Lopez Canas v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: October 9, 2019
• Docket: 19-634
• Status: Unpublished

Opinion

19-634 Lopez Canas v. Barr BIA Ruehle, IJ A098 589 755

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of October, two thousand nineteen.

PRESENT: PIERRE N. LEVAL, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

JOSE HENRY LOPEZ CANAS, Petitioner,

v. 19-634

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: ROBERT F. GRAZIANO, Law Office of Robert F. Graziano, Buffalo, NY.

FOR RESPONDENT: LINDSAY CORLISS (Joseph H. Hunt; Brianne Whelan Cohen, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Jose Henry Lopez Canas, a native and citizen of El

Salvador, seeks review of a March 4, 2019, decision of the BIA

affirming an August 29, 2018, decision of an Immigration Judge

(“IJ”) denying Lopez Canas’s application for withholding of

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

In re Jose Henry Lopez Canas, No. A 098 589 755 (B.I.A. Mar. 4,

2019), aff’g No. A 098 589 755 (Immig. Ct. N.Y. City Aug. 29,

2018). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because the

BIA assumed credibility, we assume credibility as to past events

and Lopez Canas’s subjective fear of future harm. See Yan Chen

v. Gonzales, 417 F.3d 268, 271–72 (2d Cir. 2005). We review the

agency’s factual findings for substantial evidence and its legal

conclusions de novo. See 8 U.S.C. § 1252(b)(4)(B); Paloka v.

Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo

the legal determination of whether a group constitutes a

‘particular social group’ . . . .”); Yanqin Weng v. Holder, 562

2 F.3d 510, 513, 516 (2d Cir. 2009) (reviewing denial of CAT

protection under the substantial evidence standard).

Withholding of Removal

To demonstrate eligibility for withholding of removal, an

“applicant must establish that race, religion, nationality,

membership in a particular social group, or political opinion was

or will be at least one central reason for” the claimed

persecution. 8 U.S.C. § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A);

Matter of C-T-L-, 25 I. & N. Dec. 341, 346 (BIA 2010) (holding

that the “one central reason” standard also applies to withholding

of removal). To constitute a particular social group, a 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.” Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237 (BIA 2014); see Paloka, 762 F.3d at 195–97.

“To be socially distinct, a group . . . must be perceived as a

group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at 240.

The agency did not err in rejecting Lopez Canas’s proposed

social group of former bus drivers in El Salvador because there

was a lack of evidence that Salvadoran society recognizes former

bus drivers as a distinct group. See Matter of M-E-V-G-, 26 I. &

N. Dec. at 240 (“Social distinction refers to social recognition”).

“Evidence such as country conditions reports, expert witness

3 testimony, and press accounts of discriminatory laws and policies,

historical animosities, and the like may establish that a group

exists and is perceived as ‘distinct’ or ‘other’ in a particular

society.” Id. at 244. Here, the country conditions evidence

reflects that gangs have targeted bus drivers for extortion, and

one article reports that between 2005 and 2014, 800 transport

employees were killed. But “a group’s recognition . . . is

determined by the perception of the society in question, rather

than by the perception of the persecutor.” Id. at 242. And there

is no evidence that society generally—or gang members in

particular—recognizes former bus drivers as a distinct social

group. See id. at 240. Lopez Canas testified that his friends

and bus dispatchers would know that he had been a bus driver, but

the recognition of friends and former coworkers is not an

appropriate proxy for the perception of society as a whole. See

Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014) (“[T]here

must be evidence showing that society in general perceives,

considers, or recognizes persons sharing the particular

characteristic to be a group.”).

The agency also did not err in rejecting Lopez Canas’s

proposed social group of “persons who return from the United States

to El Salvador who are presumed to have some wealth” because it

did not satisfy the social distinction requirement. See Matter

4 of M-E-V-G-, 26 I. & N. Dec. at 240. Lopez Canas did not submit

any country conditions evidence, or cite to any evidence in his

brief, to demonstrate that people returning from the United States

are perceived as a distinct group by Salvadoran society. See 8

U.S.C. § 1229a(c)(4) (providing that an “alien applying for relief

or protection from removal has the burden of proof”); 8 C.F.R.

§ 1208.16(b) (providing that the “burden of proof is on the

applicant for withholding of removal”); Matter of M-E-V-G-, 26 I.

& N. Dec. at 244. Lopez Canas argues that “this particular social

group is of the kind that is recognized practically everywhere,”

but counsel’s assertion is insufficient to show social

distinction. See Matter of M-E-V-G-, 26 I. & N. Dec. at 244; see

also Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013)

(noting that arguments of counsel cannot substitute for evidence

of the theory asserted).

Furthermore, we have previously affirmed the BIA’s rejection

of the affluent as a particular social group in Guatemala, finding

that, “[w]hen the harm visited upon members of a group is

attributable to the incentives presented to ordinary criminals

rather than to persecution, the scales are tipped away from

considering those people a ‘particular social group’ within the

meaning of the [Immigration and Nationality Act].” Ucelo-Gomez

v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). Accordingly, Lopez

5 Canas has not sufficiently demonstrated that his prospective

status as a potentially wealthy person who has been to the United

States constitutes membership in a distinct social group. See id.

Because Lopez Canas did not establish membership in a

cognizable social group, the agency did not err in denying

withholding of removal. See 8 U.S.C. § 1231(b)(3)(A).

CAT

An applicant for CAT relief has the burden to show that “it

is more likely than not” that he will be tortured, but he need not

show any connection to a protected ground. See 8 C.F.R.

§ 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.

2004). To constitute torture under the CAT, the likely harm must

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.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence of

a public official requires that the public official, 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.” Id. § 1208.18(a)(7). Cognizable

acquiescence “requires only that government officials know of or

remain willfully blind to an act and thereafter breach their legal

responsibility to prevent it.” Khouzam, 361 F.3d at 171.

6 The agency did not err in concluding that Lopez Canas failed

to show that Salvadoran authorities would more likely than not

acquiesce to his torture by gangs. Lopez Canas testified that he

believed that gang members and the police were connected, but the

record contains minimal evidence suggesting that Lopez Canas would

be tortured, or that government officials would acquiesce to his

torture. Lopez Canas testified that he reported incidents in

which gangs harmed him while he was employed as a bus driver in

1999 and 2001, in response to one of which a police officer said,

“that’s why they’re out killing you guys because you’re all

complaining all the time.” Additionally, when he was asked if he

had any knowledge of connections between the police and the gangs,

he testified that, “when I filed the complaint when I was beaten,

that was when I felt that I was being harassed and followed the

most.” The agency was not required to find his testimony

sufficient to show that there was collusion between gang members

and the police resulting in official acquiescence to torture.1

See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” (internal

1 Lopez Canas also testified as to a 2009 incident in which he was extorted and shot by gang members, but said that he did not report the incident to the police. He therefore cannot establish that the Salvadoran police knew about, or were willfully blind to, this extortion and shooting. See Khouzam, 361 F.3d at 171 (requiring knowledge of or willful blindness to torture). 7 quotation marks omitted)). Moreover, the fact that the police did

not take action to address his complaints besides taking a report

is not sufficient on its own to show government acquiescence to

torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th

Cir. 2014) (“Evidence that the police were aware of a particular

crime, but failed to bring the perpetrators to justice, is not in

itself sufficient to establish acquiescence in the crime.”); Mu-

Xing Wang v. Ashcroft, 320 F.3d 130, 144 & n.21 (2d Cir. 2003)

(suggesting that evidence of pervasive human rights violations is

insufficient to show that a particular CAT applicant is more likely

than not to be tortured, with or without official assent).

There is also minimal country conditions evidence to support

Lopez Canas’s assertion that police officers would acquiesce to

his torture. Lopez Canas does not cite to any evidence besides

the 2017 State Department Report, which lists “instances of

corruption and other crimes” among several factors that “limited

the [police]’s effectiveness” and states that one of the most

significant human rights problems was “widespread government

corruption.” The report does not discuss, however, whether the

reported police corruption involved colluding with gang members,

supporting gang activities, or acquiescing to torture. The

specific incidents of government corruption described in the

report largely concern elected officials, including former

8 presidents and a former attorney general. And on the whole, the

country conditions evidence does not otherwise describe ties

between gangs and the police that suggest a probability that Lopez

Canas will be tortured with official assent. Indeed, even if

Lopez Canas’s evidence were sufficient to demonstrate substantial

collusion between gang members and the police, this would be

insufficient to show that the police would acquiesce to harm to

Lopez Canas specifically. See Wang, 320 F.3d at 144 (2d Cir.

2003) (explaining that an applicant for CAT relief must show a

likelihood of torture in “his particular alleged circumstances”).

Based on the limited evidence of collusion between gang

members and the police, and the lack of particularized evidence

that government officials would acquiesce to Lopez Canas’s torture

specifically, the evidence does not compel a finding that Lopez

Canas will more likely than not be tortured by or with the

acquiescence of the Salvadoran authorities. See 8 U.S.C.

§ 1252(b)(4)(B) (“[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary[.]”); Wang, 320 F.3d at 144. As such,

the agency did not err in denying the requested CAT protection.

See 8 C.F.R. § 1208.18(a)(1).

9 For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, the stay of removal that the Court

previously granted in this petition is VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk