18-3719 Giron v. Garland BIA Kolbe, IJ A216 333 740

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 7th day of July, two thousand twenty-one.

PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, JOSEPH F. BIANCO, Circuit Judges. _________________________________________

JESUS EDUARDO GIRON, AKA JESUS BAUTISTA GIRON, AKA JESUS GIRON BAULTISTA, AKA PECAS UNKNOWN, AKA LITTLE BOY UNKNOWN, AKA CHELE UNKNOWN, Petitioner,

v. 18-3719 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _________________________________________

FOR PETITIONER: Vilia B. Hayes, Dustin P. Smith, Carl W. Mills, Hughes Hubbard & Reed LLP, New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Song Park, Acting Assistant Director; Colin J. Tucker, 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 in part and GRANTED in part.

Petitioner Jesus Eduardo Giron, a native and citizen of

El Salvador, seeks review of a November 21, 2018 decision of

the BIA affirming a June 1, 2018 decision of an Immigration

Judge (“IJ”) denying asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re

Jesus Eduardo Giron, No. A216 333 740 (B.I.A. Nov. 21, 2018),

aff’g No. A216 333 740 (Immig. Ct. N.Y.C. June 1, 2018). We

assume the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as modified by the

BIA, i.e., minus the findings that the BIA did not reach.

See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). The applicable standards of review are well

established. See

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

2

(2d Cir. 2014). The issues before us are

whether Giron’s proposed social group of “witnesses who

assisted law enforcement officials against violent gangs” is

cognizable and whether he established that the government of

El Salvador would acquiesce to his torture.

For withholding of removal, an applicant must show he

would “more likely than not” be persecuted “on account of

race, religion, nationality, membership in a particular

social group, or political opinion.”

(b)(1), (2); see also

(a)(42),

1231(b)(3)(A). 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-,

(B.I.A. 2014);

see also Ucelo-Gomez v. Mukasey,

, 72–74 (2d Cir.

2007). “To be socially distinct, a group . . . must be

perceived as a group by society.” Matter of M-E-V-G-,

.

As an initial matter, there is no merit to the

Government’s contention that Giron’s social group as defined

in his brief (“witnesses who assisted law enforcement

3 officials against violent gangs”) differs from his proposed

groups before the agency. His counsel defined his social

group the same way twice at his hearing before the IJ, and

repeatedly stated that the social group was based on Garcia

v. Attorney General,

(3d Cir. 2011), in which

the social group was similarly defined, see

.

Although the IJ did not explicitly consider this proposed

group, that was not necessarily error because Giron did not

testify or present evidence that he had assisted law

enforcement. Moreover, the BIA explicitly considered whether

that group was cognizable.

We find no error in the BIA’s conclusion that Giron’s

proposed social group is not socially distinct. Although we

have recognized that a group consisting of cooperating

witnesses can meet the social distinction criteria for a

particular social group, Gashi v. Holder,

(2d Cir. 2012), Giron’s case is distinguishable. In Gashi,

the group consisting of cooperating witnesses to war crimes

was socially distinct to both “potential persecutors and the

wider Kosovar society” because the list of potential

witnesses was published, people in Gashi’s village knew he

had spoken to investigators and criticized him for it, and he

4 was attacked twice and threatened.

In contrast, Giron

did not present evidence that he had provided any specific

information or assistance to law enforcement privately or

publicly. See Paloka,

(“[W]hat matters is

whether society as a whole views a group as socially distinct,

not the persecutor’s perception.”); see also In re C-A-,

(B.I.A. 2006) (“Recognizability or

visibility is limited to those informants who are discovered

because they appear as witnesses or otherwise come to the

attention of cartel members.”). Further, Giron’s country

conditions evidence reflects that witnesses under criminal

protection in El Salvador are targeted by gangs, particularly

after their identities have been revealed at trials, but it

does not otherwise suggest that witnesses are seen as a

distinct group given that anyone who defies the gangs for any

number of reasons (e.g., extortion, gang membership, sexual

advances) is targeted. See Ucelo-Gomez,

(“When 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 INA.”).

5 Accordingly, because Giron did not show that his proposed

group was socially distinct, the agency did not err in denying

withholding of removal as a result. See

(b)(3); Paloka,

.

Unlike withholding of removal, CAT relief does not

require a nexus to any ground. See

(c)(2).

To be eligible for CAT relief, an applicant is required to

show that he would “more likely than not” be tortured by or

with the acquiescence of government officials. See

(c)(2), 1208.18(a)(1); Khouzam v. Ashcroft,

, 170–71 (2d Cir. 2004). “In terms of state action,

torture requires only that government officials know of or

remain willfully blind to an act and thereafter breach their

legal responsibility to prevent it.”

.

The agency did not adequately explain its denial of CAT

relief. See Poradisova v. Gonzales,

(2d Cir.

2005) (“[W]e require a certain minimum level of analysis from

the IJ and BIA opinions denying asylum, and indeed must

require such if judicial review is to be meaningful.”). The

agency expressed “considerable concern” that Giron would face

harm in El Salvador, but nevertheless denied CAT relief

because the government had “declared war on the gangs” and

6 taken steps to detain and kill suspected gang members.

However, the agency failed to consider and explain the impact

of evidence that the Salvadoran government’s efforts in the

“war on the gangs” had not been successful, such that gang

members operate with impunity and security forces commit

extrajudicial killings of suspected gang members, both of

which pose threats to Giron. See De La Rosa v. Holder,

, 109–10 (2d Cir. 2010) (remanding for agency to

further address government acquiescence when evidence

indicated that government was unlikely to be able to stop

torture despite aid from some officials).

The 2016 State Department country report provides that

impunity persisted in El Salvador despite government efforts

to prosecute corrupt officials, that authorities were not

able to control gangs in many neighborhoods, and that

authorities could not protect freedom of movement due to gang

activity. A United Nations report states that corruption and

gang infiltration of the police and military lead to high

levels of gang impunity while those security forces who target

gang members subject them to excessive force and

extrajudicial killings. Giron’s expert reported that the

Salvadoran government’s declaration of a war on gangs

7 resulted in increased gang violence.

While the agency need not “expressly parse or refute on

the record each individual argument or piece of evidence

offered by the petitioner,” Jian Hui Shao v. Mukasey,

(2d Cir. 2008) (citation omitted), the agency

has a duty to consider all material evidence in the record,

Yan Chen v. Gonzales,

(2d Cir. 2005); see

also Poradisova,

. Given the agency’s failure

to discuss the country conditions evidence indicating that

the Salvadoran government’s effort to control gang violence

has been unsuccessful and that gangs continue to operate with

impunity, we grant the petition as to Giron’s CAT claim. See

(c); Yan Chen,

; Poradisova,

.

For the foregoing reasons, the petition for review is

DENIED in part and GRANTED in part and the case is REMANDED

to the BIA.

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

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