23-6039 Sanchez Gonzalez v. Garland

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 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 February, two thousand twenty-four.

PRESENT: PIERRE N. LEVAL, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

MARVIN RAUL SANCHEZ GONZALEZ,

Petitioner,

v. 23-6039

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: CAITLIN J. BAILEY (Lauren Rosenberg, on the brief), Cravath, Swaine & Moore LLP (Sayoni Maitra, The Legal Aid Society, on the brief), New York, New York.

FOR RESPONDENT: GREGORY M. KELCH, Senior Trial Attorney, Office of Immigration Litigation (Brian M. Boynton, Principal Deputy Assistant Attorney General, and Walter Bocchini, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, District of Columbia. 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 Marvin Raul Sanchez Gonzalez, a native and citizen of Honduras, seeks review

of a decision of the BIA, affirming the decision of an Immigration Judge (“IJ”), which denied his

applications for asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”). Marvin Raul Sanchez Gonzalez, No. A 201-517-900 (B.I.A. Jan. 6,

2023), aff’g No. A 201-517-900 (Immigr. Ct. N.Y.C. Apr. 25, 2022). In his applications, Sanchez

Gonzalez claimed that he suffered past persecution and had a well-founded fear of future

persecution by the MS-13 gang (the “gang”) due to, inter alia, his anti-gang or pro-military

political opinion and familial relation to former members of the Honduran military. We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, which

we reference only as necessary to explain our decision to deny the petition.

We review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Just.,

(2d Cir. 2005). We review the agency’s “legal conclusions de novo, and

its factual findings . . . under the substantial evidence standard.” Y.C. v. Holder,

(2d Cir. 2013) (internal quotation marks and citation omitted). “[T]he administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary . . . .”

(b)(4)(B).

I. Asylum and Withholding of Removal

To be eligible for asylum or withholding of removal, an applicant must show that “he or

she has suffered past persecution or . . . has a well-founded fear of,”

(b)

(asylum), or a “clear probability of future persecution,” Jian Liang v. Garland,

, 112

2 (2d Cir. 2021);

(b) (withholding), and that “race, religion, nationality,

membership in a particular social group, or political opinion was or will be at least one central

reason for [that] persecut[ion].”

(b)(1)(B)(i); see also Quituizaca v. Garland,

(2d Cir. 2022) (holding that BIA’s interpretation that the “one central reason”

standard applies to both asylum and withholding of removal claims was reasonable and entitled to

deference). In other words, the applicant must demonstrate a nexus between the feared

persecution and one of the statutorily protected grounds. Quituizaca,

. Sanchez

Gonzalez argues that the agency erred in finding that he failed to meet his burden of establishing

a nexus to a protected ground. We disagree. 1

An applicant may sustain his or her burden by testimony alone, “but only if the applicant

satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to

specific facts sufficient to demonstrate that the applicant is a refugee.”

(b)(1)(B)(ii); accord Pinel-Gomez v. Garland,

, 529–30 (2d Cir. 2022) (“[The

agency may] find[] an applicant’s testimony credible [but] still decide that the testimony falls short

of satisfying the applicant’s burden of proof, either because it is unpersuasive or because it did not

include specific facts sufficient to demonstrate that the applicant is a refugee.” (internal quotation

marks and citation omitted)). In making this determination, “the trier of fact may weigh the

credible testimony along with other evidence of record.”

(b)(1)(B)(ii). “Where

the trier of fact determines that the applicant should provide evidence that corroborates otherwise

1 As an initial matter, the agency found Sanchez Gonzalez ineligible for asylum because he did not timely file his application. However, we need not reach that issue because, as discussed infra, the agency’s alternative determination on the merits is supported by substantial evidence and is dispositive of both the asylum and withholding of removal claims. See I.N.S. v. Bagamasbad,

(1976) (per curiam) (“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.”); Gurung v. Barr,

(2d Cir. 2019) (noting that remand is not necessary “when the IJ articulates an alternative and sufficient basis for her determination”). 3 credible testimony, such evidence must be provided unless the applicant does not have the

evidence and cannot reasonably obtain the evidence.”

“[W]hen an IJ determines that the applicant failed to meet his burden of proof based on the

failure to provide corroborating evidence, the IJ should perform the following analysis: (1) point

to specific pieces of missing evidence and show that [such evidence] was reasonably available, (2)

give the applicant an opportunity to explain the omission, and (3) assess any explanation

given.” Wei Sun v. Sessions,

(2d Cir. 2018). “No court shall reverse a

determination made by a trier of fact with respect to the availability of corroborating evidence . . .

unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.”

(b)(4).

Here, the agency determined that Sanchez Gonzalez did not meet his burden to establish a

nexus to a protected ground because his testimony, although credible, was not persuasive and was

not corroborated with respect to certain material issues, including why the gang targeted him,

whether and why the gang targeted his brother, and whether and why the gang targeted his father.

As the government points out, Sanchez Gonzalez has not explicitly challenged the agency’s

conclusions that his testimony alone was not sufficiently persuasive and that he did not corroborate

his allegations that he and his family were targeted because of his father’s former military service

or his father’s work guarding stores and banks. Accordingly, he has abandoned review of those

issues. See Debique v. Garland,

(2d Cir. 2023) (per curiam) (“We consider

abandoned any claims not adequately presented in an appellant's brief, and an appellant’s failure

to make legal or factual arguments constitutes abandonment.” (internal quotation marks and

citation omitted)).

In any event, the agency did not err in concluding that Sanchez Gonzalez failed to meet his

4 burden of proof as to the requisite nexus because his testimony was insufficient in the absence of

corroborating evidence. See

(b)(1)(B)(ii). As the IJ noted, Sanchez Gonzalez’s

statements were not consistent or clear as to why the gang targeted him or how he came to believe

the gang targeted him for specific reasons other than recruitment.

Moreover, the IJ identified other evidence in the record—specifically, letters and affidavits

from family members—that could have corroborated the reasons for Sanchez Gonzalez’s

recruitment and abduction by the gang, but did not. Sanchez Gonzalez stated in a declaration that

the gang forcibly took possession of his father’s house, and Sanchez Gonzalez testified that the

gang tried to recruit him because of his father’s military service and that they tried to recruit his

brother as well; however, his family members did not mention either the gang’s possession of his

father’s home or the gang’s recruitment of his brother in their statements or identify why the gangs

may have targeted Sanchez Gonzalez. For instance, while his sister stated that their father

“worked in the armed forces” and that the gang threatened Sanchez Gonzalez, abducted him,

threatened their family, and asked the family for money, she did not confirm that another brother

was targeted or that the gang seized their father’s house. Certified Administrative Record

(“CAR”) at 327. She also did not link Sanchez Gonzalez’s harm to their father’s past or current

employment. Similarly, his parents’ letter stated that Sanchez Gonzalez’s father was in the

military as a young man, and that the gang tried to force Sanchez Gonzalez to join because it was

“dedicated to stealing, killing and extorting people,” but did not link Sanchez Gonzalez’s harm to

his father’s military service or employment, or confirm his allegations that the gang tried to recruit

his brother or seize his father’s house. CAR at 334.

When Sanchez Gonzalez was questioned about the availability of corroborating evidence

at the hearing, he did not show that any such evidence was unavailable. See Wei Sun,

5 31 (noting that the IJ should “give the applicant an opportunity to explain the omission” and “assess

any explanation given”); see also

(b)(4). For example, Sanchez Gonzalez’s

testimony that, before he fled Honduras, he provided his father with at least a brief explanation as

to the basis for the gang’s interest in him, and that his parents’ letter omitted certain details because

he “didn’t have communication with [his] dad to tell him what he needed in the letter,” CAR at

290, indicates that corroborating evidence was available. Accordingly, Sanchez Gonzalez had

the “ultimate burden of introducing such evidence without prompting from the IJ.” Wei Sun,

(internal quotation marks and citation omitted). The agency also reasonably gave

diminished weight to the letters because his family members “were interested parties and [not]

available for cross-examination.” Likai Gao v. Barr,

(2d Cir. 2020).

Given the inconsistencies and the lack of corroboration of Sanchez Gonzalez’s assertions

regarding the gang’s basis for targeting him, the agency did not err in finding that Sanchez

Gonzalez failed to satisfy his burden to establish that he was targeted on account of a protected

ground, i.e., for reasons other than the gang’s desire to increase its numbers or fill its coffers. See

Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (per curiam) (“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 [Immigration and Nationality Act].”). Furthermore, Sanchez

Gonzalez did not identify a way in which his opposition to the gang “took on a political dimension

by transcending mere self-protection.” Hernandez-Chacon v. Barr,

(2d Cir.

2020).

In sum, we conclude that substantial evidence supported the agency’s determination that

Sanchez Gonzalez failed to demonstrate a nexus to a protected ground that would support asylum

6 or withholding of removal.

II. CAT Relief

Unlike asylum or withholding of removal, CAT relief does not require a nexus to a

protected ground, but instead requires the applicant “to establish that it is more likely than not that

he or she would be tortured if removed to the proposed country of removal.”

(c)(2). “Analysis of a CAT claim boils down to a two-step inquiry.” Garcia-Aranda

v. Garland,

(2d Cir. 2022). “First, the applicant must show that . . . . he or she

will more likely than not be subject to any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person for such purposes as intimidating or coercing him

or her or a third person.”

at 758–59 (alteration adopted) (internal quotation marks and citations

omitted). Second, “the applicant must show that his or her likely future harm will be ‘inflicted

by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an

official capacity or other person acting in an official capacity.’”

at 759 (quoting

(a)(1)); see also Pierre v. Gonzales,

(2d Cir. 2007) (“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.”).

As an initial matter, we find unpersuasive Sanchez Gonzalez’s contention that the agency

failed to consider relevant country conditions evidence and committed legal error in determining

that he had not established a likelihood of torture by, or with the acquiescence of, Honduran

officials. To be sure, an error of law may occur when the agency “totally overlook[s]” or

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

(2d Cir. 2009)

(per curiam). However, contrary to Sanchez Gonzalez’s assertion, the record reflects that the IJ

7 and BIA considered the evidence in the record on this issue.

The IJ concluded—in light of the country conditions evidence showing efforts by the

Honduran government to combat gang violence and corruption—that there was “insufficient

evidence to demonstrate it is more likely than not the Honduran government would torture

[Sanchez Gonzalez]” and, “because the [Honduran] government is actively combatting corruption

and organized crime, [the IJ could not] find that the Honduran government would acquiesce to any

harm MS-13 gang members might seek to inflict upon [Sanchez Gonzalez] if he is removed to

Honduras.” CAR at 181. The BIA affirmed those findings. See CAR at 9 (“[W]e discern no

clear error in the Immigration Judge’s factual findings supporting his determination that [Sanchez

Gonzalez] did not meet his burden to establish a sufficient likelihood that he would be tortured in

Honduras. . . . We conclude that the police’s lack of knowledge of the threats directed at [Sanchez

Gonzalez] coupled with country conditions evidence demonstrating the Honduran government’s

efforts to combat official corruption support the Immigration Judge’s determination that a

qualifying individual would not consent or acquiesce to his torture by private actors.”).

On appeal to the BIA, Sanchez Gonzalez argued that, although the IJ discussed the

Honduran government’s efforts to address corruption and gang violence, it did not adequately

address the government’s treatment of criminal deportees. The BIA rejected this argument,

stating that the IJ considered evidence that the Honduran government had “taken steps to

investigate instances of abuse and torture, investigate abuses within the military, and train law

enforcement officials in human rights compliance.”

Because these efforts would address

torture directed at Sanchez Gonzalez by government officials for any reason, we find that the

agency considered his asserted grounds for CAT relief and concluded that he had failed to meet

his burden.

8 Substantial evidence in the record supported the agency’s determination. For example,

the Honduras 2020 Human Rights Report issued by the U.S. State Department states that “the

government [of Honduras] took steps to address corruption at high levels in government agencies,

including arresting and charging members of congress, judges, prosecutors, sitting and former

senior officials, mayors and other local authorities, and police officers.” CAR at 598–99.

Although Sanchez Gonzalez notes some evidence to support his position, because the evidentiary

record does not compel the contrary conclusion, we are required to accept the agency’s factual

findings. See Mu Xiang Lin v. U.S. Dep’t of Just.,

(2d Cir. 2005) (“[W]e will

uphold the BIA’s decision unless the petitioner demonstrates that the record evidence was so

compelling that no reasonable factfinder could fail to find him eligible for relief under the

Convention Against Torture.” (alterations adopted) (internal quotation marks and citation

omitted)).

* * *

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

9