NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1726 ___________

ROLANDO ENRIQUE HERNANDEZ-MARTINEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

________________

On Petition for Review of a Final Order of the Board of Immigration Appeals (Agency No. A216-210-914) Immigration Judge: Pallavi S. Shirole ________________ Argued on March 30, 2023

Before: MATEY, FREEMAN, and FUENTES, Circuit Judges

(Opinion filed: December 13, 2023)

Rebecca Hufstader [ARGUED] Emily G. Thornton Legal Services of New Jersey 100 Metroplex Drive Suite 101 Edison, NJ 08818 Counsel for Petitioner Sarah A. Byrd Robert P. Coleman, III [ARGUED] James A. Hurley Jennifer R. Khouri United States Department of Justice Office of Immigration Litigation Ben Franklin Station Washington, DC 20044 Counsel for Respondent

Anne K. Dutton Hastings College of the Law Center for Gender & Refugee Studies 200 McAllister Street San Francisco, CA 94102 Counsel for Amicus – Center for Gender & Refugee Studies

___________

OPINION * ___________ FREEMAN, Circuit Judge.

Rolando Enrique Hernandez Martinez petitions for review of the Board of

Immigration Appeals’ order dismissing his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). For the reasons that

follow, we will deny the petition as to the asylum and withholding of removal claims, and

we will remand for further proceedings on the CAT claim.

I

A

Hernandez Martinez is a native and citizen of El Salvador. In late 2014, when he

was 16 years old, he was playing soccer in his neighborhood of El Planon (near San

Julian in the department of Sonsonate) with his brother Moises and a friend they called

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 “Chumpe.” Members of the Barrio 18 gang approached Moises and Chumpe and asked

them to join the gang. Both refused. On December 31, Barrio 18 gang members came to

the Hernandez Martinez family’s home and shot Moises and Chumpe, killing them both.

Hernandez Martinez was not present during the shooting, and he later learned that Barrio

18 members had intended to kill him as well based on their assumption that he would

refuse to join the gang. A few days after killing Moises and Chumpe, Barrio 18 members

returned to the family’s home looking for Hernandez Martinez, who was not there. A

few days after that, Barrio 18 members fired gunshots into the family’s home.

The police responded to both shooting incidents. However, despite requests from

the family, the police did not provide the family a copy of the investigative report about

Moises’ homicide before the family relocated to Palo Verde.

In January 2015, after the two shooting incidents, Hernandez Martinez fled to his

sister’s home in Palo Verde—a neighborhood on the other side of San Julian. His father

and other family members joined him in Palo Verde some months later.

Palo Verde is in the territory of the MS-13 gang—a rival to Barrio 18. While

Hernandez Martinez was living in Palo Verde, members of MS-13 approached him twice

and threatened to harm him if he did not join their gang. One of these threats was at

gunpoint. Hernandez Martinez refused to join. He told the gang members that he had

never liked gangs and that his father had told him to work legally in the fields. Because

of the threats from the gang, Hernandez Martinez fled El Salvador in late 2016.

Hernandez Martinez arrived in the United States in 2017 and informed

immigration officials that he feared returning to El Salvador because of the gangs that

3 had killed his brother and threatened him. He was released by immigration officials and

went to live with relatives in New Jersey.

While Hernandez Martinez was living in the United States, an MS-13 member told

his cousin that Hernandez Martinez would be killed by the gang if he ever returned to El

Salvador. MS-13 members also threatened to harm Hernandez Martinez’s younger

brother, Israel, if he refused to join the gang, or if Modesto did not pay “rent” for living

in their territory.

Modesto refused to pay the gang and contacted the police, who escorted the family

out of Palo Verde (in the department of Sonsonate) to the neighboring department of

Santa Ana. In a declaration submitted to the Immigration Judge, Modesto stated, “I live

in a very remote and rural area. The only people who know where we live are my

children. To this day, I don’t believe that the gang members know where I live.” A.R.

165. Since living in Santa Ana, the family has had no encounters with gangs.

In 2019, Hernandez Martinez was arrested for possession of marijuana and was

issued a conditional discharge and assessed court costs. In November 2020, he was

charged with disorderly conduct, and those charges remained pending at the time of his

removal proceedings.

In April 2021, Hernandez Martinez was arrested during a fight with his uncle and

cousins. He was charged with aggravated assault with a deadly weapon (namely, a

folding knife) and related charges. That arrest led to the removal proceedings at issue

here.

B

4 In April 2021, the Department of Homeland Security served Hernandez Martinez

with a Notice to Appear in removal proceedings, charging him as removable under the

Immigration and Nationality Act § 212(a)(6)(A)(i),

(a)(6)(A)(i) as a

noncitizen present in the United States without being admitted or paroled. Hernandez

Martinez conceded removability, and applied for asylum, withholding of removal, and

relief under the CAT. 1 He alleged that he would suffer future persecution based on his

political opinion opposing gangs and his membership in several particular social groups

(PSGs), including (1) “young Salvadoran men,” (2) “Salvadoran men,” (3) “Salvadoran

men who took concrete steps against gang authority,” (4) “young Salvadoran men who

have been actively recruited by gangs and who have refused to join the gangs because

they oppose gangs,” (5) “immediate family members of gang homicide victim Moises

Hernandez Martinez,” and (6) “immediate family members of Modesto Hernandez.”

A.R. 616–25.

In support of his application, Hernandez Martinez submitted his own declaration

and one from his father; a letter from his brother-in-law, who is a police officer in El

Salvador; and country conditions evidence, including an expert report on crime, gangs,

and other security issues in El Salvador.

In July 2021, an Immigration Judge (IJ) held a hearing at which Hernandez

Martinez testified. In August 2021, the IJ issued an opinion denying all three forms of

1 Although the application was filed more than one year after his arrival in the United States, it was considered timely under the class action settlement in Mendez-Rojas v. Wolf, No. 2:16-cv-01024-RSM, ECF No. 79-1 (W.D. Wash. July 28, 2020). 5 relief. The IJ found Hernandez Martinez credible, found corroboration for his claims,

and found that he had suffered past persecution at the hands of Barrio 18 and MS-13. But

she determined that he failed to show a nexus between the persecution and a statutorily

protected ground.

Although the IJ determined that Hernandez Martinez is a member of the

cognizable PSG “immediate family members of gang homicide victim Moises Hernandez

Martinez,” she concluded that the gangs targeted Hernandez Martinez “not for his

relationship with Moises but because of his presumed resistance to gang recruitment.”

A.R. 70–71. 2 She found the remaining proposed PSGs non-cognizable, and she held that

the record did not support a conclusion that the gangs perceived Hernandez Martinez’s

resistance as political expression.

As a result of these holdings, the IJ determined that Hernandez Martinez was not

entitled to a presumption of future persecution. And the IJ determined that he could not

otherwise establish a well-founded fear of future persecution.

The IJ further determined that Hernandez Martinez had failed to show that the

government was unable or unwilling to control the gang members, given that the police

responded to the shootings in El Planon and escorted Modesto from Palo Verde to a

location in Santa Ana. For all these reasons, the IJ denied the asylum application, which

2 The IJ also found that “immediate family members of Modesto Hernandez” is a cognizable PSG, but Hernandez Martinez does not pursue that PSG in his petition to us. 6 necessarily resulted in her denial of withholding of removal. 3 And she denied protection

under the CAT because she determined that Hernandez Martinez did not demonstrate a

likelihood of torture upon his return to El Salvador.

Hernandez Martinez appealed to the Board of Immigration Appeals (BIA), which

issued an opinion dismissing the appeal. The BIA agreed with the IJ’s determinations

that Hernandez Martinez was not persecuted on account of political opinion or

membership in any of his proposed PSGs. It also agreed that Hernandez Martinez had

not shown the Salvadoran government was unable or unwilling to protect him from his

persecutors. Lastly, it affirmed the IJ’s denial of withholding of removal and protection

under the CAT.

Hernandez Martinez timely petitioned this Court to review the BIA’s decision.

II

The BIA had jurisdiction under

(b)(3). We have jurisdiction

under

(a)(1). Quinteros v. Att’y Gen.,

(3d Cir. 2019).

When the BIA issues a written decision on the merits, we review its decision and not the

decision of the IJ.

at 780–81. But we also review the portions of the IJ decision that

the BIA adopts or defers to.

.

We review the agency’s legal determinations de novo, subject to Chevron

deference. Huang v. Att’y Gen.,

(3d Cir. 2010). This includes whether

3 The IJ also opined that, assuming Hernandez Martinez demonstrated eligibility, she would deny a discretionary grant of asylum. The BIA did not rely on that determination, and it is not at issue here. 7 the BIA applied the legal standards correctly and the sufficiency of the BIA’s findings.

Quinteros,

.

We review the agency’s findings of fact—including its conclusions regarding past

persecution—under a deferential substantial-evidence standard. Chavarria v. Gonzalez,

(3d Cir. 2006). We do not disturb the agency’s decisions unless “the

evidence is such that a reasonable factfinder would be compelled to conclude otherwise.”

The agency’s decision must be supported by “reasonable, substantial, and probative

evidence on the record considered as a whole.”

Findings that mischaracterize or

understate the nature of the evidence are not supported by substantial evidence. Doe v.

Att’y Gen.,

(3d Cir. 2020). The BIA is not permitted to ignore or

misconstrue evidence in the applicant’s favor. Espinosa-Cortez v. Att’y Gen.,

(3d Cir. 2010). If the BIA errs in its review of the IJ’s decision, we remand

unless “it is highly probable that the error did not affect the outcome of the case.” Li Hua

Yuan v. Att’y Gen.,

(3d Cir. 2011).

III

Hernandez Martinez raises four arguments in his petition: (1) that the agency erred

in finding no nexus between his past persecution and his anti-gang political opinion or his

membership in the PSG “immediate family members of gang homicide victim Moises

Hernandez Martinez,” (2) that the BIA erred in making a nexus determination about his

other proposed PSGs when the IJ had not done so in the first instance, (3) that the agency

erred in concluding he did not show the Salvadoran government was unable or unwilling

8 to protect him from persecution, and (4) that the agency applied the wrong legal standard

to his CAT claim.

We conclude that substantial evidence supported the agency’s conclusion that the

Salvadoran government is not unable or unwilling to protect Hernandez Martinez from

future persecution. As a result, we need not reach the remaining arguments regarding

asylum and withholding or removal, and we will deny the petition as to those claims.

However, we will grant the petition as to the CAT claim and remand for further

proceedings.

A. Asylum and Withholding of Removal

To qualify for asylum, an applicant must meet the definition of a refugee.

(b)(1)(A). That is, he must be “unable or unwilling” to return to his

country of origin because of “[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.”

(a)(42)(A).

To establish past persecution, an applicant must show “(1) an incident, or

incidents, that rise to the level of persecution; (2) that is on account of one of the

statutorily-protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Abdulrahman v. Ashcroft,

(3d Cir. 2003) (cleaned up). Establishing past persecution results in the

presumption of a well-founded fear of future persecution.

Absent past persecution,

“an applicant can demonstrate that she has a well-founded fear of future persecution by

9 showing that she has a genuine fear, and that a reasonable person in her circumstances

would fear persecution if returned to her native country.”

(cleaned up).

An applicant who fails to qualify for asylum is necessarily ineligible for

withholding of removal, which is governed by a more demanding standard. Valdiviezo-

Galdamez v. Att’y Gen,

(3d Cir. 2011).

When the agency conducted its asylum analysis, it found that the threats Barrio 18

and MS-13 made against Hernandez Martinez rose to the level of persecution. But it

found that Hernandez Martinez did not satisfy the second or third requirements of a past-

persecution showing. Because we hold that substantial evidence supported the agency’s

determination about the third requirement, we need not reach the second.

Based on the record as a whole, we cannot conclude that a reasonable factfinder

would be compelled to conclude that the Salvadoran government is unable or unwilling

to protect Hernandez Martinez from his persecutors. When the IJ considered the

Salvadoran government’s unwillingness or inability to protect Hernandez Martinez, she

relied on evidence that police in El Planon responded and investigated the gang

members’ killing of Moises and subsequent shooting at the family home. The IJ also

relied on evidence that, after MS-13 threatened and extorted Modesto in Palo Verde,

police helped Modesto relocate to a remote area in Santa Ana, where Modesto has lived

with his younger son without incident. The IJ recognized that the El Planon police had

not completed their investigation into the shootings before the family relocated, but she

concluded that the police responses in El Planon and Palo Verde showed their ability and

willingness to control private actors in regard to Hernandez Martinez’s family.

10 The BIA affirmed, and it stated in its decision that the IJ considered country

conditions evidence. Hernandez Martinez is correct that the IJ did not discuss country

conditions evidence in this section of her opinion. But elsewhere in her opinion the IJ

stated that she considered all evidence in the record. See Quinteros,

(stating that it is usually but not always sufficient for an IJ to say that all evidence and

testimony has been considered). And based on our review of the entire evidentiary

record, we conclude that the IJ’s decision is supported by substantial evidence.

Hernandez Martinez contends that the country conditions evidence in the record

demonstrates that the government cannot protect him from the gangs. He argues that

country conditions evidence is especially important in cases like his, where he did not

report the MS-13’s threats against him because of government corruption and his fear of

harm from the police. He invokes Doe,

, and argues that the absence of a

report to police leaves a gap in proof about how the government would respond if asked

and permits him to fill in the evidentiary gap in other ways. But Hernandez Martinez’s

family did make reports to police. When the gangs shot his brother and days later shot at

the family home, the police responded to and investigated both shootings. And although

the police in El Planon did not provide a report of their investigation before the family

relocated, these facts do not compel a conclusion that the police were unwilling or unable

to control the gangs.

Even if we apply Doe’s gap-filling method to Hernandez Martinez’s unreported

threats in Palo Verde, there is substantial evidence supporting the agency’s

determination. Doe instructs us to ask whether Hernandez Martinez has “show[n] that

11 others have made reports of similar incidents to no avail.”

. He has not done

so. Although country conditions evidence addresses the general difficulty of relocating

to avoid gangs in El Salvador, the record shows that police escorted Hernandez

Martinez’s father and younger brother from Palo Verde to a remote region where they

have lived without incident.

We recognize that the record includes country conditions evidence that the

Salvadoran government is generally unable or unwilling to control gangs. But “a

government’s inability or unwillingness to control a violent group as a general matter

does not necessarily mean that the government cannot or will not protect the specific

applicant.” Galeas Figueroa v. Att’y Gen.,

(3d Cir. 2021). And

substantial evidence in the record specific to Hernandez Martinez and his immediate

family members supports a conclusion that the government is not unwilling or unable to

protect him. 4 Accordingly, we deny the petition as to the asylum and the withholding of

removal claims.

B. Convention Against Torture

To qualify for protection under the CAT, an applicant must establish (1) that it is

more likely than not that he would be tortured if removed, and (2) that public officials

will commit or acquiesce in the likely torture. Myrie v. Att’y Gen.,

(3d

Cir. 2017). The first prong of a CAT claim includes two sub-questions: (a) what is likely

4 Hernandez Martinez’s police-officer brother-in-law’s opinion (provided without reasoning) that Hernandez Martinez’s life would be in danger in El Salvador does not alter our conclusion. 12 to happen to the applicant if removed, and (b) whether what is likely to happen amounts

to the legal definition of torture. Quinteros, 945 F.3d at 786–87. The first sub-question

is factual and is reviewed by the BIA for clear error. Myrie,

. The second

sub-question is legal and gets de novo review from the BIA.

Here, the agency resolved the CAT claim on the first prong (the likelihood of

torture), so it did not address the second prong (the role of public officials). And we

assess the agency’s decision “solely by the grounds invoked by the agency.” SEC v.

Chenery Corp.,

(1947).

The IJ determined that Hernandez Martinez had not demonstrated it is more likely

than not he would be tortured if returned to El Salvador. In support, the IJ made several

factual findings, including that Hernandez Martinez “has not received any threats since

his departure from El Salvador, and there is no indication either gang remembers who he

is or why he is significant to them.” A.R. 77.

On appeal, the BIA affirmed the IJ’s conclusion, but it did so by making de novo

findings of fact—something it is not permitted to do. Kaplun v. Att’y Gen.,

(3d Cir. 2010). For example, the BIA said that the IJ discredited Hernandez

Martinez’s written declaration that a gang member conveyed a threat to him after he left

El Salvador, and it purported to explain why the IJ did so. But the IJ had positively

credited Hernandez Martinez as a witness, without distinguishing between his oral

testimony and sworn, written statements. The BIA failed to recognize that the IJ simply

did not acknowledge Hernandez Martinez’s declaration that a gang member conveyed a

13 threat to him after he left El Salvador.5 The IJ similarly failed to acknowledge

Hernandez Martinez’s testimony that gang members inquired about him after he left El

Salvador, and the country conditions evidence that gangs pursue their past targets upon

repatriation.

Because the BIA engaged in improper fact-finding and the IJ found facts while

ignoring evidence favorable to Hernandez Martinez, the agency’s CAT findings were not

supported by substantial evidence. See Ghanem v. Att’y Gen.,

(3d Cir.

2021). And we cannot conclude that the error was harmless. Li Hua Yuan,

. The IJ credited evidence that gangs conveyed a threat to Hernandez Martinez and

made inquiries about him after he left El Salvador. Those facts indicate that the gangs

remember Hernandez Martinez and how he spurned them. The agency must consider

those facts along with the country conditions evidence that gangs “wreak[] their

vengeance” upon their enemies who return to El Salvador on ICE-chartered flights. A.R.

233–34;

(c)(3)(iv); Quinteros,

(“[I]f evidence is to be

disregarded, we need to know why.” (cleaned up)). So we will remand for the agency to

consider “all evidence relevant to the possibility of future torture.”

(c)(3). 6

5 Hernandez Martinez’s testimony that no members of MS-13 had personally threatened him after he left El Salvador does not necessarily contradict his written testimony that gang members used his cousin as an intermediary to threaten him. 6 Judge Matey does not join Part III.B of the opinion and would dismiss the petition. Assuming, without holding, that the BIA’s decision veered from the IJ’s fact-finding, he would conclude that any error is harmless. Li Hua Yuan,

. Here, “the BIA echoed and adopted several” of the IJ’s factual findings, making it “highly probable 14 * * *

For the reasons stated above, we will deny the petition as to the asylum and

withholding of removal claims, grant the petition as to the CAT claim, and remand for

further proceedings consistent with this opinion.

that the outcome . . . would not have been different had the BIA applied the proper standard of review.”

at 428 15