17-1107
Rivas-Aparicio v. Whitaker
BIA
Christensen, IJ
A206 005 981
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 31st day of January, two thousand nineteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LUIS RENE DARWIN RIVAS-APARICIO,
14 Petitioner,
15
16 v. 17-1107
17 NAC
18 MATTHEW G. WHITAKER, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22 FOR PETITIONER: Anne Pilsbury, Central American
23 Legal Assistance, Brooklyn, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Nancy E.
27 Friedman, Senior Litigation
28 Counsel; Brooke M. Maurer, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED in part and DENIED in part.
5 Petitioner Luis Rene Darwin Rivas-Aparicio, a native and
6 citizen of El Salvador, seeks review of a March 24, 2017,
7 decision of the BIA affirming a June 16, 2016, decision of an
8 Immigration Judge (“IJ”) denying Rivas-Aparicio’s application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). Luis Rene Darwin Rivas-
11 Aparicio, No. A 206 005 981 (B.I.A. Mar. 24, 2017), aff’g No.
12 A 206 005 981 (Immig. Ct. N.Y. City June 16, 2016). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history.
15 Under the circumstances of this case, we review the IJ’s
16 decision as modified by the BIA, i.e., minus the IJ’s adverse
17 credibility determination and the IJ’s finding that torture
18 was not likely to occur. Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
20 standards of review are well established: we review factual
21 findings for substantial evidence and legal issues de novo.
2
1 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
2 510, 513 (2d Cir. 2009).
3 Asylum and Withholding of Removal
4 To demonstrate eligibility for asylum and withholding of
5 removal, an “applicant must establish that race, religion,
6 nationality, membership in a particular social group, or
7 political opinion was or will be at least one central reason
8 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i)
9 (asylum); see id. § 1231(b)(3)(A) (withholding); see also In
10 re C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (holding
11 that the “one central reason” standard also applies to
12 withholding of removal). There may be “more than one motive
13 for mistreatment, as long as at least one central reason for
14 the mistreatment is on account of a protected ground.”
15 Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal
16 quotation marks and citations omitted). “Where there are
17 mixed motives for a persecutor’s actions, an asylum applicant
18 need not show with absolute certainty why the events occurred
19 . . . only that the harm was motivated, in part, by an actual
20 or imputed protected ground.” Aliyev v. Mukasey, 549 F.3d
21 111, 116 (2d Cir. 2008). We review for substantial evidence
3
1 whether an applicant was targeted on account of group
2 membership and review de novo the agency’s application of a
3 legal standard to established facts. See Edimo-Doualla v.
4 Gonzales, 464 F.3d 276, 282 (2d Cir. 2006).
5 Because the BIA assumed that Rivas-Aparicio’s testimony
6 was credible, we too assume its credibility. See Yan Chen
7 v. Gonzalez, 417 F.3d 268, 271–72 (2d Cir. 2005). The IJ
8 noted that Mara Salvatrucha (“MS-13”) began to target Rivas-
9 Aparicio after his wife began an affair with a gang member.
10 Among other things, the gang members stole his business
11 property, stayed at his home, and patrolled the area near his
12 daughter’s school. The IJ highlighted these problems to
13 support his determination that the gang targeted Rivas-
14 Aparicio because of a “personal vendetta,” and not because of
15 his membership in a particular social group.
16 This finding failed to consider material evidence
17 supporting Rivas-Aparicio’s claim that his persecution
18 intensified after he reported the gang’s crimes to police.
19 See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)
20 (“We . . . require some indication that the IJ considered
21 material evidence supporting a petitioner’s claim.”). For
4
1 example, Rivas-Aparicio testified that, a few days after he
2 first went to the police, gang members beat him up, menaced
3 him with a gun, and told him that he was “in trouble” because
4 he called the police and took back his property. See Acharya,
5 761 F.3d at 297 (explaining that multiple bases for
6 persecution can exist). He also testified about a later
7 incident during which a gang member threatened his life
8 because he had reported the gang’s extortion attempt to
9 police. Thus, his testimony, if deemed credible,
10 demonstrated that the gang’s assaults, threats, and extortion
11 attempts occurred after his initial report to police, which
12 could support a finding, under a mixed-motive analysis, that
13 the gang targeted him for cooperating with the authorities.
14 See id. at 298–300. Both Rivas-Aparicio’s asylum application
15 and supporting declaration corroborate these allegations.
16 Because Rivas-Aparicio’s allegations, assumed credible, could
17 demonstrate that MS-13 targeted him, at least in part, because
18 of his cooperation with police, the agency erred by not
19 addressing the relevant record evidence. See Mendez v.
20 Holder, 566 F.3d 316, 323 (2d Cir. 2009) (explaining that
21 when important facts relevant to relief have been “totally
5
1 overlooked” an error of law has occurred). Accordingly, we
2 remand to the BIA to apply a “mixed-motive analysis” to the
3 pertinent evidence and determine whether Rivas-Aparicio’s
4 cooperation with police was one central reason for the gang’s
5 persecution. See Aliyev, 549 F.3d at 119. We also note that
6 this remand provides an opportunity for the BIA to consider
7 the IJ’s adverse credibility determination. See Yan Chen,
8 417 F.3d at 275.
9 Because we order remand on this issue, we need not
10 address Rivas-Aparicio’s alternative argument that he
11 presented a prima facie claim for asylum based on an imputed
12 political opinion. See INS v. Bagamasbad, 429 U.S. 24, 25
13 (1976) (“As a general rule courts and agencies are not
14 required to make findings on issues the decision of which is
15 unnecessary to the results they reach.”).
16 CAT Relief
17 An applicant for CAT relief must show that “it is more
18 likely than not” that he will be tortured, but need not show
19 any connection to a protected ground. 8 C.F.R.
20 § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d
21 Cir. 2004). To constitute torture under the CAT, the likely
6
1 harm must be “inflicted by or at the instigation of or with
2 the consent or acquiescence of a public official or other
3 person acting in an official capacity.” 8 C.F.R.
4 § 1208.18(a)(1). “Acquiescence of a public official requires
5 that the public official, prior to the activity constituting
6 torture, have awareness of such activity and thereafter
7 breach his or her legal responsibility to intervene to prevent
8 such activity.” Id. § 1208.18(a)(7). Cognizable
9 acquiescence “requires only that government officials know of
10 or remain willfully blind to an act and thereafter breach
11 their legal responsibility to prevent it.” Khouzam, 361 F.3d
12 at 171. In assessing the likelihood of torture, “all
13 evidence relevant to the possibility of future torture shall
14 be considered, including, but not limited to . . . [e]vidence
15 of past torture,” the possibility of relocation within the
16 country, “[e]vidence of gross, flagrant or mass violations of
17 human rights . . . and . . . relevant information regarding
18 conditions in the country of removal.” 8 C.F.R.
19 § 1208.16(c)(3). To meet his burden of proof, an applicant
20 for CAT relief must establish that someone in his “particular
21 alleged circumstances” is more likely than not to be tortured
7
1 in the country designated for removal. Mu-Xing Wang v.
2 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).
3 The agency did not err in determining that Rivas-Aparicio
4 failed to demonstrate that the Salvadoran government will
5 more likely than not acquiesce to his torture by MS-13 gang
6 members. Rivas-Aparicio concedes that the police helped him
7 recover some of his stolen property, identify the perpetrator
8 of an anonymous extortion attempt, and escape from gang
9 members who were chasing him. But he argues, without citations
10 to the record, that the “majority of the record” demonstrates
11 government acquiescence in torture. This argument is
12 conclusory and does not support the CAT claim. And Rivas-
13 Aparicio’s assertion that police officers “may have given”
14 his cell phone number to the gang member who called him after
15 he changed his number is too speculative to establish
16 cognizable acquiescence. Khouzam, 361 F.3d at 171 (requiring
17 knowledge of or willful blindness to torture). Finally, the
18 BIA was not required to further explain its determination
19 that general evidence of gang violence and police corruption
20 in El Salvador does not establish that the government would
21 acquiesce to Rivas-Aparicio’s torture. See Mendez, 566 F.3d
8
1 at 323 (The BIA is not required to “explicitly consider[]”
2 each item of evidence or even describe it perfectly).
3 For the foregoing reasons, the petition for review is
4 GRANTED in regard to asylum and withholding of removal and
5 the case is remanded to the agency. The petition for review
6 is DENIED insofar as it seeks relief under the CAT.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
9