19-3590 Salmeron v. Garland BIA Nelson, IJ A206 487 485 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 2nd day of June, two thousand twenty-one.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOSEPH F. BIANCO, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

WALMER SALMERON, AKA ENRICO PALLAZO, AKA ENRIQUE ROSALES, Petitioner,

v. 19-3590 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Andrea A. Saenz, Bridget P. Kessler, Brooklyn Defender Services, Brooklyn, New York; Allen W. Burton, Ethan M. Scapellati, Colleen Powers, Redwan Saleh, O’Melveny & Myers LLP, New York, NY.

FOR RESPONDENT: Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General; Anthony C. Payne, Assistant Director; United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

AND DECREED that this petition for review of a decision of

the Board of Immigration Appeals (“BIA”) is DENIED.

Petitioner Walmer Salmeron, a native and citizen of

Nicaragua, seeks review of an October 16, 2019 decision of

the BIA affirming a February 6, 2018 decision of an

Immigration Judge (“IJ”), which denied his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Walmer Salmeron,

No. A206 487 485 (B.I.A. Oct. 16, 2019), aff’g No. A206 487

485 (Immigr. Ct. N.Y.C. Feb. 6, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA, reaching only the

grounds for denying relief on which the BIA relied, i.e., the

Nicaraguan government’s ability to protect Salmeron and

2 Salmeron’s failure to meet his burden for CAT relief. See

Xue Hong Yang v. U.S. Dep’t of Just.,

(2d

Cir. 2005); Lin Zhong v. U.S. Dep’t of Just.,

(2d Cir. 2007). Contrary to Salmeron’s position, the BIA

was not required to address changed circumstances related to

the timeliness of his asylum application or the nexus

determination because the agency’s other grounds for the

denial of relief were dispositive. See INS v. Bagamasbad,

(1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”). The

applicable standards of review are well established. See

(b)(4)(B) (“[T]he administrative findings of

fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.”); Lecaj v. Holder,

(2d Cir. 2010).

Salmeron claimed that members of the Zavala family

attacked his mother and brothers with machetes, killing his

mother, and that the Zavalas will kill him if he returns to

Nicaragua. As to asylum and withholding of removal, the

agency denied relief because Salmeron did not establish that

the Nicaraguan government would be unable or unwilling to

3 protect him. Substantial evidence supports that

determination.

Where, as here, an applicant for asylum and withholding

of removal did not experience past persecution, he has the

burden to demonstrate a well-founded fear or likelihood of

future persecution.

(b)(1)(B)(i);

(b), 1208.16(b)(2). “To qualify as persecution the

conduct at issue must be attributable to the government,

whether directly because engaged in by government officials,

or indirectly because engaged in by private persons whom the

government is unable or unwilling to control.” Scarlett v.

Barr,

, 328 (2d Cir. 2020) (internal quotation

marks omitted); see also Matter of A-B-,

(A.G. 2018) (“The applicant must show that the government

condoned the private actions or at least demonstrated a

complete helplessness to protect the victims.” (internal

quotation marks omitted)).

Salmeron testified that two of his mother’s killers fled

and remain at large, but the third was convicted and received

a sentence of more than ten years. He said that, after the

attack, one of the attackers who remains at large continued

to make threats, causing his brother and sister to obtain

4 protective orders. But there were no additional physical

attacks. Based on this testimony, the agency reasonably

concluded that Salmeron did not establish that the Nicaraguan

government was unable or unwilling to protect him. The

prosecution and conviction of one of the attackers and the

issuance of protective orders showed the Nicaraguan

government’s willingness to protect Salmeron’s family. See

Scarlett, 957 F.3d at 330–32; cf. Pan v. Holder,

(2d Cir. 2015).

Additionally, the record does not support Salmeron’s

argument that the Nicaraguan government is unable to protect

him because, in defiance of the protective orders, the Zavalas

“continued to assault the Salmeron family” after the murder.

Pet’r’s Br. at 26. Salmeron testified that the Zavalas had

not physically attacked his family since the 2014 attack and,

while his brother attested to additional threats before the

protective orders were issued, he did not state that the

protective orders were ever violated. In sum, Salmeron

provided no evidence to support his speculative contention

that the Nicaraguan government will be either unable or

unwilling to protect him. See Scarlett, 957 F.3d at 332

(concluding that to establish an inability or unwillingness

5 to protect, “an alien must show either that the government

condoned the action or, even if it did not, that it was

completely helpless to protect the victims”); Jian Xing Huang

v. U.S. INS,

(2d Cir. 2005) (“In the absence

of solid support in the record . . . [applicant’s] fear is

speculative at best.”).

Salmeron also argues that the agency ignored evidence

that the Zavalas could act with impunity because several of

their family members were government or police officials.

But he has not explained how these official relationships

were relevant, given the prosecution and conviction of one of

the attackers notwithstanding these relationships. Salmeron

further argues that the agency ignored evidence of widespread

corruption in the Nicaraguan government. But the IJ

reasonably concluded that much of the evidence submitted by

Salmeron in support of this argument was not relevant to his

situation. In any event, “generalized language culled from”

these sources does not constitute the “particularized

evidence” necessary to support his claim. Mu Xiang Lin v.

U.S. Dep’t of Just.,

(2d Cir. 2005).

Finally, Salmeron has not identified error in the

agency’s denial of CAT relief. He had the burden to show

6 that he will “more likely than not” be tortured in Nicaragua

and that such torture would 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.”

(c), 1208.17, 1208.18(a)(1);

see Khouzam v. Ashcroft,

, 170–71 (2d Cir. 2004).

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.”

(a)(7). “A private actor’s behavior can

constitute torture under the CAT without a government’s

specific intent to inflict it if a government official is

aware of the persecutor’s conduct and intent and acquiesces

in violation of the official’s duty to intervene.” Pierre v.

Gonzales,

(2d Cir. 2007); see also Khouzam,

.

Contrary to Salmeron’s argument that the agency did not

adequately address his CAT claim, the agency’s decisions

provided the “certain minimum level of analysis” required for

meaningful judicial review, Poradisova v. Gonzales,

(2d Cir. 2005), particularly given the overlap with

7 the ground for the denial of asylum and withholding of

removal. Substantial evidence supports the agency’s

determination that Salmeron did not meet his burden to provide

particularized evidence that he was likely to be tortured

with the Nicaraguan government’s acquiescence. The same

evidence that supported the agency’s conclusion about the

Nicaraguan government’s ability to protect also forecloses

Salmeron’s CAT claim. In sum, Salmeron’s evidence did not

establish “that government officials kn[e]w of or remain[ed]

willfully blind to an act and thereafter breach[ed] their

legal responsibility to prevent it.” Khouzam,

.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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