Tabora Gutierrez v. Garland, 12 F.4th 496

Petitioner Sergio Luis Tabora Gutierrez, a Honduran national, repeatedly refused MS-13 recruitment and extortion demands and suffered multiple violent attacks (severe beating in 2017; shooting in 2017) with medical records and photos corroborating injuries.
He reported those attacks to various local police/prosecutors; police provided little or no investigation and in at least one instance told him to flee the country; a prosecutor omitted gang affiliation from a report citing fear of retaliation.
Before the IJ, the judge found Tabora Gutierrez credible and that it was "more likely than not" MS-13 would torture or kill him if returned, satisfying the likelihood prong of CAT relief.
The IJ denied CAT relief because it found insufficient state action—i.e., Honduran officials would not likely consent to or acquiesce in torture; the BIA affirmed, reasoning police failures reflected lack of evidence or inability to act and noted Honduran anti-corruption efforts.
The Fifth Circuit denied the petition for review, holding the record did not compel reversal of the BIA’s factual finding that state acquiescence was unlikely; Judge Davis dissented, arguing the record compelled acquiescence given repeated police inaction and evidence of corruption.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review for BIA’s acquiescence finding	BIA should review the ultimate acquiescence question de novo (mixed law–fact)	BIA reviewed factfinding for clear error; circuit treats acquiescence as factual	Court: Argument unexhausted before BIA; no jurisdiction to consider it (exhaustion failure)
Whether evidence compels finding of state consent/acquiescence under CAT	Police inaction, prosecutor’s fear, and pervasive corruption compel finding of willful blindness/acquiescence	Police inaction is better explained by lack of identifying evidence or inability to intervene; government has taken steps against corruption	Court: Substantial-evidence standard—evidence does not compel contrary conclusion; BIA’s finding upheld; petition denied

Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017) (two-part CAT framework: likelihood of torture and requisite state action/acquiescence)
Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (considering government anti-corruption efforts in acquiescence analysis)
Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (police advice to leave country does not compel acquiescence finding)
Martinez Manzanares v. Barr, 925 F.3d 222 (5th Cir. 2019) (government inability to protect is not necessarily acquiescence)
Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (failure to apprehend or resource constraints ordinarily insufficient for CAT acquiescence)
Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) (willful blindness can satisfy acquiescence requirement)
Hakim v. Holder, 628 F.3d 151 (5th Cir. 2010) (discussing willful blindness standard for acquiescence)
Garcia v. Holder, 756 F.3d 885 (5th Cir. 2014) (state acquiescence may be shown by use of official authority by low-level officials)
Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019) (standard of review: BIA factual findings reviewed under substantial-evidence/clear-error principles)
Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (future persecution/fear must be tied to protected ground)