23-6190-ag Meza v. Garland BIA Burnham, IJ A208 882 896

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 8th day of January, two thousand twenty-five.

PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

VIVIAN AZUCENA MEZA, Petitioner,

v. 23-6190-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Cassandra Estassi, Emily Kase, Central American Legal Assistance, Brooklyn, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Peter M. Gannon, Trial Attorney; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

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 Vivian Azucena Meza, a native and citizen of Honduras, seeks

review of a February 3, 2023, decision of the BIA affirming a June 18, 2019, decision

of an Immigration Judge (“IJ”) denying her application for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). In re Vivian

Azucena Meza, No. A 208 882 896 (B.I.A. Feb. 3, 2023), aff’g No. A 208 882 896

(Immig. Ct. N.Y. City June 18, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

“We review the agency’s factual findings to determine whether they are

supported by substantial evidence and its conclusions of law de novo. Because the

BIA adopted and supplemented the decision of the IJ, we have reviewed the

2 decision of the IJ as supplemented by the BIA.” Niang v. Holder,

(2d Cir. 2014) (citations omitted). “[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.”

(b)(4)(B).

An asylum applicant must show past persecution or a well-founded fear of

future persecution on account of “race, religion, nationality, membership in a

particular social group, or political opinion.”

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

(b). Where, as here, the agency concludes that an applicant suffered past

persecution, the applicant has a presumption of a well-founded fear of future

persecution.

(b)(1). The Government may rebut that

presumption by “establishing by a preponderance of the evidence” that “[t]he

applicant could avoid future persecution by relocating to another part of [her]

country of nationality.”

§ 1208.13(b)(1)(ii), (i)(B); 1 see Surinder Singh v. BIA,

(2d Cir. 2006) (“Asylum in the United States is not available to obviate

re-location to sanctuary in one’s own country.”). The same relocation principles

apply to withholding of removal. See

§ 1208.16(b)(1)(i)(B), (ii), and (b)(3).

Substantial evidence supports the agency’s determination that Meza could

1 We apply the regulations that were in effect in March 2017 when Meza filed her application. 3 safely relocate to avoid hitmen who killed her uncle for political reasons and who

had targeted her because she joined her uncle in filing a police report. See Jagdeep

Singh v. Garland,

(2d Cir. 2021) (reviewing relocation finding for

substantial evidence). We uphold factual determinations subject to the substantial

evidence standard “unless any reasonable adjudicator would be compelled to

conclude to the contrary.”

(b)(4)(B) (emphasis added). The agency

reasonably relied on the fact that Meza had lived safely in San Pedro Sula,

Honduras, for several months and that her family remained in Honduras

unharmed. Meza’s argument that there is a nationwide threat because the hitmen

worked for an opposing political party does not change the analysis because the

record does not reflect that the hitmen were government actors or that the

Honduran government was unable or unwilling to control them. See Singh, 11

F.4th at 115–16.

The agency reasonably relied on the fact that Meza had lived safely in San

Pedro Sula, Honduras, for several months. The record reflects that Meza remained

unharmed in Honduras after 2013, apart from one incident that occurred when she

was visiting her hometown of Olanchito in 2016. In both 2013 and 2016, men on

motorcycles approached her, threatened her, and tried to force her into a vehicle.

4 She argues that she would “see motorcycles going around [her] house” in San

Pedro Sula when she lived there in either 2014 or 2015. Certified Administrative

Record (“CAR”) at 121. But when asked directly whether she was ever personally

threatened again, Meza testified only to the 2016 incident in Olanchito. See CAR

at 121-23. When she was asked whether “all of these attacks on your, your family

members and threats to you” had occurred in her hometown of Olanchito, she

testified that she had also been threatened once in La Ceiba, but confirmed that

she had never had “any problems from the gangs” in San Pedro Sula. CAR at 132,

133. Thus, Meza’s testimony about her time in San Pedro Sula, and the absence of

threats or harm outside of her hometown after 2013, support the IJ’s conclusion

that she could safely relocate within Honduras. See Siewe v. Gonzales,

,

167–68 (2d Cir. 2007) (“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” (citation and

quotation marks omitted)). The record thus does not compel a conclusion contrary

to the agency’s determination that Meza could safely relocate within Honduras.

See

(b)(4)(B).

Second, the fact that Meza’s family members have remained in Honduras

unharmed and unthreatened adds further support to the relocation finding. Meza

5 testified that she was targeted because she was with her uncle when he filed a

police report against the hitmen, but also testified that her mother (her uncle’s

sister) accompanied them. When asked if her mother, her aunt, or her sister had

been threatened or harmed by the hitmen, she said she did not know. Contrary to

her assertion that her family could have been targeted without her knowledge,

neither Meza’s mother, who remains in Olanchito, nor Meza’s sister, who has

relocated within Honduras to Tegulcigalpa, reported in their statements being

threatened or harmed. Because claims of a well-founded fear of persecution are

diminished where similarly situated relatives remained in the country without

harm, the agency did not err in considering the safety of her family, particularly

because her mother accompanied her to make the police report and one of her

proposed protected grounds was based on family membership. See Melgar de

Torres v. Reno,

(2d Cir. 1999).

Meza now argues that her family was not similarly situated to her, and that

the agency ignored evidence that her partner’s son was killed in 2018, purportedly

by the same hitmen. These arguments cut against each other. If Meza was not

similarly situated to her family because they were not present during the attack

and filing of the police report (though her mother was), then her partner’s son is

6 also not similarly situated, meaning there is no reason to assume a connection

between his 2018 murder and the threats against Meza in 2013 and 2016.

Moreover, the BIA expressly considered her partner’s son’s murder but

determined it was not relevant because he was not legally recognized as a family

member, and there was no evidence that his murderers viewed him as related to

Meza. Nothing Meza now argues compels the conclusion that the agency’s findings

were error. See

(b)(4)(B).

Meza further contends that the BIA failed to consider her “overall risk of

persecution” at the hands of the Freedom Party throughout Honduras. Pet. Br. at

16. However, “an applicant . . . cannot simply point to general country-conditions

evidence without showing how that evidence compels the conclusion that a person

in the applicant’s particular circumstances would be unable to relocate to avoid

persecution.” Singh,

(citation and quotation marks omitted)

(emphasis added). Nothing in the evidence Meza points to compels the conclusion

that she would be harmed if she relocated to San Pedro Sula, especially in light of

the fact that she lived there safely during a time when the Freedom Party were

purportedly seeking her. See Quintanilla-Mejia v. Garland,

, 593–94 (2d

Cir. 2021) (“[S]ubstantial evidence review does not contemplate any judicial

7 reweighing of evidence. Rather it requires [this Court] to ask only whether record

evidence compelled [a] . . . finding different from that reached by the agency.”).

Moreover, she cannot simply claim “overall risk” based on an opposition

political party’s power. “An applicant’s allegation that [s]he was persecuted by

members of a political party – even one that is in power nationally . . . – does not

establish that the applicant was persecuted by the government. Members of a

political party are not the government; for mistreatment inflicted by party

members to amount to persecution, an applicant must show that the government

was unwilling or unable to control the attackers.” Singh,

(citations

omitted). The record does not reflect that the Honduran government was unable

or unwilling to control the attackers, even if they were members of a national

political party, especially given that Meza and her uncle submitted a police report

and Meza left her hometown after filing the report and did not know what steps

the police took.

On this record, the agency did not err in concluding that the Government

met its burden of rebutting the presumption of a well-founded fear of future

persecution because Meza could safely relocate to San Pedro Sula. See Jian Xing

Huang v. U.S. Immigr. & Naturalization Serv.,

(2d Cir. 2005) (“In

8 the absence of solid support in the record . . . [an applicant’s] fear is speculative at

best.”). The internal relocation finding is dispositive of asylum and withholding.

See

(b)(1)(i)(B), (ii); 1208.16(b)(1)(i)(B), (ii), and (b)(3).

Finally, we agree that Meza’s CAT claim fails because she did not show

government acquiescence to her torture. An applicant for CAT relief bears the

burden to establish that she would “more likely than not” be tortured by or with

the consent or acquiescence of a government official.

(c)(2),

1208.18(a)(1). To show that torture is “more likely than not,” an applicant “must

establish that there is greater than a fifty percent chance . . . that [s]he will

be tortured upon return to . . . her country of origin.” Mu-Xing Wang v. Ashcroft,

, 144 n.20 (2d Cir. 2003). To establish acquiescence to torture, the

applicant must show that “the public official, prior to the activity constituting

torture, [will] have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 2

(a)(7). The

agency considers “all evidence relevant to the possibility of future torture,”

including past torture, the applicant’s ability to relocate to a part of the country

2We would reach the same conclusion in this case whether considering the current version of CAT regulations or the version in effect at the time of the IJ's decision. See Garcia-Aranda v. Garland,

, 758 n.5 (2d Cir. 2022). 9 where she is not likely to be tortured, and “gross, flagrant or mass violations of

human rights within the country of removal.”

§ 1208.16(c)(3).

Meza testified that she had never had problems with the Honduran

government, police, or military. The BIA emphasized that Meza and her uncle

filed a police complaint after being shot at, and while the police were “not

successful” in either their investigation or preventing her uncle’s subsequent

murder, “there is no evidence that a public official or police officer ever assisted

these hitmen” and her country conditions evidence, while showing a culture of

corruption, did not contain “particularized evidence that any public official would

acquiesce or willfully turn a blind eye to her torture by these hitmen.” CAR at 6.

The BIA rejected Meza’s argument that the government’s inability to protect her

uncle meant that it would necessarily acquiesce to her torture, citing country

conditions evidence that the Honduran government was prosecuting corruption.

Meza argues that the BIA used the wrong standard, referencing the BIA’s

determination that no public official had assisted the hitmen, and she contends

that she was not required to provide “particularized evidence” of a threat of

torture beyond the country conditions evidence. See Pet. Br. at 29-30. Her

arguments are misplaced. Evidence of a “particularized” threat of torture is

10 required for CAT claims. Mu Xiang Lin v. U.S. Dep’t of Just.,

(2d

Cir. 2005). And although the BIA used the word “assisted,” its analysis is tethered

to the acquiescence standard, which it directly cited in the preceding paragraph.

CAR at 6. Given the absence of evidence that government actors were seeking to

torture her, the evidence of some police response to her uncle’s report, and the

government’s attempts to combat corruption, the record does not compel a

conclusion that that Honduran officials would acquiesce to Meza’s torture. See

Quintanilla-Mejia, 3 F.4th at 593–94.

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

11