NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS E. ZELAYA MENDEZ, No. 19-71091
Petitioner, Agency No. A215-548-691
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2020
Pasadena, California
Before: NGUYEN, HURWITZ, and FRIEDLAND, Circuit Judges.
Carlos Zelaya Mendez, a native and citizen of Honduras, petitions for review
of a decision of the Board of Immigration Appeals (“BIA”), which affirmed
without opinion an order of an immigration judge (“IJ”) denying applications for
asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under
the Convention Against Torture (“CAT”). We grant the petition in part, deny it in
part, and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. We grant the petition with respect to Zelaya’s CAT claim and remand for
further proceedings. The IJ’s denial of CAT relief rested largely on two premises,
each of which was tainted by legal error.
First, the IJ reasoned that Honduran officials had never turned a “blind eye”
or “look[ed] the other way” when confronted with information about Zelaya’s
torture at the hands of the 18th Street gang. This conclusion rested in significant
part on the IJ’s determination that Zelaya “provided conflicting information” as to
whether he had stopped at a police station and been laughed at by a police officer
when he pleaded for help after escaping his captors and before fleeing Honduras.
To the extent this amounted to a partial adverse credibility finding—which would
undercut the IJ’s overall conclusion that Zelaya had testified credibly—it did not
adhere to “our longstanding requirement that adverse credibility findings be
explicit.” Ming Dai v. Sessions, 884 F.3d 858, 868 (9th Cir. 2018). Moreover,
such a determination would contravene the “well established” rule “that ‘the mere
omission of details is insufficient to uphold an adverse credibility finding.’” Lai v.
Holder, 773 F.3d 966, 971 (9th Cir. 2014) (quoting Singh v. Gonzales, 403 F.3d
1081, 1085 (9th Cir. 2005)). The “conflicting information” identified by the IJ
amounted to no more than an omission of details from a short letter written by
Zelaya in which those omitted details were, in context, not very relevant.
Second, although the IJ acknowledged that the evidence submitted by Zelaya
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“show[ed] a tremendous amount of violence and crime in Honduras and sp[oke] to
corruption of the . . . police,” she reasoned that the evidence also showed the
Honduran government was “actively combating” the gangs. The IJ did not,
however, sufficiently examine “the efficacy of the government’s efforts” to combat
gang violence and police corruption. See Madrigal v. Holder, 716 F.3d 499, 509
(9th Cir. 2013). The IJ’s order instead includes only selective references to
portions of the country conditions materials which, standing alone, are insufficient
to support a conclusion that the Honduran government has been effective.
In light of these errors in the evaluation of Zelaya’s CAT claim, we remand
to the BIA for further proceedings, including, if appropriate, remand to the IJ. See
Lopez v. Ashcroft, 366 F.3d 799, 805-07 (9th Cir. 2004) (citing INS v. Ventura, 537
U.S. 12 (2002) (per curiam)).
2. We deny the petition with respect to asylum and withholding of removal
because substantial evidence supports the IJ’s conclusions that Zelaya did not
establish a sufficient connection between past persecution and either his
“membership in a particular social group” or a “political opinion” that was imputed
to him. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), 1231(b)(3)(A).
With respect to Zelaya’s contention that he was persecuted on account of his
membership in a “particular social group,” the record does not compel the
conclusion that Zelaya’s proposed group is recognized by Honduran society and
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thereby meets the “social distinction” requirement—regardless of whether that
group is defined as “a civilian group that opposes the gang” (as the IJ understood
it) or “civilians that oppose the gangs by refusing to pay extortion” (as Zelaya
contends it should have been understood). See Conde Quevedo v. Barr, 947 F.3d
1238, 1242-44 (9th Cir. 2020).1
With respect to Zelaya’s contention that he was persecuted on account of a
“political opinion,” the record does not compel the conclusion that Zelaya’s
“persecutors’ motives” were tied to a political opinion they imputed to him. See
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Although the evidence to
which Zelaya points could be consistent with the gang having targeted Zelaya
because they believed he held political views contrary to their own, the evidence is
also consistent with targeting solely “for economic and personal reasons.” Barrios
v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (quoting Santos-Lemus v. Mukasey,
542 F.3d 738, 747 (9th Cir. 2008)), abrogated on other grounds by Henriquez-
Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). The IJ could therefore
reasonably draw the conclusion that she did.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN
1
We disagree with the Government that we must dismiss Zelaya’s
“particular social group” contention on the basis that it was not properly exhausted
before the agency. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.
2008) (explaining that exhaustion does not require petitioners to raise their
“precise argument” in administrative proceedings).
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PART; REMANDED.
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