Carlos Escobar-Ascencio v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALBERTO ESCOBAR- No. 15-73678
ASCENCIO,
Agency No. A089-846-488
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 7, 2022
Pasadena, California
Before: BERZON and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.
Carlos Alberto Escobar-Ascencio (“Escobar-Ascencio”), a native and citizen
of El Salvador, petitions for review of the Board of Immigration Appeals’
(“BIA’s”) dismissal of his appeal of the immigration judge’s (“IJ’s”) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
application for withholding of removal and relief under the Convention Against
Torture. We deny the petition in part and grant it in part.
1. Substantial evidence supports the BIA’s determination that Escobar-
Ascencio does not qualify for withholding of removal because his proposed
particular social group of “former gang members of the Mara 18 gang in El
Salvador who have renounced their gang membership” is not cognizable. This
Court rejected the same proposed group, in the same society, in Garay Reyes v.
Lynch, 842 F.3d 1125 (9th Cir. 2016). Escobar-Ascencio has not pointed to any
record evidence compelling a different result here. Because substantial evidence
supports the BIA’s determination that Escobar-Ascencio’s proposed particular
social group is not cognizable, we do not reach the BIA’s alternative holding that
Escobar-Ascencio has not shown that the government is unable or unwilling to
control his persecutors.
2. The BIA’s determination that Escobar-Ascencio failed to establish his
eligibility for relief under the Convention Against Torture was based on legal error
and on an erroneously truncated consideration of the factual record.
First, the IJ relied on the rationale that Largo was a “rogue” police officer
and therefore that there was not sufficient evidence that the torture Escobar-
Ascencio feared would be carried out with the acquiescence of the government of
El Salvador. To the extent it is unclear whether the BIA incorporated the IJ’s
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rationale, we accept the government’s representation that it did. This Court has
repeatedly held that there is no “‘rogue official’ exception” to relief under the
Convention Against Torture. Macedo Templos v. Wilkinson, 987 F.3d 877, 884
(9th Cir. 2021); Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017). The
requirement that the torture be “inflicted by or at the instigation of or with the
consent or acquiescence of a public official,” 8 C.F.R. § 1208.18(a)(1) (2020), is
met if a public official “is the perpetrator or knowingly acquiesces to the torture,”
regardless whether the official was “acting in [his] official capacity” or “carrying
out his official duties,” Macedo Templos, 987 F.3d at 884; see also Madrigal v.
Holder, 716 F.3d 499, 509 (9th Cir. 2013). Here, the record leaves no room for
doubt that Largo, a uniformed police officer, was a public official who seriously
assaulted Escobar-Ascencio. Escobar-Ascencio has therefore “sufficiently
demonstrated that he was the victim of an official perpetration of violence.”
Macedo Templos, 987 F.3d at 884.
Second, although the government now maintains that the agency’s
Convention Against Torture acquiescence ruling can be upheld, despite the
erroneous “rogue official” rationale, based on the IJ and BIA’s assertion that
Escobar-Ascencio’s problems with Largo were limited to a single incident, the
single-incident reasoning cannot be disentangled from the agency’s erroneous
reliance on the “rogue official” exception. The agency’s reliance on the “rogue
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official” rationale reflected that the agency did not consider the factual record as a
whole, but was focused on the single incident with Largo.
The record reveals a more complex picture of the interactions among
Escobar-Ascencio, the gang members who attacked him, and the police. For
example, Escobar-Ascencio testified that various members of the police extorted
him. The record also shows some relationship between extortion and violence
because Escobar-Ascencio was repeatedly attacked by gang members because he
had not paid the “rent” the gangs demanded. Further, the record reflects that
Largo’s assault on Escobar-Ascencio was related to at least one gang attack, that
police cadets were present during the assault and took no action to stop it, that
Escobar-Ascencio’s reporting of gang attacks increased threats that the police
would work with gangs rather than protect him, and that Escobar-Ascencio had
knowledge of police officers active in gangs and sharing information with gangs.
The evidence in the record that police other than Largo sanctioned and participated
in gang violence is relevant to an analysis of the likelihood of future torture, so the
agency was required to consider it. See Maldonado v. Lynch, 786 F.3d 1155, 1164
(9th Cir. 2015) (en banc).
For these reasons, we grant the petition in part and remand for
reconsideration of the petition for relief under the Convention Against Torture,
including (1) consideration of the acquiescence factor without the “rogue official”
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error; (2) consideration of police involvement in gang activity on the record as a
whole and with consideration of the Country Report for El Salvador and other
country conditions evidence; (3) a determination whether Largo’s assault qualified
as torture; and (4) a ruling on whether Escobar-Ascencio has “otherwise
established that it [is] more likely than not he would be tortured if returned” to El
Salvador. Macedo Templos, 987 F.3d at 884.
PETITION DENIED IN PART, GRANTED IN PART, AND
REMANDED.
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