FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL JAVIER SOLANDO, AKA No. 08-73754
Harold Conley, AKA Dinkane,
Agency No. A024-299-795
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2009
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District
Judge.
Daniel Javier Solando (“Solando”) appeals the Board of Immigration
Appeals’ (“BIA”) decision affirming the denial of his application for deferral of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
removal under the United Nations Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252. We affirm the BIA. 1
1. We review for substantial evidence the BIA’s determination that
Solando failed to show that he would more likely than not be tortured if removed
to Honduras. Muradin v. Gonzales, 494 F.3d 1208, 1210-11 (9th Cir. 1997). That
is, record evidence must compel reversal. Id. at 1210. To demonstrate that
Solando would more likely than not be tortured, he must show that actors would
specifically intend to inflict severe pain and suffering on him; where those actors
are private citizens, he must show that the Honduran government acquiesces in
their torturous conduct. Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005);
Zheng v. Ashcroft, 332 F.3d 1186, 1194-97 (9th Cir. 2003).
2. Solando cannot establish eligibility for CAT relief based on a
combination of his homosexuality, his poor health, and the state of the Honduran
medical system. This is because the record does not compel the conclusion that
any private or governmental actor who might commit misconduct against Solando
would intend any torturous consequences that could result from the combination of
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
his homosexuality, poor health, and the poor condition of the Honduran public
health system.
3. The record does not compel the conclusion that Solando will more
likely than not be tortured based on his homosexuality alone for three reasons.
First, Solando experienced violence at the hands of private actors as a gay youth in
Honduras. Evidence of past torture is relevant to, but not determinative of, one’s
eligibility for CAT relief. Nuru, 404 F.3d at 1217. However, the past violence that
Solando experienced does not fall within the CAT definition of torture, because he
did not report the mistreatment to the police and thus cannot show government
acquiescence.
Second, the record does not compel the conclusion that a gay man is more
likely than not to be tortured in Honduras. The record evidences discrimination
against homosexuals in Honduras, but it does not compel the conclusion that the
Honduran government acquiesces in the torture of gay men. Specifically,
Honduras does not criminalize gay acts, Honduran prosecutors prosecute crimes
against gay people, and police misconduct against gay people does not clearly rise
to the level of torture. Cf. Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008)
(holding that evidence of country conditions was sufficient to establish evidence of
Jamaican government’s acquiescence in torture of gay men where violence was
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perpetrated by both government and private actors and where Jamaican law
criminalized homosexual conduct).
Finally, the record does not compel the conclusion that Solando specifically
would be tortured if removed to Honduras. Substantial evidence supports the
BIA’s decision that Solando is not a gay rights activist, transsexual, or member of
another category of homosexual persons more frequently targeted for violence.
4. Lastly, Solando cannot establish eligibility for CAT relief based on
the combination of his poor health and the failing Honduran public health system.
Solando’s contentions based on his health status – e.g., the possibility that he might
be imprisoned as homosexual, attacked in prison as weak, and then denied medical
care by prison officials – are too speculative to support a grant of CAT relief. Cf.
Bosede v. Mukasey, 512 F.3d 946, 949 (9th Cir. 2008) (considering Nigerian prison
conditions in granting CAT relief to a HIV+ prisoner, in the distinguishable
circumstance where a Nigerian statute mandated that he be imprisoned for five
years on his return to Nigeria because of his foreign conviction for a drug offense.)
Accordingly, the decision of the BIA is AFFIRMED.
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