Filed: Oct. 20, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1708 SELVIN SANTOS MORENO, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 16, 2015 Decided: October 20, 2015 Before KING, KEENAN, and FLOYD, Circuit Judges. Petition for review denied by unpublished opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Floyd joined. ARGUED: Jim Melo, U.S. COMMITTEE FOR
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1708 SELVIN SANTOS MORENO, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 16, 2015 Decided: October 20, 2015 Before KING, KEENAN, and FLOYD, Circuit Judges. Petition for review denied by unpublished opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Floyd joined. ARGUED: Jim Melo, U.S. COMMITTEE FOR R..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1708
SELVIN SANTOS MORENO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 16, 2015 Decided: October 20, 2015
Before KING, KEENAN, and FLOYD, Circuit Judges.
Petition for review denied by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Floyd joined.
ARGUED: Jim Melo, U.S. COMMITTEE FOR REFUGEES & IMMIGRANTS,
Raleigh, North Carolina; Allison Lukanich, MELO & HURTADO PLLC,
Raleigh, North Carolina, for Petitioner. Timothy G. Hayes,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Kevin Schroeder, Nitin Kumar Goyal, MELO
& HURTADO PLLC, Raleigh, North Carolina, for Petitioner. Joyce
R. Branda, Acting Assistant Attorney General, Civil Division,
Keith I. McManus, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Petitioner Selvin Santos Moreno, a citizen of Honduras,
seeks review of a decision of the Board of Immigration Appeals
(BIA) dismissing his appeal from an immigration judge’s (IJ)
order of removal. The IJ ordered that Santos Moreno be removed
from the United States, concluding that he was not eligible for
asylum, withholding of removal, or protection under the
Convention Against Torture (CAT). Santos Moreno argued before
the IJ and the BIA that he fears persecution if returned to
Honduras, based on his membership in a particular social group
he defined as “Hondurans who have been targeted by the police
and their criminal associates to engage in drug trafficking.”
The BIA, relying in part on the IJ’s opinion, concluded that
Santos Moreno failed to establish the required nexus between the
harm he fears and his status as a member of a particular social
group. Upon our review, we conclude that the BIA’s holding is
supported by substantial evidence and, therefore, we deny Santos
Moreno’s petition for review.
I.
Santos Moreno entered the United States without inspection
in February 2011, and was apprehended at the border by United
States Customs and Border Patrol agents. An asylum officer
interviewed Santos Moreno and concluded that he had shown a
3
credible fear of persecution. Shortly thereafter, the
Department of Homeland Security issued a notice to appear,
charging Santos Moreno with removability.
In removal proceedings before the IJ, Santos Moreno
conceded his removability but sought asylum, withholding of
removal, and protection under CAT. Santos Moreno argued that he
is entitled to asylum because he was persecuted by a police
officer in Honduras on account of Santos Moreno’s membership in
a particular social group, namely, “Hondurans who have been
targeted by the police and their criminal associates to engage
in drug trafficking.”
Santos Moreno testified that while working as a bus driver
in Honduras in 2010, he stopped regularly at a police
“checkpoint” where he became friendly with a police officer
named Vasquez. Nearly a year after their first meeting, Officer
Vasquez asked Santos Moreno if he would transport packages
containing drugs, and stated that the work would be lucrative
for Santos Moreno. Santos Moreno refused.
According to Santos Moreno, about two weeks later, Vasquez
and two other persons dressed in civilian clothes boarded Santos
Moreno’s bus. When Santos Moreno reiterated that he would not
participate in transporting drugs, Vasquez beat Santos Moreno
with a gun and his fists until Santos Moreno lost consciousness.
When he revived, Santos Moreno returned his bus to the station
4
and “took a cab” to a family member’s home, where he remained
for about two months until he left Honduras for the United
States. He did not seek medical treatment prior to his
departure and never reported the incident to the police.
Santos Moreno further testified that after his departure
from Honduras, unknown individuals approached his former
employer and his family members inquiring about his whereabouts.
His family members later moved to a different part of Honduras,
and have not received any further communications from these
unknown persons.
The IJ denied Santos Moreno’s application for asylum. The
IJ identified several issues regarding Santos Moreno’s
credibility, but ultimately deemed him credible. However, the
IJ rejected Santos Moreno’s definition of the “particular social
group” that formed the basis of his mistreatment. The IJ
concluded that the defined group, “Hondurans who have been
targeted by the police and their criminal associates to engage
in drug trafficking,” reflected circular reasoning, in that the
social group was defined by the alleged persecution its members
suffered. The IJ also determined that Vasquez acted in his
personal capacity when targeting Santos Moreno, due to their
friendship and because Santos Moreno was in a position to assist
Vasquez in his criminal enterprise. The IJ therefore concluded
that Santos Moreno had not proved that he suffered any harm on
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account of a protected ground and ordered his removal from the
United States.
The BIA dismissed Santos Moreno’s appeal from the IJ’s
decision. Citing the IJ’s conclusion that Santos Moreno’s
defined social group was based on circular reasoning, the BIA
“agree[d] with the [IJ] that [Santos Moreno] did not submit
sufficient evidence to establish the required nexus between the
harm he fears and his status as a member of a particular social
group whose members have faced persecution based on a protected
ground.” The BIA also stated that “[t]here is no evidence to
suggest that Vasquez was acting in [a] police capacity, or was
part of a larger police conspiracy, at the time he asked the
respondent to be a drug courier.” This petition for review
followed.
II.
In his petition, Santos Moreno argues that the BIA erred in
concluding that he did not belong to a particular social group.
Santos Moreno contends that the BIA’s failure to identify
properly his proposed social group also caused the BIA to err in
concluding that he had failed to establish a nexus between the
harm he fears and his proposed social group. Santos Moreno
further asserts that the BIA improperly collapsed the state
actor requirement into its analysis whether such a nexus
6
existed, and wrongly concluded that Officer Vasquez was not a
state actor. Finally, Santos Moreno contends that the BIA
provided insufficient analysis in concluding that he had failed
to establish the required nexus, that he had not shown past
persecution, and that he did not have a well-founded fear of
future persecution. We disagree with Santos Moreno’s arguments.
A.
On a petition for review of a BIA decision holding that an
applicant is ineligible for asylum, we may vacate a denial of
asylum only if it is “manifestly contrary to law and an abuse of
discretion.” 8 U.S.C. § 1252(b)(4)(D). In making this
determination, we consider the whole record, asking “whether the
BIA’s ruling is supported by reasonable, substantial, and
probative evidence.” Ngarurih v. Ashcroft, 371 F.3d 182, 188
(4th Cir. 2004). We will reverse the BIA’s determination only
if the petitioner “presented evidence that was so compelling
that no reasonable factfinder could fail to find the requisite
fear of persecution.”
Id.
An applicant seeking asylum must show that he is unable or
unwilling to return to his home country “because of persecution
or a well-founded fear of persecution on account of” a protected
ground, namely, “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). Such persecution occurs “on account of” a
7
protected ground if the protected ground was “at least one
central reason for” the persecution. 8 U.S.C. § 1158(b)(1)(B)(i)
(citing 8 U.S.C. § 1101(a)(42)(A)).
B.
As an initial matter, Santos Moreno contends that the BIA
erred by mischaracterizing his proposed social group as
“Hondurans who are pressured into running drugs,” as opposed to
“Hondurans who have been targeted by the police and their
criminal associates to engage in drug trafficking.” We find no
merit in this argument. Santos Moreno used the challenged
definition himself in his brief submitted to the BIA and, thus,
we will not permit him to assign error to his own formulation.
Nevertheless, we will rely on Santos Moreno’s preferred language
in evaluating the BIA’s determination regarding the validity of
the proposed social group.
Membership in “a particular social group” is a protected
ground if that group is “a group of persons all of whom share a
common, immutable characteristic.” Crespin-Valladares v.
Holder, 632 F.3d 117, 124 (4th Cir. 2011). We agree with the
BIA’s conclusion that Santos Moreno’s proposed “particular
social group” is impermissible because it is defined based on
8
circular reasoning. 1 Santos Moreno has proposed a “particular
social group” that is defined after-the-fact by what happened to
him and only him. Santos Moreno cannot identify any other
members of this group, nor can he identify anyone else who was
targeted by “the police and their criminal associates” to engage
in unlawful drug activity. In the absence of a properly defined
social group, Santos Moreno has failed to establish the required
nexus between his feared harm and his membership in a
“particular social group.”
Santos Moreno contends, nonetheless, that the BIA
erroneously collapsed the “state actor” requirement into the
determination whether he established a nexus between the harm he
feared and a protected ground. We disagree with this
contention, because Santos Moreno’s definition of his particular
social group required that the BIA use its employed mode of
analysis.
Persecution occurs when the harm is caused “by either a
government or an entity that the government cannot or will not
control.” Crespin-Valladares, 632 F.3d at 128. Typically, the
BIA considers whether someone is a “state actor” in the context
1This Court may consider the IJ’s opinion either when the
BIA adopts the IJ’s opinion without issuing its own decision or
when the BIA adopts some portion of the IJ’s reasoning. See
Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014).
9
of evaluating whether such persecution occurred. Here, however,
Santos Moreno’s ill-defined social group required that the BIA
consider whether Vasquez was a “state actor,” in order to
determine whether there was an established nexus between the
harm Santos Moreno fears in returning to Honduras and his
membership in a particular social group. Because Santos Moreno
defined his particular social group as Hondurans targeted by
“the police and their criminal associates” to aid in drug
trafficking, that definition required the BIA to consider
whether Vasquez was acting on behalf of the police in targeting
a group of people to transport illegal drugs, and whether
Vasquez attacked Santos Moreno on account of his membership in
that group. We therefore conclude that the BIA correctly
incorporated into its nexus analysis the question whether
Vasquez’s role was that of a “state actor” when he solicited
Santos Moreno to engage in illegal drug activity.
We also conclude that substantial evidence supports the
BIA’s conclusion that Vasquez was not a “state actor.” Although
Santos Moreno is correct that some courts have assumed that a
single officer’s actions can satisfy the “state actor”
requirement, see Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088
(9th Cir. 2005), the conclusion does not follow that every time
a single employee of a state inflicts harm on another, the
“state actor” requirement is met. Fear of retribution over
10
purely personal matters will not support an asylum application,
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir.
2004), and this rule remains true even when the personal dispute
involves a person employed by the state, see Zoarab v. Mukasey,
524 F.3d 777, 780-81 (6th Cir. 2008) (determining there was no
nexus established between the purported persecution and a
political opinion, even though the purported harm was inflicted
by a member of the United Arab Emirates royalty, because the
dispute was purely personal); Iliev v. I.N.S.,
127 F.3d 638, 642
(7th Cir. 1997) (concluding that an asylum applicant’s dispute
with a Bulgarian secret service agent was “personal, not
political,” and rejecting the asylum application).
In the present case, the record establishes that Vasquez
targeted Santos Moreno for personal reasons. Santos Moreno
testified that Vasquez tried to recruit Santos Moreno to engage
in transporting illegal drugs because the two men had developed
a friendship. Santos Moreno could not identify any other police
officers who had asked him to engage in such conduct, nor did
Santos Moreno know of any other bus drivers that either Vasquez
or other police officers had targeted for the same purpose.
Perhaps most importantly, Santos Moreno testified that Vasquez
and his conspirators continued to look for Santos Moreno after
he had left his employment out of concern that Santos Moreno
might have identified Vasquez to the police. This assertion by
11
Santos Moreno, that Vasquez was concerned about being identified
to the police, completely undermines Santos Moreno’s core
contention that Vasquez was acting on behalf of the police as a
“state actor.”
We therefore agree that substantial evidence supports the
BIA’s determination that Vasquez attacked Santos Moreno for
refusing to participate in criminal activity unrelated to
Vasquez’s role as a police officer, rather than because Santos
Moreno was a member of a group who had resisted transporting
drugs for the police force. Thus, in the context of Santos
Moreno’s particular claim, because he failed to prove that
Vasquez was a “state actor,” he necessarily failed to
demonstrate a nexus between the harm he suffered and his
membership in a particular social group.
Santos Moreno next argues that the BIA provided
insufficient analysis regarding the question whether he suffered
past persecution or has a well-founded fear of future
persecution. We find no merit in this contention. Because the
BIA concluded that Santos Moreno failed to establish the
necessary nexus between his membership in a particular social
group and the harm he fears, the BIA was not required to analyze
these additional, alternative components of an asylum claim.
We also agree with the BIA’s conclusion that, because
Santos Moreno has failed to establish a nexus between his feared
12
harm and any protected ground that would qualify him for asylum,
Santos Moreno cannot meet the more stringent standard for
withholding of removal. See Chen v. U.S. I.N.S., 195 F.3d 198,
205 (4th Cir. 1999) (determining an applicant is ineligible for
withholding of removal based on the conclusion that he did not
qualify for asylum). And, finally, although Santos Moreno does
not address the BIA’s holding with respect to the CAT, we find
no error in the BIA’s conclusion that Santos Moreno does not
qualify for protection under the CAT, because he did not show
that he likely would face torture by or with the acquiescence of
the Honduran government. 8 C.F.R. § 1208.16(c)(2).
III.
For these reasons, we deny Santos Moreno’s petition for
review.
PETITION FOR REVIEW DENIED
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