Tabora Gutierrez v. Garland

Case: 19-60408 Document: 00515999865 Page: 1 Date Filed: 08/31/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2021
No. 19-60408
Lyle W. Cayce
Clerk
Sergio L. Tabora Gutierrez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A206-012-003
Before Davis, Duncan, and Oldham, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
This is yet another immigration case involving the vicious
international gang Mara Salvatrucha (“MS-13”) and its brutalization of the
people of Honduras. 1 The record shows that, thanks in part to MS-13,
Honduras has become “one of the most violent countries on the planet that
1
See Castro-Rodriguez v. Garland, __ F. App’x __, 2021 WL 1232085 (5th Cir.
Apr. 2, 2021) (per curiam); Castillo-Cruz v. Barr, 831 F. App’x 739 (5th Cir. 2020) (per
curiam); Aguilar-Chavez v. Barr, 799 F. App’x 288 (5th Cir. 2020) (per curiam); Bonilla
Cruz v. Barr, 777 F. App’x 119 (5th Cir. 2019) (per curiam); Cabrera v. Sessions, 890 F.3d
153 (5th Cir. 2018); Paz v. Sessions, 676 F. App’x 331 (5th Cir. 2017) (per curiam).
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is not at war.” In Honduras, “gang beheadings and dismemberment of
victims are now routine; lynching and burning victims alive are
commonplace; and the recruitment of children as young as 11 is an everyday
occurrence.” Although the Honduran government has tried to combat MS-
13, it still “cannot guarantee a minimum level of security for all its citizens.”
Petitioner Sergio Luis Tabora Gutierrez was born and raised in this
crucible of violence. He has resisted MS-13’s attempts to coerce him to join
the gang or pay a “war tax.” For that, gang members have repeatedly
brutalized him and his wife and threatened to kill them. The record contains
gruesome photos of his wounds. Tabora Gutierrez therefore entered the
United States illegally and, as relevant here, sought relief under the
Convention Against Torture (CAT). The immigration judge (IJ)—finding
Tabora Gutierrez credible and his account “detailed, plausible, and
coherent”—found that “MS-13 is more likely than not to torture or kill him
upon his return.” Nonetheless, the IJ denied CAT relief and ordered Tabora
Gutierrez removed to Honduras because it found any such torture would not
occur with the “consent or acquiescence” of Honduran officials. Finding no
clear error in that determination, the BIA dismissed Tabora Gutierrez’s
appeal. He petitioned for our review.
We deny his petition. Tabora Gutierrez, ably represented by pro bono
counsel, makes a compelling humanitarian case for why removing him to
Honduras will effectively abandon him to torture and death at the hands of
MS-13 thugs. Yet to make out a CAT claim, the law demands that this
violence will likely occur “with the consent or acquiescence” of Honduran
officials, 8 C.F.R. § 1208.18(a)(1), and the IJ and the BIA found that it would
not. We can reverse that finding only if the evidence compels a contrary
conclusion. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017). It does
not. We must therefore deny the petition.
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During oral argument, the government—evidently troubled by
Tabora Gutierrez’s predicament—suggested he may be a candidate for a
discretionary grant of deferred action. See O.A. Rec. at 44:55–45:30. The
government was apparently referring to a form of prosecutorial discretion
that “allows an otherwise deportable alien to remain in this country.”
Deferred Action, 1 Immigr. Law and Defense, § 8:52; see also Reno v.
American-Arab Anti-Discrim. Comm., 525 U.S. 471, 484 (1999) (discussing
“deferred action,” under which immigration enforcement officials would
“exercis[e] [their] discretion for humanitarian reasons . . . ‘[t]o ameliorate a
harsh and unjust outcome’”) (quoting 6 C. Gordon, S. Mailman, &
S. Yale-Loer, Immigration Law and Procedure § 72.03[2][h]
(1998)). Because federal courts lack authority to grant deferred action, we
express no opinion whether it should be granted in this case.
I.
A.
Tabora Gutierrez is a native and citizen of Honduras. On March 14,
2018, he illegally sought entry into the United States and was subsequently
ruled inadmissible by an immigration court. See 8 U.S.C.
§ 212(a)(7)(A)(i)(I). On May 24, 2018, Tabora Gutierrez submitted a pro se
application for asylum and withholding of removal and, with counsel’s
assistance, an amended application on June 18, 2018. A hearing was held
before an immigration judge (IJ) on September 5, 2018, at which Tabora
Gutierrez testified.
Tabora Gutierrez was born November 1, 1987, in El Progreso,
Honduras, and was raised in Choloma, Honduras by his aunt. The criminal
gang MS-13 was active in Choloma during Tabora Gutierrez’s adolescence.
The gang would recruit children as tax collectors and spies, even sending
them to beat, torture, and kill people. See, e.g., Cabrera v. Sessions, 890 F.3d
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153, 156 (5th Cir. 2018) (“As in much of the country, Honduras’s large and
powerful gangs—including MS-13 or ‘the Maras’ and their rivals, Barrio
18—are ubiquitous in Choloma.”).
In 2006, Tabora Gutierrez traveled to the United States to meet his
mother but was removed back to Honduras in 2013. While he was gone,
MS-13’s activities in Choloma had “multiplied”: the gang controlled parts
of the city and would extort a “war tax” from people by threats of torture or
death. The gang had also infiltrated the school where Tabora Gutierrez and
his common-law wife sent their daughter, recruiting fifth- and sixth-graders
to distribute drugs.
In December 2013, gang members began trying to recruit Tabora
Gutierrez. When he refused to join, they angrily threatened him. This
happened again in early 2014. Tabora Gutierrez was given the choice to join
or pay a war tax of $25–30 a week. He adamantly refused, and the gang
members said he would be killed if he did not pay. Frightened, Tabora
Gutierrez reported the threat to local police, but the officer told him he did
not “have enough proof to accuse them.”
Tabora Gutierrez moved his family about 30 minutes away but still felt
unsafe because of MS-13’s pervasive network of spies. Sure enough, gang
members found him in August 2014 while he was dropping his daughter off
at school and again threatened to kill him. Tabora Gutierrez began moving
“from house to house out of fear.” Due to these threats, he tried to enter the
United States in 2016 but was returned immediately.
In September 2017, four gang members assaulted Tabora Gutierrez in
a restaurant. For over twenty minutes, they beat, kicked, and stabbed him
with a broken bottle, while telling him the beating was in retaliation for his
not joining MS-13. Witnesses did not intervene and the police did not come.
Tabora Gutierrez passed out and awoke in an emergency clinic, where a
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cousin had taken him. His appellate brief contains gruesome photos of his
injuries. He then relocated his family to another city, where he spent almost
two months recuperating. He reported the beating to local police, but was not
given a police report or any information about an investigation.
In December 2017, masked gunmen confronted Tabora Gutierrez and
his wife while they were riding motorcycles. Tabora Gutierrez was shot three
times in the chest or stomach, buttocks, and leg; his wife was shot twice.
They survived, however, after spending six days in the hospital. (His brief
also contains photos of the gunshot wounds). When they returned home,
neighbors told them armed men had come looking for them. Tabora
Gutierrez again moved his family elsewhere.
He reported the shooting to police in Choloma and San Pedro Sula,
identifying the masked shooters as MS-13 members by the tattoos on their
arms. The Choloma officers told him they “could not help [him]” and that if
he “valued [his] life, [he] should flee from the country.” The San Pedro Sula
officers sent him to a local prosecutor’s office, where he filed a statement on
February 1, 2018. Tabora Gutierrez admitted he did not know who had shot
him and his wife. But the woman who took his statement stated “they would
get [her] at [her] house” if she wrote down who shot him. She also “didn’t
want to include” the shooters’ gang affiliation in the report.
Finally, Tabora Gutierrez testified that, if he were returned to
Honduras, MS-13 would find him again through its network of spies
throughout the country. He claimed his scars from the beating and shooting
would easily identify him. And given his repeated refusals to join the gang or
pay the war tax, he feared he would be tortured and killed.
B.
The IJ found Tabora Gutierrez “generally credible,” noting that “he
provided a detailed, plausible, and coherent account of his past experiences,”
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as well as “corroborating evidence” in the form of “medical documentation,
photographs, and a police report.” The IJ then assessed Tabora Gutierrez’s
claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).
As to asylum, the IJ ruled that Tabora Gutierrez’s past persecution,
while sufficiently severe, was not perpetrated on account of any protected
ground. See 8 U.S.C. § 1158(b)(1)(B)(i) (providing “at least one central
reason” for persecution must be “race, religion, nationality, membership in
a particular social group, or political opinion”). Instead, his treatment
resulted from “the unfortunately commonplace criminal agenda of MS-13: to
recruit, extort, threaten, and retaliate against those who defy them.” This
conclusion also foreclosed Tabora Gutierrez’s alternate claim that he had a
well-founded fear of future persecution. See, e.g., Zhao v. Gonzales, 404 F.3d
295, 307 (5th Cir. 2005) (future persecution claim must show reasonable fear
of persecution on account of same protected grounds as past persecution)
(citing 8 C.F.R. § 208.13(b)(2)(iii)(A)–(B) (2003)); see also 8 U.S.C.
§ 1101(a)(42)(A). Moreover, the failure of Tabora Gutierrez’s asylum claim
meant he could not satisfy the higher standard for withholding of removal.
Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (citation omitted); see 8
U.S.C. § 1231(b)(3)(A).
As to the CAT claim, the IJ first found that Tabora Gutierrez was
likely to be tortured or killed by MS-13 upon his return to Honduras, meeting
the first requirement for CAT relief. See, e.g., Iruegas-Valdez v. Yates, 846
F.3d 806, 812 (5th Cir. 2017). But the IJ found Tabora Gutierrez failed to
meet the second requirement, namely that there would be “sufficient state
action involved in that torture.” Ibid.On this point, the IJ first rejected Tabora Gutierrez’s argument that
the police were “accomplices” of the gang. While noting ample evidence that
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Honduran officials were “easily corruptible, inefficient, and incapable in
every sense of confronting the gangs,” the IJ nonetheless found that
“Honduras is not willfully blind to this ‘endemic corruption’ and is taking
meaningful steps to address these problems.” For instance, the IJ referenced
a 2018 presidential commission to root out police corruption that had
resulted in removing thousands of officers, thus “demonstrat[ing] that
Honduras does not turn a blind eye to police corruption or to the harm that
[Tabora Gutierrez] fears, being killed by MS-13.”
Next, the IJ rejected Tabora Gutierrez’s argument that failure by the
police and prosecutors to investigate the attacks on him showed that
Honduran officials “would acquiesce in his torture by MS-13.” See Iruegas-
Valdez, 846 F.3d at 812 (state action may be shown where torture is inflicted
“with the consent or acquiescence of a public official or other person acting
in an official capacity”) (citing 8 C.F.R. § 1208.18(a)(1)). The IJ found the
failure to investigate did not show officials would acquiesce in his torture but
instead reflected “the incomplete nature of the police report.” The IJ also
found that Tabora Gutierrez’s “speculation” that officers would not protect
him in the future from MS-13 was “insufficient to show state action.” While
conceding Honduras had “made little progress” in reforming its institutions
and curtailing gang violence, the IJ reasoned that “[t]he lack of resources to
guarantee safety, while unfortunate, is not sufficient to establish Honduras’s
acquiescence to the harm [Tabora Gutierrez] fears by MS-13.”
Tabora Gutierrez appealed to the BIA, which declined to overturn the
IJ’s decision. Specifically as to the CAT claim, the BIA did not disturb the
IJ’s finding that Honduran officials were not likely to acquiesce in his torture
by MS-13 if he were returned to Honduras. It reasoned that a CAT claim is
not established merely by showing police have not apprehended the gang
members who tortured him, nor even by showing officials lack the ability to
protect him. See Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir.
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2006). It also observed that “speculation that the police might not
prevent . . . violence [by nongovernmental actors] is generally insufficient to
prove government acquiescence, especially if there is evidence that the
government prosecutes rogue or corrupt public officials.” See Garcia v.
Holder, 756 F.3d 885, 892 (5th Cir. 2014).
The BIA also considered the IJ’s findings regarding the failure of
police to investigate the attacks against Tabora Gutierrez. The BIA did not
see this as evidence that the officials either were complicit in or “willfully
ignored” the attacks. Like the IJ, the BIA noted that Tabora Gutierrez “was
unable to disclose the specific identity of any of his attackers” and so the
police inaction did not show the police “bre[a]ched its duty to intervene to
prevent such activity from reoccurring.” As to the officer who declined to
note the attackers’ gang affiliation, the BIA reasoned that “the fact that a
frightened police officer feared stating MS-13’s identity in a police report is
insufficient to establish that the Honduran authorities had sufficient evidence
to take action on his complaint, but were willfully blind by failing to do so.”
The BIA therefore found “no clear error” in the IJ’s findings that Honduran
officials had not acquiesced in his torture by MS-13 or “that any Honduran
public official would specifically acquiesce to the MS-13 torturing him if he
returns to Honduras.”
Finally, the BIA agreed with the IJ that “the background information
on Honduras” did not establish that officials “would more likely than not
acquiesce to his torture.” While noting Honduras’s “often losing battle
against the gangs” and the “regrettable” facts that authorities may not be
able to protect Tabora Gutierrez, the BIA “note[d], as did the [IJ], that
Honduras has taken steps to battle corruption among its public officials,”
which “suggests that the Honduran government does not acquiesce to and is
not willfully blind to gangs torturing its citizens.” The BIA emphasized that
it “do[es] not ignore the [IJ’s] determination that [Tabora Gutierrez] has
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established that it is more likely than not that the MS-13 will torture him in
Honduras.” Nonetheless, the BIA affirmed the IJ’s finding that such torture
would not be “with the consent or acquiesce[nce] (including willful
blindness) of a public official or other person acting in an official capacity.”
The BIA therefore dismissed the appeal.
Tabora Gutierrez timely appealed to our court, limited to his CAT
claim. A panel granted his emergency motion for stay of removal pending
appeal.
II.
We review the BIA’s decision as final agency action. Qorane v. Barr,
919 F.3d 904, 909 & n.1 (5th Cir. 2019) (citing Castillo-Rodriguez v. INS, 929
F.2d 181, 183 (5th Cir. 1991)). Our review considers the IJ’s reasoning only
insofar as the BIA’s decision incorporated it. Id. at 909 n.1 (citing Chun v.
INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam)). We review the BIA’s legal
conclusions de novo and its factual findings for substantial evidence. See Pena
Oseguera v. Barr, 936 F.3d 239, 250 (5th Cir. 2019) (citation omitted).
“Under substantial evidence review, we may not reverse the BIA’s factual
determinations unless we find not only that the evidence supports a contrary
conclusion, but that the evidence compels it.” Iruegas-Valdez, 846 F.3d at 810
(citing Chun, 40 F.3d at 78).
III.
On appeal, Tabora Gutierrez raises two issues concerning his CAT
claim. 2 First, he argues the BIA applied the wrong standard of review to the
IJ’s acquiescence finding. Second, he argues alternatively that the evidence
2
He therefore has abandoned any grounds for contesting the denial of his asylum
and withholding of removal claims. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
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compels the conclusion that Honduran officials will acquiesce in his torture.
We address each issue in turn after setting out the relevant law.
A.
The CAT protects an alien when “it is more likely than not that he . . .
would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). 3 “Torture” means “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person”
for specified purposes, including “intimidating or coercing him or her or a
third person.” Id. § 1208.18(a)(1). Torture includes “prolonged mental harm
caused by or resulting from . . . [t]he threat of imminent death.” Id.
§ 1208.18(a)(4)(iii).
Importantly, the pain or suffering must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public official acting in
an official capacity or other person acting in an official capacity.” Id.
§ 1208.18(a)(1). To “acquiesce,” the official must, “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 “awareness requires a finding of either actual
knowledge or willful blindness.” Ibid. The regulation discusses “willful
blindness” at length:
Willful blindness means that the public official . . . was aware
of a high probability of activity constituting torture and
deliberately avoided learning the truth; it is not enough that
such public official . . . was mistaken, recklessly disregarded the
truth, or negligently failed to inquire.
3
See Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment art. 3, opened for signature Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, 114.
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In order for a public official to breach his or her legal
responsibility to intervene to prevent activity constituting
torture, the official must have been charged with preventing
the activity as part of his or her duties and have failed to
intervene.
No person will be deemed to have breached a legal
responsibility to intervene if such person is unable to intervene,
or if the person intervenes but is unable to prevent the activity
that constitutes torture.
Ibid. (paragraph breaks added).
The applicant bears the burden of proof that it is “more likely than
not” he would be tortured upon removal, but he may meet that burden
through his own credible testimony even without corroboration. Id.
§ 1208.16(c)(2). In assessing the likelihood of torture, “all evidence relevant
to the possibility of future torture shall be considered,” including:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be
tortured;
(iii) Evidence of gross, flagrant or mass violations of human
rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the
country of removal.
Id. § 1208.16(c)(3)(i)–(iv).
To implement this regulatory scheme, we have set out a two-part
analysis. An alien must show (1) “it more likely than not that [he] will be
tortured upon return to his homeland”; and (2) “sufficient state action
involved in that torture.” Iruegas-Valdez, 846 F.3d at 812 (citing Garcia, 756
F.3d at 891); see also, e.g., Morales v. Sessions, 860 F.3d 812, 818 & n.28 (5th
Cir. 2017); Tamara-Gomez, 447 F.3d at 350–51.
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B.
Tabora Gutierrez first argues the BIA applied the wrong standard in
reviewing the IJ’s finding that officials would not acquiesce in his torture.
Citing out-of-circuit decisions, Tabora Gutierrez contends that this is a
mixed question of law and fact and that the BIA should have reviewed the
ultimate question of state acquiescence de novo instead of for clear error. See
Cruz-Quintanilla v. Walker, 914 F.3d 884, 889–91 (4th Cir. 2019); Myrie v.
Att’y Gen., 855 F.3d 509, 516–17 (3d Cir. 2017) (both treating
“acquiescence” as a legal judgment reviewed by the BIA de novo).
We lack jurisdiction to consider this argument. Tabora Gutierrez was
required to exhaust the issue by raising it in a motion for reconsideration. See
Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020) (“Avelar-Oliva’s
contention that the BIA misapplied the standard of review should have been
presented to the BIA in a motion for reconsideration.”). At oral argument,
Tabora Gutierrez’s counsel conceded reconsideration was not sought on this
basis. O.A. Rec. at 2:20. Counsel countered that doing so was unnecessary
because his BIA brief raised the issue. We disagree. Counsel could point only
to the generic “standard of review” paragraph in that brief. O.A. Rec. at 5:45,
6:45. That boilerplate did not make a “concrete statement before the BIA to
which [Tabora Gutierrez] could reasonably tie his claims before this court.”
Dale v. Holder, 610 F.3d 294 (5th Cir. 2010). His standard-of-review
argument is “a wholly new ground for relief arising only as a consequence of
some [claimed] error in the deportation proceedings,” one the BIA “never
had a chance to consider.” Avelar-Oliva, 954 F.3d at 766 (quoting Dale, 610
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F.3d at 298–99) (brackets added). Because he failed to exhaust this argument,
we cannot consider it. See ibid.; 8 U.S.C. § 1252(d)(1)). 4
C.
Alternatively, Tabora Gutierrez argues the evidence shows that
officials would acquiesce in his torture if he were returned to Honduras. This
argument faces a steep climb. We cannot reverse the BIA “unless we decide
‘not only that the evidence supports a contrary conclusion, but also that the
evidence compels it.’” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)
(quoting Zhao, 404 F.3d at 306); see also 8 U.S.C. § 1252(b)(4)(B) (agency’s
“administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”). While Tabora
Gutierrez can point to some evidence supporting his argument, he fails to
show the evidence as a whole compels a conclusion contrary to the BIA’s.
Tabora Gutierrez contends the evidence compels finding officials
were “willfully blind” to his victimization by MS-13 because they either
failed to investigate, or refused to investigate, the attacks against him. See,
e.g., Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (“We have held that
the requisite ‘acquiescence’ [under the CAT] is satisfied by a government’s
4
We therefore do not address whether the issue is open in our circuit. The
government argues it is not, because our cases treat state acquiescence as a fact question.
There is support for that view. See, e.g., Gonzalez-Veliz v. Barr, 938 F.3d 219, 225 (5th Cir.
2019); Morales-Morales v. Barr, 933 F.3d 456, 464–68 (5th Cir. 2019); Martinez Manzanares
v. Barr, 925 F.3d 222, 228–29 (5th Cir. 2019); Ramirez-Mejia v. Lynch, 794 F.3d 485, 493–
94 (5th Cir. 2015); Chen v. Gonzales, 470 F.3d 1131, 1142 (5th Cir. 2006); Ontunez-Tursios
v. Ashcroft, 303 F.3d 341, 354–55 (5th Cir. 2002). But no decision of ours expressly
addresses the issue, and we need not confront it. See Cruz-Quintanilla, 914 F.3d at 891
(along with the Fourth, the Third Circuit is “the only other court of appeals to address this
question”) (citing Myrie, 855 F.3d at 516–17). For similar reasons, we need not consider the
Attorney General’s recent decision in Matter of R-A-F-, 27 I. & N. Dec. 778, 779–81 (A.G.
2020), which adopts the Third and Fourth Circuits’ view on this issue.
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willful blindness of torturous activity.”) (citing Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 354 (5th Cir. 2002)). The BIA and the IJ could have drawn such
an inference from the evidence. See 8 C.F.R. § 1208.18(a)(7) (willful
blindness may be shown if an official was “charged with preventing the
[torturous] activity as part of his or her duties and . . . failed to intervene”).
But they did not. Instead, the BIA—agreeing with the IJ—found the police
inaction was better explained by the fact that Tabora Gutierrez “was unable
to disclose the specific identity of any of his attackers.” The BIA and the IJ
thus interpreted the evidence, not to show the police “willfully ignored” the
attacks or “bre[a]ched its duty” to prevent them, but rather to show the
police “may not have been in possession of sufficient evidence to take further
action.” Because the evidence does not compel a contrary conclusion, the
IJ’s findings, which the BIA adopted, are “conclusive.” 8 U.S.C.
§ 1252(b)(4)(B).
We take a similar view of evidence that local police told Tabora
Gutierrez they “could not help [him]” and that he “should flee from the
country.” The BIA concluded this evidence showed that the officials lacked
the ability to protect Tabora Gutierrez, not that they would acquiesce in his
torture. The evidence does not compel Tabora Gutierrez’s contrary view.
Indeed, we have held that similar evidence did not compel a finding of
government acquiescence in gang torture. See Ramirez-Mejia v. Lynch, 794
F.3d 485, 494 (5th Cir. 2015) (evidence did not compel finding acquiescence
where police “advised [claimant] to leave the country” after she received
gang threats); see also, e.g., Martinez Manzanares v. Barr, 925 F.3d 222, 229
(5th Cir. 2019) (“[A] government’s inability to protect its citizens does not
amount to acquiescence [under the CAT].”) (citing Qorane v. Barr, 919 F.3d
904, 911 (5th Cir. 2019)); Tamara-Gomez, 447 F.3d at 351 (concluding
“neither the failure to apprehend the persons threatening the alien, nor the
lack of financial resources to eradicate the threat or risk of torture
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constitute[s] sufficient state action for [CAT] purposes”); 8 C.F.R.
§ 1208.18(a)(7) (official does not breach a duty to intervene “if such person
is unable to intervene, or if the person intervenes but is unable to prevent the
activity that constitutes torture”).
Tabora Gutierrez stresses the fact that a San Pedro Sula official
declined to include in her report that his assailants were gang-affiliated,
expressing fear that “they would get [her] at [her] house.” But the BIA and
IJ declined to find this evidence showed the official would acquiesce in
Tabora Gutierrez’s torture. Echoing the IJ’s finding, the BIA concluded “the
fact that a frightened police officer feared stating MS-13’s identity in a police
report is insufficient to establish that the Honduran authorities had sufficient
evidence to take action on his complaint, but were willfully blind by failing to
do so.” While the IJ and BIA could have made a different finding—namely,
that the official’s fear of MS-13 meant she would turn a blind eye to Tabora
Gutierrez’s torture—the evidence did not compel them to do so. See, e.g.,
Martinez-Lopez v. Barr, 943 F.3d 766, 773 (5th Cir. 2019) (allegations of “the
unwillingness of the Honduran police to investigate gang violence may weigh
against the IJ’s conclusion, but they do not compel the opposite conclusion”)
(cleaned up); Ramirez-Mejia, 794 F.3d at 494 (finding of acquiescence not
compelled by evidence that “the police told [claimant] not to report her
brother’s [gang-related] murder and ‘not to get involved with these
people’”); Ontunez-Tursios, 303 F.3d at 354 (finding of acquiescence not
compelled where evidence provided “at least some explanation” why
government did not arrest third parties).
Tabora Gutierrez also suggests the evidence of police inaction raises
the “specter of overt police-gang collusion.” But the IJ and the BIA declined
to find the evidence showed police complicity with MS-13 here. Moreover,
both the IJ and the BIA properly took into account general evidence showing
that, while Honduras suffers widespread police corruption, the country is
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nonetheless “taking meaningful steps to address these problems.” See also 8
C.F.R. § 1208.16(c)(3)(iv) (court shall consider “all evidence relevant to the
possibility of future torture,” including “[o]ther relevant information
regarding conditions in the country of removal”); Chen, 470 F.3d at 1142(“Consideration of government efforts to combat corruption or abuse . . . is
relevant to the willful blindness inquiry.”) (citing Tamara-Gomez, 447 F.3d
at 351). The evidence does not compel the conclusion that complicit officials
would acquiesce in Tabora Gutierrez’s torture by MS-13.
Finally, Tabora Gutierrez argues the BIA erred by focusing only on
high-level officials and ignoring lower-level officials. See, e.g., Iruegas-Valdez,
846 F.3d at 813 (acquiescence may be shown by “the use of official authority
by low-level officials, such a[s] police officers”) (citing Garcia, 756 F.3d at
891–92). We disagree. The BIA and IJ each considered evidence of
acquiescence as it related to both local and national officials. And, as
discussed, the BIA and IJ both properly considered Honduras’s broader
efforts to root out police corruption and combat gang violence in gauging the
likelihood that officials would acquiesce in Tabora Gutierrez’s torture. See 8
C.F.R. § 1208.16(c)(3)(iv); see also Martinez-Lopez, 943 F.3d at 772–73
(“[A]lthough the record contains reports of some Honduran authorities
working with gangs, those same reports indicate that the Honduran
government is working to combat both corruption and gang violence.”)
(citing Chen, 470 F.3d at 1142).
IV.
Anyone can see the awful situation Tabora Gutierrez is in. Like the
BIA, “[w]e do not ignore the [IJ’s] determination that [Tabora Gutierrez]
has established that it is more likely than not that the MS-13 [gang] will
torture him in Honduras.” But the evidence does not compel the conclusion
that this torture will occur with the consent or acquiescence of Honduran
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officials. We therefore cannot disturb the BIA’s decision dismissing his
appeal. Nothing we say here prevents the government, as it suggested at oral
argument, from assisting Tabora Gutierrez with a discretionary grant of
deferred action to prevent his removal to Honduras. See O.A. Rec. at 44:55–
45:30.
Petition DENIED.
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W. Eugene Davis, Circuit Judge, dissenting:
I agree with the IJ, the BIA, and the majority that Tabora Gutierrez
will likely be tortured by MS-13 gang members if returned to Honduras. But,
I read the record to compel a conclusion that the torture will be with the
acquiescence of a public official. I disagree with the majority’s conclusion to
the contrary.
The governing legal principles are not in dispute, stated simply. Under
the governing regulations, if a police officer or other law enforcement official
has knowledge that a citizen is being assaulted and seriously injured, that
official has the legal duty to intervene to prevent that activity. 1 If an official
who has knowledge of such activity deliberately avoids learning the truth,
such conduct is considered willful blindness and satisfies the acquiescence
requirement. 2
1
See 8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a public official requires 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. Such
awareness requires a finding of either actual knowledge or willful blindness. Willful
blindness means that the public official acting in an official capacity or other person acting
in an official capacity was aware of a high probability of activity constituting torture and
deliberately avoided learning the truth; it is not enough that such public official acting in an
official capacity or other person acting in an official capacity was mistaken, recklessly
disregarded the truth, or negligently failed to inquire. In order for a public official to breach
his or her legal responsibility to intervene to prevent activity constituting torture, the
official must have been charged with preventing the activity as part of his or her duties and
have failed to intervene. No person will be deemed to have breached a legal responsibility
to intervene if such person is unable to intervene, or if the person intervenes but is unable
to prevent the activity that constitutes torture.”).
2
Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2012) (citing Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)).
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A.
Tabora Gutierrez pointed to numerous incidents to demonstrate that
Honduran public officials had been willfully blind to the torture he suffered—
and failed to intervene—thereby satisfying the “acquiescence” prong of
CAT relief. The IJ and BIA credited Tabora Gutierrez’s testimony
recounting several failures of the police to investigate or otherwise act on his
reports of violent attacks by MS-13 gang members. He testified that the police
had failed to act in 2014 after he reported being accosted and threatened by
MS-13. Eventually, these encounters escalated and in September 2017,
Tabora Gutierrez was severely beaten and hit with a broken glass bottle,
which resulted in serious injuries and treatment at an emergency clinic.
Tabora Gutierrez contended that this attack occurred because he had
repeatedly refused to join MS-13, and the attackers badgered him about
joining them as they beat him. Following the attack, Tabora Gutierrez said
that he went to the police to press charges against the attackers, but the police
did not investigate the attacks or take steps to arrest the individuals who had
beaten him.
The majority points to the IJ and BIA’s conclusion that the police
inaction was better explained by the fact that Tabora Gutierrez “was unable
to disclose the specific identity of any of his attackers.” But, this explanation
for the officials’ failure to act makes no sense. This is a classic “blame the
victim” excuse. Many if not most victims of gang attacks do not know the
identity of their attackers. Petitioner told the police how he knew the
attackers were MS-13 gang members. He cooperated fully with the police and
told them everything he knew.
In December 2017, Tabora Gutierrez alleged that he was again
attacked by men he suspected were members of MS-13 based on their tattoos.
The three men shot Tabora Gutierrez and his wife; Tabora Gutierrez was hit
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by three bullets and his wife by two bullets. Tabora Gutierrez and his wife
were hospitalized for six days after the shooting, and Tabora Gutierrez
reported the shooting to police departments in two different cities. The
police officer in one of the cities told Tabora Gutierrez they could not help
and even recommended that he flee the country; the police in the other city
referred him to a prosecutor’s office to take his statement. However, when
he went to the prosecutor’s office, the person who recorded his statement
said she was concerned for her personal safety at the hands of MS-13 gang
members. She told petitioner if she filed a report of a MS-13 attack, MS-13
gang members would retaliate against her. She then failed to include in the
report that petitioner’s attack was from MS-13 gang members. Tabora
Gutierrez testified that the police never investigated the shooting. He
asserted that when his aunt asked the police about the status of the
investigation into his shooting, she was threatened by gang members,
supporting his firm belief that the police never investigated and that they
communicated with MS-13 members. All of this testimony was credited by
the IJ and the BIA and acknowledged by the majority.
The IJ also noted that Tabora Gutierrez established that there was
nowhere within Honduras he could relocate to avoid torture by MS-13. The
official country reports on Honduras reveal the corruption and inefficiency
of the Honduran government and police, which the IJ summarized in his
factual findings and the BIA acknowledged in its opinion. These materials
show that MS-13 commits killings, extortion, kidnappings, and human
trafficking, and intimidates the police, prosecutors, journalists, women, and
human rights defenders.
Moreover, the IJ recognized that the record showed that the
Honduran government and police are “easily corruptible, inefficient, and
incapable in every sense of confronting the gang” and that it was “widely
known that MS 13 expansion is aided by the gang’s alliance with sectors of
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the local police forces.” The IJ further concluded that “[v]iolence is
perpetuated not only by criminal groups, but also by agents of the state, such
as the police and the military” and “[t]here were several reports that the
government or its agents committed arbitrary or unlawful killings . . . during
law enforcement operations or . . . other criminal activity by government
agents.” The BIA also acknowledged that Honduran officials have been
fighting a losing battle against gangs and therefore may be unable to offer
Tabora Gutierrez protection from gangs. This is because, in many cases, it is
the Honduran authorities themselves who are corrupt and complicit with the
gangs in their illegal activities.
In the face of this record, the majority affirmed the BIA’s finding that
Tabora Gutierrez had failed to demonstrate the requisite governmental
acquiescence to any torture he would experience upon his return to
Honduras because “Honduras is not willfully blind to th[e] ‘endemic
corruption’ and is taking meaningful steps to address these problems.” This
finding was made despite the IJ’s seemingly inconsistent finding that the
“Honduran government’s attempts at curtailing corruption and gang
violence have been unsuccessful” as the reform efforts have made little
progress.
B.
In sum, the IJ credited petitioner’s testimony that he was attacked by
MS-13 on at least three occasions, and the police failed to investigate or
otherwise intervene to protect him. No evidence was produced showing that
the state actors had an acceptable reason (such as lack of resources) for
refusing to do their duty. 3 The record supports two possible explanations for
3
Remember that only one of the police departments petitioner sought help from
gave any explanation for its failure to act. That excuse was that petitioner did not provide
“enough proof.” After petitioner reported that he and his wife had been shot by MS-13,
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the failure of four police departments and a prosecutor’s office to investigate
and make some effort to intervene in petitioner’s torture by MS-13 gang
members: The most likely is corruption, which the IJ found was widespread.
Second was lack of will or courage to do their duty (supported by the
representation of the prosecutor’s office). An officer who is corrupted by the
torturer is effectively an aider and abettor of the torturer. 4 No one argues that
this is a justification for failing to intervene. We have found no case
supporting the majority’s apparent conclusion that lack of will or courage by
an officer is an acceptable reason for the officer’s failure to intervene.
Moreover, the cases that the majority cites in support of its conclusion
are easily distinguishable from the case at hand. In Ramirez-Mejia v. Lynch, 5
the petitioner was found ineligible for CAT relief because unlike the instant
case, the petitioner failed to prove he more likely than not would be tortured
if removed. The court also found that the police arrested one of the gang
members and insisted that the petitioner file a complaint against him. 6 In
Martinez Manzanares v. Barr, 7 the petitioner did not meet CAT eligibility
one police department referred him to a prosecutor. The other did nothing, and gave no
excuse for its inaction.
4
A “rogue” police officer who is a participant in the torture “satis[ies] CAT’s
requirement that a public official acquiesce in the torture, even if [higher government
officials] . . . would not similarly acquiesce.” Rodriguez-Molinero v. Lynch, 808 F.3d 1134,
1139 (7th Cir. 2015); see also Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1185 (7th Cir. 2015)
(stating that it does not “matter if the police officers who will torture [the petitioner] if he’s
forced to return to Mexico are rogue officers individually compensated by [a gang member]
to engage in isolated incidents of retaliatory brutality, rather than evidence of a broader
pattern of governmental acquiescence in torture”) (internal quotation marks and citation
omitted).
5
794 F.3d 485, 487, 494 (5th Cir. 2015).
6
Id. at 494.
7
925 F.3d 222, 224, 228 (5th Cir. 2019).
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because he suffered no past torture and did not ever report the threats he
allegedly received to the police. The court also found that the police arrested
and intended to prosecute the petitioner’s primary torturer. 8 Finally, in
Tamara-Gomez v. Gonzales, 9 the petitioner failed to show government
acquiescence because the government allowed the petitioner to live on a
military base for his protection from FARC, a terrorist guerilla group, and
found that “the Columbian government . . . [was] fully engaged in opposition
to FARC.”
If the egregious facts in this case are not sufficient to support a finding
of public-official acquiescence, CAT relief will be a dead letter to most if not
all individuals who live in countries where the police are corrupt or simply do
not have the will or courage to protect them from brutal gang attacks. I
therefore respectfully dissent.
8
Id. at 229.
9
447 F.3d 343, 346, 351-52 (5th Cir. 2006).
23