KARLA IVETH GARCIA-ARANDA v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 18-2281
United States Court of Appeals, Second Circuit
November 21, 2022
United States Court of Appeals
For the Second Circuit
August Term 2021
Argued: January 20, 2022
Decided: November 21, 2022
No. 18-2281
KARLA IVETH GARCIA-ARANDA,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
Petition from the Board of Immigration Appeals
No. A206-716-166.
Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges.
Kаrla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision.
DENIED IN PART, GRANTED IN PART, VACATED IN PART, AND REMANDED.
HEATHER AXFORD (Rebecca Press, Paola Donovan, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner.
BEAU BAUMANN (Joseph H. Hunt, Patricia A. Smith, Victor M. Lawrence, on the brief), United States Department of Justice, Washington, DC, for Respondent.
Christopher P. Malloy, Sophia M. Mancall-Bitel, Amber R. Will, New York, NY, for Amici Curiae Brooklyn Defender Services, The Bronx Defenders, Erie County Bar Association Volunteer Lawyers Project, The Legal Aid Society, and The Prisoners’ Legal Services of New York.
Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) thаt she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the BIA’s decisions are VACATED IN PART to the extent that they denied CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision.
A. Factual Background1
Prior to fleеing Honduras, Garcia-Aranda lived with her husband and two children in the village of San Juan, in the municipality of Tela and in the department of Atlantida. Although Garcia-Aranda and her parents were law-abiding citizens, she acknowledged that most of her extended family was involved in drug trafficking in Honduras – led by her great uncle, Jorge Valerio. Beginning in 2008, members of the Mara 18 gang began killing members of the Valerio family, including Jorge Valerio, because of their involvement in drug trafficking and their refusal to pay a “war tax” to the gang. The gang also killеd Garcia-Aranda’s stepfather, who was not involved in the Valerio drug operation, due to his relationship with the family.
After the gang murdered her aunt in 2010, Garcia-Aranda moved with her husband and children to Tegucigalpa, Honduras to escape the violence. They returned to San Juan three years later, after hearing that the Valerio family had ceased selling drugs and that the dispute with the gang had subsided. Back in San Juan, Garcia-Aranda and her husband opened two businesses, one selling food
and one transporting loсal children to school. But the Mara 18 gang soon approached Garcia-Aranda – first to gain information on the whereabouts of an uncle involved in drug trafficking, and later to demand that Garcia-Aranda and her husband pay a “quota,” or extortion payment, based on the belief that the couple had money from their businesses and from an inheritance from Jorge Valerio. For about six months, Garcia-Aranda and her husband paid the “quota,” but then stopped after their businesses’ sales declined.
Garcia-Aranda and her husband then fled to Mexico, but in 2014, they returned to San Juan after being deported. Almost immediately thereafter, a group of Mara 18 gang members kidnapped Garcia-Aranda, her husband, and her children and again demanded money in light of her purported inheritance from Jorge Valerio. The gang held Garcia-Aranda and her family for three days, during which time they deprived her of food and repeatedly beat her husband. During her captivity, Garcia-Aranda recognized the voice of a local police officer, whom she knew because he had previously come to Jorge Valerio’s home to collect money. After Garcia-Aranda’s mother paid a portion of the ransom, the gang released the family.
B. Procedural History
In June 2014, following the kidnapping, Garcia-Aranda and her two children entered the United States without inspection. They were apprehended at the border and were served by the Department of Homeland Security with notices to appear charging them with removability pursuant tо
On September 6, 2016, despite finding that Garcia-Aranda had testified credibly, the IJ denied the family’s applications for asylum, withholding of removal, and CAT relief and ordered their removal to Honduras. The IJ found
that Garcia-Aranda failed to satisfy her burden for asylum or withholding of removal because her proposed social group (members of the Valerio family in San Juan, Telа, Atlantida, Honduras) did not constitute a “particular social group,” as required by
Garcia-Aranda appealed to the BIA, which dismissed the appeal on June 30, 2017. With respect to her asylum and withholding of removal claims, the BIA agreed with the IJ that Garcia-Arandа did not show the legally required nexus between her membership in her proposed social group and her fear of harm. With
respect to CAT relief, the BIA concluded that Garcia-Aranda’s “testimony, along with the evidence of widespread corruption and violence . . . , does not establish that a public official of the government of Honduras would acquiesce in [Garcia-Aranda’s] torture, or that she faces a more likely than not chance of torture in the first place.” Id. at 30. Garcia-Aranda timely petitioned for review of the BIA decision pursuant to
On remand, the BIA again dismissed Garcia-Aranda’s appeal in a July 9, 2018 decision. Because the parties’ stipulation and our ensuing order did not reference the BIA’s prior asylum and withholding of removal determinations, the BIA addressed only relief under CAT. Ultimately, the BIA concluded that, “[a]ssuming that the kidnapping and other past mistreatment . . . described [by Garcia-Aranda] constitutes torture, we agree [with the IJ] that she has not shown a likelihood of future torture by or with the acquiescence (including willful blindness) of a government official upon return.” Certified Admin. Record at 4. The BIA explained that “the evidence does not support a finding that the police
officer in question or any Honduran official has an interest in torturing the respondent at this time or that members of the police, еither alone or in connection with gangs or cartels, routinely engage in kidnapping for ransom and associated mistreatment and that higher officials know or remain willfully blind to the conduct and breach their responsibility to prevent it.” Id. (citing Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)).
Garcia-Aranda now again timely petitions for review of the BIA’s decision pursuant to
Because the BIA did not expressly adopt the IJ’s decision, but “its brief opinion closely track[ed] the IJ’s reasoning,” we have reviewed the opinions of both the IJ and the BIA “for the sake of cоmpleteness.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (internal quotation marks omitted). We review the IJ’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted). We review de novo questions
of law and the application of law to undisputed facts, but the BIA’s interpretations of immigration regulations are reviewed with substantial deference, unless an interpretation is plainly erroneous or incоnsistent with the regulation. See Bah v. Mukasey, 529 F.3d 99, 110–11 (2d Cir. 2008).
Before this Court, Garcia-Aranda advances two main arguments. First, she contends that, for her asylum and withholding of removal claims, the BIA erred in concluding that (even assuming the validity of her proposed social group, the Valerio family) she had failed to establish the legally required nexus between her membership in that group and her fear of harm. Second, she argues that, for her CAT claim, the BIA erred in concluding that she had failed to establish that she would more likely than not be tortured in Honduras by or with the acquiescence of a public official upon her return. We address each of these arguments in turn.
A. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal “must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”
mixed-motive cases), the “at least one centrаl reason” statutory requirement still stands; in other words, an applicant’s status as a member of a particular social group still must be at least one of the central reasons, rather than a minor reason, for why that individual is being targeted. See Acharya v. Holder, 761 F.3d 289, 296–98 (2d Cir. 2014); Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010); Matter of N-M-, 25 I. & N. Dec. 526, 530–31 (B.I.A. 2011).
When a proposed social group is based on family ties, these same basic principles apply. See Matter of L-E-A-, 27 I. & N. Dec. 40, 43–47 (B.I.A. 2017), rev’d in part on other grounds, 27 I. & N. Dec. 581, 596–97 (A.G. 2019). “[T]he fact that a persecutor has threatened an applicant and members of his [or her] family doеs not necessarily mean that the threats were motivated by family ties.” Id. at 45. Instead, because membership in the family cannot be a minor, incidental, or tangential reason for the harm, “the fact that a persecutor targets a family member simply as a means to an end is not, by itself, sufficient to establish a claim, especially if the end is not connected to another protected ground.” See id. at 44–46; see also, e.g., Arias-Avila v. Garland, 855 F. App’x 54, 55 (2d Cir. 2021); Gonzalez-Carias v. Garland, 855 F. App’x 52, 53 (2d Cir. 2021); Barrera Pacheco v. Barr, 836 F.
App’x 22, 24 (2d Cir. 2020).4
involved in drug trafficking – without more to indicate that these occurrences were due to animus against the Valerio family and not the perceived wealth of the Valerio family – does not undermine the substantial evidence supporting the agency’s conclusion.
Accordingly, we deny the petition for review as to Garcia-Aranda’s claims for asylum and withholding of removal.
B. CAT Claim
Unlike asylum and withholding of removal, CAT relief does not require a nexus between the alleged torture and an applicant’s membershiр in a protected group. Instead, Article III of CAT, as implemented by the United States, prohibits the government from removing an applicant if it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.”
Analysis of a CAT claim boils down to a two-step inquiry. See, e.g., Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014). First, the applicant must show that, in his or her particular situation, it is more likely than not that he or she will be harmed upon removal in a way recognized by section 1208.18(a). See,
of future torture . . . including, but not limited to: (i) [e]vidence of past torture . . . ; (ii) [e]vidence that the applicant could relocate . . . ; (iii) [e]vidence of gross, flagrant or mass violations of human rights . . . ; and (iv) [o]ther relevant information regarding conditions in the country of removal.”
Second, for an applicant to be eligible for CAT relief, the applicant must also show that sufficient state action, as defined in section 1208.18(a), would be involved in his or her likely future harm. In other words, the applicant must show that his or her likely future harm will 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.”
As for who qualifies as a government actor, the Attorney General and our sister circuits have interpreted the regulation’s reference to public officials (or
other persons) “acting in an official capacity” to mean any public official at any level of government (or any other person) acting “under color of law,” as that phrase is used in the civil-rights context. See Matter of O-F-A-S-, 28 I. & N. Dec. 35, 39–42 (A.G. 2020); In re Y–L, 23 I. & N. Dec. 270, 279, 285 (A.G. 2002); see also, e.g., Garcia, 756 F.3d at 891–93; United States v. Belfast, 611 F.3d 783, 808–09 (11th Cir. 2010); Ramirez-Peyro v. Holder, 574 F.3d 893, 899–901 (8th Cir. 2009); Bankole v. INS, 126 F. App’x 503, 504 (2d Cir. 2005).6 We agree and thus now hold that the CAT state-action requirement mandates that an applicant’s likely future torture be performed by, or with the acquiescence of, any public official (or other person) “exercis[ing] power ‘possessed by virtue of state law and
their personal pursuits are plainly excluded, whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry, as “there is no bright line test for distinguishing ‘personal pursuits’ from activities taken under color of law.” Pitchell v. Callan, 13 F.3d 545, 547–49 (2d Cir. 1994); see also, e.g., United States v. Giordano, 442 F.3d 30, 42–47 (2d Cir. 2006); Monsky v. Moraghan, 127 F.3d 243, 245–46 (2d Cir. 1997).
Here, based primarily on the past kidnaрping incident in which a local police officer was present, see Certified Admin. Record at 163–67, 171–77, and country-conditions evidence allegedly showing regular collusion between gangs and police, see, e.g., id. at 417, 431, Garcia-Aranda seeks CAT protection on the theory that, upon her return to Honduras, the Mara 18 gang will likely subject her to harm cognizable as torture under section 1208.18(a). Thus, applying the standards articulated above to this theory of CAT relief, the agency must answer two key questions based on thе evidence: whether, if Garcia-Aranda were to be removed to Honduras, it is more likely than not (1) that the gang will intentionally inflict severe pain or suffering to intimidate or coerce her, including meeting all the harm requirements for torture under section 1208.18(a); and (2) that local police acting under color of law will either (i) themselves participate in those likely
gang actions or (ii) acquiesce in those likely gang actions. See Ramirez-Peyro, 574 F.3d at 901–06 (the Eighth Circuit conducting requisite color-of-law analysis on facts similar to this cаse).
Thus far, the agency at all levels has failed to make these required determinations. For her part, the IJ found that Garcia-Aranda failed to “demonstrate that it is ‘more likely than not’ that she would be harmed by governmental forces or forces the government is unable or unwilling to control in a way that constitutes torture as that term has been defined,” seemingly applying the “unable or unwilling to protect” acquiescence standard applicable to asylum and withholding of removal claims, rather than the standard applicable to CAT claims. Certified Admin. Record at 90–91; see also Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir. 2020) (remanding for the agency to explain how the distinct unable-or-unwilling standard “might translate to identifying government acquiescence in torture under the CAT”).
To be sure, the BIA came closer to the standard we announce today when it required Garcia-Aranda to show “a likelihood of future torture by or with the acquiescence (including willful blindness) of a government official upon return.” Certified Admin. Record at 4. But the BIA then fatally erred when, parroting
language from Khouzam, 361 F.3d 161, it faulted Garсia-Aranda for failing to show either that “the police officer in question or any Honduran official has an interest in torturing the respondent at this time” or that “members of the police, either alone or in connection with gangs or cartels, routinely engage in kidnapping for ransom and associated mistreatment and that higher officials know or remain willfully blind to the conduct and breach their responsibility to prevent it.” Certified Admin. Record at 4 (emphases added). In other words, the BIA failed to analyze whether it is likely that the Mara 18 gang has an interest in torturing Garcia-Aranda at this time and whether it is likely that any member of the
In Khouzam, we analyzed whether a man accused of murder in Egypt, where torture was regularly used as an interrogation tactic, was eligible for CAT relief. 361 F.3d at 163–64, 169. Although we indicated that section 1208.18(a)’s state-action requirement was likely met because the interrogating police officers were themselvеs “acting in their official capacities . . . as [was] strongly suggested by the fact that their goal [was] to extract confessions,” we also held that, to the extent that the interrogating police officers were not acting in their official capacities, evidence of the “‘routine’ nature of the torture and its connection to the criminal
justice system” meant that other police officers – in that case higher-level police officers – would meet section 1208.18(a)’s state-action requirement through acquiescence. Id. at 171. But we never indicated that such facts are necessary. Where, as here, the primary perpetrator of likely harm is a gang, the relevant state-action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).
Because of these legal errors, we grant the petition as to Garcia-Aranda’s claim for protection under CAT and vacate the BIA’s decisions regarding CAT protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a CAT claim for proper application of Khouzam). On remand, we direct the agency to consider, in light of all testimony and documentary evidence, whether Garcia-Aranda will more likely than not be tortured by, or at the instigation of, or with the consent or acquiescence of, any public official (or other person) acting under color of law. As more fully described above, that means considеring questions such as whether it is more likely than not that the gang will torture Garcia-Aranda, including meeting all the harm requirements for torture under section 1208.18(a),
and whether it is more likely than not that local police acting under color of law will themselves participate in those likely gang actions or acquiesce in those likely gang actions. The BIA is also instructed to remand to the IJ for any additional factfinding that is necessary for the BIA to make its determination.
III. CONCLUSION
For the foregoing reasons, we DENY IN PART and GRANT IN PART the petition for review, VACATE the BIA’s decisions regarding CAT protection, and REMAND the case to the BIA for further proceedings consistent with this opinion.7