Nelson Martinez Manzanares v. William Barr, U. S.
Opinion
*224 Nelson Esimar Martinez Manzanares ("Martinez") unsuccessfully applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He now asks us to review the government's decision and to vacate the removal order. We deny the petition.
I.
In May 2014, Martinez entered the United States near McAllen, Texas, without the necessary entry documents. The Department of Homeland Security ("DHS") began removal proceedings. Martinez applied for asylum, withholding of removal, and CAT protection. He argued he had suffered persecution in Honduras based on his membership in a particular social group related to his former work in law enforcement.
A.
Before an Immigration Judge ("IJ"), Martinez testified that he worked as a volunteer auxiliary police officer from 2005 to 2009 in the Honduran village of San Isidro, a small community located in the city of Victoria, in the department of Yoro. On May 14, 2009, he arrested Edwin Giovanni Megdoreta Montcodo, known as Edis, who was suspected of killing a man with a machete. Honduran authorities detained Edis for seventeen days before releasing him. According to Martinez, once released, Edis fled San Isidro for several years to avoid being tried and convicted for murder.
Nearly five years later, however, Edis returned to San Isidro. In January 2014, as Martinez was about to leave church, people informed him Edis was outside. When Martinez left the building, Edis pulled out a gun. Bystanders intervened, however, and "didn't allow [Edis] to do anything to [Martinez]."
About a month later, Edis threatened Martinez again. Martinez was driving with his uncle and brother when he saw Edis outside of a bar-like establishment. Edis yelled that he was going to kill Martinez, pulled out a gun, and fired shots at the car. The bullets missed Martinez and the car. Martinez then pulled out his own gun, and Edis fled.
Approximately two weeks later, on February 14, 2014, Martinez was riding a motorcycle to work when Edis emerged from tall grass with a shotgun. Edis pointed the shotgun at him. Martinez jumped into a nearby lake. When Edis approached the lake, Martinez swam away.
Martinez testified before the IJ that he never reported any of the incidents to the police because the Honduran police do "not function." Martinez did, however, report the first two incidents to a local mayor. Both times the mayor told Martinez that he could "take vengeance in [his] own hands" and that he "had the authority to kill [Edis] if [he] wanted to."
After the third incident, Martinez moved to an apartment in the building where he worked. When asked whether he had any more problems with Edis there, Martinez said no. He explained security guards protect the building so "nothing happens *225 there." For the remaining month and a half Martinez remained in Honduras, Edis did not bother him again. On April 4, 2014, Martinez left Honduras and traveled to the United States.
Martinez sought immigration relief based on persecution on account of membership in a particular social group. Specifically, Martinez alleged membership in three possible groups:
(1) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who are persecuted for having performed their law enforcement duties; (2) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of [Edis]; and (3) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of persons accused of committing a crime.
Resp't's Submission in Supp. of Appl., Ex. M. The IJ concluded these groups are not cognizable as particular social groups under the Immigration and Nationality Act ("INA"). But even if they were, the IJ determined Martinez failed to demonstrate persecution on account of membership in these proposed groups. It found Martinez "is not being singled out because of his status as a former law enforcement officer, but instead for his role in arresting a particular individual." Accordingly, the IJ denied relief.
B.
Martinez appealed to the Board of Immigration Appeals ("BIA"). The BIA dismissed, concluding the IJ correctly denied the asylum and withholding claims because Martinez failed to "show ... the requisite nexus between the harm he suffered and a protected ground for asylum or withholding of removal." Regarding the nexus requirement, Martinez admitted he had been harmed because of specific actions he took, not because he belonged to a certain group. Regarding the protected ground, Martinez failed to show his proposed social groups are "socially distinct groups in Honduras." The BIA additionally upheld the IJ's conclusion that Martinez did not show the Honduran government was unable and unwilling to protect him. It further noted Martinez did not suffer harm rising to the level of persecution.
The BIA likewise upheld the IJ's determination that Martinez did not qualify for CAT protection. It noted the Honduran police "initially arrested and detained Edis," and the mayor "effectively authorized" Martinez to kill Edis. Based on "these circumstances," the BIA concluded Martinez "did not show that it is more likely than not that he will be subject to mistreatment rising to the level of torture by Edis by or with the acquiescence of public officials in Honduras."
C.
Martinez petitioned this Court for review. But before the Court could reach the issues presented, Martinez and the government filed a joint motion to remand. The parties wanted the BIA to (1) explain the apparent assumption that Martinez's authorization to kill Edis made it less likely Martinez would suffer harm, (2) reconsider its reasoning regarding Martinez's failure to establish a particular social group and nexus, and (3) "consider whether the alleged harm suffered by [Martinez] 'rises to the level' of persecution." Over Judge Jones's dissent, the Court granted the parties' joint motion without discussion.
On remand, the BIA said the parties misinterpreted its original decision. Regarding the parties' first remand issue, the BIA said it did not assume permission to kill Edis made it less likely Martinez would be killed. The BIA explained the authorization to kill Edis was only one *226 basis for its conclusion that Martinez didn't establish the "Honduran authorities would acquiesce or be willfully blind to any harm inflicted on [Martinez] that rose to the level of torture." Regarding the second issue, the BIA declined to reconsider its analysis regarding Martinez's alleged group because, "regardless of whether former Auxiliary Policemen constitute a cognizable particular social group, [Martinez] did not show that he was harmed on account of his membership in that group." Finally, regarding the third issue, the BIA explained it properly concluded Martinez's harm did not rise to the level of persecution despite the IJ's failure to make that explicit finding. It further noted that conclusion was ultimately immaterial because Martinez could not connect any alleged persecution to a protected ground. Therefore, the BIA again dismissed Martinez's appeal. Martinez again petitioned this Court for review.
II.
We review the BIA's decision; we consider the IJ's decision only to the extent it influenced the BIA.
See
Nunez v. Sessions
,
We begin by addressing Martinez's claims for asylum and withholding of removal before turning to his CAT claim. We deny the petition on each ground.
A.
To be eligible for asylum, Martinez must establish he is a refugee.
1.
A "particular social group" must be "a group of persons [who] share a common immutable characteristic that they either cannot change or should not be required to change."
Hernandez-De La Cruz v. Lynch
,
We doubt any of Martinez's proposed groups qualify as a particular social group. After all, "[w]hen 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 INA."
Ucelo-Gomez v. Mukasey
,
At least one proposed group, "ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of [Edis]," is clearly not cognizable. As the BIA noted, there is no record evidence this group is socially distinct. Likewise, it is not clear from the record that anyone other than Martinez
*227
would fall into that group. But a "particular social
group
" necessarily requires "more than one person."
Fatin v. INS
,
2.
Even if Martinez's proffered groups are cognizable, substantial evidence supports the BIA's determination that Martinez failed to show a nexus between the alleged persecution and his membership in the groups.
To show persecution was "on account of" a protected ground for asylum and withholding of removal, Martinez must prove the protected ground was "at least one central reason" for the persecution.
Martinez did not make this showing. He never once stated Edis persecuted him because he was an ex-law enforcement officer. Instead, all the testimony demonstrates Martinez was targeted because of his specific involvement in Edis's arrest, not his general status as an ex-law enforcement official. Martinez testified that Edis "retaliated against [him]" because he "turned [Edis] over to the authorities." He also described the threats as being "personal, because [he] captured and arrested [Edis] some time back."
Persecution motivated by a personal vendetta or desire for revenge is not persecution "on account of" a protected ground.
See
Hernandez-Rivera v. Sessions
,
At most, Edis's desire for retribution is only tangentially related to Martinez's status as an ex-law enforcement officer. Martinez thus cannot show he was persecuted on account of that status.
See
Shaikh
,
Martinez attempts to escape this conclusion by relying on
Madrigal v. Holder
,
And even if we disagreed with the agency's factual conclusion that Edis was motivated by personal reasons, we still could not say "a reasonable factfinder would be compelled to conclude to the contrary."
See
Thuri v. Ashcroft
,
B.
We turn now to whether Martinez established his eligibility for CAT protection. To be eligible for CAT relief, Martinez must show it is "more likely than not" he will be tortured if he returns to Honduras.
Tamara-Gomez v. Gonzales
,
Moreover, an applicant must demonstrate there would be "sufficient state action involved in that torture" to be eligible for CAT relief.
Tamara-Gomez
,
Substantial evidence supports the BIA's denial of CAT relief. Even if Edis threatened Martinez with a sufficiently "extreme form of cruel and inhuman treatment" to constitute torture,
Martinez also failed to show he suffered past torture.
See
Furthermore, Martinez provided evidence demonstrating public officials did
not
consent to previous harm Edis caused, but rather attempted to combat it.
See
Chen v. Gonzales
,
At most, Martinez demonstrated Honduras was unable to provide Martinez and other citizens complete protection from criminals like Edis. But that does not suffice because "a government's inability to protect its citizens does not amount to acquiescence."
Qorane
,
The record evidence does not compel the conclusion that Martinez was eligible for CAT relief.
The petition is DENIED.
Reference
- Full Case Name
- Nelson Esimar MARTINEZ MANZANARES, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
- Cited By
- 77 cases
- Status
- Published