Lopez Canas v. Barr
Lopez Canas v. Barr
Opinion
19-634 Lopez Canas v. Barr BIA Ruehle, IJ A098 589 755
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 9th day of October, two thousand nineteen.
PRESENT: PIERRE N. LEVAL, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
JOSE HENRY LOPEZ CANAS, Petitioner,
v. 19-634
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: ROBERT F. GRAZIANO, Law Office of Robert F. Graziano, Buffalo, NY.
FOR RESPONDENT: LINDSAY CORLISS (Joseph H. Hunt; Brianne Whelan Cohen, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 DENIED.
Petitioner Jose Henry Lopez Canas, a native and citizen of El
Salvador, seeks review of a March 4, 2019, decision of the BIA
affirming an August 29, 2018, decision of an Immigration Judge
(“IJ”) denying Lopez Canas’s application for withholding of
removal and relief under the Convention Against Torture (“CAT”).
In re Jose Henry Lopez Canas, No. A 098 589 755 (B.I.A. Mar. 4,
2019), aff’g No. A 098 589 755 (Immig. Ct. N.Y. City Aug. 29,
2018). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice,
426 F.3d 520, 522(2d Cir. 2005). Because the
BIA assumed credibility, we assume credibility as to past events
and Lopez Canas’s subjective fear of future harm. See Yan Chen
v. Gonzales,
417 F.3d 268, 271–72 (2d Cir. 2005). We review the
agency’s factual findings for substantial evidence and its legal
conclusions de novo. See
8 U.S.C. § 1252(b)(4)(B); Paloka v.
Holder,
762 F.3d 191, 195(2d Cir. 2014) (“Courts review de novo
the legal determination of whether a group constitutes a
‘particular social group’ . . . .”); Yanqin Weng v. Holder, 562
2 F.3d 510, 513, 516 (2d Cir. 2009) (reviewing denial of CAT
protection under the substantial evidence standard).
Withholding of Removal
To demonstrate eligibility for withholding of removal, an
“applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion was
or will be at least one central reason for” the claimed
persecution.
8 U.S.C. § 1158(b)(1)(B)(i);
id.§ 1231(b)(3)(A);
Matter of C-T-L-,
25 I. & N. Dec. 341, 346(BIA 2010) (holding
that the “one central reason” standard also applies to withholding
of removal). To constitute a particular social group, a group
must be “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237(BIA 2014); see Paloka, 762 F.3d at 195–97.
“To be socially distinct, a group . . . must be perceived as a
group by society.” Matter of M-E-V-G-,
26 I. & N. Dec. at 240.
The agency did not err in rejecting Lopez Canas’s proposed
social group of former bus drivers in El Salvador because there
was a lack of evidence that Salvadoran society recognizes former
bus drivers as a distinct group. See Matter of M-E-V-G-,
26 I. & N. Dec. at 240(“Social distinction refers to social recognition”).
“Evidence such as country conditions reports, expert witness
3 testimony, and press accounts of discriminatory laws and policies,
historical animosities, and the like may establish that a group
exists and is perceived as ‘distinct’ or ‘other’ in a particular
society.”
Id. at 244. Here, the country conditions evidence
reflects that gangs have targeted bus drivers for extortion, and
one article reports that between 2005 and 2014, 800 transport
employees were killed. But “a group’s recognition . . . is
determined by the perception of the society in question, rather
than by the perception of the persecutor.”
Id. at 242. And there
is no evidence that society generally—or gang members in
particular—recognizes former bus drivers as a distinct social
group. See
id. at 240. Lopez Canas testified that his friends
and bus dispatchers would know that he had been a bus driver, but
the recognition of friends and former coworkers is not an
appropriate proxy for the perception of society as a whole. See
Matter of W-G-R-,
26 I. & N. Dec. 208, 217(BIA 2014) (“[T]here
must be evidence showing that society in general perceives,
considers, or recognizes persons sharing the particular
characteristic to be a group.”).
The agency also did not err in rejecting Lopez Canas’s
proposed social group of “persons who return from the United States
to El Salvador who are presumed to have some wealth” because it
did not satisfy the social distinction requirement. See Matter
4 of M-E-V-G-, 26 I. & N. Dec. at 240. Lopez Canas did not submit
any country conditions evidence, or cite to any evidence in his
brief, to demonstrate that people returning from the United States
are perceived as a distinct group by Salvadoran society. See 8
U.S.C. § 1229a(c)(4) (providing that an “alien applying for relief
or protection from removal has the burden of proof”);
8 C.F.R. § 1208.16(b) (providing that the “burden of proof is on the
applicant for withholding of removal”); Matter of M-E-V-G-, 26 I.
& N. Dec. at 244. Lopez Canas argues that “this particular social
group is of the kind that is recognized practically everywhere,”
but counsel’s assertion is insufficient to show social
distinction. See Matter of M-E-V-G-, 26 I. & N. Dec. at 244; see
also Pretzantzin v. Holder,
736 F.3d 641, 651(2d Cir. 2013)
(noting that arguments of counsel cannot substitute for evidence
of the theory asserted).
Furthermore, we have previously affirmed the BIA’s rejection
of the affluent as a particular social group in Guatemala, finding
that, “[w]hen the harm visited upon members of a group is
attributable to the incentives presented to ordinary criminals
rather than to persecution, the scales are tipped away from
considering those people a ‘particular social group’ within the
meaning of the [Immigration and Nationality Act].” Ucelo-Gomez
v. Mukasey,
509 F.3d 70, 73(2d Cir. 2007). Accordingly, Lopez
5 Canas has not sufficiently demonstrated that his prospective
status as a potentially wealthy person who has been to the United
States constitutes membership in a distinct social group. See
id.Because Lopez Canas did not establish membership in a
cognizable social group, the agency did not err in denying
withholding of removal. See
8 U.S.C. § 1231(b)(3)(A).
CAT
An applicant for CAT relief has the burden to show that “it
is more likely than not” that he will be tortured, but he need not
show any connection to a protected ground. See
8 C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft,
361 F.3d 161, 168(2d Cir.
2004). To constitute torture under the CAT, the likely harm 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.”
8 C.F.R. § 1208.18(a)(1). “Acquiescence of
a public official 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.”
Id.§ 1208.18(a)(7). Cognizable
acquiescence “requires only that government officials know of or
remain willfully blind to an act and thereafter breach their legal
responsibility to prevent it.” Khouzam,
361 F.3d at 171.
6 The agency did not err in concluding that Lopez Canas failed
to show that Salvadoran authorities would more likely than not
acquiesce to his torture by gangs. Lopez Canas testified that he
believed that gang members and the police were connected, but the
record contains minimal evidence suggesting that Lopez Canas would
be tortured, or that government officials would acquiesce to his
torture. Lopez Canas testified that he reported incidents in
which gangs harmed him while he was employed as a bus driver in
1999 and 2001, in response to one of which a police officer said,
“that’s why they’re out killing you guys because you’re all
complaining all the time.” Additionally, when he was asked if he
had any knowledge of connections between the police and the gangs,
he testified that, “when I filed the complaint when I was beaten,
that was when I felt that I was being harassed and followed the
most.” The agency was not required to find his testimony
sufficient to show that there was collusion between gang members
and the police resulting in official acquiescence to torture.1
See Siewe v. Gonzales,
480 F.3d 160, 167(2d Cir. 2007) (“Where
there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” (internal
1 Lopez Canas also testified as to a 2009 incident in which he was extorted and shot by gang members, but said that he did not report the incident to the police. He therefore cannot establish that the Salvadoran police knew about, or were willfully blind to, this extortion and shooting. See Khouzam,
361 F.3d at 171(requiring knowledge of or willful blindness to torture). 7 quotation marks omitted)). Moreover, the fact that the police did
not take action to address his complaints besides taking a report
is not sufficient on its own to show government acquiescence to
torture. See Garcia-Milian v. Holder,
755 F.3d 1026, 1034(9th
Cir. 2014) (“Evidence that the police were aware of a particular
crime, but failed to bring the perpetrators to justice, is not in
itself sufficient to establish acquiescence in the crime.”); Mu-
Xing Wang v. Ashcroft,
320 F.3d 130, 144 & n.21 (2d Cir. 2003)
(suggesting that evidence of pervasive human rights violations is
insufficient to show that a particular CAT applicant is more likely
than not to be tortured, with or without official assent).
There is also minimal country conditions evidence to support
Lopez Canas’s assertion that police officers would acquiesce to
his torture. Lopez Canas does not cite to any evidence besides
the 2017 State Department Report, which lists “instances of
corruption and other crimes” among several factors that “limited
the [police]’s effectiveness” and states that one of the most
significant human rights problems was “widespread government
corruption.” The report does not discuss, however, whether the
reported police corruption involved colluding with gang members,
supporting gang activities, or acquiescing to torture. The
specific incidents of government corruption described in the
report largely concern elected officials, including former
8 presidents and a former attorney general. And on the whole, the
country conditions evidence does not otherwise describe ties
between gangs and the police that suggest a probability that Lopez
Canas will be tortured with official assent. Indeed, even if
Lopez Canas’s evidence were sufficient to demonstrate substantial
collusion between gang members and the police, this would be
insufficient to show that the police would acquiesce to harm to
Lopez Canas specifically. See Wang,
320 F.3d at 144(2d Cir.
2003) (explaining that an applicant for CAT relief must show a
likelihood of torture in “his particular alleged circumstances”).
Based on the limited evidence of collusion between gang
members and the police, and the lack of particularized evidence
that government officials would acquiesce to Lopez Canas’s torture
specifically, the evidence does not compel a finding that Lopez
Canas will more likely than not be tortured by or with the
acquiescence of the Salvadoran authorities. See
8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary[.]”); Wang,
320 F.3d at 144. As such,
the agency did not err in denying the requested CAT protection.
See
8 C.F.R. § 1208.18(a)(1).
9 For the foregoing reasons, the petition for review is DENIED.
As we have completed our review, the stay of removal that the Court
previously granted in this petition is VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
10
Reference
- Status
- Unpublished