Valdiviezo-Galdamez v. Attorney General of U.S.

• Decision Date: 07 September 2007
• Docket Number: No. 06-2080.,06-2080.
• Citation: 502 F.3d 285
• Parties: Mauricio VALDIVIEZO-GALDAMEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

502 F.3d 285

Mauricio VALDIVIEZO-GALDAMEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-2080.

United States Court of Appeals, Third Circuit.

Argued July 10, 2007.

Filed September 7, 2007.

Martin P. Duffey [ARGUED], Cozen & O'Connor, Ayodele Gansallo, Hias & Council Migration Service, of Philadelphia, Philadelphia, PA, for Petitioner.

Colette R. Buchanan [ARGUED], Office of the United States Attorney, Newark, NJ, Janice K. Redfern, United States Department of Justice, Office of Immigration, Washington, DC, for Respondent.

Before: RENDELL and AMBRO, Circuit Judges, and SHAPIRO,^* District Judge.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Mauricio Edgardo Valdiviezo-Galdamez ("Galdamez") petitions for review of the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We will grant the petition for review, and remand for further proceedings consistent with this opinion.

I.

Galdamez is a native and citizen of Honduras, born in May 1984.¹ He came to the United States in October 2004 and was not admitted or paroled after inspection by an immigration officer. Removal proceedings commenced in January 2005. Galdamez admitted removability, but submitted an application for asylum and for relief under the CAT. A hearing was held before an Immigration Judge ("IJ") on May 16, 2005.

Galdamez testified that he fled Honduras because members of a gang called "Mara Salvatrucha" threatened to kill him if he did not join the gang. App. 11. Galdamez testified that the young men in the gang engage in drug trafficking and, on occasion, murder. According to Galdamez, the gang members began making threats against him in March 2003, while Galdamez was living in the City of San Pedro Sula in Honduras. One day as Galdamez was leaving work, six men approached him and robbed him. The men told Galdamez that if he wanted his money and jewelry back, he would have to join their gang. App. 142. After Galdamez refused, the men hit him and told him to think about their proposal. Galdamez knew that the men were members of Mara Salvatrucha because of their tattoos.

Galdamez reported the incident to the police three days later. He delayed going to the police because he was afraid to leave his house. After this incident, Galdamez moved to live with his mother in Santa Rosa de Cupon because he was afraid that the gang would come after him again in San Pedro Sula. He testified that he did not leave his mother's house during the three months that he stayed in Santa Rosa.App. 173. However, he returned to San Pedro Sula in June 2003 because he received an offer of employment. He testified that he did not think that he could find work in Santa Rosa because the village is largely agricultural and most people are farmers. App. 181. He testified that he was afraid to stay in Santa Rosa because some of his former classmates who live there are gang members and he feared that they would find out that he was in town. App. 174.

After Galdamez returned to San Pedro Sula, he tried to avoid the members of Mara Salvatrucha and moved to a different colony within the city. However, the gang members spotted him and continued to threaten him. App. 176. The gang members shot at him, and threw rocks and spears at him about two-to-three times per week. Galdamez ran away and his attackers screamed at him "Don't run. Don't be afraid. Sooner or later you will join us." A143-44, 178. Galdamez was able to identify some of the men, either by the gang nicknames inscribed in their tattoos or because they addressed one another by those nicknames. Galdamez testified that he was not injured in these attacks because he tried not to give the attackers an opportunity to do so. He filed five separate police reports about these incidents, but received no response from the police. App. 177, 147 ("The [police] would always tell me that they were in process, that they were investigating but we weren't able, able to see anything happen.").

Galdamez testified that on September 10, 2004, when he was on his way to visit his sister's husband in Guatemala, he was kidnaped by Mara Salvatrucha members after crossing the border into Guatemala. Galdamez was traveling with his mother and other family members in a two-car caravan from Honduras to Guatemala. After they crossed into Guatemala, a pick-up truck began following the caravan. The car in which Galdamez was traveling was stopped by the men in the truck, who Galdamez identified as gang members by their tattoos. The men kidnaped Galdamez and his fellow passengers and took them to a mountain area. The gang members asked Galdamez what he was doing in Guatemala, and he responded that he was only traveling. He testified that his abductors thought that he was trying to escape being a gang member. He was told by the gang members that "they [would] no longer offer me to be a part of the Mara but that they would kill me." App. 147. Galdamez was tied up and beaten by the gang members and held for five hours.

Galdamez was eventually freed by the Guatemalan police, who were alerted to the attack by Galdamez's family members traveling in the second car in the caravan, which was not stopped by the gang members. Galdamez filed a complaint with the Guatemalan police, but nothing came of it. App. 163 ("[T]he Guatemalan police told us that they would protect us until the place that we were going. And then, then the chief of police arrived and said that's — this is not our problem. You can fix this whichever way you want. You're not from this country."). Galdamez then briefly stayed in Guatemala with his sister's husband, and decided to come to the United States to escape the Mara Salvatrucha members. He testified that he believes that the gang members will kill him if he returns to Honduras. App. 150. He also testified that he believes that his family will be attacked if he returns to Honduras and continues to refuse to join the gang.

After a hearing, the IJ denied Galdamez's applications for asylum, withholding of removal, and relief under the CAT. The IJ found no reason to disbelieve Galdamez's testimony. However, the IJ offered three purported failures in Galdamez's proof. First, Galdamez did not establish that the government "refused" to protect him from the attacks by Mara members and that the refusal was on account of one of the five grounds enumerated in the Immigration and Nationality Act (i.e., Galdamez's race, religion, nationality, membership in a particular social group, or political opinion). The IJ noted that Galdamez left San Pedro Sula almost immediately after filing the police report concerning the March 2003 attack and concluded that "[s]ubstantial evidence does not indicate that the government or the police refused protection to the respondent against these individuals." App. 19.

Second, the IJ found that Galdamez failed to establish that the injuries he sustained in Honduras were inflicted "on account of" his race, religion, nationality, membership in a particular social group, or political opinion. She stated, without discussion, that "[t]here is no evidence that these criminal elements [ ] imputed any political opinion on the respondent or that they sought to harm the respondent on account of any one of the five grounds delineated in the Act." App. 20. Lastly, the IJ noted that Galdamez had lived in Santa Rosa without problems and faulted Galdamez for failing to establish that the danger of "persecution" at the hands of the gang members was countrywide.

On these grounds, the IJ concluded that Galdamez failed to prove his eligibility for asylum, and, accordingly, also failed to meet the higher burden required to prove eligibility for withholding of removal. Furthermore, the IJ found that Galdamez presented no evidence that he would be tortured if he returned to Honduras and so was not eligible for relief under the CAT. The Board of Immigration Appeals ("BIA") summarily affirmed the decision of the IJ. Galdamez then filed this petition for review.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). When the BIA affirms the IJ's decision without opinion, we review the IJ's decision. See Partyka v. Att'y Gen., 417 F.3d 408, 411 (3d Cir.2005). The IJ's findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B).

A. Asylum

To prove eligibility for a grant of asylum, a petitioner must establish that he is "a refugee," meaning a "person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). "In order to establish past or future persecution, an applicant must `show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.'" Kibinda v. Att'y Gen., 477 F.3d 113, 119 (3d Cir. 2007).

The IJ denied Galdamez's claim for asylum on three grounds: his failure to establish that the government "refused" to protect him from his persecutors, his failure to prove that the injuries that he sustained were inflicted "on account of" one of the five statutory grounds, and his failure to show that the danger of persecution is countrywide. We will address each of these grounds in turn.

1. Government Action

If the alleged persecution was not conducted directly by the government, the petitioner has the burden to prove that it was conducted "by forces the government is unable or unwilling to control." Kibinda, 477 F.3d at 119. Galdamez argues that the IJ erred by...