Diaz v. Garland ( 2021 )

Case: 19-60074 Document: 00516079870 Page: 1 Date Filed: 11/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 3, 2021
No. 19-60074 Lyle W. Cayce
Clerk
Billy Alexander Diaz, also known as Villi Alexander Flores
Diaz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A071 773 952
Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Petitioner Billy Alexander Diaz, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) order
upholding the Immigration Judge’s (IJ) decision to deny Diaz’s deferral of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60074
removal under the Convention Against Torture (CAT). We DENY the
petition for review.
I.
Diaz first entered the United States as a minor with his mother and
brother in 1991. In 1994, Diaz was granted voluntary departure when his
family’s applications for asylum and withholding of removal were denied, but
he did not depart and remained illegally in the United States. During this
time, Diaz was separately convicted of the attempted sale of cocaine and the
sale of cocaine. Accordingly, in 2008, Diaz was removed from the United
States and returned to El Salvador.
Six years after his return to El Salvador, Diaz allegedly witnessed two
men in police uniforms shoot and kill three individuals in a taxi. Before
retreating, the two shooters “stare[d]” at Diaz in a menacing fashion. About
ten days later, three men in police uniforms arrived at Diaz’s home. After
ordering Diaz to let them in, the men beat Diaz, searched his house, put a gun
to his head, and told him that he “had to disappear from there, leave the
country and never go back.” The men also inspected Diaz’s body for gang
tattoos and confiscated his El Salvadoran national ID card. Diaz did not
report to the police either this attack or the murder that he witnessed for fear
of reprisal. The day after the attack, Diaz fled El Salvador. He entered the
United States illegally at Eagle Pass, TX, just over a year later, and was
apprehended near Carrizo Springs, TX three days after his arrival.
Shortly thereafter, the 2008 order of removal against Diaz was
restored, prompting Diaz to move for withholding of removal under 8 U.S.C.
§ 1231(b)(3) and deferral of removal under the CAT. In addition to his own
testimony, Diaz provided letters from his wife and a friend back in El
Salvador, along with a newspaper article about the shooting, all purporting to
show that the police were responsible for both the shooting and Diaz’s
assault. Despite finding that Diaz was a credible witness, the IJ denied
deferral of removal and ruled that Diaz’s drug conviction prohibited
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withholding of removal. On appeal, the BIA remanded “for supplemental
fact-finding” for more meaningful review.
On remand, Diaz presented additional evidence. This included the
testimony of Robert Kirkland, a professor of Latin American affairs and
retired U.S. Army lieutenant colonel; the State Department’s 2016 and 2017
Human Rights Reports on El Salvador; and two articles by the Washington
Office on Latin America, a research and advocacy organization. The IJ again
denied relief because Diaz did not prove that the shooters or his assailants
were police officers, or that the two events were connected. In particular, the
newspaper article identified the shooters as “gang member[s]”—a major
discrepancy with Diaz’s claim. The letters from Diaz’s friend and wife also
failed to show that his assailants were police officers. Because Diaz failed to
corroborate these claims, the IJ ruled that Diaz failed to show that it was more
likely than not he would be subjected to torture by state action upon return
to El Salvador. Diaz appealed under the CAT and the BIA affirmed. Diaz
appealed to this court.
II.
Typically, we may review only the BIA’s order. Mikhael v. I.N.S., 115
F.3d 299, 302 (5th Cir. 1997). But if the BIA adopts the IJ’s findings and
conclusions, we may review the IJ’s order too. Wang v. Holder, 569 F.3d 531,
536 (5th Cir. 2009). Because the BIA adopted much of the IJ’s analysis, we
may review the IJ’s order here.
We review the BIA’s legal determinations de novo, with deference to
the BIA. Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). We
review factual findings to ensure they are supported by substantial evidence.
Mikhael, 115 F.3d at 302. Factual findings are not supported by substantial
evidence only if the facts are “so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” Id. (quoting I.N.S. v.
Elias–Zacarias, 502 U.S. 478, 483–84 (1992)).
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III.
To succeed on a claim under the CAT, the petitioner must show “a
likelihood of torture upon return [home].” Tamara-Gomez v. Gonzales, 447
F.3d 343, 350 (5th Cir. 2006). Importantly, the torture must be “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.” Chen v. Gonzales, 470 F.3d
1131, 1141 (5th Cir. 2006) (quoting 8 C.F.R. § 208.18(a)(1)). Diaz must
prove that: (1) it is more likely than not that he will be tortured upon return
home; and (2) there is “sufficient state action involved in that torture.”
Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); see 8 C.F.R.
§§ 208.16(c)(2), 208.18(a)(1).
A.
Before assessing the merits, we must discuss jurisdiction.
8 U.S.C. § 1252(a)(2)(C) provides that “no court shall have jurisdiction to
review any final order of removal against an alien who is removable by reason
of having committed [certain criminal offenses].” But the Supreme Court
has ruled recently that a CAT order is not a final order of removal. Nasrallah
v. Barr, 140 S. Ct. 1683, 1691 (2020). Therefore, even if Diaz did commit the
criminal offenses specified in § 1252(a)(2)(C) and we would otherwise not
have jurisdiction, we do have jurisdiction because this is not a final order of
removal.
B.
Diaz has the burden of proof for establishing that he satisfies the
requirements for relief from removal. 8 U.S.C. § 1229a(c)(4)(A)(i). To
meet this burden, the petitioner must show that he “is credible, is persuasive,
and refers to specific facts sufficient to demonstrate that [he] has satisfied
[his] burden of proof.” Id. § 1229a(c)(4)(B). Even if Diaz meets this burden,
the IJ can request corroborating evidence. Id. Diaz must provide that
evidence unless he can prove that it cannot be reasonably obtained. Id.
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Here, although the IJ found Diaz to be credible, it required
corroborating evidence because of inconsistencies in his testimony, which
Diaz failed to provide. Diaz claimed the shooters were police officers and
that his assailants were also police officers (who knew he witnessed the
shooting). But the newspaper article that Diaz submitted stated otherwise.
The article indicated that the shooting was a “quarrel between gangs” and
that at least one of the victims was a gang member. Diaz claimed that the
newspaper blamed gangs by default. Further, Diaz claimed that the shooters
“stared” at him from “a little bit far away,” but it is not clear how the
shooters would know how to find him. Diaz claimed that he lived in a small
town, so the shooters could easily ask around. But that contradicts Diaz’s
claim that he did not tell anyone about the shooting, including the police.
It is also not clear that the shooters were the same individuals as
Diaz’s assailants (or that they even knew that he witnessed the shooting). It
is possible that both incidents involved police officers, as Diaz claimed. But
it is also possible that both incidents involved only gang members. The
assailants purportedly told Diaz that he knew why they were there, but they
gave no motive aside from this opaque statement. If Diaz’s assailants were
police officers, it is unclear why they waited a week and a half to threaten him,
or why they checked his body for gang-related tattoos.
The letters from Diaz’s wife and friend did not corroborate his claims
either. These letters specifically refer to the “vermin” (gang members) as
distinct from the police: “[Y]ou can’t even go to another neighborhood
without the vermin stopping and checking you as if they are the police . . .”
and “Problems happen and the police arrive once they [the gang members]
have left . . . .” These letters further describe the individuals as “suspects”
or refer to the “suspicious types” looking for Diaz, but never refer to the
police.
So there are discrepancies between the evidence Diaz presented and
his claims about the identity of the shooters and his assailants. Because of
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these discrepancies, the IJ ruled that Diaz failed to corroborate three claims:
that (1) his assailants knew he witnessed the taxi shooting, (2) his assailants
were able to identify him and find his home, and (3) his assailants were police
officers.
Diaz argued before the BIA and before us that he was not given the
opportunity to show that he could not reasonably obtain corroborating
evidence for any of these discrepancies, but the record indicates otherwise.
When the IJ requires corroborating evidence and the petitioner fails to
provide it, the BIA has explained that the IJ must give the petitioner “an
opportunity to explain why he could not reasonably obtain such
evidence . . . .” Avelar-Oliva v. Barr, 954 F.3d 757, 770 (5th Cir. 2020)
(quoting Matter of L-A-C-, 26 I. & N. Dec. 516, 521 (BIA 2015)). Diaz
attempted to corroborate the claim that his assailants were able to identify
him and find his home: he maintained that he lived in a small town and that
the assailants could ask around for his location. And Diaz otherwise argued
that he could not reasonably corroborate his other claims. The IJ even
specified the three things that Diaz had to corroborate, despite having no
obligation to do so, 8 U.S.C. § 1229a(c)(4)(B), yet Diaz declined to give
further testimony on remand. Diaz, therefore, failed to establish that the IJ
refused to give him an opportunity to present corroborating evidence.
Alternatively, Diaz argued that he could not have reasonably obtained
corroborating evidence, but the record again indicates otherwise. Diaz
maintained that it would not be reasonable for him to explain how his
assailants identified him and found his home, or to track down and identify
those assailants as police officers. But Diaz did not need to explain the
method his assailants used to locate him. Rather, he needed to show the
connection between the shooters and his assailants. And Diaz did not have
to “seek the cooperation of the very forces he [was] fleeing” to corroborate
their identities.
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Last, although Diaz claimed that the BIA ignored essential
corroborating evidence, it did not. The BIA’s decision must “reflect
meaningful consideration of the relevant substantial evidence supporting the
alien’s claims.” Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996)
(citing Ramos v. I.N.S., 695 F.2d 181, 188 (5th Cir. 1983)). Diaz argued that
the IJ and BIA ignored the expert testimony and State Department reports
that Diaz presented on remand. But the BIA is not required to “specifically
address every piece of evidence put before it.” Cabrera v. Sessions, 890 F.3d
153, 162 (5th Cir. 2018) (quoting Abdel-Masieh, 73 F.3d at 585). “Meaningful
consideration” does not require the BIA to “address evidentiary minutiae or
write any lengthy exegesis” on each of the petitioner’s claims. Abdel-Masieh,
73 F.3d at 585 (citing Ramos, 695 F.2d at 189).
Here, the IJ held that even if Diaz’s expert testimony is true, there is
insufficient evidence to show that the assailants are still targeting Diaz. The
IJ also held that the expert did not adequately explain how Diaz’s assailants
could track him down through his El Salvadoran national ID card. Further,
the IJ recognized the pervasive government corruption in El Salvador, yet
concluded that general corruption did not bear on whether public officials are
searching for Diaz specifically. The BIA adopted these holdings. The BIA
may not have addressed every piece of evidence presented by Diaz, but it was
not required to do so. The BIA did, however, meet its burden by giving
“meaningful consideration” to Diaz’s expert testimony and State
Department reports. Substantial evidence supports the BIA’s decision that
Diaz failed to corroborate his claim.
* * *
For the reasons above, we DENY Diaz’s petition for review.
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