Oscar Zarre-Mendoza v. William Barr, U. S. Atty Ge

Case: 18-60850 Document: 00515320316 Page: 1 Date Filed: 02/24/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-60850 February 24, 2020
Summary Calendar Lyle W. Cayce
Clerk
OSCAR ZARRE-MENDOZA,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A072 810 778
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Oscar Zarre-Mendoza, also known as Oscar Sarres Mendoza, is a native
and citizen of Honduras. He first entered the United States without
authorization in August of 1993. He was ordered deported in absentia in 1994.
After his initial deportation in 1997, he illegally reentered the United States
several times and was deported several times. He also committed several
Texas crimes, including an aggravated robbery for which he was sentenced to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 18-60850
20 years in prison. In 2017 he successfully moved to have his in absentia
deportation proceeding reopened on grounds not relevant here.
As found by the immigration judge (IJ) and the Board of Immigration
Appeals (BIA), and not contested by Zarre-Mendoza, the only possible form of
relief from deportation currently available to Zarre-Mendoza is deferral under
the Convention Against Torture (CAT). The IJ denied CAT relief, and the BIA
affirmed that denial, on the ground that Zarre-Mendoza failed to show the
required likelihood of torture by, or with the acquiescence of, the government
of Honduras.
We review the BIA’s decision and consider the IJ’s decision to the extent
it influenced the BIA. Martinez Manzanares v. Barr, 925 F.3d 222, 226 (5th
Cir. 2019). The BIA’s legal determinations are reviewed de novo. Id. However,
a finding that an alien has not demonstrated entitlement to CAT relief will be
upheld unless the evidence compels a contrary conclusion. See id. at 228-29;
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
“To obtain relief under [the] CAT, an alien must demonstrate . . . that it
is more likely than not that he will be tortured if he is removed to his home
country.” Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). “Torture is an
extreme form of cruel and inhuman treatment and does not include lesser
forms of cruel, inhuman or degrading treatment or punishment.”
§ 208.18(a)(2); see Iruegas-Valdez, 846 F.3d 806, 812 (5th Cir. 2017). In
addition, “the pain or suffering in question must be inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” Iruegas-Valdez, 846 F.3d at 812 (internal
quotation marks and citation omitted).
Zarre-Mendoza’s petition for review repeats his prior arguments before
the IJ and BIA and presents scattered and conclusional allegations of
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No. 18-60850
harassment and extortion by gangsters and police, along with a bare assertion
that his life is in danger. He notes that Honduras has a poor record in
protecting human rights and fighting gang violence.
Although Zarre-Mendoza recites the definition of torture, he does not
explain how his mistreatment by gangsters or police meets that definition. The
BIA agreed with the IJ’s conclusion that Zarre-Mendoza’s reported encounters
“with suspected gang members and police simply do not rise to the level of
extreme, cruel and inhuman treatment to establish past torture, nor has he
shown that the harm he fears upon return will qualify as torture.” Zarre-
Mendoza’s conclusional assertions that he was, and will be, tortured fail to
compel a conclusion that it is more likely than not that he will be tortured upon
his return to Honduras. See Majd, 446 F.3d at 595; cf. Garrido-Morato v.
Gonzales, 485 F.3d 319, 322 n.1 (5th Cir. 2007) (argument deemed abandoned
because it did not extend beyond a conclusory assertion).
Neither does Zarre-Mendoza show that there is “sufficient state action
involved in [the alleged] torture.” Iruegas-Valdez, 846 F.3d at 812 (internal
quotation marks and citation omitted); see Chen, 470 F.3d at 1141. His
conclusional assertions that police might not prevent or respond to gang
violence are insufficient to prove acquiescence. See Martinez Manzanares, 925
F.3d at 229; Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014). The evidence
thus does not compel a finding of government acquiescence. See Ramirez-Mejia
v. Lynch, 794 F.3d 485, 493-94 (5th Cir. 2015).
In light of the foregoing, we need not address Zarre-Mendoza’s
contention that he cannot safely relocate within Honduras. Zarre-Mendoza
has failed to show that the evidence compels a finding that he is entitled to
relief under the CAT. See Martinez Manzanares, 925 F.3d at 228-29. The
petition for review is DENIED.
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