NELSON ESIMAR MARTINEZ MANZANARES v. WILLIAM P. BARR, U.S. Attorney General
No. 18-60315
United States Court of Appeals, Fifth Circuit
May 24, 2019
Petition for Review of an Order of the Board of Immigration Appeals
Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
Nelson Esimar Martinez Manzanares (“Martinez“) unsuccessfully applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT“). He now asks us to review the government‘s decision and to vacate the removal order. We deny the petition.
I.
In May 2014, Martinez entered the United States near McAllen, Texas, without the necessary entry documents. The Department of Homeland Security (“DHS“) began removal proceedings. Martinez applied for asylum, withholding of removal, and CAT protection. He argued he had suffered persecution in Honduras based on his membership in a particular social group related to his former work in law enforcement.
A.
Before an Immigration Judge (“IJ“), Martinez testified that he worked as a volunteer auxiliary police officer from 2005 to 2009 in the Honduran village of San Isidro, a small community located in the city of Victoria, in the department of Yoro. On May 14, 2009, he arrested Edwin Giovanni Megdoreta Montcodo, known as Edis, who was suspected of killing a man with a machete. Honduran authorities detained Edis for seventeen days before releasing him. According to Martinez, once released, Edis fled San Isidro for several years to avoid being tried and convicted for murder.
Nearly five years later, however, Edis returned to San Isidro. In January 2014, as Martinez was about to leave church, people informed him Edis was outside. When Martinez left the building, Edis pulled out a gun. Bystanders intervened, however, and “didn‘t allow [Edis] to do anything to [Martinez].”
About a month later, Edis threatened Martinez again. Martinez was driving with his uncle and brother when he saw Edis outside of a bar-like establishment. Edis yelled that he was going to kill Martinez, pulled out a gun, and fired shots at the car. The bullets missed Martinez and the car. Martinez then pulled out his own gun, and Edis fled.
Approximately two weeks later, on February 14, 2014, Martinez was riding a motorcycle to work when Edis emerged from tall grass with a shotgun. Edis pointed the shotgun at him. Martinez jumped into a nearby lake. When Edis approached the lake, Martinez swam away.
Martinez testified before the IJ that he never reported any of the incidents to the police because the Honduran police do “not function.” Martinez did, however, report the first two incidents to a local mayor. Both times the mayor told Martinez that he could “take vengeance in [his] own hands” and that he “had the authority to kill [Edis] if [he] wanted to.”
After the third incident, Martinez moved to an apartment in the building where he worked. When asked whether he had any more problems with Edis there, Martinez said no. He explained security guards protect the building so “nothing happens
Martinez sought immigration relief based on persecution on account of membership in a particular social group. Specifically, Martinez alleged membership in three possible groups:
- (1) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who are persecuted for having performed their law enforcement duties; (2) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of [Edis]; and (3) ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of persons accused of committing a crime.
Resp‘t‘s Submission in Supp. of Appl., Ex. M. The IJ concluded these groups are not cognizable as particular social groups under the Immigration and Nationality Act (“INA“). But even if they were, the IJ determined Martinez failed to demonstrate persecution on account of membership in these proposed groups. It found Martinez “is not being singled out because of his status as a former law enforcement officer, but instead for his role in arresting a particular individual.” Accordingly, the IJ denied relief.
B.
Martinez appealed to the Board of Immigration Appeals (“BIA“). The BIA dismissed, concluding the IJ correctly denied the asylum and withholding claims because Martinez failed to “show . . . the requisite nexus between the harm he suffered and a protected ground for asylum or withholding of removal.” Regarding the nexus requirement, Martinez admitted he had been harmed because of specific actions he took, not because he belonged to a certain group. Regarding the protected ground, Martinez failed to show his proposed social groups are “socially distinct groups in Honduras.” The BIA additionally upheld the IJ‘s conclusion that Martinez did not show the Honduran government was unable and unwilling to protect him. It further noted Martinez did not suffer harm rising to the level of persecution.
The BIA likewise upheld the IJ‘s determination that Martinez did not qualify for CAT protection. It noted the Honduran police “initially arrested and detained Edis,” and the mayor “effectively authorized” Martinez to kill Edis. Based on “these circumstances,” the BIA concluded Martinez “did not show that it is more likely than not that he will be subject to mistreatment rising to the level of torture by Edis by or with the acquiescence of public officials in Honduras.”
C.
Martinez petitioned this Court for review. But before the Court could reach the issues presented, Martinez and the government filed a joint motion to remand. The parties wanted the BIA to (1) explain the apparent assumption that Martinez‘s authorization to kill Edis made it less likely Martinez would suffer harm, (2) reconsider its reasoning regarding Martinez‘s failure to establish a particular social group and nexus, and (3) “consider whether the alleged harm suffered by [Martinez] ‘rises to the level’ of persecution.” Over Judge Jones‘s dissent, the Court granted the parties’ joint motion without discussion.
On remand, the BIA said the parties misinterpreted its original decision. Regarding the parties’ first remand issue, the BIA said it did not assume permission to kill Edis made it less likely Martinez would be killed. The BIA explained the authorization to kill Edis was only one
II.
We review the BIA‘s decision; we consider the IJ‘s decision only to the extent it influenced the BIA. See Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018) (per curiam). We will reverse the BIA‘s factual determinations “only if the evidence is so compelling that no reasonable fact finder could fail to find the petitioner statutorily eligible for relief.” Qorane v. Barr, 919 F.3d 904, 909 (5th Cir. 2019) (quotation omitted). In contrast, we “review[] the BIA‘s legal determinations de novo.” Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir. 2019).
We begin by addressing Martinez‘s claims for asylum and withholding of removal before turning to his CAT claim. We deny the petition on each ground.
A.
To be eligible for asylum, Martinez must establish he is a refugee.
1.
A “particular social group” must be “a group of persons [who] share a common immutable characteristic that they either cannot change or should not be required to change.” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (quotation omitted). Furthermore, the relevant society must “perceive those with the characteristic in question as members of a social group” (social distinction), and the proposed group must be a limited, “discrete class of persons” (particularity). Id. at 786-87.
We doubt any of Martinez‘s proposed groups qualify as a particular social group. After all, “[w]hen the harm visited upon members of a group is attributable to the incentives presented to ordinary criminals rather than to persecution, the scales are tipped away from considering those people a ‘particular social group’ within the meaning of the INA.” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam).
At least one proposed group, “ex-law enforcement officials of San Isidro, Victoria, Yoro, Honduras who participated in the capture of [Edis],” is clearly not cognizable. As the BIA noted, there is no record evidence this group is socially distinct. Likewise, it is not clear from the record that anyone other than Martinez
2.
Even if Martinez‘s proffered groups are cognizable, substantial evidence supports the BIA‘s determination that Martinez failed to show a nexus between the alleged persecution and his membership in the groups.
To show persecution was “on account of” a protected ground for asylum and withholding of removal, Martinez must prove the protected ground was “at least one central reason” for the persecution.
Martinez did not make this showing. He never once stated Edis persecuted him because he was an ex-law enforcement officer. Instead, all the testimony demonstrates Martinez was targeted because of his specific involvement in Edis‘s arrest, not his general status as an ex-law enforcement official. Martinez testified that Edis “retaliated against [him]” because he “turned [Edis] over to the authorities.” He also described the threats as being “personal, because [he] captured and arrested [Edis] some time back.”
Persecution motivated by a personal vendetta or desire for revenge is not persecution “on account of” a protected ground. See Hernandez-Rivera v. Sessions, 721 F. App‘x 401, 402 (5th Cir. 2018) (per curiam) (agreeing applicant did not establish nexus when persecution was based on “revenge,” not applicant‘s “former police officer” status); Sanjaa v. Sessions, 863 F.3d 1161, 1165 (9th Cir. 2017) (“The personal retribution [applicant] suffered . . . because of his role in the drug-trafficking investigation is not cognizable under the INA.“); Marin-Portillo v. Lynch, 834 F.3d 99, 101 (1st Cir. 2016) (concluding no nexus when threats were motivated by “a personal dispute“); Rodriguez-Leiva v. Holder, 607 F. App‘x 807, 810-11 (10th Cir. 2015) (concluding a witness to a murder “was targeted by criminals because he posed a threat to their interest in avoiding prosecution,” not “on account of his social status“); Costa v. Holder, 733 F.3d 13, 17 (1st Cir. 2013) (concluding persecution based on a “personal vendetta” is “not due to . . . membership in a social group“); Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir. 2011) (per curiam) (concluding persecution based on prior arrest of a drug dealer “is not cognizable under the INA“); Pavlyk v. Gonzales, 469 F.3d 1082, 1088-89 (7th Cir. 2006) (concluding applicant cannot demonstrate nexus when “persecution stemmed from his conduct in [two] particular investigations“).
At most, Edis‘s desire for retribution is only tangentially related to Martinez‘s status as an ex-law enforcement officer. Martinez thus cannot show he was persecuted on account of that status. See Shaikh, 588 F.3d at 864.
Martinez attempts to escape this conclusion by relying on Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013). Of course, that decision is not binding on us, and in any event, it‘s readily distinguishable. In that case, the Ninth Circuit concluded the applicant established a nexus between a protected
And even if we disagreed with the agency‘s factual conclusion that Edis was motivated by personal reasons, we still could not say “a reasonable factfinder would be compelled to conclude to the contrary.” See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (per curiam). Because substantial evidence supports the BIA‘s conclusion that Martinez didn‘t show the alleged persecution was “on account of” a protected ground, he is not entitled to asylum or withholding of removal.
B.
We turn now to whether Martinez established his eligibility for CAT protection. To be eligible for CAT relief, Martinez must show it is “more likely than not” he will be tortured if he returns to Honduras. Tamara-Gomez v. Gonzales, 447 F.3d 343, 350 (5th Cir. 2006). In assessing whether Martinez has made this showing, we look for record evidence regarding any past torture he suffered, whether he could relocate within Honduras to avoid torture, and relevant conditions in Honduras, such as whether there are flagrant human rights violations. See Zhang v. Gonzales, 432 F.3d 339, 345 n.4 (5th Cir. 2005) (citing
Moreover, an applicant must demonstrate there would be “sufficient state action involved in that torture” to be eligible for CAT relief. Tamara-Gomez, 447 F.3d at 351. That‘s because torture is defined to include only “pain or suffering . . . inflicted by[,] at the instigation of[,] or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Substantial evidence supports the BIA‘s denial of CAT relief. Even if Edis threatened Martinez with a sufficiently “extreme form of cruel and inhuman treatment” to constitute torture,
Martinez also failed to show he suffered past torture. See
Furthermore, Martinez provided evidence demonstrating public officials did not consent to previous harm Edis caused, but rather attempted to combat it. See Chen v. Gonzales, 470 F.3d 1131, 1142 (5th Cir. 2006) (noting it is proper to consider government efforts “to combat [criminal activity] in the willful blindness inquiry“). He testified the Honduran authorities detained Edis for seventeen days on suspicion of murder in 2009. And they were planning to prosecute Edis—or at least Edis believed they were, because he fled for nearly five years to avoid it. Record evidence also indicates Honduras had been taking steps to reform its criminal justice institutions and better “tackle the crime situation.”
At most, Martinez demonstrated Honduras was unable to provide Martinez and other citizens complete protection from criminals like Edis. But that does not suffice because “a government‘s inability to protect its citizens does not amount to acquiescence.” Qorane, 919 F.3d at 911; see also Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir. 2008) (explaining “evidence that Bangladeshi officials have been unable to control the activities of [a] criminal gang” is “insufficient to compel a finding of willful blindness toward the torture of citizens by third parties” (quotation omitted)); 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 constitute[s] sufficient state action for [CAT] purposes“).
The record evidence does not compel the conclusion that Martinez was eligible for CAT relief.
The petition is DENIED.
ANDREW S. OLDHAM
UNITED STATES CIRCUIT JUDGE