USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2377

JESUS ANTONIO PONCE-FLORES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 6, 2022 Decided: September 6, 2023

Before DIAZ, Chief Judge, and RUSHING and HEYTENS, Circuit Judges.

Petition for review denied by published opinion. Judge Rushing wrote the opinion, in which Chief Judge Diaz and Judge Heytens joined.

ARGUED: Gabriela Quercia Kahrl, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Sherease Rosalyn Pratt, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Maureen A. Sweeney, Brenda García, Norman Greenwell, Chacón Center for Immigrant Justice, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 2 of 13

RUSHING, Circuit Judge:

Jesus Ponce-Flores, a native and citizen of Honduras, petitions for review of an

order of the Board of Immigration Appeals (Board) upholding the immigration judge’s

(IJ’s) denial of his application for deferral of removal under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

and ordering him removed to Honduras. As a former member of the MS-13 gang, Ponce-

Flores fears torture by gangs and police in Honduras. The IJ concluded that Ponce-Flores’s

risk of torture was substantial but he had not shown that a government official would more

likely than not inflict or acquiesce in it. For the reasons explained below, we deny the

petition.

I.

Ponce-Flores entered the United States without admission papers in July 2014, when

he was fifteen years old. He allegedly was fleeing the MS-13 gang, to which he had

belonged since the age of eight. In the United States, Ponce-Flores continued to associate

with MS-13, was convicted of assault in the second degree, and pled guilty to participation

in a criminal gang, with a resulting sentence of ten years in prison. While he was

incarcerated, MS-13 members ordered Ponce-Flores to stab an inmate to prove his loyalty.

He refused and sought protection from prison guards, officially breaking from MS-13.

Upon renouncing his gang affiliation, Ponce-Flores was marked for death by the gang.

MS-13 inmates stabbed him in the head and neck with broken glass, and he was transferred

to another facility for protection.

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The Department of Homeland Security initiated removal proceedings and served

Ponce-Flores with a Notice to Appear in 2014. He failed to appear for a hearing and was

ordered removed in absentia in 2016. The IJ subsequently granted his motion to reopen

because Ponce-Flores had been in state custody at the time of his hearing. His case was

re-calendared in 2019, and Ponce-Flores applied for deferral of removal under the CAT

based on his fear of being tortured by gangs and police in Honduras. See

(a) (deferral of removal for aliens subject to mandatory denial of withholding of

removal).

After considering documentary evidence and conducting a hearing at which Ponce-

Flores and his expert testified, the IJ denied CAT relief and ordered Ponce-Flores removed

to Honduras. In a thorough opinion, the IJ found that Ponce-Flores “faces a clear

probability of being subject to the intentional infliction of severe physical or mental pain

or suffering in Honduras.” J.A. 69. Although his risk of torture “from police and vigilante

groups appears minimal,” his risk of torture “by MS-13 and Mara 18 [gang] members in

Honduras is substantial.” J.A. 69. As for government acquiescence, the IJ found that

“[c]orruption within the police force in Honduras exists,” so Ponce-Flores “does face a risk

of severe harm with the consent or acquiescence of the government.” J.A. 71. Yet

considering the evidence as a whole, including significant efforts to eliminate police

corruption in Honduras, the IJ determined that “police would probably meaningfully

respond in some form—even if there is a chance that they would not and even if there is a

chance that they would not be successful—to any report of torturous harm or threats

against” Ponce-Flores. J.A. 71. The IJ therefore concluded, considering all risks in the

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aggregate, that Ponce-Flores had not shown that he would more likely than not be tortured

in Honduras “by or with the consent or acquiescence of a government official.” J.A. 71.

The Board dismissed Ponce-Flores’s appeal in a 2–1 decision. The Board rejected

Ponce-Flores’s assertions that the IJ had not considered or adequately addressed evidence

about Honduran police corruption and collaboration with gangs, his expert’s testimony,

and statements in his affidavit. The dissenting Board member would have remanded to the

IJ for further discussion of evidence regarding Honduran police turning former MS-13

members over to current MS-13 members for retribution. 1

II.

Ponce-Flores petitions our Court for review of the BIA’s affirmance of the IJ’s

denial of his application for deferral of removal under the CAT. Where, as here, the Board

“‘adopts and affirms the IJ’s decision and supplements it with its own opinion, we review

both decisions.’” Nolasco v. Garland,

(4th Cir. 2021) (quoting Cordova

v. Holder,

(4th Cir. 2014)).

An applicant for CAT relief “bears the burden to prove that ‘it is more likely than

not that he will be tortured if removed’ and ‘that this torture will occur at the hands of

government or with the consent or acquiescence of government.’”

at 190 (quoting

Martinez v. Holder,

, 913–914 (4th Cir. 2014)); see

(c)(2).

1 Specifically, the dissenting Board member identified two documents: the affidavits of Ponce-Flores and his expert. In his affidavit, Ponce-Flores said that, when he lived in Honduras, he heard of the police helping gangs find defectors and turning them over to the gang. In her affidavit, the expert stated that, in 2015, the Honduran government suspended 81 police officers who had collaborated with gangs by providing information about people the gangs were hunting. 4 USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 5 of 13

Torture is “any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . 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.”

(a)(1). “A public official acquiesces in torture if he

or she is aware, either by actual knowledge or willful blindness, of the activity constituting

torture beforehand and ‘thereafter breach[es] his or her legal responsibility to intervene to

prevent such activity.’” Nolasco,

(quoting

(a)(7)). When

the applicant “claims a fear of torture from multiple entities, the agency must assess the

likelihood of torture by aggregating the risk from all sources.”

(citing Rodriguez-Arias

v. Whitaker,

(4th Cir. 2019)).

The agency’s factual findings—including its predictions about the likelihood of

future mistreatment and government acquiescence—“are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B);

see Cruz-Quintanilla v. Whitaker,

(4th Cir. 2019). Under this “highly

deferential” standard, Nasrallah v. Barr,

(2020), we review factual

findings for substantial evidence, asking “whether the administrative record, considered as

a whole, ‘contains sufficien[t] evidence to support the agency’s factual determinations,’”

Nolasco,

(quoting Biestek v. Berryhill,

(2019)). We

review legal conclusions, such as whether certain conduct satisfies the regulatory definition

of torture or acquiescence, de novo.

And we review for abuse of discretion claims that

the agency “failed to offer a reasoned explanation for its decision” or “distorted or

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disregarded important aspects of the applicant’s claim.” Tassi v. Holder,

(4th Cir. 2011).

A.

We first consider Ponce-Flores’s claim that the IJ made two legal errors regarding

the standard for government acquiescence in torture. Reviewing de novo, we find no error.

First, Ponce-Flores says the IJ “appeared to hold that, if a national government were

to take steps of any kind to address corruption, that necessarily outweighs other evidence

of acquiescence.” Opening Br. 38. The record does not support Ponce-Flores’s

supposition. The IJ correctly acknowledged that the government acquiescence standard

“draws no distinction between low-level and high-level officials.” J.A. 65 (citing Matter

of O-F-A-S-,

, 41 (A.G. 2020)). Applying that standard, the IJ analyzed

evidence documenting the problem of police corruption in Honduras, including reports of

individual misconduct by low-level officials as well as systemic weaknesses. The IJ also

acknowledged, however, the testimony of Ponce-Flores’s expert that “only a ‘minority’ of

officers are corrupt and colluding with gangs in Honduras” and that “the government

undertakes significant efforts to address these issues.” J.A. 70. The IJ further considered

evidence that the Honduran government has dismissed thousands of allegedly corrupt

police officers, restructured the police corps, and implemented other “successful

interventions.” J.A. 70. The IJ’s opinion demonstrates that she weighed this competing

evidence and determined that, despite the continuing existence of some corruption within

the police force, police acquiescence in Ponce-Flores’s torture—as “an individual who

avers that he is no longer affiliated with a gang”—was not probable. J.A. 71. Nothing

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indicates the IJ held, as a legal matter, that any steps by a national government to address

corruption necessarily outweigh other evidence of acquiescence.

Second, Ponce-Flores claims the IJ incorrectly applied the “more likely than not”

standard by relying on countrywide statistics and mathematical probabilities rather than

assessing his individualized risk. The record again belies his assertion of error.

In articulating the legal standard and applying it to this case, the IJ correctly focused

on the individualized risk to Ponce-Flores. For example, the IJ considered his status as an

MS-13 defector, his tattoos, and the screening process he would likely face as a returning

deportee. The IJ relied in part on testimony from Ponce-Flores’s expert about how

Honduran authorities would likely treat him in view of these circumstances, including her

testimony that he “may not face any additional scrutiny at all or may be subject to further

questioning” because of concerns about his potential gang affiliation. J.A. 68; see also J.A.

163, 171 (expert emphasizing the police officer’s “discretion” in dealing with former gang

members at reentry and the absence of any “pattern” in how such cases are handled).

The IJ’s use of countrywide reports and statistics in part of her analysis doesn’t

reveal a legally erroneous standard. In assessing Ponce-Flores’s chances of encountering

a corrupt police officer who would acquiesce in his torture or an officer who would directly

inflict torture on him, the IJ considered evidence demonstrating the relatively low number

of police misconduct incidents compared to the large number of gang members operating

in Honduras, as well as evidence addressing what proportion of Honduran police officers

are corrupt or affiliated with gangs. That was not inappropriate. After all, we require

immigration judges to make factual determinations predicting “what would likely happen”

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to an alien if removed, including whether he will likely face harm amounting to torture and

“how public officials will likely act in response to the harm [he] fears.” Cruz-Quintanilla,

(internal quotation marks omitted). That often requires, as here, assessing

the likelihood of multiple links in the predicted chain of events. And we cannot fault the

IJ for considering the parties’ numerical data in assessing the probability that Ponce-Flores

will be tortured with government acquiescence; this Court itself has occasionally

articulated the relevant standard as a matter of “adding the probability of torture from each

entity and determining whether that sum exceeded 50%.” Rodriguez-Arias,

. We see no reason to think the IJ applied an incorrect legal standard. 2

B.

Ponce-Flores also contends that the IJ “‘arbitrarily ignore[d] relevant evidence,’”

thereby abusing her discretion. Ibarra Chevez v. Garland,

(4th Cir.

2022) (quoting Rodriguez-Arias,

). “‘We presume that, in reaching their

conclusions, the IJ and the [Board] reviewed the evidence presented to them and made their

decisions based on the relevant evidence.’”

(quoting Nolasco,

). “‘The

[Board] and IJ are not required to discuss every piece of evidence in the record, but they

2 We also reject Ponce-Flores’s contention that the IJ applied an incorrect definition of torture. The IJ correctly stated the regulatory definition of torture early in her opinion and referenced it throughout. See

(a)(1). Ponce-Flores seizes on one sentence of the IJ’s analysis in which she quotes his own expert saying that “‘police would not cut [him] up and torture him.’” J.A. 69. Contrary to Ponce-Flores’s assertion, the IJ did not use dismemberment as the benchmark for torture. For example, in the same discussion, the IJ explained that Ponce-Flores’s expert “indicated a low chance of actual torture-like harm by the police,” J.A. 68, and the IJ concluded that he faced a substantial risk of “intentional infliction of severe physical or mental pain or suffering,” i.e., torture, at the hands of gang members in Honduras, J.A. 69. 8 USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 9 of 13

must announce their decisions in terms sufficient to enable a reviewing court to perceive

that they have heard and thought and not merely reacted.’”

(quoting Nolasco,

). When the agency’s “failure to engage with an applicant’s evidence hampers our

ability to meaningfully review what was decided below,” remand is appropriate.

Rodriguez-Arias,

.

For his lead argument, Ponce-Flores contends the IJ did explicitly cite and describe

important evidence but didn’t “meaningfully engage with” this evidence when analyzing

whether public officials would acquiesce in his torture. Opening Br. 18. To the contrary,

the IJ plainly considered the evidence in her analysis—the very pages Ponce-Flores cites

show as much. The IJ discussed, with detail, the “substantial reports documenting the

problem of corruption amidst the Honduran government,” including reports “that impunity

is widespread, that security forces are frequently in cahoots with gangs, and that the police

often lack resources to address all reports of threats or other problems with gangs.” J.A.

70 (internal quotation marks omitted). Then the IJ described countervailing evidence in

the record, weighed the competing evidence, and concluded that although some corruption

still exists in the police force, the probability of a public official acquiescing in Ponce-

Flores’s torture was not more likely than not. Ponce-Flores thinks the IJ should have

weighed the evidence differently, but “we do not reweigh the evidence on a petition for

review.” Nolasco,

.

Ponce-Flores next identifies evidence he claims the IJ ignored. Some of this

evidence the IJ specifically addressed in determining whether a public official or gang

member would harm him, including Ponce-Flores’s testimony and affidavit regarding his

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past experiences with police in Honduras and evidence about his two gang tattoos, one of

which he covered with other art but claimed may still be identifiable. 3 Other documents

he cites are about harm to children but, as the Board noted, Ponce-Flores is an adult and

has not explained how this evidence is relevant to his claim. As for the remaining

documents he lists, they either bolster points the IJ acknowledged or lack any apparent

connection to government acquiescence in torture. For example, Ponce-Flores claims the

IJ did not mention his testimony about police corruption in Honduras in her acquiescence

analysis. The IJ described that testimony in the factual background of her opinion. But in

her analysis, the IJ focused on other, more detailed, evidence supporting the same

proposition. The IJ is “not required to discuss every piece of evidence in the record.” Ai

Hua Chen v. Holder,

(4th Cir. 2014), as amended (May 30, 2014). None

of Ponce-Flores’s arguments “rebut the presumption that the agency considered th[e]

evidence [he identifies] to the extent it was relevant.” Nolasco,

.

Finally, Ponce-Flores claims the IJ cherry-picked evidence to support her

conclusions. See Ai Hua Chen,

(“The [agency] may not selectively

consider evidence, ignoring that evidence that corroborates an alien’s claims and calls into

question the conclusion the judge is attempting to reach.” (internal quotation marks

omitted)). Yet again we find his assertions unsupported.

Regarding efforts to combat corruption in Honduras, the IJ considered the

conflicting evidence. The IJ observed that the record contained substantial documentation

3 The second tattoo, on his thigh, is less visible than the arm tattoo Ponce-Flores covered. 10 USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 11 of 13

of governmental corruption, including reports of authorities accepting payments from

gangs or participating in criminal activity themselves and reports that impunity is

widespread. On the other hand, the IJ acknowledged reports of the government’s efforts

to eliminate corruption by restructuring police departments, renewing qualification

programs, increasing forces, instituting mediators, and dismissing over 4,000 corrupt

officers from the line of duty since 2016.

Likewise with Ponce-Flores’s expert. Ponce-Flores highlights his favored portions

of the expert’s testimony but gives us no reason to think the IJ ignored them, especially in

view of her extensive discussion of the expert’s various opinions. For example, the IJ

credited the expert’s testimony about the high risk Ponce-Flores faces from MS-13 and

Mara 18 members in Honduras and the low chance of torture-like harm by the police or

vigilante groups. Regarding government acquiescence, the IJ relied on the expert’s

testimony that the government undertakes efforts to address corruption and yet “some

members of the police” still collaborate with “some members of” the gangs, which could

endanger Ponce-Flores and facilitate his torture by the gangs. J.A. 140. When the IJ

inquired how pervasive this problem was, the expert responded that she “wouldn’t say that

it’s general” and “would say that it’s a minority within the police” and “once the Honduran

government had found out, they have arrested these policemen and they’ve charged them.”

J.A. 140–141. This testimony from Ponce-Flores’s own expert was important to assessing

government acquiescence, and the IJ was entitled to rely on it.

And, contrary to Ponce-Flores’s argument, the IJ also acknowledged the expert’s

various reasons for believing police would not make a “significant response” to Ponce-

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Flores’s reports of threats or torture. J.A. 70. While the IJ noted that one set of reasons

the expert offered—lack of resources, enforcement priorities, and institutional

weaknesses—does not amount to acquiescence, the IJ also addressed the other reasons the

expert provided, including corruption and collusion with gangs. See Del Carmen Amaya-

De Sicaran v. Barr,

(4th Cir. 2020) (government ineffectiveness does

not show acquiescence).

In sum, Ponce-Flores has failed to show that the IJ arbitrarily ignored relevant

evidence or otherwise abused her discretion. We require agency adjudicators to

demonstrate that they “reviewed all [the applicant’s] evidence, understood it, and had a

cogent, articulable basis for [their] determination that [his] evidence was insufficient.”

Portillo-Flores v. Garland,

(4th Cir. 2021) (internal quotation marks

omitted). The IJ surpassed that standard. 4

C.

With all other issues settled, the ultimate question for review is whether substantial

evidence supports the IJ’s finding, affirmed by the Board, that Ponce-Flores has not shown

it is more likely than not he will be tortured with the acquiescence of a public official if

removed to Honduras. See Nolasco,

. It does. Testimony from Ponce-Flores

and his expert, numerous articles and country reports, along with other evidence cited by

the IJ, support the factual determination that, although Ponce-Flores faces a “clear

probability of being severely harmed in Honduras,” it is not probable that he would be

4 For similar reasons, we reject Ponce-Flores’s argument that the IJ did not consider the “totality of the evidence.” Opening Br. 41–45. 12 USCA4 Appeal: 21-2377 Doc: 48 Filed: 09/06/2023 Pg: 13 of 13

harmed by or with the acquiescence of a public official. J.A. 71. The record also contains

contrary evidence, to be sure. But “[w]e may not reweigh the evidence.” Tang v. Lynch,

(4th Cir. 2016). Because the record does not “compel[]” a contrary

conclusion, we must uphold the agency’s factual finding.

(b)(4)(B).

PETITION FOR REVIEW DENIED

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