Felix Somoza-Garcia v. Eric H. Holder, Jr. , 746 F.3d 869 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1949
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Felix Somoza Garcia
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 13, 2014
Filed: March 19, 2014
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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
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GRUENDER, Circuit Judge.
Felix Somoza Garcia (“Somoza”), a native and citizen of Guatemala, petitions
for review of a Board of Immigration Appeals (“BIA”) order dismissing his request
for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). For the following reasons, we deny the petition.
I. Background
Somoza illegally entered the United States through Arizona in June 2002. On
November 15, 2009, the Department of Homeland Security (“DHS”) charged him
with removal as an alien present in the United States without having been admitted
or paroled. See 8 U.S.C. § 1182(a)(6)(A)(I). Somoza admitted to the DHS’s factual
allegations and conceded removability. In lieu of removal, Somoza requested asylum
under § 1158(a), withholding of removal under § 1231(b)(3)(A), and relief under the
CAT.1
Before the immigration judge (“IJ”), Somoza testified that he left Guatemala
due to violence perpetrated against him by MS-13, also known as the Mara
Salvatrucha gang. In June or July 2001, a five-man MS-13 posse, led by a man
named Arturo, began violently extorting money from Somoza. He claimed to have
suffered three violent attacks. After the first attack, Arturo required Somoza either
to pay half of his salary to MS-13 or to join the gang. Somoza soon realized he could
not survive on half of his earnings, so he told Arturo he was unable to pay. Somoza
was attacked again, at which time he reported the violent situation to local police
authorities. Somoza identified Arturo in a face-to-face encounter at the police station.
The police arrested Arturo but released him a week later. Somoza heard that the
police had accepted a bribe from MS-13. Upon learning of Arturo’s release, Somoza
fled Guatemala and spent approximately two months in El Salvador. However,
fearing for the safety of his mother, he returned to Guatemala and was attacked a third
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The BIA determined that Somoza’s asylum application was time-barred
pursuant to 8 U.S.C. § 1158(a)(2)(B). Somoza concedes that we do not have
jurisdiction to review this determination. Id. § 1158(a)(3). Therefore, his petition for
review concerns only his application for withholding of removal under
§ 1231(b)(3)(A) and relief under the CAT.
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time by MS-13 members. Somoza left Guatemala for the United States following this
last attack.
Somoza argued he was entitled to withholding of removal because the violence
against him was motivated by his “membership in a particular social group” and his
“political opinion.” See id. § 1231(b)(3)(A). Specifically, Somoza contended that he
belonged to a social group consisting of “young Guatemalan men who have opposed
the MS-13, have been beaten and extorted by that gang, reported those gangs to the
police[,] and faced increased persecution as a result.” He also claimed to hold a
political opinion to “uphold[] the laws” by reporting gang violence to the police.
The IJ denied withholding of removal, concluding that Somoza’s proffered
social group and political opinion were not cognizable under § 1231(b)(3)(A). The
IJ also denied him relief under the CAT, finding that the Guatemalan government was
unlikely to instigate or acquiesce in his torture. Somoza appealed to the BIA, which
dismissed Somoza’s appeal and incorporated the IJ’s reasoning and findings in its
decision. Somoza now petitions this court for review of the BIA’s order.
II. Discussion
“We generally review the BIA’s decision as the final agency action, but where
‘the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning,
we review both decisions.’” Osonowo v. Mukasey, 521 F.3d 922, 926-27 (8th Cir.
2008) (quoting Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir. 2005)). “We review
questions of immigration law de novo.” Supangat v. Holder, 735 F.3d 792, 795 (8th
Cir. 2013). “We review an IJ’s factual determinations under the substantial-evidence
test, which requires that those determinations be supported by reasonable, substantial,
and probative evidence.” Id. “We will not reverse factual findings unless ‘the
petitioner demonstrates that the evidence was so compelling that no reasonable fact
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finder could fail to find in favor of the petitioner.’” Id. (quoting Turay v. Ashcroft,
405 F.3d 663, 667 (8th Cir. 2005)).
To qualify for withholding of removal under § 1231, Somoza must demonstrate
a clear probability that his “life or freedom would be threatened” on account of one
of five enumerated grounds, including “membership in a particular social group” and
“political opinion.” 8 U.S.C. § 1231(b)(3)(A); Supangat, 735 F.3d at 795. Somoza
argues that he was persecuted on account of (1) his membership in a particular social
group defined by its opposition to and persecution by MS-13 and (2) his political
opinion to “uphold[] the laws” by reporting gang violence to the police. Neither of
these proffered statuses is legally sufficient to qualify for withholding of removal.
We consider them each in turn.
“Membership in a particular social group ‘refer[s] to persons who hold an
immutable characteristic, or common trait such as sex, color, kinship, or . . . shared
past experiences.’” Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)
(alterations in original) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th
Cir. 2008)). “[A] social group requires sufficient particularity and visibility such that
the group is perceived as a cohesive group by society.” Id. In Constanza, we held
that “‘persons resistant to gang violence’ are too diffuse to be recognized as a
particular social group.” Id. Somoza asserts his situation is distinguishable from
mere resisters of gang violence because he identified Arturo face-to-face at the police
station and suffered additional persecution as a result. In determining particularity,
“[t]he ‘central’ question is whether the applicant’s status as a member of a particular
social group is the reason for that individual’s persecution.” Gathungu v. Holder, 725
F.3d 900, 908 (8th Cir. 2013). While identifying Arturo for the police may have
contributed to MS-13’s disdain for Somoza, MS-13 was already targeting Somoza for
his refusal to relinquish half of his salary or to join its ranks. In addition, the
visibility requirement tests “‘whether the members of the group are perceived as a
group by society,’ such that ‘these individuals suffer from a higher incidence of crime
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than the rest of the population.’” Gaitan v. Holder, 671 F.3d 678, 680 (8th Cir. 2012)
(quoting Matter of S-E-G, 24 I. & N. Dec. 579, 586-87 (BIA 2008)). Somoza has not
presented any evidence indicating that persons who identify gang members to police
suffer greater crime than other members of the population who resist gang violence.
Therefore, his attempt to define a cognizable social group on this basis fails for lack
of both particularity and visibility.
Somoza’s proffered political status also fails under prior precedent of this
court. See Marroquin-Ochoma v. Holder, 574 F.3d 574, 578-79 (8th Cir. 2009)
(holding that opposition to a gang “does not compel a finding that the gang’s threats
were on account of an imputed political opinion”). Moreover, nothing in the record
suggests that MS-13 targeted Somoza for political reasons. Rather, the gang attacked
him for resisting its extortionate demands. Accordingly, the BIA’s legal
determinations were correct, and substantial evidence supports its decision to deny
withholding of removal under § 1231(b)(3)(A).
Unlike § 1231, the CAT does not require Somoza to show he belongs to a
protected group. Id. at 579. “Rather, to qualify for CAT relief, [Somoza] must
demonstrate that it is more likely than not that [he] will be tortured if removed to
Guatemala.” Id. (citing 8 C.F.R. § 1208.16(c)(2)). The torture must be “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). Because Somoza does not
contend that his predicted torture would be by or at the instigation of or with the
consent of Guatemalan officials, he must show that public officials will acquiesce in
his torture. Demonstrating “acquiescence of a public official” requires proof “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). “This inquiry centers upon the willfulness of a
government’s non-intervention.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.
2007). “A government does not acquiesce in the torture of its citizens merely because
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it is aware of torture but powerless to stop it, but it does cross the line into
acquiescence when it shows willful blindness toward the torture of citizens by third
parties.” Marroquin-Ochoma, 574 F.3d at 579 (quoting Mouawad, 485 F.3d at 413).
Here, the record does not compel the conclusion that it is more likely than not
that Somoza will be tortured with the acquiescence of a public official. Although a
2010 Department of State Human Rights Report on Guatemala observes that two-
thirds of Guatemalan police districts remained understaffed, another country report
indicates that Guatemala has partnered with the United Nations, the United States,
Canada, and several European countries to enact anti-gang and anti-narcotics reform
and to improve law enforcement practices. In this case, Guatemalan authorities
investigated and even arrested Arturo after Somoza reported the gang violence, which
demonstrates that local authorities are not unwilling to control MS-13. See
Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 (8th Cir. 2013) (holding, under
substantial-evidence review, that local authorities are not unwilling to control gang
violence where evidence indicates that they investigated the gang and made arrests).
Somoza, however, claims to have heard that MS-13 bribed local police to release
Arturo—an allegation he argues supports a conclusion that Guatemalan police would
acquiesce in his torture if he is returned now. While it is possible that corruption
contributed to Arturo’s release over ten years ago, the country reports provide
numerous alternative explanations that do not involve government corruption. The
Department of State report observes that many criminals avoid prosecution because
“[j]udges, prosecutors, plaintiffs, and witnesses” experience frequent “threats,
intimidation, and surveillance.” Somoza acknowledged that he was “not sure if the
police received this type of extortion or if it was something else” that precipitated
Arturo’s release from custody. Without more, the inability of Guatemalan police to
curtail MS-13 violence does not entitle Somoza to CAT relief. See Menjivar v.
Gonzales, 416 F.3d 918, 923 (8th Cir. 2005) (holding that, to obtain CAT relief, it is
insufficient merely to show that “the government has a problem controlling gang
activity of which it is aware”). While the evidence may support the conclusion that
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the Guatemalan government is less than successful at preventing the torture of its
citizens by gang members, the record does not compel the conclusion that the
government is willfully blind toward it. Therefore, we conclude that substantial
evidence supports the BIA’s decision to deny relief under the CAT.
III. Conclusion
For the foregoing reasons, we deny Somoza’s petition for review.
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