJ’s and the BIA’s opinions.

See Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 340-41 (3d Cir. 2016). We review

2 legal conclusions de novo, Singh v. Att’y Gen., 677 F.3d 503, 508 (3d Cir. 2012), and we

review the agency’s findings of fact in denying CAT relief under the substantial-evidence

standard pursuant to which such findings “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary,” Nasrallah v. Barr, 140 S.

Ct. 1683, 1692 (2020) (citation and internal quotation marks omitted).

III.

Matos-Almonte does not contest the determination that he is ineligible for asylum

and withholding of removal due to his criminal conviction; rather, he argues that the

agency erred in concluding that he was not entitled to relief under CAT. To obtain CAT

relief, Matos-Almonte was required to demonstrate, through objective evidence, “that it is

more likely than not” that he will be tortured if removed. See 8 C.F.R. §§ 1208.16(c)(2),

1208.17(a); Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). The determination as

to whether Matos-Almonte met his burden involves the two-fold inquiry set forth in

Myrie v. Attorney General, 855 F.3d 509, 516 (3d Cir. 2017): (1) “whether an applicant

has met the burden of establishing that it is more likely than not [that he] would be

tortured if removed”; and (2) “whether public officials will acquiesce in the likely

treatment.” Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (citation and

internal quotation marks omitted). In deciding whether an applicant meets the first part

of this standard, “the IJ must ask (1) what is likely to happen to the [applicant] if removed

and (2) whether what is likely to happen amounts to torture.” Guzman Orellana v. Att’y

Gen., 956 F.3d 171, 181 (3d Cir. 2020). As for the second prong, the IJ must first

“make[] a factual finding . . . as to how public officials will likely act in response to the

3 harm the petitioner fears,” and next “assess[] whether the likely response from public

officials qualifies as acquiescence under the governing regulations.” Myrie, 855 F.3d at

516. Under both prongs, the first inquiry is factual, while the second is legal. Id.

Matos-Almonte has argued that he fears torture from two sources if he returns to

the Dominican Republic. First, he testified that he was shot in the foot by a member of

the “42 Gang” when he was a teenager and may be targeted by the gang again. He also

testified to fearing reprisal from the individual who supplied him with the drugs that were

seized when he was arrested. According to Matos-Almonte, he owes this individual,

Simone Medina, $52,000 for the seized heroin, and Medina and an associate of his

known as “The Surgeon” have threatened Matos-Almonte and his family. Matos-

Almonte also testified to believing that Medina learned of his efforts to cooperate with

the prosecution in his criminal case. According to Matos-Almonte, The Surgeon and

Medina (who is apparently a resident of the United States and the Dominican Republic)

have taken actions such as visiting his former home in New Jersey, sending threatening

text messages to his wife, telling Matos-Almonte’s cousin that they will kill Matos-

Almonte because of the money he owes, and visiting his grandmother’s home in the

Dominican Republic threatening consequences if Matos-Almonte does not pay Medina.

Matos-Almonte contended that his family reported threats to the police in the Dominican

Republic but that the police did not do anything. He also testified to being told that

4 Medina is a well-connected politician, though he had not personally verified this

information.1

The IJ reasoned that Matos-Almonte’s testimony was credible but, applying the

framework described in Myrie, concluded that he failed to establish that he would more

likely than not be tortured if he returns to the Dominican Republic. Although Matos-

Almonte clearly fears returning to his country, the evidence, viewed objectively, does not

compel a conclusion different from that reached by the agency. First, the incident Matos-

Almonte described with the 42 Gang was an isolated one that occurred many years ago.

And regarding the threats from Medina and The Surgeon, Matos-Almonte did not

describe any encounters with them or threats since early 2020 and, as the IJ noted, even

assuming that Medina and his associates remain interested in Matos-Almonte, it is not

clear that Medina will know if Matos-Almonte returns to the Dominican Republic and

will be able to locate and harm him upon his return. While some record evidence may

work against this conclusion—for example, country statistics indicating that the

Dominican Republic is a small country—we cannot say that the record compels a

different one. Moreover, although Medina and his associates apparently threatened

Matos-Almonte’s grandmother in the Dominican Republic, telling her to vacate her home

if Matos-Almonte did not pay Medina, Matos-Almonte testified that his grandmother has

1 We note that Matos-Almonte seemingly submitted various documents in support of his claims for the first time to the BIA. These documents included statements from friends attesting to his good character and papers the contents of which he testified about at his hearing. The BIA did not consider whether a remand to the IJ was warranted. However, as Matos-Almonte has not raised this issue in his brief, it has been forfeited. See M.S. by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020). 5 not vacated her home and has not been harmed, nor has she been threatened for some

time. Finally, Matos-Almonte testified that he knew Medina from his hometown and that

it was there that Medina had made his threats, and in his brief to the BIA, he

characterized Medina and The Surgeon as “‘thugs’ not sophisticated criminal[s].” A.R.

at 11. In light of these considerations, it was reasonable for the agency to conclude that

Matos-Almonte’s apparent ability to relocate to an area of the country, away from his

hometown, in which Medina could not locate or harm him undermined his claim. See 8

C.F.R. § 1208.16(c)(3)(ii); see also Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir.

2010) (noting that “evidence of relevant country conditions is extremely important, as is

the ability of [the applicant] to safely relocate to another part of his country of origin”).

The agency also reasonably concluded that Matos-Almonte failed to show

government acquiescence. As the IJ noted, Matos-Almonte’s testimony indicates that he

could report any future threats from Medina to police and seek protection, if necessary, as

he and his family have done in the past. Cf. Galeas Figueroa v. Att’y Gen., 998 F.3d 77,

93 (3d Cir. 2021) (concluding that record supported a similar conclusion as to the

Honduran government). Although, as the IJ noted, the record indicates that there is

corruption in the Dominican Republic, the evidence also supports its conclusion that the

country has a functioning law enforcement department and a mechanism to report

crimes. Finally, although Matos-Almonte has argued that he had heard that Medina is a

politician, he also testified before the IJ that he had not independently verified this

information. Thus, the IJ’s conclusion about how the government would likely respond

was also supported by substantial evidence. And, as a matter of law, “a government that

6 investigates reports of private violence is not willfully blind to that violence.” Id.

We will accordingly deny the petition for review.