Andres Caal-Mo v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1750
_____________
ANDRES CAAL-MO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA A205-526-197)
Immigration Judge: Hon. Rosalind K. Malloy
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2018
Before: JORDAN, ROTH, Circuit Judges and STEARNS*, District Judge.
(Filed: January 22, 2018)
_______________
OPINION
_______________
*
Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
STEARNS, District Judge.
Petitioner Andres Caal-Mo appeals a ruling of the Board of Immigration Appeals
(BIA) affirming an Immigration Judge’s (IJ) determination that he is ineligible for relief
under the Convention Against Torture (CAT)1. We discern no error.
I. Background
Caal-Mo, a citizen of Guatemala, entered the United States illegally in April of
2007. On December 5, 2012, the Department of Homeland Security (DHS) ordered him
to appear before an Immigration Judge. On November 5, 2013, petitioner appeared with
counsel and conceded removability; however, he applied for asylum, withholding of
removal, and a deferral of removal under CAT. Caal-Mo’s application for protection was
based on a series of apparently threatening letters, text messages, and telephone calls
received by Caal-Mo and his girlfriend from unknown persons in Guatemala.
On March 10, 2016, the IJ entered an oral decision denying Caal-Mo’s
applications and ordering his removal to Guatemala. With respect to the CAT claim (the
only issue raised in this appeal), the IJ found that Caal-Mo had “failed to demonstrate that
it is more likely than not that he would be tortured if removed to Guatemala for any
reason by anyone.” (Certified Admin. Record at 67). The BIA agreed, discerning “no
clear error” in the IJ’s findings “that the threats received by [petitioner] and [his
girlfriend] were from anonymous sources” and that “the threatening communications
were unclear regarding the anonymous sources’ motivations for targeting” petitioner.
1
Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988),
1465 U.N.T.S. 85.
2
(Certified Admin. Record at 4). In dismissing the appeal, the BIA found that “[i]nsofar as
[Caal-Mo] has not demonstrated the sources’ motive for targeting him, he has not
established that the torture he fears would . . . fall within the CAT.” (Certified Admin.
Record at 4). This petition for review ensued.
II. Discussion
When the BIA adopts an immigration judge’s decision and reasoning, we review
both rulings. See Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 227 (3d Cir. 2011). We
apply a deferential standard of review to CAT claims, under which “administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B), and we will not overturn a BIA
decision as long as it is “supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Alimbaev v. Attorney General, 872 F.3d 188, 196 (3d
Cir. 2017).
To establish eligibility for CAT protection, a petitioner must demonstrate that “it
is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). Torture is defined as “an extreme form of
cruel and inhuman treatment” that is “inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1)-(2). A petitioner must make a particularized showing of how he
or she is threatened with torture as it is defined (including the required involvement or
condonation of government officials in the country concerned). “[R]eports of generalized
brutality within a country do not necessarily allow an alien to sustain his/her burden
3
under the Convention Against Torture.” Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir.
2003).
Caal-Mo concedes the uphill battle he faces on appeal given the unattributable and
ambiguous nature of the threats that he reports, acknowledging that “the evidence is clear
and unambiguous that threats of death and kidnapping have been made by persons whose
identities are unknown to Petitioner.” Pet’r’s Br. at 16. The threatening messages strike
no consistent chord: some refer to Caal-Mo’s girlfriend as a “freeloader,” App. at 86, one
threatened Caal-Mo’s son with kidnapping (it is unclear whether the son lives in the
United States or Guatemala), while others appear to be of an extortionate nature,
referencing Caal-Mo’s presumed financial well-being as a U.S. resident. Caal-Mo
speculates in his briefing that the threats have originated varyingly from an ex-girlfriend
in Guatemala, her father, armed gangs seeking to shake him down, “a group of Mayans”
watching his ex-girlfriend’s house in Guatemala, or “peoples against whom he testified in
connection with the murder of his cousin.” Pet’r’s Br. at 11-12. There is little by way of
connection or coherence to these messages, much less any evidence of a sustained effort
by government officials to inflict physical or financial harm on Caal-Mo and his family.
The only thing clear from the record, as Caal-Mo admits, is that he “cannot identify
exactly who is making the threats.” Id. at 13.
There is no evidence in the record that the purported threats would be carried out
“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. § 1208.18(a)(1)-(2). The most that
Caal-Mo offers in rebuttal is a letter from an assistant prosecutor in Guatemala reporting
4
that his office had opened an investigation into the threats and opining that, as long as the
investigation remains pending, “it is not convenient, or recommendable,” that Caal-Mo
return to Guatemala. (App. at 53). This is hardly evidence of official acquiescence in any
future threat of torture. See Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 69-70 (3d Cir.
2007) (noting that a successful CAT petitioner must “establish that the government in
question acquiesces to torture by showing that the government is willfully blind” to the
prospect of torture and “breach[es] their legal responsibility to prevent it.”)
Here, there is no evidence that government officials in Guatemala knew of the
source of the anonymous threats, much less that they would acquiesce to torture if Caal-
Mo were to return to Guatemala. Consequently, we will deny the petition for review.
III. Conclusion
For the foregoing reasons, we deny Caal-Mo’s petition.
5