18-2436 Mendez v. Barr BIA Farber, IJ A077 455 408 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 17th day of December, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 RAUL FLORES MENDEZ, AKA RAUL 14 BENITEZ, 15 Petitioner, 16 v. 18-2436 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Vanessa M. Otero, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, 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 DENIED.

5 Petitioner Raul Flores Mendez, a native and citizen of

6 El Salvador, seeks review of an August 15, 2018, decision of

7 the BIA affirming a March 14, 2018, decision of an Immigration

8 Judge (“IJ”) denying Mendez’s application for withholding of

9 removal and relief under the Convention Against Torture

10 (“CAT”). In re Raul Flores Mendez, No. A 077 455 408 (B.I.A.

11 Aug. 15, 2018), aff’g No. A 077 455 408 (Immig. Ct. N.Y. City

, 2018). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Because the BIA adopted and supplemented the IJ’s

15 decision, we have reviewed the IJ’s decision as supplemented

16 by the BIA. See Yan Chen v. Gonzales,

(2d

17 Cir. 2005). We review the agency’s findings of fact under

18 the substantial evidence standard. See 8 U.S.C.

19 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

20 (2d Cir. 2018) (reviewing adverse credibility determination

21 under a substantial evidence standard); Yanqin Weng v.

22 Holder,

(2d Cir. 2009) (reviewing

2 1 denial of CAT protection under the substantial evidence

2 standard). Under this standard, “[we] treat factual findings

3 as ‘conclusive unless any reasonable adjudicator would be

4 compelled to conclude to the contrary.’”

(quoting 8

(b)(4)(B)). Mendez’s claim is based on his fear

6 that the police in El Salvador will harm him because of his

7 tattoos or that MS-13 members will retaliate against him

8 because he refused to pay extortion and cooperated with

9 federal prosecutors in the United States.

10 As to asylum, Mendez argues that he should have been

11 allowed to apply for asylum and excused from the one-year

12 filing deadline for that form of relief. He misunderstands

13 the record. Mendez is ineligible for asylum because he was

14 in withholding-only proceedings following reinstatement of an

15 earlier removal order. See

(a)(5); Herrera-

16 Molina v. Holder,

(2d Cir. 2010). As to

17 withholding of removal, Mendez’s brief does not dispute the

18 agency’s particularly serious crime determination but instead

19 argues that the IJ must make an additional finding that an

20 alien is a danger to the community, before applying the

21 particularly serious crime bar. However, we have previously

22 determined that a particularly serious crime determination no

3 1 longer requires a separate danger to the community analysis.

2 See Nethagani v. Mukasey,

, 154 n.1 (2d Cir. 2008)

3 (noting that we have accepted the BIA’s interpretation that

4 a person convicted of a particularly serious crime,

5 “necessarily constitutes ‘a danger to the community of the

6 United States’”). Accordingly, we reach the merits of

7 Mendez’s claim only to the extent that he requested protection

8 under the CAT.

9 CAT Deferral

10 The agency determined that Mendez did not meet his burden

11 for CAT protection because portions of his claim were not

12 credible and the portions of his claim that were credible

13 were unsupported by any objective evidence. We find no error

14 in the agency’s conclusions.

15 Credibility Determination

16 The adverse credibility determination is supported by

17 substantial evidence. The governing REAL ID Act credibility

18 standard provides as follows:

19 Considering the totality of the circumstances, and 20 all relevant factors, a trier of fact may base a 21 credibility determination on the consistency 22 between the applicant’s or witness’s written and 23 oral statements . . . , the internal consistency of 24 each such statement, the consistency of such 25 statements with other evidence of record . . . , and

4 1 any inaccuracies or falsehoods in such statements, 2 . . . or any other relevant factor. 3 4

(b)(1)(B)(iii). “We defer . . . to an IJ’s

5 credibility determination unless . . . it is plain that no

6 reasonable fact-finder could make such an adverse credibility

7 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

8 2008); accord Hong Fei Gao,

.

9 The IJ reasonably relied on internal discrepancies in

10 Mendez’s testimony, omissions from his application and

11 corroborating documents, and the lack of corroboration from

12 his family in the United States. First, Mendez’s testimony

13 regarding his involvement in the murder changed over the

14 course of the hearing, and his testimony that he had not

15 stabbed the victim was internally inconsistent with his later

16 testimony that he told the judge at his plea hearing that he

17 was not sure if he had stabbed the victim. See 8 U.S.C.

18 § 1158(b)(1)(B)(iii) (permitting IJ to consider

19 inconsistencies “without regard to whether an inconsistency,

20 . . . goes to the heart of the applicant’s claim”).

21 Second, his application did not include relevant

22 incidents that he testified to at his hearing – namely, that

23 he was beaten and threatened with death by MS-13 members while

5 1 imprisoned in the United States, and that the Salvadoran

2 police almost killed him in 2007 because of his tattoos. The

3 IJ reasonably relied on these two omissions. See Hong Fei

4 Gao,

(“[I]n assessing the probative value

5 of the omission of certain facts, an IJ should consider

6 whether those facts are ones that a credible petitioner would

7 reasonably have been expected to disclose under the relevant

8 circumstances.”).

9 Finally, the IJ reasonably determined that Mendez did

10 not rehabilitate his claim with reliable corroborating

11 evidence. See Biao Yang v. Gonzales,

(2d

12 Cir. 2007) (“An applicant’s failure to corroborate his . . .

13 testimony may bear on credibility, because the absence of

14 corroboration in general makes an applicant unable to

15 rehabilitate testimony that has already been called into

16 question.”). In particular, the IJ reasonably faulted Mendez

17 for not providing a letter from his brother who lives in New

18 York – and who was aware of Mendez’s situation. Furthermore,

19 although Mendez submitted death certificates of individuals

20 allegedly killed by gang members in El Salvador, Mendez did

21 not present evidence that the individuals were killed by MS-

22 13 or were his relatives.

6 1 Taken together, these findings constitute substantial

2 evidence for the agency’s adverse credibility determination

3 and prevented Mendez from establishing past extortion by MS-

4 13 given evidence that he was a member of the gang, that MS-

5 13 members murdered his family members in El Salvador because

6 of his cooperation with federal prosecutors, and that the

7 police in El Salvador had previously almost killed him because

8 of his tattoos. See

(b)(1)(B)(iii); Xiu Xia

9 Lin,

. Of course, the credibility

10 determination is not dispositive because Mendez also asserted

11 a fear of harm based on undisputed facts, his tattoos, and

12 his cooperation with law enforcement. See Paul v. Gonzales,

13

(2d Cir. 2006) (holding that adverse

14 credibility determination as to claim of past harm does not

15 preclude claim premised on future harm, “so long as the

16 factual predicate of the applicant’s claim . . . is

17 independent of the testimony that the IJ found not to be

18 credible”). However, as discussed below, we find no error

19 in the agency’s conclusion that he failed to meet his burden

20 of proof for CAT deferral.

21 Burden of Proof

22 An applicant for CAT relief must show that it is more

7 1 likely than not that he will be tortured. See 8 C.F.R.

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

(2d

3 Cir. 2004). To constitute torture under the CAT, the likely

4 harm must be “inflicted by or at the instigation of or with

5 the consent or acquiescence of a public official or other

6 person acting in an official capacity.” 8 C.F.R.

7 § 1208.18(a)(1). “Acquiescence of a public official requires

8 that the public official, prior to the activity constituting

9 torture, have awareness of such activity and thereafter

10 breach his or her legal responsibility to intervene to prevent

11 such activity.” Id. § 1208.18(a)(7). Cognizable

12 acquiescence “requires only that government officials know of

13 or remain willfully blind to an act and thereafter breach

14 their legal responsibility to prevent it.” Khouzam,

at 171. To meet his burden of proof, an applicant for CAT

16 relief must establish that someone in his “particular alleged

17 circumstances” is more likely than not to be tortured in the

18 country designated for removal. Mu-Xing Wang v. Ashcroft,

19

(2d Cir. 2003).

20 The agency did not err in concluding that Mendez failed

21 to show that the government of El Salvador would more likely

22 than not acquiesce to any torture by gang members. Besides

8 1 Mendez’s incredible testimony, the record contains no support

2 for Mendez’s assertion that police officers are often gang

3 members themselves. Additionally, there is only minimal

4 support in the record that the police would acquiesce to

5 torture by gang members. The country conditions evidence in

6 the record includes a State Department Report and one article

7 about the meaning of gang tattoos. The State Department

8 Report discusses one mayor who was arrested on gang-related

9 charges but does not otherwise discuss collusion between gang

10 members and government officials. The IJ also reasonably

11 concluded that it was not more likely than not that Mendez

12 would be tortured by police officers in El Salvador. Mendez

13 argues that his tattoos will cause the police to target him

14 for harm. However, the record contains no support for this

15 assertion. Given the lack of evidence that authorities would

16 torture Mendez or acquiesce to his torture, substantial

17 evidence supports the agency’s denial of CAT relief. See

18 Savchuck v. Mukasey,

(2d Cir. 2008) (“[A]n

19 alien will never be able to show that he faces a more likely

20 than not chance of torture if one link in the chain cannot be

21 shown to be more likely than not to occur.” (quoting In re J-

22 F-F-,

, 918 n.4 (A.G. 2006))); see also Mu

9 1 Xiang Lin v. U.S. Dep’t of Justice,

(2d

2 Cir. 2005) (requiring “particularized evidence” beyond

3 general country conditions to support a CAT claim).

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, the temporary stay

6 of removal that the Court previously granted in this petition

7 is VACATED, and the pending motion for a stay of removal in

8 this petition is DISMISSED as moot. Any pending request for

9 oral argument in this petition is DENIED in accordance with

10 Federal Rule of Appellate Procedure 34(a)(2), and Second

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

10