NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-1154 _____________

PATRICIO YANES-ZEPEDA, AKA Patricio Zepeda Yanes, AKA Christian Patricio Yanes Zepeda, AKA Oscar Zuniga, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A078-496-285) Immigration Judge: John B. Carle ______________

Submitted Under Third Circuit L.A.R. 34.1(a) November 19, 2019 ______________

Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.

(Filed: November 25, 2019) ___________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge.

Patricio Yanes-Zepeda petitions for review of an order of the Board of

Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his

applications for withholding of removal and for relief under the Convention Against

Torture (“CAT”) and rejecting his argument that the IJ lacked jurisdiction over his

removal proceedings because of the Supreme Court’s decision in Pereira v. Sessions,

(2018). For the following reasons, we will deny his petition.

I.

Yanes-Zepeda is a native and citizen of Honduras. He illegally entered the United

States in 2000 and was ordered deported on April 18, 2001. He re-entered the United

States illegally on July 26, 2017. On November 7, 2017, the Department of Homeland

Security (“DHS”) served Yanes-Zepeda with a Notice of Intent/Decision to Reinstate

(Form I-871) his 2001 deportation order. Yanes-Zepeda applied for withholding of

removal and for CAT protection.

Before the IJ, Yanes-Zepeda testified that he came to the United States out of fear

of the MS-13 gang in Honduras. He described how MS-13 members extorted money

from him through threatened violence and how, in 2012, after he refused to pay, gang

members shot at his car with him inside. After the shooting, Yanes-Zepeda moved to

another city; but, four years later, he received a phone call in which the caller informed

him that “they found [him]” and demanded money. Administrative Record (“AR”) 143–

44. He paid the extortion money for a time, then filed a complaint with the police. The

2 gang found out about his complaint and ransacked his home. According to Yanes-

Zepeda, the Honduran police took no action, so he decided to flee to the United States.

Yanes-Zepeda argued that his experiences constitute past persecution; that he

belongs to the protected social group of Honduran “civilian witnesses who have assisted

law enforcement officials against violent gangs,” AR 239; that the gangs persecuted him

because of his membership in that group; and that the gangs would torture him if he

returned, and the Honduran government would be unable or unwilling to prevent it.

The IJ found Yanes-Zepeda credible, but concluded that he did not demonstrate

past persecution, did not belong to a cognizable protected social group, and, even if he

did, he could not show that the violence he experienced was on account of his

membership in that group. The IJ also found that Yanes-Zepeda did not show that he

would likely be tortured if he returned or that the Honduran government would consent,

acquiesce, or be willfully blind to such torture. Yanes-Zepeda appealed to the BIA,

where he also argued that the Supreme Court’s decision in Pereira prevented the IJ from

exercising jurisdiction over his case because the initial Notice to Appear (“NTA”) failed

to specify the time and place of his hearing. The BIA dismissed the appeal on the same

grounds offered by the IJ and added that any defect in the NTA was cured by the notice

of hearing, which specified the time and place of the hearing. Yanes-Zepeda timely filed

a petition for review.

II.

We have jurisdiction under

(a)(1) to review the BIA’s order. The

BIA had jurisdiction to review the IJ’s decision under

(b)(3). We

3 generally only consider the reasoning offered by the BIA, but because the BIA adopted

the IJ’s findings and also discussed the bases for the IJ’s decision, we review both the

BIA’s and the IJ’s decisions. Saravia v. Att’y Gen.,

(3d Cir. 2018).

We must uphold factual determinations as to withholding of removal and CAT

protection if they are “supported by substantial evidence from the record.” Huang v.

Att’y Gen.,

(3d Cir. 2010). This means “we will reverse based on a

factual error only if any reasonable fact-finder would be ‘compelled to conclude

otherwise.’”

(quoting

(b)(4)(B)). We review the BIA’s legal

conclusions de novo, but we defer to its “interpretation of statutes and regulations within

its enforcement jurisdiction” in accordance with Chevron v. Natural Resources Defense

Council, Inc.,

(1984). Huang,

.

III.

We begin with Yanes-Zepeda’s withholding of removal argument, then address

his CAT protection argument, and, finally, examine his jurisdictional argument.

A.

To receive withholding of removal, an alien must demonstrate that there is a “clear

probability” of persecution, Senathirajah v. INS,

(3d Cir. 1998), in the

proposed country of deportation on account of “the alien’s race, religion, nationality,

membership in a particular social group, or political opinion,”

(b)(3)(A).

“Persecution” is defined as “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Camara v. Att’y

Gen.,

(3d Cir. 2009) (quoting Fatin v. I.N.S.,

(3d

4 Cir. 1993). The alien can establish this “clear probability” by presenting evidence of

future persecution or by showing that he or she was subject to past persecution, which

creates a rebuttable presumption of future persecution.

(b). The alien

must also show a “nexus, or a causal link,” between the persecution and membership in

the protected social group. S.E.R.L. v. Att’y Gen.,

(3d Cir. 2018).

We hold that the record supports that Yanes-Zepeda’s experiences with gang

violence in Honduras do not qualify as past persecution, and, even if they did, he cannot

demonstrate that they occurred because of his membership in a protected social group.

Yanes-Zepeda’s 2012 shooting incident and the threats he received in 2017 do not rise to

the level of “persecution” under our precedent. See, e.g., Kibinda v. Att’y Gen.,

, 119–20 (3d Cir. 2007) (deciding that a single five-day detention and beating that

caused a wound requiring stitches did not constitute persecution). The record also

supports the IJ’s and BIA’s findings that the gang violence that Yanes-Zepeda

experienced springs from criminal motivations, not from animosity toward his purported

social group or political opinion. Because Yanes-Zepeda’s application for withholding of

removal fails on these grounds, we do not reach the issue of whether he was a member of

a cognizable protected social group.

B.

To obtain relief under CAT, an applicant must demonstrate, inter alia, that it is

“more likely than not” that he or she will be tortured in the proposed country of

deportation. Obale v. Att’y Gen.,

(3d Cir. 2006). Torture is “any act

by which severe pain or suffering, whether physical or mental, is intentionally inflicted

5 . . . 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). “[A]cquiescence

to torture requires only that government officials remain willfully blind to torturous

conduct.” Silva-Rengifo v. Att’y Gen.,

(3d Cir. 2007).

The record supports the conclusion that Yanes-Zepeda failed to show that it was

more likely than not that he would be tortured in Honduras by, or with the acquiescence

of, the Honduran Government. Yanes-Zepeda’s only evidence on this point is his own

testimony and an expert report, which was itself based on Yanes-Zepeda’s case

documents and a general assessment of violence in Honduras. The record contains no

evidence of past torture, no evidence of an individualized risk of future torture, and no

evidence that law enforcement would be willfully blind to acts of torture committed by

gangs.

C.

Finally, Yanes-Zepeda’s argument that the IJ lacked jurisdiction over his

proceedings based on the Supreme Court’s holding in Pereira fails because we recently

rejected a similar challenge in Nkomo v. Att’y Gen.,

(3d Cir. 2019). In that

case, we decided that “Pereira’s interpretation of ‘notice to appear’ [does not] implicate[]

the IJ’s authority to adjudicate,” and so the fact that an NTA fails to specify the time and

place of the removal hearing does not deprive the IJ of jurisdiction. Nkomo,

. We are bound by our opinion in Nkomo. See United States Court of Appeals for

the Third Circuit, I.O.P. 5.2.

6 IV.

For the foregoing reasons, we will deny the petition for review.

7