Gonzalez-Benitez v. Lynch

15-1054
Gonzalez-Benitez v. Lynch
BIA
Mulligan, IJ
A094 058 886
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 29th day of June, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JOSE FRANCISCO GONZALEZ-BENITEZ,
14 Petitioner,
15
16 v. 15-1054
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Charles Richard Conroy, Law Offices
24 of Charles R. Conroy, PLLC, New York,
25 New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Blair T.
29 O’Connor, Assistant Director;
30 Joseph D. Hardy, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Jose Francisco Gonzalez-Benitez, a native and
6 citizen of El Salvador, seeks review of a March 30, 2015,
7 decision of the BIA affirming a November 19, 2014, decision of
8 an Immigration Judge (“IJ”) denying Gonzalez-Benitez’s
9 application for deferral of removal under the Convention
10 Against Torture (“CAT”). In re Jose Francisco
11 Gonzalez-Benitez, No. A094 058 886 (B.I.A. Mar. 30, 2015), aff’g
12 No. A094 058 886 (Immig. Ct. N.Y. City Nov. 19, 2014). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the IJ’s opinion as modified by the BIA,
16 i.e., minus the IJ’s ruling requiring Gonzalez-Benitez to
17 identify the specific officials who would acquiesce in any
18 torture by the Mara Salvatrucha (“MS-13”). See Xue Hong Yang
19 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
20 applicable standards of review are well established. See 8
21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
22 513 (2d Cir. 2009).
23 The CAT prohibits the removal of any person to a country
24 where “it is more likely than not” that the individual “would
2
1 be tortured.” 8 C.F.R. § 1208.16(c)(2). “Torture is defined
2 as any act by which severe pain or suffering, whether physical
3 or mental, is intentionally inflicted on a person . . . by or
4 at the instigation of or with the consent or acquiescence of
5 a public official or other person acting in an official
6 capacity.” Id. § 1208.18(a)(1). “Acquiescence of a public
7 official requires that the public official, prior to the
8 activity constituting torture, have awareness of such activity
9 and thereafter breach his or her legal responsibility to
10 intervene to prevent such activity.” Id. § 1208.18(a)(7).
11 “[T]orture requires only that government officials know of or
12 remain willfully blind to an act and thereafter breach their
13 legal responsibility to prevent it.” Khouzam v. Ashcroft, 361
14 F.3d 161, 171 (2d Cir. 2004). Therefore, direct government
15 involvement is not necessary in order to obtain CAT relief.
16 Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir. 2006).
17 The record does not compel the conclusion that
18 Gonzalez-Benitez will more likely than not be tortured with the
19 acquiescence of the Salvadoran government. See Mu Xiang Lin
20 v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)
21 (emphasizing that an applicant must demonstrate that someone
22 in his particular circumstances will more likely than not be
23 tortured); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.
24 2012) (holding that “[a] determination of what will occur in
3
1 the future and the degree of likelihood of the occurrence has
2 been regularly regarded as fact-finding”). The record
3 contains conflicting evidence of the Salvadoran government’s
4 efforts to combat gang violence. On one hand, there is evidence
5 that MS-13 has infiltrated the police force and that gang
6 members can intimidate witnesses with impunity. On the other
7 hand, there is evidence that police and army officers with ties
8 have been identified and suspended, that the Salvadoran
9 government is attempting to fight gang violence through
10 legislation and law enforcement initiatives, and that these
11 initiatives have had some success.
12 Gonzalez-Benitez argues the agency ignored evidence
13 showing collusion between MS-13 and the Salvadoran police.
14 While we “require some indication that the IJ considered
15 material evidence supporting a petitioner’s claim,” Poradisova
16 v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005), we do not require
17 the IJ to “expressly parse or refute on the record each and
18 every” piece of evidence, and “we presume that an IJ has taken
19 into account all the evidence before him, unless the record
20 compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t
21 of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006). Here,
22 nothing in the record compels the conclusion that the IJ ignored
23 Gonzalez-Benitez’s evidence: the IJ cited the State Department
24 report in his decision, and engaged in a long discussion with
4
1 Gonzalez-Benitez’s counsel concerning the country conditions
2 evidence. Given the conflicting evidence in the record, a
3 reasonable fact finder would not be compelled to conclude that
4 Gonzalez-Benitez is “more likely than not to be tortured” with
5 the acquiescence of the Salvadoran government. 8 C.F.R.
6 §§ 1208.16(c)(2), 1208.18(a)(1); see also Mu Xiang Lin, 432
7 F.3d at 159-60; Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.
8 2007) (“Decisions as to . . . which of competing inferences to
9 draw are entirely within the province of the trier of fact.”
10 (internal quotation marks omitted)).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
5