Celedon-Herrera v. Lynch , 627 F. App'x 6 ( 2015 )

13-2404
Celedon-Herrera v. Lynch
BIA
Poczter, IJ
A200 615 405
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 11th day of September, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 WALTER U. CELEDON-HERRERA,
14 Petitioner,
15
16 v. 13-2404
17 NAC
18
19 LORETTA E. LYNCH,* UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Heather Yvonne Axford, Central
25 American Legal Assistance,
26 Brooklyn, New York.
27
28 *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
29 General Loretta E. Lynch is automatically substituted for former
30 Attorney General Eric H. Holder, Jr.
31
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; John S. Hogan,
3 Senior Litigation Counsel; Rebecca
4 Hoffberg Pjillips, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 GRANTED.
13 Petitioner Walter U. Celedon-Herrera, a native and
14 citizen of Honduras, seeks review of a May 20, 2013, decision
15 of the BIA affirming a January 27, 2012, decision of an
16 Immigration Judge (“IJ”) denying Celedon-Herrera’s application
17 for asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Walter U.
19 Celedon-Herrera, No. A200 615 405 (B.I.A. May 20, 2013), aff’g
20 No. A200 615 405 (Immig. Ct. N.Y. City Jan. 27, 2012). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we have considered
24 both the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
26 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 I. Asylum and Withholding of Removal
4 In support of his asylum and withholding of removal claims,
5 Celedon-Herrera asserted that MS-13 gang members in Honduras
6 threatened and robbed him, and murdered his nephew and
7 step-niece on account of their membership in the particular
8 social group of the family of Celedon-Herrera’s murdered
9 brother Ramon (against whom the gang had a vendetta). To
10 establish eligibility for asylum or withholding of removal, an
11 applicant must show past persecution or a well-founded fear or
12 likelihood of future persecution on account of race, religion,
13 nationality, membership in a particular social group, or
14 political opinion. See Ramsameachire v. Ashcroft, 357 F.3d
15 169, 178 (2d Cir. 2004). “Private acts can [] constitute
16 persecution if the government is unable or unwilling to control
17 such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).
18 Here, the agency provided the following three alternative
19 bases for denying asylum and withholding of removal:
20 (1) Celedon-Herrera failed to demonstrate past persecution or
21 a well-founded fear of future persecution; (2) he failed to
22 establish that the harm he suffered and fears was on account
3
1 of his membership in a particular social group; and (3) he did
2 not demonstrate that the Honduran government is unable or
3 unwilling to protect him. Because the agency erred in making
4 each of these determinations, remand is required.
5 Although the agency reasonably determined that
6 Celedon-Herrera had not suffered past persecution based on
7 harm to his relatives and unfulfilled threats, see Shi Liang
8 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007);
9 Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir. 2006),
10 it erred in its determination that his fear of future harm was
11 not objectively reasonable, see Diallo v. INS, 232 F.3d 279,
12 284 (2d Cir. 2000) (providing that a fear is objectively
13 reasonable “even if there is only a slight, though discernible,
14 chance of persecution.” (citing INS v. Cardoza-Fonseca, 480
15 U.S. 421, 431 (1987))). We have recognized that the agency may
16 question the objective reasonableness of an applicant’s claimed
17 fear of persecution when similarly situated relatives remain
18 unharmed in their native country. See Melgar de Torres v. Reno,
19 191 F.3d 307, 313 (2d Cir. 1999).
20 Here, the agency found Celendon-Herrera’s fear of harm
21 diminished because his parents and sisters remain unharmed in
22 Honduras. However, it failed to recognize that
4
1 Celedon-Herrera’s father is not similarly situated (he is not
2 Ramon’s father and thus is not a member of the proposed social
3 group) and that, unlike Celedon-Herrera, his sisters (Ramon’s
4 half-sisters) did not have a close relationship with Ramon or
5 even attend his funeral. Therefore, because Ramon’s son and
6 step-daughter were murdered and Ramon’s widow fled to El
7 Salvador, Celedon-Herrera’s mother is the only close relative
8 of Ramon who remains unharmed in Honduras. We cannot
9 “confidently predict” that the agency would find this fact
10 alone sufficient to determine that Celedon-Herrera’s fear of
11 persecution was not objectively reasonable. Xiao Ji Chen v.
12 U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).
13 The agency also erred in its determination that the harm
14 Celedon-Herrera feared was not on account of a protected
15 ground. We have recognized that kinship ties or membership in
16 a family “may form a cognizable shared characteristic for a
17 particular social group.” Vumi v. Gonzales, 502 F.3d 150, 155
18 (2d Cir. 2007). And, “asylum may be granted where there is more
19 than one motive for mistreatment, as long as at least one
20 central reason for the mistreatment is on account of a protected
21 ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)
22 (internal quotation marks omitted).
5
1 Although the agency assumed that a family is a cognizable
2 social group, it erred in determining that gang members targeted
3 Celedon-Herrera solely on account of a personal vendetta
4 without considering the possibility that they were also
5 motivated by his membership in the particular social group of
6 Ramon’s family. As the IJ found, Celedon-Herrera’s credible
7 testimony established that gang members were motivated to
8 murder Ramon for revenge and extortion, which are not protected
9 grounds under the Immigration and Nationality Act. See
10 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007); see also
11 Koudriachova v. Gonzales, 490 F.3d 255, 261-62 (2d Cir. 2007).
12 However, gang members targeted Celedon-Herrera, not
13 because they had a personal vendetta against him, but because
14 he was the brother of Ramon. Indeed, there is nothing in the
15 record to suggest that gang members would have targeted
16 Celedon-Herrera had he not been Ramon’s kin. Accordingly, the
17 agency’s failure to explicitly conduct a mixed motive analysis
18 constitutes reversible error. See Acharya, 761 F.3d at 298-99
19 (“[T]he possibility of multiple motives for persecution
20 precludes this type of either/or approach to evaluating asylum
21 claims.”).
22
6
1 The agency also erred in its determination that the record
2 established that the Honduran government was able and willing
3 to protect Celedon-Herrera from gang members. As the IJ
4 recognized, the country conditions evidence demonstrated that
5 the Honduran government was unable to protect the population
6 from the estimated 70,000 MS-13 gang members in that country.
7 Nevertheless, the agency found it significant that police had
8 arrested four suspects in Ramon’s and his son’s murders and had
9 taken a report when Celedon-Herrera’s store was robbed.
10 However, the agency failed to adequately explain how these
11 arrests demonstrated the police’s ability to protect
12 Celedon-Herrera. Arrested gang members are able to
13 communicate with members outside of prison, and, despite those
14 arrests, police were unable to protect Ramon’s stepdaughter
15 from being murdered on the front porch of her home (where Ramon’s
16 widow was living). And the police did not arrest anyone for
17 that murder. Furthermore, there is nothing to suggest that the
18 police took any action beyond writing a report in
19 Celedon-Herrera’s robbery case. Accordingly, the agency
20 failed to adequately explain its determination that police are
21 able and willing to protect Celedon-Herrera. See Pan, 777
22 F.3d at 544-45.
7
1 II. CAT Relief
2 The act of torture is defined as “‘any act by which severe
3 pain or suffering, whether physical or mental, is intentionally
4 inflicted on a person’ . . . by or acquiesced in by government
5 actors.” Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir.
6 2007) (quoting 8 C.F.R. § 208.18(a)(1) and citing CAT art. 1).
7 “[T]orture requires only that government officials know of or
8 remain willfully blind to an act and thereafter breach their
9 legal responsibility to prevent it.” Khouzam v. Ashcroft, 361
10 F.3d 161, 172 (2d Cir. 2004).
11 We have questioned whether “the preventative efforts of
12 some government actors should foreclose the possibility of
13 government acquiescence, as a matter of law, under the CAT.”
14 De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010).
15 Where a government contains officials that would be
16 complicit in torture, and that government, on the whole,
17 is admittedly incapable of actually preventing that
18 torture, the fact that some officials take action to
19 prevent the torture would seem neither inconsistent with
20 a finding of government acquiescence nor necessarily
21 responsive to the questions of whether torture would be
22 inflicted by or at the instigation of or with the consent
8
1 or acquiescence of a public official or other person acting
2 in an official capacity.
3 Id. at 110. (internal quotation marks omitted).
4 Here, as in De La Rosa, the IJ failed to analyze why the
5 prompt response of some police officers in arresting suspects
6 for Ramon’s and his son’s murders was sufficient to overcome
7 the fact (accepted by the IJ) that the Honduran government is
8 unable to control gang violence. This was particularly
9 problematic given that the response did not actually prevent
10 additional murders of Ramon’s family members from occurring.
11 See id. at 110-11.
12 For the foregoing reasons, the petition for review is
13 GRANTED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
22
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