Olano-Gonzalez v. Lynch , 646 F. App'x 117 ( 2016 )

14-1103
Olano-Gonzalez v. Lynch
BIA
Cheng, IJ
A087 945 991
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
21st day of April, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
JOSE MARIA OLANO-GONZALEZ,
Petitioner,
v. 14-1103
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Anne Pilsbury; Rebecca Press,
Central American Legal Assistance,
Brooklyn, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Kohsei
Ugumori, Senior Litigation Counsel;
Jesse Busen, 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
DENIED.
Petitioner Jose Maria Olano-Gonzalez, a native and citizen
of El Salvador, seeks review of a March 25, 2014 decision of
the BIA affirming an August 28, 2012 decision of an Immigration
Judge (“IJ”) denying Olano-Gonzalez’s application for
withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Jose Maria Olano-Gonzalez, No. A087 945
991 (B.I.A. Mar. 25, 2014), aff’g No. A087 945 991 (Immig. Ct.
N.Y. City Aug. 28, 2012). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We review the IJ’s decision as modified by the BIA. See
Flores v. Holder, 779 F.3d 159, 163 (2d Cir. 2015). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
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I. Nexus
The agency denied withholding of removal, finding that
Olano-Gonzalez failed to establish that his “life or freedom
would be threatened” in El Salvador on account of a protected
ground, specifically, his political opinion. 8 U.S.C.
§ 1231(b)(3)(A). The protected ground must be “one central
reason for” the claimed persecution. 8 U.S.C. §§
1158(b)(1)(B)(i) (setting “one central reason” standard for
asylum); 1231(b)(3)(C) (applying asylum standard to
withholding of removal). In support of his claim that the
BIA erred, Olano-Gonzalez argues that the MS-13 gang, which
threatened him before he came to the United States, is, in
effect, a surrogate government in El Salvador. Thus, according
to Olano-Gonzalez, when he began cooperating with the police
after MS-13 kidnapped his nephew to extract a ransom, MS-13
viewed his conduct as a challenge to its power, and the
escalation of the threats against him was retaliation for what
MS-13 perceived to be Olano-Gonzalez’s anti-gang political
opinion.
Although we agree “that an imputed political opinion,
whether correctly or incorrectly attributed, can constitute a
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ground of political persecution,” Chun Gao v. Gonzales, 424 F.3d
122, 129 (2d Cir. 2005) (quoting Alvarez-Flores v. INS, 909 F.2d
1, 4 (1st Cir. 1990)), the agency did not err in ruling that
Olano-Gonzalez failed to show that MS-13 was or will be
motivated by what it perceives to be Olano-Gonzalez’s political
opinion. Instead, the agency reasonably concluded that the
evidence showed that MS-13 was motivated only by a desire to
obtain ransom money. Olano-Gonzalez is correct that “the
conclusion that a cause of persecution is economic does not
necessarily imply that there cannot exist other causes of the
persecution,” Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994),
but he did not present evidence that MS-13 targeted him because
it viewed his cooperation with the police as a stance against
the gang’s power, as opposed to mere interference with the
gang’s extortion efforts.
Olano-Gonzalez relies on Delgado v. Mukasey, 508 F.3d 702
(2d Cir. 2007), to argue otherwise, but that case is
distinguishable. Delgado refused to assist FARC, a terrorist
organization seeking to overthrow the Colombian government,
because she opposed its tactics in seeking to achieve its
political goals and feared that the FARC would discover that
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she belonged to a rival political party. Id. at 704, 707.
Under those circumstances, we found that the BIA “erred in not
discussing [Delgado’s] imputed political opinion claim.” Id.
at 707. Olano-Gonzalez has not submitted similar evidence
here, and in any event, the IJ and BIA did consider his claim
that MS-13 could have been motivated both by economic gain and
by Olano-Gonzalez’s perceived political opinion.
II. CAT Relief
Olano-Gonzalez also challenges the denial of CAT relief.
To establish eligibility for CAT relief, an applicant must show
that it is more likely than not that (1) he would be subjected
to the infliction of “severe pain or suffering” (2) “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. § 208.18(a)(1); 8 C.F.R. § 208.16(c)(2); see also
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In 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.”).
Here, the BIA affirmed the IJ’s findings (1) that the country
condition reports that Olano-Gonzalez submitted failed to
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establish that the Salvadoran government was more likely than
not to acquiesce in Olano-Gonzalez’s torture and (2) that
Olano-Gonzalez’s testimony as to his personal experience
undercut any claim of government acquiescence.1 Olano-Gonzalez
argues that the former conclusion is contrary to the record and
that the latter conflicts with our decision in De La Rosa v.
Holder, where we observed that “it is not clear . . . why the
preventative efforts of some government actors should foreclose
the possibility of government acquiescence, as a matter of law,
under the CAT.” 598 F.3d 103, 110 (2d Cir. 2010).
We find no error in the BIA’s determination that the country
condition evidence failed to establish a likelihood that the
Salvadoran government would acquiesce in Olano-Gonzalez’s
torture. We review the agency’s factual findings for
substantial evidence and will overturn a finding only if “any
reasonable adjudicator would be compelled to conclude to the
contrary.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir.
2008) (per curiam) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Although there is some evidence in the record that corruption
1
Olano-Gonzalez testified that the Salvadoran authorities
prosecuted a person connected to the kidnapping and also traced
the phone calls of a person harassing Olano-Gonzalez’s family.
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in El Salvador facilitates gang activity, there is also evidence
that the government has made an active effort to combat the
dangers that Olano-Gonzalez claims he will face. Resolution
of this type of conflicting evidence is a task for the agency,
not this Court, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 171
(2d Cir. 2008), and we will not disturb the agency’s finding
here. Having concluded that Olano-Gonzalez failed to
establish that the Salvadoran government would, in general,
acquiesce in his torture, we have no need to consider the
relevance of the specific police assistance he received and the
scope of our decision in De La Rosa.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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