17-579 Sanchez-Ponce v. Whitaker BIA Kolbe, IJ A208 283 836/837

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of November, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KAREN BEATRICE SANCHEZ-PONCE, 14 DAVID ALBERTO PACAS-SANCHEZ, 15 Petitioners, 16 17 v. 17-579 18 NAC 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Anne Pilsbury, Central American 25 Legal Assistance, Brooklyn, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Anthony C. 1 Payne, Assistant Director; Yedidya 2 Cohen, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED in part and GRANTED in part.

11 Petitioners Karen Beatrice Sanchez-Ponce and her son,

12 David Alberto Pacas-Sanchez, natives and citizens of El

13 Salvador, seek review of a February 9, 2017, decision of the

14 BIA affirming a September 8, 2016, decision of an Immigration

15 Judge (“IJ”) denying Sanchez-Ponce’s application for asylum,

16 withholding of removal, and relief under the Convention

17 Against Torture (“CAT”). In re Karen Beatrice Sanchez-Ponce,

18 David Alberto Pacas-Sanchez, Nos. A 208 283 836/837 (B.I.A.

19 Feb. 9, 2017), aff’g Nos. A 208 283 836/837 (Immig. Ct. N.Y.

20 City Sept. 8, 2016). We assume the parties’ familiarity with

21 the underlying facts and procedural history in this case.

22 Under the circumstances of this case, we have reviewed

23 both the BIA’s and IJ’s decisions “for the sake of

24 completeness.” Wangchuck v. DHS,

(2d Cir. 2 1 2006). The applicable standards of review are well

2 established. See

(b)(4)(B); Paloka v. Holder,

3

(2d Cir. 2014).

4 I. Asylum and Withholding

5 To demonstrate eligibility for asylum and withholding of

6 removal, “the applicant must establish that race, religion,

7 nationality, membership in a particular social group, or

8 political opinion was or will be at least one central reason

9 for persecuting the applicant.”

(a)(42); see

10 also

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Matter of C-T-

11 L-,

(B.I.A. 2010). Relief “may be

12 granted where there is more than one motive for mistreatment,

13 as long as at least one central reason for the mistreatment

14 is on account of a protected ground.” Acharya v. Holder, 761

(2d Cir. 2014) (internal quotation marks and

16 citations omitted). Sanchez-Ponce asserts that she is

17 eligible for asylum and withholding of removal on the basis

18 of political opinion and social group. Both claims fail.

19 A. Political Opinion

20 To show persecution based on political opinion, the

21 applicant must “show through direct or circumstantial 3 1 evidence” that the persecutor is motivated by the applicant’s

2 own political opinion or the persecutor’s perception of the

3 applicant’s opinion, rather than merely by his own opinion.

4 See Yueqing Zhang v. Gonzales,

(2d Cir.

5 2005). Sanchez-Ponce presented no evidence that she was

6 expressing political opposition to the gang, or that gang

7 members believed or perceived that her resistance to gang

8 activities was a political opinion. See INS v. Elias-

9 Zacarias,

(1992)(holding that resistance to

10 a rebel group may be for many reasons other than political

11 opposition to the group); Delgado v. Mukasey,

,

12 707 (2d Cir. 2007)(holding that resistance to rebel group

13 known for targeting political rivals was political opinion

14 when petitioner “clearly viewed her flight as a refusal to

15 cooperate” with the rebels and it was “reasonable to infer”

16 that the rebels did as well); Matter of E-A-G-, 24 I. & N.

17 Dec. 591, 596-97 (B.I.A. 2008) (holding that refusal to join

18 gang, “without more, does not constitute a ‘political

19 opinion’” because refusal in and of itself does not express

20 a political opinion). Nor did her report to the district

21 attorney’s office constitute a political opinion. See 4 1 Yueqing Zhang,

(holding that whistle-

2 blowing may be political opinion when “when it transcends

3 mere self-protection and represents a challenge to the

4 legitimacy or authority of the ruling regime”). There is no

5 indication in the record that Sanchez-Ponce reported the MS-

6 13 leader for any reason other than protecting herself from

7 rape or other harm.

8 B. Social Group

9 Sanchez-Ponce argues that she is eligible for asylum on

10 the basis of social group. This claim is not properly before

11 us because Sanchez-Ponce declined to press the claim before

12 the IJ and the BIA found it waived. See Prabhudial v. Holder,

13

(2d Cir. 2015). When asked to clarify the

14 grounds raised, Sanchez-Ponce’s counsel responded that “the

15 clearer basis is political opinion,” failed to define the

16 social group at issue, and then argued only political opinion

17 in the closing argument.

18 II. CAT Relief

19 An applicant for CAT relief has the burden to show that

20 she would more likely than not be tortured. See 8 C.F.R.

21 §§ 1208.16(c)(2), 1208.17; Khouzam v. Ashcroft,

, 5 1 168 (2d Cir. 2004). “Torture is defined as any act by which

2 severe pain or suffering . . . is intentionally inflicted on

3 a person . . . by or at the instigation of or with the consent

4 or acquiescence of a public official or other person acting

5 in an official capacity.”

(a)(1). To show

6 acquiescence, an applicant need only show “that government

7 officials know of or remain willfully blind to an act and

8 thereafter breach their legal responsibility to prevent it.”

9 Khouzam,

.

10 A government’s inability to prevent torture—even when

11 some state actors take “preventative efforts”—may be adequate

12 to state a CAT claim. De La Rosa v. Holder,

,

13 110 (2d Cir. 2010). “Where a government contains officials

14 that would be complicit in torture, and that government, on

15 the whole, is admittedly incapable of actually preventing

16 that torture, the fact that some officials take action to

17 prevent torture would seem neither inconsistent with a

18 finding of government acquiescence nor necessarily responsive

19 to the question of whether torture would be inflicted” with

20 the acquiescence of an official.

21 6 1 We remand for further consideration of Sanchez-Ponce’s

2 CAT claim. She testified that an official at the district

3 attorney’s office refused to act on her report of the gang

4 leader’s threats and told her that she needed to hide or flee

5 the country. She also testified that the gang leader

6 arranged for her to be brought to prison, obtained expedited

7 permission for her to be a prison visitor, and called her

8 repeatedly on two different phones. She also points to

9 country conditions evidence showing the power of the gangs,

10 even in prison, and the pervasive corruption in El Salvador.

11 Like De La Rosa, Sanchez-Ponce has offered evidence of

12 widespread corruption and the Salvadoran government’s

13 inability to control the gangs, even when their leaders are

14 imprisoned.

. Neither the IJ or the BIA

15 discussed this evidence, despite its relevance. See

16 Poradisova v. Gonzales,

(2d Cir. 2005)

17 (requiring “certain minimum level of analysis . . . if

18 judicial review is to be meaningful”).

19 For the foregoing reasons, the petition for review is

20 DENIED as to asylum and withholding of removal and GRANTED as

21 to CAT relief, and the case is REMANDED to the BIA for further 7 1 proceedings consistent with this order. As we have completed

2 our review, any stay of removal that the Court previously

3 granted in this petition is VACATED, and any pending motion

4 for a stay of removal in this petition is DISMISSED as moot.

5 Any pending request for oral argument in this petition is

6 DENIED in accordance with Federal Rule of Appellate Procedure

7 34(a)(2), and Second Circuit Local Rule 34.1(b).

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court 11

8