NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                   _______________

                                 Nos. 19-1703, 19-1704
                                   _______________

                        FRANKLIN OMAR LOPEZ-SANTOS,
                         EDWIN JAIVER LOPEZ SANTOS,
                                                                 Petitioners
                                           v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA
                                   _______________

        On Petition for Review of an Order of the Board of Immigration Appeals
                      (Agency Nos. A098-964-936, 088-367-049)
                         Immigration Judge: John P. Ellington
                                   _______________

                                 Argued: March 10, 2020

                Before: McKEE, AMBRO, and PHIPPS, Circuit Judges

                          (Opinion Filed: September 30, 2020)
                                   _______________

Bridget Cambria
Cambria & Kline
532 Walnut Street
Reading PA, 19601


Robert Jackel                     [ARGUED]
Suite 360
399 Market Street
Philadelphia, PA 19106
       Counsel for Petitioners



                                           1
Margot L. Carter
Corey L. Farrell                                         [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Stations
Washington, DC 20044

    Counsel for Respondent

                                    _______________

                                        OPINION*
                                    _______________


McKee, Circuit Judge.
       In this consolidated immigration appeal, Franklin and Edwin Lopez-Santos,

brothers and natives of Honduras, petition for review of the BIA’s denial of their

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

(“CAT”). The Government has conceded that the BIA improperly applied Myrie v.

Attorney General1 as to Franklin’s CAT claim and asks for that claim to be remanded for

review under the proper standard.2 We agree and will remand for the BIA to reconsider

Franklin’s CAT claim under a de novo standard of review instead of the clear error

standard used. As to Franklin’s withholding from removal claim and Edwin’s




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  

, 515-16 (3d Cir. 2017).
2
  Appellee Br. at 36 n. 8; accord Appellants’ Op. Br. at 47-48.

                                             2
withholding and CAT claims, we will affirm and must dismiss Franklin’s petition for

review in part, and Edwin’s in total.3

                                             I.
       Where, as here, the BIA adopted the reasoning of the IJ in its decision, we review

the factual determinations in both decisions for substantial evidence. 4 We reverse only if

a reasonable factfinder would be “compelled to conclude otherwise.”5 We review de

novo any legal conclusions.6

       Edwin claims that the BIA erred in determining he was not entitled to withholding

of relief.7 He argues the BIA reached this incorrect conclusion by relying on the IJ’s

incomplete review of the record, excluding certain corroborating affidavits from family

members, thereby improperly determining that the Honduran government would be able

to protect him despite evidence of his cousin’s brutal torture and murder. Though we

acknowledge the tragic events surrounding his cousin’s death, Edwin gives insufficient

weight to the adverse credibility determination reached by the IJ and affirmed in the

BIA’s thorough opinion.8 But setting that determination aside, as the IJ and BIA did in




3
  The BIA had appellate jurisdiction of the IJ’s decisions under 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction over the BIA’s order pursuant to 8 U.S.C. § 1252(a).
4
  Huang v. Att’y Gen., 

, 379 (3d Cir. 2010).
5

  Zubeda v. Ashcroft, 

, 469 (3d Cir. 2003) (“In order to obtain mandatory
withholding of deportation under § 243(h), the alien must first establish by a ‘clear
probability’ that his/her life or freedom would be threatened in the proposed country of
deportation.”).
8
  JA10-14.

                                             3
their analyses, Edwin’s case is severely undermined by (1) his statement to Border Patrol

upon entering the United States that he was coming here to “get ahead in life” and (2) his

family’s continued residence in Honduras since he left.9 Edwin simply has not

demonstrated that it is “more likely than not” that he will be subjected to persecution if

returned to Honduras10 due to the Honduran government’s alleged acquiescence to MS-

13’s violence.11 In a point-by-point review of Edwin’s evidence, the BIA determined the

IJ’s unchallenged factual findings were not clearly erroneous while bearing in mind the

country conditions reports submitted by the Petitioners.12 We find the BIA’s review is

supported by substantial evidence.

       As to Edwin’s CAT claim,13 the BIA’s opinion evidences a substantially similar

thorough review of the record before affirming the IJ’s factual findings regarding no past

torture or government acquiescence.14 There is substantial record evidence supporting

the BIA’s factual findings and no legal error with the BIA’s ultimate conclusion that

Edwin failed to demonstrate an entitlement to relief under CAT.




9
  Franklin A.R. at 235.
10
   See 

.
11
   JA10-14.
12

(deferring removal is mandatory where a noncitizen produces
sufficient evidence establishing he suffered “(1) an act causing severe physical or mental
pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a public official who has
custody or control of the victim; and (5) not arising from lawful sanctions”) (quoting
Auguste v. Ridge, 

, 151 (3d Cir. 2005)).
14

        Thus, as to Edwin’s withholding-of-removal and CAT claims, we hold that he

failed to demonstrate an entitlement to either by a preponderance of the evidence.

        Finally, as to Franklin’s remaining claim for withholding of removal, he argues

that the BIA erred in denying him relief due to a misplaced reliance on Matter of A-B-15

when considering what constitutes government acquiescence.16 Franklin’s primary

argument is that Matter of A-B- is no longer good law after the injunction issued in Grace

v. Whitaker,17 where the District Court of the District of Columbia held that the case

evidences the Attorney General’s inaccurate interpretation of the Administrative

Procedures Act and Immigration and Nationality Act under Chevron v. Natural

Resources Defense Council.18 We need not address that claim here to affirm the BIA’s

order. Whether we apply the “unable or unwilling to control,” “condoned,” or “complete

helplessness” standards for government acquiescence, substantial evidence supports the

unchallenged findings relied upon by the BIA when determining that the evidence

presented by Franklin on this element failed to demonstrate an entitlement to withholding

of relief.




15
   27 I. & N. Dec. 316 (A.G. 2018).
16
   Appellees’ Br. at 45, 56.
17
   

, 105 (D.D.C. 2018).
18
   

(1984).

                                             5
                                                II.
           For the foregoing reasons, we will dismiss Franklin’s petition for review as to his

withholding claim and grant his petition as to his CAT claim while remanding for further

review in accordance with this Opinion. We will dismiss Edwin’s petition for review in

total.19




19
     The Respondent’s motion to waive filing paper copies of the transcript is granted.

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