Filed: Apr. 03, 2020
Latest Update: Apr. 03, 2020
Summary: NOT FOR PUBLICATION FILED APR 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARCO MONTOYA, AKA Marco No. 17-72293 Montaoya, AKA Marco Tulio Montoya Muncada, Agency No. A200-431-965 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 1, 2020** Pasadena, California Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,*** Dist
Summary: NOT FOR PUBLICATION FILED APR 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARCO MONTOYA, AKA Marco No. 17-72293 Montaoya, AKA Marco Tulio Montoya Muncada, Agency No. A200-431-965 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 1, 2020** Pasadena, California Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,*** Distr..
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NOT FOR PUBLICATION FILED
APR 3 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO MONTOYA, AKA Marco No. 17-72293
Montaoya, AKA Marco Tulio Montoya
Muncada, Agency No. A200-431-965
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 1, 2020**
Pasadena, California
Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Yvonne Gonzalez Rogers, United States District Judge for
the Northern District of California, sitting by designation.
Petitioner Marco Montoya (“Petitioner”), a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his
appeal from an Immigration Judge’s (“IJ”) final order of removal. Petitioner
argues the BIA erred in denying his application for withholding of removal under
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §
1252. We grant Petitioner’s petition for review.
The BIA affirmed the IJ’s determination that Petitioner testified credibly to
past torture in Honduras by a gang that kidnapped, beat, and sexually assaulted
him, and to credible extortion and death threats sent by the same gang to Petitioner
at multiple homes as he moved to try to evade the gang. The IJ found Petitioner
could not relocate anywhere in the country. The BIA affirmed the IJ’s
determination that Petitioner’s expert witness Dr. Ungar was credible; he testified
that the police in Honduras do not investigate extortion or kidnapping if the victim
is released alive, and instead they allocate their limited resources to investigating
murder. Dr. Ungar testified that the government of Honduras has attempted to
combat gang violence and has reduced crime statistics for murder and drug
trafficking, areas where they have focused their resources. However, the BIA
determined that Petitioner was not eligible for withholding of removal under CAT,
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because he had not shown that if he were returned to Honduras, he would more
likely than not be tortured with the acquiescence of a public official.
The court reviews the BIA’s decision in its entirety and the IJ’s decision to
the extent it was adopted by the BIA. Garcia-Martinez v. Sessions,
886 F.3d 1291,
1293 (9th Cir. 2018). The court reviews the agency’s factual findings for
substantial evidence and its legal conclusions de novo. Bringas-Rodriguez v.
Sessions,
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted).
Substantial evidence means the factual finding is “supported by reasonable,
substantial, and probative evidence in the record.” Melkonian v. Ashcroft,
320
F.3d 1061, 1065 (9th Cir. 2003). Under this standard, this court “may only reverse
the agency’s determination where ‘the evidence compels a contrary conclusion
from that adopted by the BIA.’” Parada v. Sessions,
902 F.3d 901, 908–09 (9th
Cir. 2018) (quoting Afriyie v. Holder,
613 F.3d 924, 931 (9th Cir. 2010)).
“To demonstrate eligibility for withholding of removal under the CAT, an
alien must show that it is ‘more likely than not’ that a government official or
person acting in an official capacity would torture him or aid or acquiesce in his
torture by others.” Wakkary v. Holder,
558 F.3d 1049, 1067–68 (9th Cir. 2009)
(citing Kamalthas v. INS,
251 F.3d 1279, 1283 (9th Cir.2001); 8 C.F.R. §§
208.16(c)(2), 208.18(a)(1)). The alien must show that “he would be subject to a
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‘particularized threat of torture.’” Dhital v. Mukasey,
532 F.3d 1044, 1051 (9th
Cir. 2008) (citation and emphasis omitted). Additionally, a petitioner must show
that the torture was “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.”
Zheng v. Ashcroft,
332 F.3d 1186, 1188- (9th Cir. 2003) (quoting 8 C.F.R.
§ 208.18(a)(1)). Acquiescence is defined as the “willful blindness” of public
officials “to the torture of their citizens by third parties.”
Id. at 1196.
“[T]he CAT regulations cast a wide evidentiary net, providing that ‘all
evidence relevant to the possibility of future torture shall be considered.’”
Wakkary, 558 F.3d at 1068 (quoting 8 C.F.R. § 1208.16(c)(3)). This includes:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human
rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the
country of removal.
8 C.F.R. § 1208.16(c)(3). To show a particularized threat of torture, the alien must
provide “evidence establishing ‘substantial grounds for believing that he [or she]
would be in danger of being subjected to torture’ in the country of removal.”
Kamalthas, 251 F.3d at 1284 (citing U.N. Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment art. 3, para. 1).
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The agency found Petitioner testified credibly about the death threats and
extortion attempts by the same gang that had kidnapped him. Further, the agency
found Petitioner could not safely relocate anywhere in Honduras. The gang’s
threats were not idle threats. The kidnappers had shown they were willing to carry
out the threats they made against Petitioner as they had kidnapped, tortured, and
extorted him before, and then they tracked him down to continue to extort and
threaten him.
The record evidence and the agency’s factual findings compel the
conclusion that Petitioner established he faces a particularized risk of torture if he
is returned to Honduras.
To show acquiescence to torture by a public official, the alien must show
that the official is aware of the activity and breaches his “legal responsibility to
intervene to prevent such activity.”
Zheng, 332 F.3d at 1194 (quoting 8 C.F.R.
§ 208.18(a)(7)). The alien is not required to show that the official “knowingly
acquiesced” to the activity or “willfully accepted” it.
Id. The government’s
ineffectiveness in investigating and solving crime does not suffice to show
acquiescence. Garcia-Milian v. Holder,
755 F.3d 1026, 1034 (9th Cir. 2013). The
government’s “inability to bring the criminals to justice is not evidence of
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acquiescence, as defined by the applicable regulations.” Andrade-Garcia v. Lynch,
828 F.3d 829, 836 (9th Cir. 2016).
The BIA concluded that the police in Honduras may be ineffective at
combating the crimes to which Petitioner has been subjected, but a showing of
ineffectiveness is not sufficient to show acquiescence, and thus Petitioner had not
met his burden. The IJ reached the same conclusion. However, whether the police
are ultimately ineffective in investigating the types of crimes at issue here is less
relevant than whether they attempt to do so. The agency found as a matter of fact
that they do not make such attempts.
The IJ found Dr. Ungar credible, and he testified that the police in Honduras
would not attempt to investigate the type of criminal activity at issue here. The
salient point is the agency’s finding, based on credible testimony, that the police do
not investigate the types of crimes at issue here, even though they have effectively
investigated other types of crime. Where the police have tried to investigate a
crime, or would have investigated if they had sufficient information, the court has
found that their ineffectiveness or failure to successfully complete the investigation
does not amount to acquiescence. See
Andrade-Garcia, 828 F.3d at 836 (police
investigated the petitioner’s aunt’s death until the petitioner’s cousin declined to
proceed because he doubted the investigation would be successful); see also
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Garcia-Milian, 755 F.3d at 1034 (petitioner reported to police that she had been
beaten and raped, but police couldn’t investigate because she only identified the
perpetrators as masked men). However, where police were aware of tortuous
conduct and turned a blind eye, the court has found acquiescence, even where the
police did not have actual knowledge the petitioner had been tortured. See
Zheng,
332 F.3d at 1192 (granting petition for review and remanding when the police were
aware of human traffickers’ operations and failed to stop them but may have
lacked actual knowledge of the torture to which the victims were subjected).
Here, the question is not whether the police in Honduras would have been
effective had they investigated. Rather, it is that the agency deemed credible
expert testimony that the police in Honduras do not investigate the type of criminal
conduct to which Petitioner was subjected. This constitutes acquiescence. See
Zheng, 332 F.3d at 1192.
The court grants Petitioner’s petition for review, vacates the BIA’s decision,
and remands this case to the BIA for further proceedings consistent with this
decision.
PETITION FOR REVIEW GRANTED.
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