Palacios Alvarado v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: October 4, 2023
• Docket: 22-6366
• Status: Unpublished

Opinion

22-6366 Palacios Alvarado v. Garland BIA Conroy, IJ A206 726 758

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 4th day of October, two thousand 4 twenty-three. 5 6 PRESENT: 7 JON O. NEWMAN, 8 RAYMOND J. LOHIER, JR., 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 LUCAS LEONEL PALACIOS 14 ALVARADO, 15 Petitioner, 16 17 v. 22-6366 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Kai W. De Graaf, Esq., Ada, MI. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Jonathan A. Robbins, 3 Assistant Director; Michael C. Heyse, Senior 4 Litigation Counsel, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of

8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

9 DECREED that the petition for review is DENIED.

10 Petitioner Lucas Leonel Palacios Alvarado, a native and citizen of

11 Honduras, seeks review of a July 26, 2022 decision of the BIA affirming a February

12 14, 2022 decision of an Immigration Judge (“IJ”) denying his application for

13 asylum, withholding of removal, and relief under the Convention Against Torture

14 (“CAT”). In re Palacios Alvarado, No. A206 726 758 (B.I.A. July 26, 2022), aff’g No.

15 A206 726 758 (Immigr. Ct. N.Y.C. Feb. 14, 2022). We assume the parties’

16 familiarity with the underlying facts and procedural history.

17 We have reviewed the IJ’s decision as modified and supplemented by the

18 BIA, and therefore consider the IJ’s nexus findings with respect to asylum and

19 withholding of removal, the IJ’s findings as to government involvement and

20 acquiescence with respect to CAT relief, and the BIA’s additional reasoning on

2 1 those points and its findings regarding waiver. 1 See Xue Hong Yang v. U.S. Dep’t

2 of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

3 Cir. 2005). We review the IJ’s factual findings for substantial evidence, and we

4 review questions of law and the application of law to fact de novo. Yanqin Weng

5 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he

6 administrative findings of fact are conclusive unless any reasonable adjudicator

7 would be compelled to conclude to the contrary.”).

8 I. Asylum and Withholding of Removal

9 To establish eligibility for asylum, Palacios Alvarado had to show that he

10 suffered past persecution or had a well-founded fear of future persecution “on

11 account of race, religion, nationality, membership in a particular social group, or

12 political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), (B)(i). To qualify

13 for withholding of removal, he similarly had to establish a “clear probability” of

14 persecution based on “race, religion, nationality, membership in a particular social

15 group, or political opinion.” Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010); see 8

16 C.F.R. § 1208.16(b). For either form of relief, he had to show that a protected

1 We therefore do not consider Palacios Alvarado’s challenges to the IJ’s particularly serious crime finding and the exclusion of evidence (that he acknowledges is relevant only to that finding). 3 1 ground was “at least one central reason for” the claimed persecution. 8 U.S.C. §

2 1158(b)(1)(B)(i) (asylum); see Quituizaca v. Garland, 52 F.4th 103, 109–14 (2d Cir.

3 2022) (deferring to BIA’s conclusion that the “one central reason” standard also

4 applies to withholding of removal). Palacios Alvarado asserted that a gang

5 harassed, threatened, abducted, and assaulted him because of his anti-gang

6 political opinion and membership in a particular social group consisting of young

7 Hondurans who are either vulnerable to sexual abuse or subject to violent gang

8 recruitment efforts. 2

9 The agency reasonably found that the gang harmed Palacios Alvarado

10 because of its criminal interests in recruitment and extortion, rather than because

11 of his political opinion or the traits associated with his proposed social groups.

12 See Melgar de Torres v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) (noting that general

13 crime and violence in a country is not a stated ground for asylum and withholding

14 of removal). While Palacios Alvarado asserted that gang members assaulted him

15 in retaliation for his refusal to join their gang or pay them, such refusals are not, in

16 themselves, an expression of political opinion. See Zelaya-Moreno v. Wilkinson, 989

2 Palacios Alvarado does not argue that the gang targeted him because of his religion—or that the BIA erred in finding that he waived that claim. 4 1 F.3d 190, 200 (2d Cir. 2021). This is the case even where, as here, the applicant

2 stated that the reason he refused to comply with the gang’s demands was because

3 complying would have been contrary to his values. Id. at 201 (“[D]isapproving

4 of things that have a negative impact on one’s life or even one’s country does not

5 necessarily amount to a political opinion.”). But Palacios Alvarado does not

6 identify a way in which his opposition to the gang “took on a political dimension

7 by transcending mere self-protection.” Hernandez-Chacon v. Barr, 948 F.3d 94, 104

8 (2d Cir. 2020) (discussing when opposition to government corruption constitutes

9 political opinion).

10 Further, Palacios Alvarado failed to demonstrate that his proposed

11 particular social groups were cognizable. A cognizable social group must have

12 “a common immutable characteristic,” be “defined with particularity,” and be

13 “socially distinct within the society in question.” Paloka v. Holder, 762 F.3d 191,

14 196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237

15 (B.I.A. 2014)). Particularity requires that the group be “defined by characteristics

16 that provide a clear benchmark for determining who falls within the group” and

17 that membership not be “amorphous, overbroad, diffuse, or subjective.” Id.

18 (quoting M-E-V-G-, 26 I. & N. Dec. at 239). Social distinction requires that “society

5 1 as a whole views [the] group as socially distinct.” Id. Here, Palacios Alvarado

2 appears to argue that “young people” are viewed as a distinct group in Honduran

3 society. This is a different group than what he proposed to the agency, and the

4 evidence he cites—his own testimony and a psycho-social evaluation—does not

5 address whether that group, or the previously proposed subsets of that group, are

6 socially distinct in Honduras. Nor has Palacios Alvarado identified a “clear

7 benchmark” for determining who is “young.” Cf. id. at 196, 199 (quoting

8 M-E-V-G-, 26 I. & N. Dec. at 239) (remanding for further consideration of a

9 particular social group where applicant had refined the proposed group to a

10 specific age range that was supported by the evidence). Moreover, the record

11 reflects that the gang acted to increase its membership and wealth. As we have

12 observed previously, “[w]hen the harm visited upon members of a group is

13 attributable to the incentives presented to ordinary criminals rather than to

14 persecution, the scales are tipped away from considering those people a ‘particular

15 social group’ within the meaning of the [Immigration and Nationality Act].”

16 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007).

17 II. CAT

18 The record does not compel a conclusion that the agency erred in finding

6 1 that Palacios Alvarado failed to demonstrate that the Honduran government is

2 more likely than not to participate in or acquiesce to his torture. 3 See 8 C.F.R.

3 §§ 1208.16(c), 1208.17. A CAT applicant has the burden to establish that he will

4 “more likely than not” be tortured “by, or at the instigation of, or with the consent

5 or acquiescence of, a public official acting in an official capacity or other person

6 acting in an official capacity.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). To

7 establish acquiescence, the applicant must show that “the public official, prior to

8 the activity constituting torture, have awareness of such activity and thereafter

9 breach his or her legal responsibility to intervene to prevent such activity.” Id.

10 § 1208.18(a)(7); see Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“[T]orture

11 requires only that government officials know of or remain willfully blind to an act

12 and thereafter breach their legal responsibility to prevent it.”); Pierre v. Gonzales,

13 502 F.3d 109, 118 (2d Cir. 2007) (“A private actor’s behavior can constitute torture

14 under the CAT without a government’s specific intent to inflict it if a government

15 official is aware of the persecutor’s conduct and intent and acquiesces in violation

16 of the official’s duty to intervene.”).

3 Regardless of whether Palacios Alvarado adequately raised this issue in his brief to the BIA, we may reach it because the BIA addressed it. See Ruiz-Martinez v. Mukasey, 516 F.3d 102, 112 n.7 (2d Cir. 2008). 7 1 First, substantial evidence supports the agency’s conclusion that Palacios

2 Alvarado did not establish that he was previously tortured by police officers. See

3 Quintanilla-Mejia v. Garland, 3 F.4th 569, 584 (2d Cir. 2021) (“apply[ing] the

4 substantial evidence standard to questions of fact raised in . . . CAT challenges”).

5 “[S]ubstantial evidence review does not contemplate any judicial reweighing of

6 evidence. Rather, it requires us to ask only whether record evidence compelled

7 an acquiescence finding different from that reached by the agency.” Id. at 593–

8 94. Palacios Alvarado testified that he was abducted by two people in police

9 uniforms, but that he did not know whether they were police officers, and there is

10 no evidence that they said anything that would indicate that they were officers.

11 See Siewe v. Gonzales, 480 F.3d 160, 167–68 (2d Cir. 2007) (holding that, where the

12 evidence could support multiple inferences, we defer to the IJ’s choice between

13 those inferences). Moreover, the IJ pointed to other circumstantial evidence that

14 supported the conclusion that police officers were not involved with the gang,

15 including Palacios Alvarado’s testimony that the gang threatened to kill him if he

16 went to the police, and the absence of threats from the police when he and his

17 grandmother reported an attack.

18 The remaining evidence does not compel the conclusion that the Honduran

8 1 government would acquiesce to Palacios Alvarado’s torture by gang members.

2 Palacios Alvarado asserted that he reported a gang assault to the police, and he

3 and his grandmother followed up on the report a few times, but the police told

4 him only that they were working on his case and did not have any results; a few

5 months later, the gang abducted and sexually assaulted him. Accordingly, the

6 record reflects that the police were aware that gang members had assaulted

7 Palacios Alvarado and that they did not prevent further harm. But Palacios

8 Alvarado has not shown that the police willfully ignored his complaint, that they

9 failed to take further action because they were complicit with his abusers, or that

10 they knew that the gang planned to escalate its abuse to torture. See 8 C.F.R.

11 § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official,

12 prior to the activity constituting torture, have awareness of such activity.” (emphasis

13 added)); cf. Pierre, 502 F.3d at 111 (holding that the intent element of torture is not

14 satisfied where abuses are the “result of poverty, neglect, or incompetence”).

15 The country conditions evidence in the record reflects that the Honduran

16 government is attempting to combat gang violence, albeit with limited success,

17 and that there are problems with police corruption. Contrary to Palacios

18 Alvarado’s argument, there is no indication that the agency overlooked that

9 1 evidence. See Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006)

2 (“[W]e presume that [the agency] has taken into account all of the evidence before

3 [it], unless the record compellingly suggests otherwise.”). We have recognized

4 the possibility that government acquiescence may exist where some officials

5 attempt to prevent torture, other officials are complicit, and the government is

6 “unable to actually prevent the torture from taking place.” De La Rosa v. Holder,

7 598 F.3d 103, 110–11 (2d Cir. 2010). As noted, the record here establishes that

8 some government officials are complicit in gang violence, and that such violence

9 persists notwithstanding other officials’ efforts to curb it. But absent evidence

10 that government officials participated in, were aware of, or were willfully blind to

11 Palacios Alvarado’s past torture, or that they otherwise have some involvement in

12 the group that targeted him, the record does not compel the conclusion that the

13 Honduran government is more likely than not to acquiesce to his torture in the

14 future. See Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005)

15 (requiring “particularized evidence” beyond general country conditions to

16 support a CAT claim); cf. Quintanilla-Mejia, 3 F.4th at 593–94 (finding that the

17 record did not compel the conclusion that the Salvadoran government would

18 acquiesce to gang torture where the petitioner had not reported prior gang assaults

10 1 to the government, and country conditions evidence showed that gang violence

2 persisted—including instances of involving police misconduct—but also that the

3 government was taking steps to combat gang violence).

4 For the foregoing reasons, the petition for review is DENIED. All pending

5 motions and applications are DENIED and stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court