18-862 Torres-Hernandez v. Barr BIA Connelly, IJ A075 206 892 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 17th day of July, two thousand twenty.

PRESENT: PIERRE N. LEVAL, DEBRA ANN LIVINGSTON, MICHAEL H. PARK, Circuit Judges. _____________________________________

MANUEL TORRES-HERNANDEZ, Petitioner,

v. 18-862 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Amber Gracia, Quan Law Group, PLLC, Houston, TX.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Lisa S. Murcia, Senior Litigation Counsel; Jennifer A. Bowen, Trial Attorney, 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 Manuel Torres-Hernandez, a native and citizen

of Mexico, seeks review of a February 27, 2018, decision of

the BIA affirming an October 3, 2017, decision of an

Immigration Judge (“IJ”) denying Torres-Hernandez’s

application for relief under the Convention Against Torture

(“CAT”). In re Manuel Torres-Hernandez, No. A 075 206 892

(B.I.A. Feb. 27, 2018), aff’g No. A 075 206 892 (Immig. Ct.

Batavia Oct. 3, 2017). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed both the IJ’s and BIA’s decisions. See

Wangchuck v. Dep’t of Homeland Sec.,

(2d

Cir. 2006). We review the denial of CAT relief under the

substantial-evidence standard. See Nasrallah v. Barr,

, 1692–93 (2020). As discussed below, Torres-

Hernandez’s arguments lack merit, and the agency’s decision

is supported by substantial evidence.

First, the IJ did not overlook relevant evidence or

otherwise commit legal error in determining that Torres- 2 Hernandez had not established a likelihood of torture by or

with the acquiescence of Mexican officials. An error of law

may occur when the agency “totally overlook[s]” or “seriously

mischaracterize[s]” material facts. Mendez v. Holder,

(2d Cir. 2009). Contrary to Torres-Hernandez’s

position, the record reflects that the IJ and BIA considered

his evidence. The agency considered his testimony about

police corruption in Mexico, the expert’s report, and the

country conditions evidence discussing corruption, lack of

confidence in Mexican law enforcement, and human rights

abuses. The agency was not required to “expressly parse or

refute on the record each individual argument or piece of

evidence offered.” Jian Hui Shao v. Mukasey,

(2d Cir. 2008). Given the agency’s discussion of the

evidence, the record does not compel the conclusion that the

agency failed to consider the full record. See Xiao Ji Chen

v. U.S. Dep’t of Justice,

, 336 n.17 (2d Cir.

2006) (“[W]e presume that [the agency] has taken into account

all of the evidence before [it], unless the record

compellingly suggests otherwise.”).

Second, Torres-Hernandez’s arguments that the agency

erred by failing to make an explicit credibility finding, a

finding regarding internal relocation, or a finding about the

3 likelihood that the drug cartel he had worked for and informed

on would retaliate against him, are misplaced because those

findings were not necessary to the agency’s decision.

Torres-Hernandez’s credibility was not at issue because the

agency did not make any adverse credibility finding. See

(b)(1)(B)(iii) (“[I]f no adverse credibility

determination is explicitly made, the applicant or witness

shall have a rebuttable presumption of credibility on

appeal.”). The agency was not required to make a finding

regarding the likelihood of harm or the possibility of

internal relocation because it did not deny relief based on

the likelihood of torture, but instead concluded that Torres-

Hernandez did not establish that any harm he would suffer

would constitute torture as defined by the CAT because he did

not show it would be inflicted by or with the acquiescence of

the Mexican government. See

(a)(1)

(defining torture as “pain or suffering . . . 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”). It is only in determining the likelihood of harm

that the regulations direct the agency to consider internal

relocation.

§ 1208.16(c)(3)(ii).

Third, the IJ did not apply an incorrect legal standard.

4 To receive protection under the CAT, an applicant must

“establish that it is more likely than not that he . . . would

be tortured if removed to the proposed country of removal.”

(c)(2). To constitute torture under the

CAT, the 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.”

(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.”

§ 1208.18(a)(7). 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 v. Ashcroft,

(2d Cir. 2004). The IJ stated the correct standards,

see Certified Administrative Record at 57–58, but denied

relief because there was insufficient evidence of specific

connections between the cartel and Mexican officials or that

any officials in collusion with the cartel were aware of

Torres-Hernandez.

Substantial evidence supports that determination.

Nasrallah, 140 S. Ct. at 1692–93. Under the substantial

5 evidence standard, the agency’s “findings of fact are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”

at 1692 (quoting

8

(b)(4)(B)). To support his assertion of

acquiescence, Torres-Hernandez relied on his own testimony,

statements in an expert report, and news articles that discuss

the prevalence of corruption among Mexican authorities and

the country’s struggle with violent crime perpetrated by

criminal organizations both generally and including the Gulf

Cartel. But Torres-Hernandez’s evidence did not link any

Gulf Cartel members who wished to harm him with individuals

in the Mexican government who would acquiesce or turn a blind

eye to his torture. In essence, the agency determined that

Torres-Hernandez had not established a likelihood of

acquiescence for someone in his particular circumstances.

See Mu-Xing Wang v. Ashcroft,

(2d Cir. 2003)

(noting that an applicant for CAT relief must establish that

someone in his “particular alleged circumstances is more

likely than not to be tortured” (emphasis original)). That

determination is supported by substantial evidence given the

lack of evidence of collusion between Gulf Cartel members who

are aware of Torres-Hernandez and his actions and any Mexican

authorities. See

(b)(4)(B); Jian Hui Shao,

6 546 F.3d at 157–58 (“[W]hen a petitioner bears the burden of

proof, his failure to adduce evidence can itself constitute

the ‘substantial evidence’ necessary to support the agency’s

challenged decision.”).

Finally, Torres-Hernandez did not show his due process

rights were violated by the IJ’s denial of his motion for

telephonic testimony from an expert witness. To succeed on

a due process claim, a petitioner must show (1) he was denied

a “full and fair opportunity” to present his claims or that

he was “otherwise deprived . . . of fundamental fairness,”

Burger v. Gonzales,

(2d Cir. 2007) (internal

quotation marks and citation omitted), and (2) “cognizable

prejudice,” Garcia-Villeda v. Mukasey,

(2d

Cir. 2008) (internal quotation marks and citation omitted).

The IJ had discretion to allow or deny telephonic testimony.

Immigration Court Practice Manual, § 4.15(o)(iii),

https://www.justice.gov/eoir/vll/OCIJPracManual/08-03.pdf.

Torres-Hernandez had an opportunity to present his claim

because the IJ admitted and considered the expert’s written

report. And Torres-Hernandez did not establish prejudice

because he has not identified what, if any, additional

information the expert could have provided.

For the foregoing reasons, the petition for review is

7 DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

8