Quintanilla v. Garland ( 2021 )

No. 18-67-ag
Quintanilla v. Garland
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 18-67
RICARDO QUINTANILLA-MEJIA,
AKA RICARDO ELIUD QUINTANILLA-MEJIA,
Petitioner,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
On Appeal from the Board of Immigration Appeals
ARGUED: MARCH 1, 2021
DECIDED: JULY 9, 2021
_____
Before: CABRANES, RAGGI, and SULLIVAN, Circuit Judges.
_____
Ricardo Quintanilla-Mejia petitions for review of a Board of
Immigration Appeals (“BIA”) decision denying his application for
statutory withholding of removal and protection under the
Convention Against Torture (“CAT”). Petitioner faults the agency for
denying relief without the Immigration Judge (“IJ”), (1) on all claims,
ruling expressly as to his credibility; (2) on his withholding claim,
considering the likelihood of his facing life-threatening injury in El
Salvador as a member of a cognizable “social group,” specifically,
(a) “former gang members who actively distance themselves from the
gangs and work to oppose them,” or (b) “individuals working in El
Salvador to rehabilitate youth in order to prevent their joining gangs,”
Pet’r Br. at 10–11; and, (3) on his CAT claim, recognizing that, if
returned to El Salvador, petitioner faces likely torture by the police or
by gangs acting with the acquiescence of the police. The arguments
do not persuade because, first, any failure by the IJ to make an explicit
credibility finding requires no remand because the BIA explicitly
assumed petitioner’s credibility in upholding the IJ’s decision,
consistent with 8 U.S.C. §§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C). Second,
the IJ, sua sponte, effectively considered the social groups identified by
petitioner in this court, and the record evidence considered in light of
controlling precedent does not support, much less compel, the
conclusion that these social groups bear the particularity or social
distinction required for withholding of removal. Third, the record
evidence also does not compel the conclusion that petitioner faces
likely torture either directly by or indirectly with the acquiescence of
Salvadoran police, as required for CAT relief.
PETITION DENIED.
______________
ROBERT GRAZIANO, Buffalo, New York, for
Petitioner.
EVAN P. SCHULTZ (Joseph H. Hunt, Stephen J.
Flynn, on the brief), United States Department of
Justice, Office of Immigration Litigation,
Washington, District of Columbia, for Respondent.
2
REENA RAGGI, Circuit Judge:
Ricardo Quintanilla-Mejia (“Quintanilla”) is a citizen of El
Salvador who has unlawfully entered, or attempted to enter, the
United States four times in twenty years, the last three entries after
removal by federal authorities. He now seeks to avoid another
removal by petitioning this court for review of a 2017 decision of the
Board of Immigration Appeals (“BIA” or “Board”) upholding an
Immigration Judge’s (“IJ”) order authorizing reinstatement of a prior
order of removal. See In re Ricardo Quintanilla-Mejia, No. A077 174 686
(BIA Dec. 26, 2017), aff’g No. A077 174 686 (Immigr. Ct. Batavia
July 27, 2017). Quintanilla maintains that he is entitled to relief from
removal pursuant to 8 U.S.C. § 1231(b)(3)(A), which mandates
withholding of removal “if the Attorney General decides that the
alien’s life or freedom would be threatened” in the country of removal
“because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” He further claims relief
under the Convention Against Torture (“CAT”) because of the
likelihood that, if returned to El Salvador, he will be tortured by police
officials or by members of his former gang with police acquiescence. 1
Quintanilla argues that the agency erred in denying him relief (1) on
all claims, because the IJ did not expressly rule as to Quintanilla’s
credibility; (2) on his withholding claim, because the IJ did not
1 See United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85, 114 (“No State Party shall expel, return (‘refouler’) or extradite a
person to another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.”); see also 8 C.F.R. § 1208.16(c)
(listing standards of eligibility for withholding of removal under CAT).
3
consider the likelihood of Quintanilla facing persecution in El
Salvador as a member of a cognizable “social group,” specifically,
(a) “former gang members who actively distance themselves from the
gangs and work to oppose them,” or (b) “individuals working in El
Salvador to rehabilitate youth in order to prevent their joining gangs,”
Pet’r Br. at 10 2; and (3) on his CAT claim, because the IJ failed to
recognize that Quintanilla faces likely torture by Salvadoran police or
by gangs acting with the acquiescence of the police.
None of the arguments persuades. First, as to credibility, any
failure by the IJ to make an explicit credibility determination does not
require remand because the BIA explicitly assumed petitioner’s
credibility in upholding the IJ’s decision, consistent with 8 U.S.C.
§§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C). Second, as to withholding, the IJ,
sua sponte, effectively considered the social groups now identified by
petitioner on appeal. Further, the record evidence considered in light
of controlling precedent does not support, much less compel, the
conclusion that these social groups bear the particularity or
recognized social distinction required for withholding of removal.
Third, the record evidence also does not compel the conclusion that
2 “The term ‘persecution,’ used in authorizing claims for asylum, 8 U.S.C.
§ 1101(a)(42)(A), see id. § 1158(b)(1)(A)–(B)(i), is frequently also used to reference
the ‘threat’ to ‘life or freedom’ required to secure withholding of removal, id.
§ 1231(b)(3).” Scarlett v. Barr, 957 F.3d 316, 321 n.1 (2d Cir. 2020) (collecting cases).
Thus, we use the word “persecution” throughout this opinion in discussing
Quintanilla’s challenge to the denial of his withholding claim, even though
Quintanilla was not eligible for asylum because he reentered the United States
illegally after having been removed. See 8 U.S.C. § 1231(a)(5); Herrera-Molina v.
Holder, 597 F.3d 128, 139 (2d Cir. 2010) (observing that alien previously removed
from United States is ineligible for asylum but may seek withholding).
4
petitioner faces likely torture either directly by or indirectly with the
acquiescence of Salvadoran police, as required for CAT relief.
Accordingly, we deny the petition for review.
BACKGROUND
I. Quintanilla’s Illegal Entries into the United States
First Entry (1991) and Removal (2000)
Quintanilla first left El Salvador and unlawfully entered the
United States in 1991 when he was 13 years old. That entry was
effected by a smuggler hired by Quintanilla’s older sister, who was
already in this country.
By 1994, Quintanilla was addicted to heroin and a member of
the notorious Mara Salvatrucha gang (“MS-13”) in California.
Quintanilla sold cocaine for the gang in return for heroin. In 1999, he
was convicted in California of unlawful heroin possession. In
February 2000, federal authorities removed Quintanilla from this
country, with strict limits on his ability to return as a result of his
felony drug conviction. See 8 U.S.C. § 1182(a)(9) (prohibiting
removed aliens from entering United States for ten years absent prior
consent of Attorney General).
Second Entry (2001) and Removal (2001)
Within two months of Quintanilla’s removal, his sister again
paid a smuggler to arrange for her brother to enter the United States.
The smuggler, however, abandoned Quintanilla in Mexico, where he
remained until 2001 when he attempted to enter the United States as
a Mexican citizen named “Antonio Silva.” App’x at 168. When a
5
border fingerprint check revealed Quintanilla’s prior California
conviction, federal officials returned him to Mexico.
Third Entry (2001) and Removal (2010)
Within days of his second removal, Quintanilla hired another
smuggler who helped him successfully enter the United States
without inspection later in 2001. After spending a few weeks with
family in California—where he was nominally still on probation for
his 1998 drug conviction—Quintanilla relocated to Michigan, a move
he attributes to his desire to sever all connections to gangs.
Sometime in 2006–07, Quintanilla left Michigan and moved to
Minnesota where family members operated a restaurant. There, he
was twice convicted, first in 2008 on a state charge of drunk driving,
and again that same year on a federal charge of unlawful entry into
the United States. The Department of Homeland Security (“DHS”)
reinstated Quintanilla’s previous order of removal and, in 2010,
removed him to El Salvador. See 8 U.S.C. § 1231(a)(5).
Fourth Entry (2016)
Quintanilla was attempting to enter the United States
unlawfully for a fourth time on October 3, 2016, when federal
immigration officials intercepted him near Hidalgo, Texas. On
October 6, 2016, DHS filed a notice of intent to reinstate his prior
removal order, but because Quintanilla professed a fear for his life if
6
returned to El Salvador, he was referred for interview to an asylum
officer. 3
II. Agency Proceedings Seeking Relief from Removal
The “Reasonable Fear” Interviews
Quintanilla participated pro se in two lengthy telephone
interviews by an asylum officer on November 28, 2016, and on
December 12, 2016. 4 The record of the interviews indicates that
Quintanilla—through an interpreter—stated that he feared returning
to El Salvador because MS-13 members in that country viewed him as
a “traitor” for leaving the gang, attempting to remove his gang
tattoos, and participating in a church program that encouraged
Salvadoran youths not to join or to leave gangs. App’x at 397.5
See 8 C.F.R. § 208.31(b)–(c) (stating that if alien subject to reinstatement of
3
removal order expresses fear of returning to his country, he shall be referred to
asylum officer for interview to determine if alien has “reasonable fear of
persecution or torture”); see also id. § 241.8(e) (excepting aliens expressing
reasonable fear of removal from general requirement that aliens with reinstated
removal orders are not entitled to hearing before IJ prior to removal).
Prior to these interviews, Quintanilla appears to have consulted with
4
Robert Graziano, the same attorney who later represented him before the BIA and
who currently represents him before this court.
5Quintanilla was removing his tattoos with the assistance of Programa
Integral de Remoción de Tatuajes del Instituto Nacional de la Juventud
(“Programa Integral”), which he described as a government-sponsored program
financed by a European non-profit organization. He identified the church group
in which he participated as Iglesias Evangelicas Unidas Para La Paz (“Iglesias
Evangelicas”), where one of his brothers served as president and pastor.
7
Quintanilla stated that after gang members learned, sometime
in 2010–11, of his efforts to remove his tattoos, they repeatedly
threatened his life. To avoid being killed, he left the removal program
and acquiesced in gang demands that he make extortionate “rent”
payments and store guns for the gang. Id. Quintanilla never
complained to the police about these gang actions, explaining that he
believed the Salvadoran police to be corrupt and, in some cases,
complicit with gangs.
Quintanilla claimed that, some years later, in or about October
2015, gang members falsely accused him of stealing an AK-47 firearm
and attempted to beat him to death. Quintanilla survived the beating,
but was hospitalized with serious injuries. When questioned by
police, Quintanilla falsely reported being the victim of a robbery
because he thought police would inform gang members if he filed a
truthful complaint against them. He stated that “neighbors” who had
reported gang extortion demands to the police “were killed because
the police informed the gangs.” Id. at 401.
A few days after Quintanilla’s hospital discharge, gang leader
Sergio Hernandez sought out Quintanilla at his home and attempted
to shoot him. When, instead, Hernandez’s gun jammed, Quintanilla
picked up a knife and stabbed the gang leader in the neck, but did not
kill him. The next day, Quintanilla fled to Mexico explaining, “I
stabbed a powerful person in El Salvador. This person has power all
over El Salvador to tell people what to do to me because of what I did
to him.” Id. at 402. During the second of his reasonable fear
interviews, Quintanilla identified the stabbing incident as the “main
reason” he feared for his life if returned to El Salvador. Id. at 411.
8
After fleeing El Salvador, Quintanilla stayed in Mexico for
approximately a year, during which time he learned from a brother
in El Salvador that Hernandez had issued an “international order” for
Quintanilla’s death. Id. at 398. Asked why he did not seek asylum in
Mexico, Quintanilla explained that he had entered that country
illegally and, except for a cousin, had no family there.
Quintanilla gave conflicting accounts of his interactions with
Salvadoran police. For instance, in his first reasonable fear interview,
Quintanilla stated that police beat him “6 or 7 times leaving church.”
Id. at 403. Nevertheless, he said,
I’m not really afraid of the police because I don’t have a
record there [presumably, El Salvador] so I don’t owe
them anything. I know that they beat me up before, but
I’m not really afraid of that in the future. It’s just a
precaution because there is a war going on between the
gangs and the police.
Id.
In his second interview, Quintanilla said police beat him “two
or three times.” Id. at 409. Reminded by the asylum officer of his
earlier statement that police had beat him six or seven times,
Quintanilla reiterated that “[t]hey beat me like three times but they
were always threatening me.” Id. Asked to clarify whether “[t]he
police were always threatening you,” Quintanilla reversed course:
“The police did not but they were always following me around
because I was tattooed.” Id. Asked if the police had, in fact, beat him
up outside church, Quintanilla stated:
9
I never said the police beat me. I said the gang beat me.
They [presumably, the police] were following me around
because I had the tattoos but they were never able to get
anything against me. If there was ever an occasion that
they wanted to beat me. But they never did anything
violent except hit me but the neighbors defended me.
Id. Asked whether “the police beat you or not,” Quintanilla stated,
“They hit me a few times but not outside of church. It was after I was
making a purchase at the store and I was heading home. . . . Because
I have the tattoos that associate me with being a gang member.” Id.
In the same interview, Quintanilla insisted that he “didn’t say”
in his first reasonable fear interview that police had beat him six or
seven times after leaving church, and that it was “very strange” for
that to be reflected in the asylum officer’s notes because “that didn’t
happen. I said they attempted to beat me many times but my
neighbors supported me and they stopped them.” Id.
Notwithstanding Quintanilla’s contradictory testimony
regarding his interactions with the police in El Salvador, the asylum
officer found Quintanilla to have stated a credible claim for CAT relief
but not for statutory withholding of removal. 6 On December 20, 2016,
6 The difference might be explained by the fact that CAT relief does not
require proof of a nexus element, whereas withholding relief does. See Hong Fei
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (“Unlike asylum and withholding of
removal, CAT relief does not require a nexus to a protected ground.” (internal
quotation marks omitted)).
10
the asylum officer referred Quintanilla to an IJ for an evidentiary
hearing on whether to grant relief from removal.
The IJ Hearing
1. I-589 Form
Before the IJ hearing, on March 16, 2017, Quintanilla submitted
an I-589 Application for Asylum and for Withholding of Removal. In
response to a form inquiry asking whether relief was sought based on
race, religion, nationality, political opinion, membership in a
particular social group, or the CAT, Quintanilla checked only the
boxes for religion and the CAT. On the form, Quintanilla stated that
he had suffered past “physical assaults and verbal abuse,” and also
had “been threatened with death by members of gangs for deciding
to no longer be a gang member, and by government authorities for
being an ex-gang member.” Id. at 278. He stated that he feared future
torture for “four reasons”: (1) “I have renounced the life as a gang
member without aut[h]orization ([which] is not way to get out)”; (2)
“I participated in an integral government program where my gang-
related t[attoos] were removed”; (3) “I participated in a religious
organization that taught against violence and promoted peace; this
organization angered both the government and the several gang[s] of
[E]l Salvador”; and (4) “I have injured a leader of a gang who
attempted to kill me before I left the country and returned to the U.S.”
Id. at 279, 285.
11
2. Hearing Testimony
Appearing pro se before the IJ on June 1, 2017, 7 Quintanilla
provided testimony that was generally, but not entirely, consistent
with the statements he had made at his reasonable fear interviews. As
pertinent here, Quintanilla testified that it was soon after his 2010
removal to El Salvador that he began participating in Programa
Integral’s tattoo-removal program. He submitted a letter from a
program official attesting to his participation from December 2009
through April 2010. Quintanilla stated that, as part of this program,
he gave a video-recorded interview to representatives of the
European sponsoring non-profit organization. He testified that,
although he was promised confidentiality, the Salvadoran
government posted his interview online, which resulted in MS-13
learning of his efforts at rehabilitation and threatening his life.8
Quintanilla recounted that in 2013, the gang “gave an order that all
the former gang members that have been involved in Christian things
or rehabilitation programs . . . had to be killed.” Id. at 176. Quintanilla
stated that, by then, he was working with the Christian church group,
7It appears that Quintanilla was no longer consulting with counsel at this
time because he and his family could not afford attorney’s fees. The IJ had granted
Quintanilla two continuances to secure counsel and provided him with a list of pro
bono counsel.
8 At his reasonable fear interviews, Quintanilla stated that the European
non-profit organization supporting Programa Integral posted his interview online
because “they needed proof they were helping out.” App’x at 410 (“I don’t know
exactly the website but it was going through YouTube.”). Quintanilla told the IJ
he did not have any printouts or still photos from the internet showing his tattoo-
removal interview but that he could obtain them by calling Programa Integral. See
id. at 192 (stating that program was “confidential” but that he could obtain by
calling because “they will listen to my voice and know that it’s me”).
12
Iglesias Evangelicas, “to rescue [youths] from the gangs so they can
be contributing members in the society in El Salvador.” Id. at 178.9
Quintanilla stated that, nevertheless, for some years MS-13
subjected him only to verbal abuse because he paid extortion to and
stored guns for them. 10 Things changed in October 2015 when gang
members accused Quintanilla of stealing an AK-47 firearm.
Quintanilla testified that the accusation was false and only an
“excuse” to beat him to death. Id. at 192. 11 Quintanilla sustained
severe injuries from the beating and was hospitalized. Soon after
Quintanilla’s discharge, the gang leader—angry that Quintanilla had
survived—went to his home and tried to shoot him. When the
9 Quintanilla submitted an undated letter from Luz de Maria de Zetino,
identified as the pastor in charge of Iglesias Evangelicas’s human rights
department, which described Quintanilla as a former employee who had
commendably worked in the church’s violence prevention, rehabilitation, and
reintegration program for at-risk youth.
10 Quintanilla told the IJ that, until 2013, the gang threatened him and
“torture[d him] verbally, psychologically, morally.” App’x at 176. Although he
claimed “physical torture” too, when asked to explain, he said gang members had
called him “a traitor” and other “bad words.” Id. Later in his testimony,
Quintanilla would state that “[t]he gang was always hitting me and torturing me
verbally for almost five years.” Id. at 192.
Asked why a gang as vicious as MS-13 would need an excuse to kill him,
11
Quintanilla stated,
They knew that I was a religious person and that I was working
with youth. But they had to have a good argument to violate the
laws of religion and to be able to kill me. And that’s why they
accused me that I had stolen an AK-47. With that accusation, . . .
they can take me out and kill me.
Id.13
leader’s firearm jammed, Quintanilla “grab[bed] a knife” and stabbed
the leader in the neck, inflicting a non-fatal injury. Id. at 177. The next
day, Quintanilla fled to Mexico.
Quintanilla testified that, if removed to El Salvador, he feared
that his life would be in danger not only from MS-13 but also from
police. Confronted with his reasonable fear interview statement that
he did not fear the police, Quintanilla explained that he had had no
fear of police “at that moment,” but professed to have a fear “in the
future.” Id. at 193–94.
Quintanilla explained that, on three occasions approximately a
year and a half after his 2010 removal to El Salvador, police had tried
to hurt him and to bring him “to a place so I can be killed,” although
they did not in fact do so. Id. at 182. On the first occasion, police
officers professing their own support for rival gang MS-18 tried to
remove Quintanilla from his home, assuming from his tattoos that he
was still affiliated with MS-13. They abandoned that attempt after
Quintanilla’s neighbors intervened. 12 Soon after, police tried to beat
Quintanilla as he was leaving church, stating that they did not believe
that he was now a Christian and no longer a gang member. Finally,
“probably in 2012,” police took Quintanilla to “the crime department
of El Salvador” where they hurt, but did not kill, him, a restraint that
Quintanilla attributed to the fact that his neighbors had taken down
“the plate number and the serial number” of the police vehicle in
12 Quintanilla offered no corroborating evidence from any neighbor,
attributing the omission to neighbors’ fear.
14
which he was taken away and, thus, “were a witness if anything
happened to me.” Id. at 184.
Quintanilla acknowledged that he had no further problems
with the police in the years between 2012 and his 2015 departure from
El Salvador, but he claimed to have heard from his brother that police
were currently arresting former gang members who arrived at the
airport and turning them over to the gangs “[s]o that the gangs can
kill them.” Id. 13
3. The IJ Decision Denying Relief
In a detailed decision dated July 27, 2017, the IJ denied
Quintanilla relief from removal. In so ruling, the IJ observed that he
had considered not only Quintanilla’s testimony, but also his
reasonable fear interview statements, his I-589 filing, and all
documents received in evidence, including the State Department’s
2015 and 2016 Human Rights Country Reports for El Salvador and its
2015 International Religious Freedom Report.
Withholding of Removal
As to withholding, the IJ found that Quintanilla failed to carry
his evidentiary burden as to the required nexus between his professed
13 On this point, Quintanilla offered no corroborating statement from his
brother, nor did he offer other corroborating evidence from any other family
member remaining in El Salvador—three brothers, three sisters, and his parents—
all of whom he claimed had also been threatened by gang members and, as a
result, forced to move from their village to another area. The reported police
misconduct respecting returning gang members also lacked support in either the
State Department’s 2015 or 2016 Human Rights Country Reports for El Salvador,
both of which were received in evidence by the IJ.
15
fear of future harm and a protected ground.14 On his I-589 form,
Quintanilla had indicated that he feared future persecution based on
religion. Nevertheless, the IJ sua sponte considered whether such a
fear might also be based on Quintanilla’s membership in a cognizable
social group. In concluding that it did not, the IJ found that
Quintanilla’s testimony indicated that gang members targeted him to
“enforce their code of conduct and punish [his] infidelity” to the gang.
Id. at 57. But this was insufficient to satisfy withholding’s nexus
element in light of agency precedent instructing that persons who
renounce, reject, or resist gang membership do not constitute a
cognizable “social group.” Id. at 56–57 (citing Matter of W-G-R-,
26 I. & N. Dec. 208 (B.I.A. 2014); Matter of E-A-G-, 24 I. & N. Dec. 591(B.I.A. 2008)).
As to a religion nexus, the IJ found no record evidence “that the
gang had singled [Quintanilla] out on account of his religious
practices.” Id. at 57. Rather, what the gang appeared to object to was
“respondent’s activities of trying to rehabilitate youth” so that they
would leave or not join gangs. Id. While Quintanilla participated in
such activities through a religious organization, the IJ again pointed
to controlling agency precedent instructing that persons engaged in
14 Having found Quintanilla not to have carried his nexus burden for
withholding, the IJ did not address whether he satisfactorily established that the
feared conduct qualified as “persecution” because it was attributable to public
officials, whether directly or indirectly because of their inability or unwillingness
to control gangs. See Scarlett v. Barr, 957 F.3d at 328 (“To qualify as ‘persecution’
the conduct at issue must be attributable to the government, whether directly
because engaged in by government officials, or indirectly because engaged in by
private persons whom the government is unable or unwilling to control.” (internal
quotation marks omitted)).
16
resistance to gangs, whether for “personal, moral, or religious”
reasons, did not constitute a cognizable social group. Id. (citing Matter
of S-E-G, 24 I. & N. Dec. 579 (B.I.A. 2008)).
CAT Relief
As for the CAT, which requires proof of likely torture by or
with the acquiescence of government officials without regard to
nexus, the IJ concluded that Quintanilla was not entitled to relief
because he had indicated “with specificity that he had not been
harmed or beaten by the police” while in El Salvador. Id. at 57–58.
Further, despite Quintanilla’s claim of police corruption, he had
adduced no evidence that the MS-13 members who had harmed
Quintanilla were acting in any official capacity or with official
acquiescence. Finally, citing documentary evidence that the
government of El Salvador was trying to control gang activity, the IJ
found an insufficient evidentiary basis to conclude that police would
turn “a willful blind eye” to gang attacks on Quintanilla if he were
returned to El Salvador. Id. at 58.
Accordingly, the IJ ordered Quintanilla returned to custody for
the government to reinstate its prior order of removal.
4. BIA Upholds Denial of Relief
Quintanilla filed a timely pro se notice of appeal with the BIA.
By the time his brief was due, Quintanilla had secured counsel who
argued on his behalf that the IJ had erred by failing (1) to make an
express determination as to Quintanilla’s credibility, (2) to consider
whether Quintanilla’s activities “trying to rehabilitate youth”
17
identified a cognizable social group, id. at 15 15; (3) to consider whether
the Salvadoran government’s disclosure on social media of
Quintanilla’s participation in a gang-tattoo-removal program
amounted to acquiescence in gang torture; and (4) to consider State
Department findings of corruption in and ineffectiveness by
Salvadoran law enforcement.
In its December 26, 2017 decision rejecting these arguments, the
BIA expressly assumed Quintanilla’s credibility in upholding the IJ’s
determination that Quintanilla failed to carry his evidentiary burden
for relief from removal. As to withholding, the BIA summarized
Quintanilla’s own testimony—that gang members initially threatened
him when they discovered he was trying to remove his gang tattoos;
that Quintanilla then complied with gang demands that he pay
extortion and store gang guns; and that a stolen-gun accusation in
2015 prompted two failed gang attempts to kill him, during the
second of which Quintanilla stabbed his assailant and then fled the
country—and concluded that it did not support a claim of persecution
based on religion.
In reaching the same conclusion with respect to a social-group
nexus, the BIA considered Quintanilla’s membership in three possible
groups: (1) former gang members, (2) former gang members from the
United States who resist and actively act against the gangs, and (3)
15 Before the BIA, counsel argued that Quintanilla had demonstrated a fear
of persecution based on membership in three social groups consisting of
(1) “former gang members from the United States who resist and actively act
against the gangs,” (2) “individuals working in El Salvador to rehabilitate youth
in order to prevent their joining gangs,” and (3) “individuals who have publicly
repudiated their former gang membership.” App’x at 12, 15–16.
18
former tattooed gang members. The BIA concluded that the hearing
record failed to show that any of these groups exhibited the
immutable characteristics, particularity, and social distinction
required by agency precedent to be recognized as a protected social
group under the withholding statute. See id. (collecting cases).
As for CAT relief, the BIA noted both Quintanilla’s admitted
failure to report gang abuse to the police and his “confusing
testimony” about past mistreatment by the police in identifying “no
clear error” in the IJ’s determination that Quintanilla failed to
demonstrate likely future torture by or with the consent or
acquiescence of Salvadoran authorities. Id. (citing Matter of Z-Z-O-,
26 I. & N. Dec. 586 (B.I.A. 2015), to support conclusion that IJ’s
predictive finding as to future event is largely factual and subject to
clear-error review).
Accordingly, the BIA dismissed Quintanilla’s appeal.
III. Petition for Judicial Review
With the assistance of counsel, Quintanilla timely petitioned
this court for review, challenging the agency’s denial of both
withholding and CAT relief, and moving for in forma pauperis status
and a stay of removal pending resolution of his petition. This court
granted Quintanilla’s motions, and we now address his petition.
DISCUSSION
I. Standard of Review
In the circumstances of this case, where Quintanilla was
previously ordered removed for a drug offense, this court lacks
19
jurisdiction to review any final order of removal except for
constitutional or legal challenges. See 8 U.S.C. § 1252(a)(2)(C)
(stripping courts of “jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a
criminal offense covered in” 8 U.S.C. § 1182(a)(2)) 16; id. § 1252(a)(2)(D)
(permitting “review of constitutional claims or questions of law”). In
short, we cannot review purely factual challenges to Quintanilla’s
order of removal. See id. § 1252(a)(2)(C); Nasrallah v. Barr, 140 S. Ct.
1683, 1690 (2020). As the Supreme Court recently clarified, however,
that limitation does not apply to CAT orders, which are not
themselves final orders of removal and do not affect the final validity
of such orders. See Nasrallah, 140 S. Ct. at 1691. Thus, we can review
factual challenges to the order denying Quintanilla CAT relief, but
subject to the “highly deferential” substantial evidence standard. Id.
at 1692. Under that standard, we must uphold agency factfinding
“unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. 1252(b)(4)(B) (emphasis added); see Shunfu Li
v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008) (quoting statute).
In Nasrallah, the Supreme Court expressly “le[ft] for another
day” the question of whether its reasoning as to CAT orders applies
equally to statutory withholding-of-removal orders. 140 S. Ct. at 1694.
While our court has yet to decide the question, we need not do so here
because, even if we assume arguendo that our authority to review
Quintanilla’s withholding challenge is the same as our authority to
16Section 1182(a)(2) states, in pertinent part, that an “alien convicted of . . .
a violation of . . . any law . . . of a State . . . relating to a controlled substance” is
inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Quintanilla’s 1999 removal order was
pursuant to § 1182(a)(2), as a result of his California heroin conviction.
20
review his CAT challenge, we would not grant his petition. See
Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 338 n.2 (2d Cir. 2006)
(declining to address statutory question of jurisdiction where
substance of claim is plainly without merit).
In sum, in explaining why we now dismiss Quintanilla’s
petition, we apply the substantial evidence standard to questions of
fact raised in his withholding and CAT challenges, and de novo review
to all questions of law, including the application of law to facts. See
Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). Finally, because the
BIA expressly adopted the IJ’s reasoning, we review the IJ’s decision
as modified by the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d
268, 271–72 (2d Cir. 2005).
II. Credibility Determination
Quintanilla submits that the IJ erred in denying him relief from
removal without expressly ruling on his credibility. The government
concedes that the IJ did not make an explicit credibility finding, but
argues that this error does not require remand because the BIA
presumed Quintanilla’s credibility on appeal yet still denied relief.
See Resp’t Br. at 21–22; 8 U.S.C. § 1158(b)(1)(B)(iii); see also id.§ 1231(b)(3)(C). We agree. 17
17In his reply brief to this court, Quintanilla professes a willingness to
abandon his lack-of-an-explicit-credibility finding challenge provided that this
court reviews the agency’s denial of relief “with an eye that [Quintanilla]’s
testimony was credible.” Pet’r Reply Br. at 4; see Oral Arg. at 0:34 (confirming
21
The Law Pertaining to Credibility Findings
The IJ’s obligation to assess credibility derives from statute. In
determining an alien’s claim for relief from removal, 8 U.S.C.
§ 1231(b)(3)(C) states that “the trier of fact shall determine whether
the alien has sustained the alien’s burden of proof, and shall make
credibility determinations, in the manner described in clauses (ii) and
(iii) of section 1158(b)(1)(B) of this title.” The referenced subsections
state that (1) the testimony of an alien seeking relief from removal
“may be sufficient to sustain [his] burden without corroboration”
provided it is “credible, is persuasive, and refers to specific facts
sufficient to demonstrate” eligibility for relief, id. § 1158(b)(1)(B)(ii),
and (2) a trier of fact must assess credibility “[c]onsidering the totality
of the circumstances,” id. § 1158(b)(1)(B)(iii). See also 8 C.F.R.
§ 1208.16(b) (stating that applicant’s testimony, “if credible, may be
sufficient to sustain the burden of proof without corroboration”); id.§ 1208.16(c)(2) (same regarding CAT claims).
We have construed these statutory provisions to “require[] a
twofold determination. First, the agency must determine whether the
applicant’s testimony is credible . . . . Second, the agency must
determine whether the applicant has met his or her burden of proof.”
Diallo v. I.N.S., 232 F.3d 279, 290 (2d Cir. 2000). Such a sequential
approach serves to ensure both “that an alien receives the potential
benefit of succeeding on credible testimony alone,” and “that
same). While we are not ourselves obliged to make that assumption, see Garland
v. Ming Dai, 141 S. Ct. 1669, 1678 (2021) (holding that statutory presumption of
credibility applies only to administrative appeal and not to judicial review), to the
extent the BIA did so, we follow suit in explaining herein why we nevertheless
identify no error in the agency’s denial of relief from removal. See infra Part III.C.
22
appellate review of such a determination is preserved.” Zaman v.
Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal quotation marks
omitted).
To “encourage[] the IJ to make specific findings about
credibility,” the law “provides that absent an ‘explicit’ ‘adverse
credibility determination,’ ‘the applicant or witness shall have a
rebuttable presumption of credibility on appeal.’” Garland v. Ming
Dai, 141 S. Ct. 1669, 1677–78 (2021) (internal alterations omitted)
(quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C)).
In Ming Dai, the Supreme Court “le[ft] for another day” the question
of exactly what an IJ “must say or do to furnish” an explicit adverse
credibility determination, holding only that, on appeal, the BIA need
not “follow a particular formula or incant magic words like
‘incredible’ or ‘rebutted’” in rejecting the presumption. Id. at 1679.
This court, however, has held that “the IJ need not engage in robotic
incantations to make clear that he has considered and rejected a
petitioner’s proffered explanation.” Xiao Ji Chen v. U.S. Dep't of Just.,
434 F.3d 144, 160 n.13 (2d Cir. 2006) (internal quotation marks
omitted); see Contreras-Salinas v. Holder, 585 F.3d 710, 715 (2d Cir. 2009)
(denying petition where “apparent from the IJ’s decision that he
found [petitioner’s] evidence to be not credible and outweighed by”
other evidence); cf. Diallo v. I.N.S., 232 F.3d at 287 (identifying error
where IJ who failed to make credibility determination denied relief
based solely on lack of corroboration because law permits applicants
to rely exclusively on their credible testimony).
23
The Agency’s Treatment of Credibility
Applying these principles here, we conclude that Quintanilla
cannot complain of the IJ’s failure to make an explicit adverse
credibility ruling with respect to withholding of removal because the
record convincingly shows that the IJ assumed the credibility of
Quintanilla’s statements as to his 2010–16 experiences in El Salvador
with gangs, rehabilitative organizations, and a church group. Indeed,
the IJ reported Quintanilla’s version of events respectfully and in
some detail in stating that he had “carefully considered the testimony
of the respondent and the documentary evidence of record,” but
“conclude[d] the respondent failed to carry his burden to
demonstrate eligibility” for relief from removal. Id. at 49. Such a
statement is reasonably construed “to mean that[,] even assuming the
applicant to be credible, which the IJ did, the applicant nevertheless
failed to meet his burden of proof.” Gashi v. Holder, 702 F.3d 130, 135
n.3 (2d Cir. 2012) (adopting stated conclusion as reached by BIA); see
Garland v. Ming Dai, 141 S. Ct. at 1680 (explaining that evidence may
be credible without being sufficient).
The same conclusion obtains with respect to that part of
Quintanilla’s CAT claim based on gang violence acquiesced in by
corrupt police. The record convincingly indicates that the IJ made no
adverse credibility ruling but, rather, implicitly assumed the
credibility of Quintanilla’s accounts, see App’x at 58 (acknowledging
“high level of [gang] violence” and reports of “police or military
malfeasance” in El Salvador), in nevertheless finding such evidence
insufficient to carry Quintanilla’s burden.
24
To the extent that Quintanilla also sought CAT relief based on
direct police violence, the record does not clearly indicate whether the
IJ credited or discredited Quintanilla’s numerous inconsistent
statements about past police mistreatment. Rather, the IJ noted the
inconsistencies in finding that Quintanilla failed to carry his burden
of proof. The omission requires no remand, however, because the
BIA explicitly afforded all Quintanilla’s statements the statutory
presumption of credibility and, nevertheless, reached the same
insufficiency conclusion. See Garland v. Ming Dai, 141 S. Ct. at 1680.
Accordingly, we identify no error in the IJ’s failure to make an
explicit finding as to Quintanilla’s credibility because we conclude
from the record that the IJ assumed the credibility of much of
Quintanilla’s testimony, and, in any event, the BIA explicitly afforded
the whole of his testimony the presumption of credibility provided by
8 U.S.C. §§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C) in upholding the denial
of relief from removal.
III. Withholding Relief Based on “Social Group”
Quintanilla also faults the IJ for failing adequately to consider
his eligibility for withholding of removal “because of . . . membership
in a particular social group.” 8 U.S.C. § 1231(b)(3)(A).18 Before this
18 In his principal brief before this court, Quintanilla raises no challenge to
the agency’s denial of withholding based on feared religious persecution. Indeed,
he concedes that omission in his reply brief. See Pet’r Reply Br. at 5 (stating that
“initial argument was that []his religious work fit more appropriately into a
25
court, he challenges the agency’s findings only as to his membership
in “the potential social group of former gang members who actively
distance themselves from the gangs and work to oppose them,” Pet’r
Br. at 10; see Pet’r Reply Br. at 7, and the group of “individuals
working in El Salvador to rehabilitate youth in order to prevent their
joining gangs,” Pet’r Br. at 11. The argument fails because the record
shows that the IJ, (1) did consider – sua sponte – the social groups now
identified by Quintanilla and (2) did not err in concluding that they
did not warrant withholding of removal under § 1231(b)(3)(A).
Waiver
Before explaining that conclusion, we address the
government’s argument that Quintanilla waived a withholding
argument based on any social group because, in agency
proceedings—at least through the IJ hearing—Quintanilla specifically
identified only “religion” as the protected ground for which he
sought relief. Resp’t Br. at 23. We are not persuaded. While
Quintanilla did not expressly employ the phrase “social group” in
pursuing withholding before the IJ, the IJ himself, mindful of
particular social group analysis than religious persecution”). Insofar as
Quintanilla attempts for the first time in his reply brief to appeal the agency’s
rejection of his religious persecution claim, the argument is waived. See Tardif v.
City of New York, 991 F.3d 394, 404 n.7 (2d Cir. 2021) (“[I]ssues raised for the first
time in a reply brief are generally deemed waived.” (internal quotation marks
omitted)). In any event, Quintanilla’s reply brief fails to show how the record
evidence, even assuming its credibility, compelled the conclusion that Quintanilla
“was targeted on account of his religion, any religious preaching, or any [religious]
efforts to get gang members to quit the gang or otherwise rehabilitate them.”
App’x at 4 (upholding IJ finding that evidence did not so reflect); see Cao He Lin v.
U.S. Dep’t of Just., 428 F.3d 391, 400 (2d Cir. 2005) (observing only “evidence that
would compel a contrary conclusion indicates a lack of substantial evidence”).
26
Quintanilla’s then-pro se status, liberally construed the evidentiary
record to assert a fear of future persecution based on both religion and
social group. See Matter of M-D-C-V-, 28 I. & N. Dec. 18, 31 n.16 (B.I.A.
2020) (finding social group claims not waived where IJ construed such
groups for pro se respondent but, nevertheless, declining to reach
issue). Moreover, when Quintanilla’s counsel specifically argued
persecution based on social groups on appeal, the BIA identified no
exhaustion concerns but, rather, addressed the argument on the
merits. In these circumstances, we identify no waiver, and proceed to
consider the petition. See generally Adams v. Holder, 692 F.3d 91, 96 n.2
(2d Cir. 2012) (rejecting exhaustion challenge where BIA construed
alien’s pro se brief implicitly to raise argument).
The IJ Did Consider the Social Groups Now Raised by
Quintanilla
The record shows that the IJ did consider, sua sponte, the very
social groups that Quintanilla now raises on appeal: (1) former gang
members who actively distance themselves from the gang and work
to oppose them, and (2) individuals in El Salvador who work to
rehabilitate youth to prevent their joining gangs.19 This consideration
19 In light of this conclusion, we need not consider the extent to which
Paloka v. Holder, 762 F.3d 191, 198–99 (2d Cir. 2014), relied on by Quintanilla,
permits a petitioner to “refine,” or even to redefine, the social group that was the
basis for his withholding claim before the IJ or the BIA. We note only that in Paloka
we ordered remand so that the agency could, in the first instance, reconsider
petitioner’s claim for relief from removal in light of more recent, controlling
agency precedent clarifying the criteria for recognizing a particular social group.
27
is evident from the IJ’s summary of the evidence on which Quintanilla
now relies to demonstrate his membership in these groups.
Specifically, the IJ detailed Quintanilla’s account of his own
renunciation of gang membership, his publicized participation in a
gang rehabilitation program, and his work with a church group
attempting to rehabilitate young men recruited by gangs. Further, in
concluding that these facts did not support withholding of removal,
the IJ relied on controlling agency precedent declining to identify as
“particular social groups” persons who had renounced or resisted
gang membership, specifically, (1) Matter of W-G-R-, 26 I. & N. Dec. at
221, which held that former members of a Salvadoran gang—there,
Mara 18—who renounced their gang membership did not constitute
a particular social group for purposes of withholding of removal; and
(2) Matter of S-E-G-, 24 I. & N. Dec. at 581, which declined to recognize
as a particular social group persons who “rejected or resisted
membership in . . . gang[s] based on their own personal, moral, and
See id. at 199. It was in that context that we identified as a further reason for
remand the fact that petitioner had “refined her particular social group during her
appeal” to include “a specific age range . . . find[ing] support in the evidence,” that
resulted in “a subclass that is ‘specific’ and subsidiary’ to the broader class first
proposed.” Id. (quoting Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007)). The
same context informed the BIA’s decision to remand to the IJ in Matter of M-E-V-G-,
26 I. & N. Dec. 227, 252 (B.I.A. 2014) (ordering remand where, inter alia,
“[1] respondent’s proposed social group has evolved during the pendency of this
appeal, [2] our guidance on particular social group claims has been clarified since
this case was last before the [IJ],” and [3] DHS did not oppose), a decision which
we relied on in Paloka, 761 F.3d at 198–99. While this case is distinguishable at least
to the extent the IJ had the benefit of the clarifying law referenced in Paloka and
Matter of M-E-V-G-, we need not pursue the question of social-group refinement
further because we conclude that, here, the IJ adequately considered the social
groups now urged by Quintanilla in this court.
28
religious opposition to the gang’s values and activities,” as well as
their family members. To be sure, the IJ employed this language from
Matter of S-E-G- to explain why the religious sponsorship of
Quintanilla’s efforts to prevent young men from joining gangs did not
support his professed fear of persecution based on religion, and the
BIA affirmed for the same reason. But, as Quintanilla himself
acknowledges, even before this court, he has relied on his youth work
sometimes to support feared persecution based on religion, and
sometimes to support feared persecution based on social group.
Thus, the IJ’s citation to Matter of S-E-G- is significant because the
point made in the above-quoted language is that resistance to gangs
in El Salvador no more supports a withholding claim based on
religion than it does a claim based on membership in a social group.
In sum, when we consider the IJ’s recitation of the facts together
with the cases he relied on in denying Quintanilla withholding of
removal based on membership in a social group, we are satisfied that
the IJ considered the groups now identified by Quintanilla.
The IJ Did Not Err in Denying Withholding Based on
Social Group
While Quintanilla complains principally of the IJ’s failure to
consider the social groups he now identifies, he also conclusorily
asserts that these groups possess the particularity and social
distinction requirements for a protected social group. We identify no
error in the agency’s contrary conclusion.
To secure withholding of removal based on a professed fear of
future persecution because of “membership in a particular social
group,” Quintanilla had to demonstrate that (1) his proposed social
29
group was cognizable under 8 U.S.C. § 1231(b)(3)(A), see generally
Paloka v. Holder, 762 F.3d. 191, 195–98 (2d Cir. 2014) (discussing criteria
for identifying “particular social group”); and (2) his persecutors’
motive in threatening his life or freedom was, at least in part,
Quintanilla’s membership in that social group, see Martinez De Artiga
v. Barr, 961 F.3d 586, 593 (2d Cir. 2020) (discussing “nexus”
requirement); Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007)
(observing that in case of mixed motives, applicant need show that
harm was motivated only “in part[] by an actual or imputed protected
ground”). Federal immigration law does not define “membership in
a particular social group,” and this court has acknowledged that the
phrase is sufficiently ambiguous to warrant judicial deference to BIA
interpretation. See Paloka v. Holder, 762 F.3d at 195 (according phrase
Chevron deference, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–43 (1984)). 20
In a series of precedential opinions, the BIA has identified three
criteria, each of which must be satisfied for recognition of a
“particular social group.” Id. at 196 (collecting cases). First, members
of a proposed group must “share a common, immutable
20 The phrase appears to derive from the United Nations Protocol Relating
to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, which itself “largely
incorporated the definition of a refugee contained in . . . the United Nations
Convention Relating to the Status of Refugees,” July 28, 1951, 189 U.N.T.S. 150
(“UN Convention”). Matter of Acosta, 19 I. & N. Dec. 211, 219 & n.5 (B.I.A. 1985).
As the BIA has recognized, neither the UN Convention’s diplomatic history nor
its drafting history sheds light on the “social group” phrase’s intended meaning,
as the drafting committee did not include it in its proposed definition of “refugee.”
Id. at 232. Rather, the language appears to have been “added as an afterthought,”
with no subsequent clarification on adoption. Id.30
characteristic,” i.e., a characteristic that “members of the group either
cannot change, or should not be required to change because it is
fundamental to their individual identities or consciences.” Matter of
Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985). 21 In addition, a second
criteria requires that the identified group be “defined with
particularity,” while a third demands that the group be “socially
distinct within the society in question.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 237 (B.I.A. 2014); see Paloka v. Holder, 762 F.3d at 196. 22 A
social group is sufficiently particular if it “ha[s] definable
boundaries,” i.e., “characteristics that provide a clear benchmark for
determining who falls within the group.” Matter of M-E-V-G-, 26 I. &
N. Dec. at 239. It is socially distinct if “the people of a given society
would perceive a proposed group as sufficiently separate or distinct.”
Id. at 241. While “a persecutor’s perception can be indicative of
whether society views a group as distinct, a persecutor’s perception
alone is not enough,” by itself, “to establish a cognizable social
group.” Paloka v. Holder, 762 F.3d at 196; see Matter of M-E-V-G-, 26 I.
& N. Dec. at 242 (stating that defining particular social group “from
21 Examples of immutable characteristics cited in Matter of Acosta include
“sex, color, or kinship ties, or in some circumstances . . . a shared past experience
such as former military leadership or land ownership.” Id. at 221; see Matter of
M-E-V-G-, 26 I. & N. Dec. at 243, 246 (identifying former employees of Colombia’s
Attorney General’s office and former policemen as sharing immutable
characteristic beyond their capacities to change); but see Matter of Acosta, 19 I. & N.
Dec. at 234 (holding group of Salvadoran taxi drivers who refused to participate
in “guerrilla-sponsored work stoppages” did not share immutable characteristic
because “members of the group could avoid the threats of the guerrillas either by
changing jobs or cooperating in the work stoppages”).
22Both the BIA in Matter of M-E-V-G- and this court in Paloka discuss a series
of controlling BIA precedents establishing these criteria.
31
the perspective of the persecutor is in conflict with our prior holding
that a social group cannot be defined exclusively by the fact that its
members have been subjected to harm” (internal quotation marks
omitted)). Indeed, defining a social group based only on the
perception of the persecutor blurs the distinction between the two
steps of inquiry, the first asking whether a proposed social group is
cognizable, and the second asking whether there is a nexus between
that social group and threatened persecution. See Matter of M-E-V-G-,
26 I. & N. Dec. at 242. Society’s perception ultimately determines the
former, while the persecutor’s motivation determines the latter. See
Paloka, 762 F.3d at 198.
The BIA has frequently applied these principles to cases
involving Central American gangs. In Matter of W-G-R-, relied on by
the IJ here, the BIA concluded that former Mara 18 gang members in
El Salvador who renounced their gang membership did not qualify as
a “particular social group” because such a group is “too broad and
subjective” to satisfy the particularity criterion. 26 I. & N. Dec. at 221.
The Board explained that “when a former association”—such as
former membership in a gang—“is the immutable characteristic that
defines a proposed group, the group will often need to be further
defined with respect to the duration or strength . . . and the recency
of [members’] active participation if it is to qualify as a particular
social group.” Id. at 221–22. Further, in Matter of W-G-R-, the BIA
observed that record evidence also failed to show that the proposed
social group satisfied the social-distinction requirement. See id. at 222
(noting “scant evidence that Salvadoran society considers former
gang members who had renounced their gang membership as a
distinct social group”). While acknowledging “a societal stigma
32
against former gang members because of their tattoos,” the BIA
identified ambiguity as to whether the stigma arose because persons
were known to be “former gang members or because their tattoos
create[d] doubts or confusion about whether they are, in fact, former,
rather than active, gang members.” Id.
The reasoning in Matter of W-G-R- applies equally to
Quintanilla’s case to the extent he claims membership in a social
group of former gang members who renounce their gang
membership. Insofar as he proposes to narrow this group to former
gang members who actively oppose gangs or to persons who
(regardless of former gang association) work to help youths resist
gang membership, the BIA’s reasoning in Matter of S-E-G-, 24 I. & N.
Dec. at 587, also relied on by the IJ here, explains why this does not
assuage particularity and social-distinction concerns. In Matter of
S-E-G-, the BIA acknowledged that “gangs such as the MS-13 retaliate
against those who refuse to join their ranks.” Id. Nevertheless, it
concluded that this was insufficient to identify such persons as a
particular social group because the grim reality in El Salvador is that
“such gangs have directed harm against anyone and everyone
perceived to have interfered with, or who might present a threat to,
their criminal enterprises and territorial power.” Id. In short, persons
who resist gang recruitment efforts in El Salvador are “not in a
substantially different situation from anyone [else in that country]
who has crossed the gang, or who is perceived to be a threat to the
gang’s interests.” Id.
In Matter of M-E-V-G-, the BIA emphasized that Matter of
S-E-G- “should not be read as a blanket rejection of all factual
scenarios involving gangs” because “[s]ocial group determinations
33
are made on a case-by-case basis.” 26 I. & N. Dec. at 251 (citing Matter
of Acosta, 19 I. & N. Dec. at 233). To illustrate, it noted that “a factual
scenario in which gangs are targeting homosexuals may support a
particular social group claim.” Id. Nevertheless, reiterating the
critical point from Matter of S-E-G-, the BIA observed that the very
prevalence of gang violence throughout a country—there,
Honduras—while tragic, may make it difficult to secure relief from
removal under provisions of law limited to protected classes. The
Board explained that while “certain segments of a population may be
more susceptible to one type of [gang] criminal activity than another,”
where “the residents all generally suffer from the gang’s criminal
efforts to sustain its enterprise,” the “significant societal problems”
that result may not support relief in the form of asylum or
withholding of removal. Id. at 250–51. In such circumstances, it is up
to Congress “to provide” other forms of “relief to those suffering from
difficult situations not covered by asylum and withholding of
removal.” Id. (citing 8 U.S.C. § 1254a(a)(1) (providing temporary
protected status for certain persons)) 23; see also Melgar de Torres v. Reno,
191 F.3d 307, 314 (2d Cir. 1999) (“[A] well-founded fear of persecution
must be on account of an enumerated ground set forth in the [INA],
and general crime conditions are not a stated ground.”).
23 In the past, the United States has designated El Salvador for Temporary
Protected Status (“TPS”). See Designation of El Salvador Under Temporary Protected
Status Program, 66 Fed. Reg. 14,214, 14,214 (May 9, 2001) (explaining TPS
designation based on series of earthquakes); Sanchez v. Mayorkas, 141 S. Ct. 1809,
1812 (2021) (discussing same). More recently it has also designated Burma. See
Designation of Burma (Myanmar) for Temporary Protected Status, 86 Fed. Reg.
28,132, 28,133 (May 25, 2021) (explaining TPS designation based on “humanitarian
crisis” resulting from military coup).
34
In sum, these precedents provide legal support for the IJ’s
decision to deny Quintanilla withholding of removal based on
membership in his proposed social groups. Indeed, because the two
cases cited by the IJ, Matter of W-G-R-, and Matter of S-E-G-,
specifically addressed gang activities in El Salvador, the IJ’s reliance
on them raises no concerns akin to those identified in Ordonez Asmen
v. Barr, 965 F.3d 128, 135 (2d Cir. 2020) (faulting agency’s reliance on
Salvadoran and Honduran perceptions of former gang members as
identified in Matter of W-G-R- and Matter of M-E-V-G- without
specifically considering Guatemalan society’s perception of that
group as it exists in Guatemala).
The requisite factual support for the IJ’s decision is evident in
Quintanilla’s provision of only “scant evidence” to demonstrate the
particularity or social distinction of the groups on which he now
relies. Matter of W-G-R-, 26 I. & N. Dec. at 222. It is, of course, well
established that “when a petitioner bears the burden of proof, his
failure to adduce evidence can itself constitute the substantial
evidence necessary to support the agency’s challenged decision.”
Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (internal quotation
marks omitted).
Here, Quintanilla offered evidence of a government sponsored,
privately-funded program to help persons remove gang tattoos.
While that may be some evidence that the Salvadoran government
views former gang members as socially distinct—at least to the extent
that they were the primary beneficiaries of the tattoo-removal
program—it does not compel the conclusion that Salvadoran society
as a whole viewed gang members who participated in the program as
socially distinct. See generally Matter of M-E-V-G-, 26 I. & N. Dec.
35at 242. The participation of a foreign non-profit organization in the
program does not provide such evidence because how a group within
a country is viewed by those outside its borders does not demonstrate
domestic social distinction. 24 Nor is the requisite social distinction
established by reports of current gang members murdering past
program participants. Even if such uncorroborated hearsay reports
sufficed to show that program participants were specific gang targets,
“a persecutor’s perception alone is not enough to establish a
cognizable social group.” Paloka v. Holder, 762 F.3d at 101.
The same conclusion obtains insofar as Quintanilla stated at his
reasonable fear interview that MS-13 had targeted his brother (who
had never been a gang member), as well as himself, for their
rehabilitation work with Iglesias Evangelicas. The gang’s hostile
perception of persons doing rehabilitation work was insufficient, by
itself, to compel the IJ to find that Salvadoran society as a whole
viewed such workers as a socially distinct group. See id. While
Quintanilla testified that his neighbors approved of his ministry, that
evidence pertained to Quintanilla specifically and does little to
answer the question of whether his neighbors—assuming arguendo
that they can be viewed as a proxy for Salvadoran society as a
whole—would perceive others performing similar work as part of a
distinct social group. See Matter of W-G-R-, 26 I. & N. Dec. at 217
24 In Oliva v. Lynch, 807 F.3d 53, 61 (4th Cir. 2015), cited by Quintanilla in
his reply brief, the Fourth Circuit faulted the BIA for failing to address whether
“programs to help former gang members rehabilitate themselves” supported the
social distinction criteria for a particular social group. There, however, the
government conceded that the agency had not considered Oliva’s evidence and
remand was, therefore, “the proper course of action.” Id. That is not this case.
36
(“[T]here must be evidence showing that society in general perceives,
considers, or recognizes persons sharing the particular characteristic
to be a group.” (emphasis added)); see also Matter of M-E-V-G-, 26 I. &
N. Dec. at 244 (“Evidence such as country conditions reports, expert
witness testimony, and press accounts of discriminatory laws and
policies, historical animosities, and the like may establish that a group
exists and is perceived as ‘distinct’ or ‘other’ in a particular society.”);
cf. Lopez Canas v. Barr, 787 F. App’x 32, 34 (2d Cir. 2019) (“[T]he
recognition of friends and former coworkers is not an appropriate
proxy for the perception of society as a whole.”).
In sum, we conclude that the IJ sua sponte considered the social
groups now identified by petitioner, and that his decision to deny
withholding of removal based on social group is supported by both
controlling law and substantial evidence.25
25 The IJ seems to have found Quintanilla’s withholding claim lacking not
only at the cognizable-social-group step of the analysis but also at the nexus step.
See, e.g., App’x at 56 (“[I]t appears through the testimony of the respondent that
the gang members that the respondent claims he fears are simply attempting to
potentially enforce their code of conduct and punish infidelity to the gang.”); see
also Matter of W-G-R-, 26 I. & N. Dec. at 224 (“The respondent has not shown that
any acts of retribution or punishment by gang members would be motivated by
his status as a former gang member, rather than by the gang members’ desire to
enforce their code of conduct and punish infidelity to the gang.”). Quintanilla
presents no challenge to this nexus determination distinct from his claim that the
agency failed to recognize his social groups. See Pet’r Reply Br. at 8. No matter.
We have already explained why his social-group argument fails. And the IJ’s
adverse nexus conclusion is supported by substantial evidence unrelated to
37
IV. CAT Relief
Under Article 3 of the CAT, an alien cannot be removed “to a
country where he more likely than not would be tortured by, or with
the acquiescence of, government officials acting in an official
capacity.” Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 159 (2d Cir.
2005); see Scarlett v. Barr, 957 F.3d at 334. An alien seeking CAT relief
bears the burden of proving the likelihood of future torture by or with
the acquiescence of government officials. See 8 C.F.R. § 1208.16(c)(2).
“Torture” is “an extreme form of cruel and inhuman treatment,” not
“incidental to lawful sanctions,” and “specifically intended to inflict
severe physical or mental pain or suffering.” Id. § 1208.18(a)(2), (3),
(5). 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 Pierre v. Gonzales, 502 F.3d at 119(“A private actor’s behavior can constitute torture under the CAT
without a government’s specific intent to inflict it if a government
official is aware of the persecutor’s conduct and intent and acquiesces
in violation of the official’s duty to intervene.” (emphasis omitted)).
In considering a CAT claim, the agency properly considers “all
evidence relevant to the possibility of future torture,” including
Quintanilla’s renunciation of his membership in MS-13 or his gang-opposition
work with Iglesias Evangelicas. Specifically, Quintanilla’s own statements
acknowledge that (1) MS-13 members tried to kill him after accusing him of
stealing a gang gun, and (2) the “main reason” he feared for his life if removed to
El Salvador was because he had stabbed a gang leader. App’x at 411. These
motives for gang violence, not based on Quintanilla’s renunciation of or active
opposition to MS-13, provided substantial evidence to support the IJ’s adverse
nexus determination.
38
evidence of “past torture”; of possible internal relocation; of “gross,
flagrant or mass violations of human rights”; and any other relevant
information regarding “conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3).
In rejecting Quintanilla’s CAT claim, the IJ found that
Quintanilla had not persuasively shown that Salvadoran government
officials would commit or acquiesce in his torture because
(1) Quintanilla had “indicated with specificity that he had not been
harmed or beaten by the police” in the past; (2) MS-13 members were
not themselves part of the Salvadoran government; and (3) the State
Department Country Reports for El Salvador showed that, despite the
country’s high level of violence and instances of “police or military
malfeasance,” the government (a) was “embattled in trying to control
gang activity in the country”; and (b) would not “turn a blind eye to
harm of the respondent by gang members.” App’x at 57–58.
Identifying no clear error in these findings, the BIA affirmed.
See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012) (“[A]n IJ’s
finding that a future event will occur [is] fact-finding subject to review
for clear error.”).
In petitioning this court for review, Quintanilla faults the IJ for
failing to reference his hearing testimony that, on three occasions,
Salvadoran police tried to harm or kill him. We identify no error
because the IJ detailed Quintanilla’s numerous inconsistent
statements about his encounters with Salvadoran police and
determined from the occasion when he “indicated with specificity
that he had not been harmed or beaten by the police” that he failed to
demonstrate a likelihood of direct police torture. App’x at 57–58. The
39
BIA reached the same conclusion, even affording Quintanilla’s
testimony a presumption of credibility. Because the agency’s
conclusion finds support in record evidence, Quintanilla cannot
secure CAT relief by pointing to conflicting evidence that might
support—but not compel—a different conclusion. See generally
Joaquin-Porras v. Gonzales, 435 F.3d 172, 181 (2d Cir. 2006) (observing
that substantial evidence standard does not permit court to reverse
agency ruling “simply because [it] disagree[s] with its evaluation of
the facts” (internal quotation marks omitted)).
As for Quintanilla’s claim that Salvadoran police would likely
acquiesce in his torture by gang members, the BIA correctly observed
that he offered no evidence to show that Salvadoran officials were
aware of past gang attacks on his life. See Khouzam v. Ashcroft, 361
F.3d 161, 171 (2d Cir. 2004) (“In terms of state action, torture requires
. . . that government officials know of or remain willfully blind to an
act and thereafter breach their legal responsibility to prevent it.”). Far
from reporting the October 2015 gang attempt to beat him to death,
Quintanilla falsely told the police that he had been the victim of a
robbery. While a failure to ask for police help is not enough, by itself,
to preclude a finding of acquiescence, see Pan v. Holder, 777 F.3d 540,
544–45 (2d Cir. 2015), where, as here, other evidence, specifically,
State Department Country Reports, supports the agency’s finding
that the Salvadoran government is aggressively trying to combat
gang violence, even through armed confrontations, we cannot
conclude that the agency was compelled to find it likely that, if
Quintanilla were removed to El Salvador, that country’s officials
would acquiesce in his torture by gang members.
40
In urging otherwise, Quintanilla argues that evidence of
government efforts to combat gang violence does not preclude a
finding of acquiescence where other evidence shows public officials
condoning gang torture.26 He is correct that a finding of acquiescence
is not precluded in such circumstances. But neither is it compelled.
Rather, it invites careful factfinding. Quintanilla argues that the IJ’s
factfinding on this point was defective because he overlooked
evidence in the 2016 State Department Country Report indicating that
corrupt Salvadoran officials acquiesced in torture. See generally
Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (observing that error
of law may occur where agency “totally overlooked” or “seriously
mischaracterized” record evidence). The argument is defeated by the
record, which shows that the IJ considered the 2015 and 2016 State
Department Country Reports and, in his decision, acknowledged
their discussion not only of “the high level of violence and trouble
that takes place in the country of El Salvador” but also of “reports on
events involving police or military malfeasance.” App’x at 58. At its
core, then, what Quintanilla’s argument seeks is for this court to
reweigh facts showing that, on the one hand, El Salvador is trying to
26 In support, he cites De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010).
The case is distinguishable because, there, in vacating a denial of relief from
removal based on a BIA finding that some evidence of police assistance precluded
a showing of official acquiescence in torture, we observed that the government
there was “admittedly unable to actually prevent the torture from taking place.”
Id. at 111; see id. at 110 (“Where a government contains officials that would be
complicit in torture, and that government, on the whole, is admittedly incapable
of actually preventing that torture, the fact that some officials take action to
prevent the torture would seem n[ot] inconsistent with a finding of government
acquiescence.”). Quintanilla does not claim that the government of El Salvador
“on the whole, is admittedly incapable of actually preventing” the gang torture
that he fears on removal. Id. at 110.
41
combat gang violence but, on the other hand, some police and
military malfeasance hampers those efforts, and to accord the latter
more weight than the former. But substantial evidence review does
not contemplate any judicial reweighing of evidence. Rather, it
requires us to ask only whether record evidence compelled an
acquiescence finding different from that reached by the agency. We
conclude that it did not.
Finally, Quintanilla argues that the government’s acquiescence
in torture is evident from its turning a blind eye to the risk of gang
torture resulting from its publication on social media of Quintanilla’s
participation in a gang-tattoo-removal program. In reviewing this
argument, we assume certain facts in the light most favorable to
Quintanilla: (1) that the Salvadoran government sanctioned the
challenged publication, (2) that such publication breached a program
promise of confidentiality, and (3) that gangs had killed other
program participants. Nevertheless, we conclude that these
circumstances did not compel the IJ to find it likely that, if Quintanilla
is removed to El Salvador, government officials will acquiesce in his
torture.
First, there is no evidence that any government official who
sanctioned publication acted from more than mistake or negligence
about any attendant risk. See 8 C.F.R. § 1208.18(a)(7) (stating that
mistake, negligence, or even reckless disregard of truth are
insufficient to demonstrate “acquiescence” in torture). Second, insofar
as Quintanilla identified the gang’s October 2015 beating as past
torture supporting his CAT claim, that attack occurred over four years
after publication of his participation in the tattoo program. During
those years, Quintanilla managed to avoid gang torture by paying
42
extortion and storing gang guns. He was beaten only when gang
members accused him of stealing a gun. Third, and as already noted,
State Department Country Reports indicated that the Salvadoran
government was actively trying to curtail gang violence. On this
record, we cannot conclude that the IJ was compelled to find that
government officials would acquiesce in gang torture of Quintanilla
upon his removal to El Salvador.
CONCLUSION
To summarize, we conclude as follows:
(1) Any failure by the IJ to make an explicit adverse credibility
finding does not require remand because the BIA explicitly
afforded Quintanilla’s testimony the presumption of
credibility provided in 8 U.S.C. §§ 1158(b)(1)(B)(iii) &
1231(b)(3)(C), and, nevertheless, found it insufficient to
support withholding of removal.
(2) The IJ sua sponte considered the two social groups identified
by Quintanilla on this appeal—“former gang members who
actively distance themselves from the gangs and work to
oppose them” and “individuals working in El Salvador to
rehabilitate youth in order to prevent their joining gangs”—
and substantial evidence supports the agency’s conclusion
that neither group possessed the particularity or social
distinction necessary for withholding of removal.
(3) Substantial evidence, including State Department Country
Reports, supports the agency’s determination that
Quintanilla failed to show that, if removed to El Salvador,
he would likely face torture from government officials or
43
from gangs acting with the acquiescence of government
officials.
Accordingly, we DENY Quintanilla’s petition for review of the
challenged decisions. Quintanilla’s stay of removal is hereby
VACATED as moot.
44