Mauro Montoya v. Merrick B. Garland ( 2024 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1945
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Mauro Alexis Montoya; B.L.M.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 27, 2024
Filed: November 22, 2024
[Unpublished]
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Before SMITH, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Mauro Alexis Montoya and his son want to stay in the United States. Both
the Immigration Judge and the Board of Immigration Appeals denied various forms
of relief that would have allowed them to remain. We too deny relief.
I.
To gain asylum, Montoya had to establish that he is a “refugee,” 8 U.S.C.
§ 1158(a)(1), (b)(1)(B)(i)—someone who “was or will be . . . persecut[ed]” in a
foreign country because of his “membership in a particular social group,” id.§ 1158(b)(1)(B)(i). To satisfy these requirements, he claims to have been part of a
group of “self-employed Hondurans” who were targeted by a local gang after
refusing to pay a “war tax.”
The problem is that he has not established that his membership in this social
group, assuming it qualifies as one, was a “central reason” for the persecution he
once experienced and now fears. Gomez-Rivera v. Sessions, 897 F.3d 995, 998 (8th
Cir. 2018) (explaining that membership must be more than “merely incidental” or
“tangential” to qualify). Montoya’s burden was to show that the gang went after
him “because” of his membership in it, not just that his wealth made him an “obvious
target[] for extortionate demands.” Cambara-Cambara v. Lynch, 837 F.3d 822, 826
(8th Cir. 2016).
He did not meet his burden.1 According to the Immigration Judge and the
Board, the gang “extorted” and then “attacked” Montoya because he had a “salary”
and “refused to pay them,” not because he was a member of a group of persecuted
self-employed Hondurans. He has not convinced us that a “reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B),
especially given his own admission that he was “asked to pay a war tax” based on
his “monthly salary.” In other words, substantial evidence supports the finding that
his wealth, not his membership in any particular social group, was the “central
reason” for his persecution. Gomez-Rivera, 897 F.3d at 998.
1
Montoya’s withholding-of-removal claim, which requires an even greater
showing, is not before us because he failed to raise it to the Board. See Marambo v.
Barr, 932 F.3d 650, 654 (8th Cir. 2019) (requiring an applicant to “exhaust[] his
administrative remedies”); see also Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th
Cir. 2008) (describing the “higher standard” for withholding-of-removal claims).
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II.
Montoya fares no better under the Convention Against Torture. The focus
now is on whether, if he were removed to Honduras, “it is more likely than not that
he . . . would be tortured,” 8 C.F.R. § 1208.16(c)(2), “with the consent or
acquiescence of a public official or other person acting in an official capacity,”
Garcia v. Holder, 746 F.3d 869, 873 (8th Cir. 2014) (quoting 8 C.F.R.
§ 1208.18(a)(1)). “Demonstrating ‘acquiescence’ . . . 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 . . . .’” Id. (quoting 8
C.F.R. § 1208.18(a)(7)). In particular, an official must have been “willful[ly] blind[]
toward [Montoya’s] torture,” not just to the mistreatment of other citizens. Id.(citation omitted); see Hassan v. Rosen, 985 F.3d 587, 590 (8th Cir. 2021).
Montoya established only the latter. The Immigration Judge credited a State
Department report finding that “some [Honduran] police [have] committed crimes
along with the gangs” and that “gross, flagrant, and other mass human rights
violation[s] persist in Honduras.” Montoya also showed through a police report that
the gang once cut his right foot with a saw. Missing, however, is evidence that any
Honduran officials acquiesced then or would do so in the future if he were to return.
See Hassan, 985 F.3d at 590. Substantial evidence, in other words, supports the no-
acquiescence finding. See id.
III.
We accordingly deny the petition for review.
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