Filed: Nov. 16, 2018
Latest Update: Mar. 03, 2020
Summary: 16-1547 Orellana-Mateo v. Whitaker BIA Straus, IJ A205 379 495 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W
Summary: 16-1547 Orellana-Mateo v. Whitaker BIA Straus, IJ A205 379 495 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI..
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16-1547
Orellana-Mateo v. Whitaker
BIA
Straus, IJ
A205 379 495
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of November, two thousand eighteen.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
ERICK GERMAN ORELLANA-MATEO,
Petitioner,
v. 16-1547
NAC
MATTHEW G. WHITAKER,
ACTING UNITED STATES ATTORNEY
GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Susan N. Masters, Joshua S.
Mirer, Hartford, Connecticut.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Anthony C.
Payne, Assistant Director;
Alexander J. Lutz, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Petitioner Erick German Orellana-Mateo, a native and
citizen of Honduras, seeks review of the BIA’s affirmance of
an Immigration Judge’s (“IJ’s”) denial of Orellana-Mateo’s
application for relief under the Convention Against Torture
(“CAT”). See In re Erick German Orellana-Mateo, No. A 205
379 495 (B.I.A. Apr. 19, 2016), aff’g No. A 205 379 495
(Immig. Ct. Hartford Dec. 8, 2014). Under the circumstances
of this case, we review the IJ’s decision as supplemented by
the BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005), applying well established standards of review, see
Y.C. v. Holder,
741 F.3d 324, 332 (2d Cir. 2013) (reviewing
agency’s legal conclusions de novo and factual findings for
substantial evidence). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
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of this case, which we reference only as necessary to explain
our decision to grant the petition.
To secure CAT relief, Orellana-Mateo must show that
someone in his circumstances is more likely than not to be
tortured if removed. See 8 C.F.R. §§ 1208.16(c), 1208.17;
Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004); Mu-
Xing Wang v. Ashcroft,
320 F.3d 130, 144 (2d Cir. 2003). The
alleged torture must be “inflicted by or at the instigation
of or with the consent or acquiescence of a public official
or other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). “Acquiescence . . . requires that the
public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his or
her legal responsibility to intervene to prevent such
activity.”
Id. § 1208.18(a)(7); see Khouzam v.
Ashcroft, 361
F.3d at 171 (holding that “[i]n terms of state action, torture
requires only that government officials know of or remain
willfully blind to an act and thereafter breach their legal
responsibility to prevent it”).
In assessing the likelihood of torture, “all evidence
relevant to the possibility of future torture shall be
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considered, including, but not limited to . . . [e]vidence of
past torture,” the possibility of relocation within the
country, “[e]vidence of gross, flagrant or mass violations of
human rights . . . and . . . relevant information regarding
conditions in the country of removal.” 8 C.F.R.
§ 1208.16(c)(3); see In re G-A-, 23 I. & N. Dec. 366, 367-68
(B.I.A. 2002) (en banc).
Here, the agency denied Orellana-Mateo CAT relief upon
finding that he failed to show that Honduran police would
acquiesce in physical assaults against him by his
girlfriend’s father, Marvin Leon. In reaching this
conclusion, the agency considered country conditions evidence
reporting high levels of police corruption in Honduras and
credited Orellana-Mateo’s testimony detailing police
participation in criminal activity with Leon. Nevertheless,
because there was evidence of the government taking steps to
combat corruption and of two officers stopping Leon from
killing Orellana-Mateo on a prior occasion, the agency
concluded that the record as a whole failed to show the
requisite government acquiescence in feared torture.
4
While factfinding responsibility is largely within the
agency’s discretion, see Jian Hui Shao v. Mukasey, 546 F.3d
138, 171 (2d Cir. 2008), this court properly considers whether
that factfinding conforms to established legal principles.
This court has frequently remanded cases to the BIA for it to
consider whether “the preventative efforts of some government
actors should foreclose the possibility of government
acquiescence, as a matter of law, under the CAT.” De La Rosa
v. Holder,
598 F.3d 103, 110 (2d Cir. 2010); see Walker v.
Lynch, 657 F. App’x 45, 47–48 (2d Cir. 2016) (summary order);
Pierre v. Lynch, 639 F. App’x 707, 709–11 (2d Cir. 2016)
(summary order); Celedon-Herrera v. Lynch, 627 F. App’x 6, 9
(2d Cir. 2015) (summary order). We do so again here because
the record indicates that (1) the officers who stopped Leon
from killing Orellana-Mateo were themselves involved with
Leon in ongoing criminal activity; (2) the officers had not
stopped Leon from physically attacking Orellana-Mateo,
intervening only when Leon drew a gun; (3) the officers’
intervention to prevent murder may have been prompted more by
a concern for witnesses to the event than by a responsibility
to prevent homicide; (4) the officers did not arrest Leon for
5
attacking and attempting to murder Orellana-Mateo; (5) on
taking Orellana-Mateo home, the officers told him he had
nothing to fear as long as he kept quiet about the ongoing
criminal activities; and (6) Leon did not hesitate to assault
Orellana-Mateo again on an occasion when no officers were
present.
The agency’s decision fails to account for the totality
of these facts or to consider whether, despite their
prevention of murder in the presence of witnesses, police
would effectively acquiesce in that or other torturous
conduct against Orellana-Mateo in the future. See De La Rosa
v. Holder, 598 F.3d at 110 (holding that “preventative efforts
of some government actors” do not clearly “foreclose the
possibility of government acquiescence, as a matter of law,
under the CAT”); Khouzam v.
Ashcroft, 361 F.3d at 171.
For the foregoing reasons, the petition for review is
GRANTED, the BIA’s decision is VACATED, and the case is
REMANDED for further proceedings consistent with this order.
As we have completed our review, any stay of removal that the
Court previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
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DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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