16-1547 Orellana-Mateo v. Whitaker BIA Straus, IJ A205 379 495 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 16th day of November, two thousand eighteen.

PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

ERICK GERMAN ORELLANA-MATEO, Petitioner,

v. 16-1547 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Susan N. Masters, Joshua S. Mirer, Hartford, Connecticut.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

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 GRANTED.

Petitioner Erick German Orellana-Mateo, a native and

citizen of Honduras, seeks review of the BIA’s affirmance of

an Immigration Judge’s (“IJ’s”) denial of Orellana-Mateo’s

application for relief under the Convention Against Torture

(“CAT”). See In re Erick German Orellana-Mateo, No. A 205

379 495 (B.I.A. Apr. 19, 2016), aff’g No. A 205 379 495

(Immig. Ct. Hartford Dec. 8, 2014). Under the circumstances

of this case, we review the IJ’s decision as supplemented by

the BIA, see Yan Chen v. Gonzales,

(2d Cir.

2005), applying well established standards of review, see

Y.C. v. Holder,

(2d Cir. 2013) (reviewing

agency’s legal conclusions de novo and factual findings for

substantial evidence). In so doing, we assume the parties’

familiarity with the underlying facts and procedural history

2 of this case, which we reference only as necessary to explain

our decision to grant the petition.

To secure CAT relief, Orellana-Mateo must show that

someone in his circumstances is more likely than not to be

tortured if removed. See

(c), 1208.17;

Khouzam v. Ashcroft,

(2d Cir. 2004); Mu-

Xing Wang v. Ashcroft,

(2d Cir. 2003). The

alleged torture 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.”

(a)(1). “Acquiescence . . . 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.”

§ 1208.18(a)(7); see Khouzam v. Ashcroft,

(holding that “[i]n terms of state action, torture

requires only that government officials know of or remain

willfully blind to an act and thereafter breach their legal

responsibility to prevent it”).

In assessing the likelihood of torture, “all evidence

relevant to the possibility of future torture shall be 3 considered, including, but not limited to . . . [e]vidence of

past torture,” the possibility of relocation within the

country, “[e]vidence of gross, flagrant or mass violations of

human rights . . . and . . . relevant information regarding

conditions in the country of removal.”

(c)(3); see In re G-A-,

(B.I.A. 2002) (en banc).

Here, the agency denied Orellana-Mateo CAT relief upon

finding that he failed to show that Honduran police would

acquiesce in physical assaults against him by his

girlfriend’s father, Marvin Leon. In reaching this

conclusion, the agency considered country conditions evidence

reporting high levels of police corruption in Honduras and

credited Orellana-Mateo’s testimony detailing police

participation in criminal activity with Leon. Nevertheless,

because there was evidence of the government taking steps to

combat corruption and of two officers stopping Leon from

killing Orellana-Mateo on a prior occasion, the agency

concluded that the record as a whole failed to show the

requisite government acquiescence in feared torture.

4 While factfinding responsibility is largely within the

agency’s discretion, see Jian Hui Shao v. Mukasey,

(2d Cir. 2008), this court properly considers whether

that factfinding conforms to established legal principles.

This court has frequently remanded cases to the BIA for it to

consider whether “the preventative efforts of some government

actors should foreclose the possibility of government

acquiescence, as a matter of law, under the CAT.” De La Rosa

v. Holder,

(2d Cir. 2010); see Walker v.

Lynch,

, 47–48 (2d Cir. 2016) (summary order);

Pierre v. Lynch,

, 709–11 (2d Cir. 2016)

(summary order); Celedon-Herrera v. Lynch,

(2d Cir. 2015) (summary order). We do so again here because

the record indicates that (1) the officers who stopped Leon

from killing Orellana-Mateo were themselves involved with

Leon in ongoing criminal activity; (2) the officers had not

stopped Leon from physically attacking Orellana-Mateo,

intervening only when Leon drew a gun; (3) the officers’

intervention to prevent murder may have been prompted more by

a concern for witnesses to the event than by a responsibility

to prevent homicide; (4) the officers did not arrest Leon for 5 attacking and attempting to murder Orellana-Mateo; (5) on

taking Orellana-Mateo home, the officers told him he had

nothing to fear as long as he kept quiet about the ongoing

criminal activities; and (6) Leon did not hesitate to assault

Orellana-Mateo again on an occasion when no officers were

present.

The agency’s decision fails to account for the totality

of these facts or to consider whether, despite their

prevention of murder in the presence of witnesses, police

would effectively acquiesce in that or other torturous

conduct against Orellana-Mateo in the future. See De La Rosa

v. Holder,

(holding that “preventative efforts

of some government actors” do not clearly “foreclose the

possibility of government acquiescence, as a matter of law,

under the CAT”); Khouzam v. Ashcroft,

.

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings consistent with this order.

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

Court previously granted in this petition is VACATED, and any

pending motion for a stay of removal in this petition is 6 DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

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

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