Figueroa v. Attorney Gen. U.S.

• Decision Date: 19 May 2021
• Docket Number: No. 19-1419,19-1419
• Parties: Edil Joel GALEAS FIGUEROA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

998 F.3d 77

Edil Joel GALEAS FIGUEROA, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 19-1419

United States Court of Appeals, Third Circuit.

Argued: January 13, 2020

Filed: May 19, 2021

Raechel K. Kummer [Argued], Susan B. Manning, Morgan Lewis & Bockius, 1111 Pennsylvania Ave., N.W., Suite 800 North, Washington, DC 20004, Stephanie R. Reiss, Morgan Lewis & Bockius, 301 Grant Street, One Oxford Centre, Suite 3200, Pittsburgh, PA 15219, Counsel for Edil Joel Galeas Figueroa

Anjum Gupta, Rutgers University School of Law, 123 Washington Street, Newark, NJ 07102, Counsel for Amicus Petitioners Immigration Law Professors

Jenny C. Lee [Argued], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20004, Counsel for Attorney General United States of America

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

PHIPPS, Circuit Judge.

Edil Joel Galeas Figueroa petitions for relief from a final order of removal following his second illegal entry into the United States. To prevent deportation to his native Honduras, Galeas Figueroa seeks withholding of removal under both the Immigration and Nationality Act and the Convention Against Torture, asserting that he would be persecuted and tortured by a gang that raped his sister, killed his relatives, and threatened him and other family members.

On administrative appeal, the Board of Immigration Appeals affirmed a decision by an Immigration Judge denying Galeas Figueroa the relief he seeks. As to statutory withholding, the BIA determined that the violence and threats by the gang did not amount to governmental persecution, but rather constituted private harm for which withholding of removal under the INA is unavailable. In reaching that outcome, the BIA treated as interchangeable two legal standards for evaluating the degree of governmental culpability in the harmful conduct of private actors: the unable-or-unwilling-to-control test and the condone-or-complete-helplessness test. With respect to CAT protection, the BIA concluded that the Honduran government would not acquiesce to any torture that Galeas Figueroa might experience because Honduran police would investigate reports that Galeas Figueroa would make.

Galeas Figueroa petitioned this Court to review the BIA's final order of removal. He moved for a stay of removal for the pendency of his petition, and this Court denied his motion. Then, according to the Government, Galeas Figueroa did not report to governmental custody as ordered. Invoking the fugitive disentitlement doctrine, the Government moved to dismiss Galeas Figueroa's petition.

Upon consideration of the Government's motion and Galeas Figueroa's petition, we will deny both. Galeas Figueroa may well be a fugitive disentitled to relief, but the Government's evidence of his fugitive status is insufficiently probative to justify discretionary dismissal of his petition. As to the BIA's denial of Galeas Figueroa's application for statutory withholding of removal, the agency did not err in treating the unable-or-unwilling-to-control test and the condone-or-complete-helplessness test as legal equivalents. And substantial evidence supports its conclusion that Galeas Figueroa did not demonstrate the requisite connection between the gang's harmful acts and the Honduran government. Nor was the BIA's denial of CAT protection unsound. Substantial evidence supports its conclusion that Honduran police would investigate reports from Galeas Figueroa, and thus he failed to establish governmental acquiescence to torture.

I. BACKGROUND

Galeas Figueroa, a native and citizen of Honduras, has twice entered the United States unlawfully. His explanation for doing so unfolds in greater detail with each successive telling.

A. Galeas Figueroa's Illegal Entry in 2010

In 2010, Galeas Figueroa entered the United States without inspection or parole. In his initial interview with a border patrol agent, Galeas Figueroa stated that he had come to the United States to obtain work in New Jersey and that he had no fear of returning to Honduras. But not long after his entry, during a credible-fear interview with an asylum officer, see 8 C.F.R. § 1208.30, Galeas Figueroa stated that his father, uncle, and some cousins were killed in Honduras and that he feared their killers would also kill him. Though he professed not to know the assailants or their motives, he reported that his father had previously received death threats and surmised that gang members had targeted his family out of envy or jealousy. Galeas Figueroa also noted that he and his father were members of a farmers’ organization, but he did not believe that the people who killed his father would want to harm other members. From that information, the asylum officer concluded that Galeas Figueroa had a credible fear of persecution.

During removal proceedings, Galeas Figueroa applied for asylum and statutory withholding of removal under the INA. Through his application and testimony, Galeas Figueroa supplied several additional details. He indicated that a rival farmers’ organization seeking to seize his father's land killed his father. Galeas Figueroa also testified that his father was killed for previously reporting to the police his sister's rape by gang members. He further explained the killings of his uncle and his two cousins: his uncle was killed at the same time as his father, and his cousins were killed to prevent them from retaliating against the killers. Galeas Figueroa revealed that after his father's death, he fled to another part of Honduras and after receiving death threats, to the United States. The Immigration Judge ultimately concluded that Galeas Figueroa was not entitled to relief, denied his application, and ordered him removed. Galeas Figueroa waived any appeal and was removed to Honduras the following week.

B. Galeas Figueroa's Illegal Entry in 2012

After remaining in Honduras for approximately one year, Galeas Figueroa reentered the United States in 2012. He came with his longtime girlfriend but not his children. They lived undetected in New Jersey for several years, but in late 2017, the Department of Homeland Security reinstated Galeas Figueroa's prior removal order.

During a reasonable-fear interview, see 8 C.F.R. § 1208.31, Galeas Figueroa again expressed fear of returning to Honduras. This time, he attributed the deaths of his family members to either the Mara 18 gang or the MS-13 gang. He explained that one of those gangs raped his sister, and after his father reported the assault to the police, the gang killed his father (and his uncle) in retaliation. As told by Galeas Figueroa, that sequence of events repeated with his cousins. After one cousin reported his father's and uncle's murders to the police, the gang killed him. And after another cousin reported the first cousin's murder, the gang killed him as well. Galeas Figueroa informed the asylum officer that the gang then turned their attention to him, threatening to kill him for trying to protect his father from the gang but never physically harming him. The asylum officer found Galeas Figueroa to be credible and referred him for a withholding-only hearing before an Immigration Judge. See 8 C.F.R. 1208.31(e).

At that hearing, Galeas Figueroa applied for withholding of removal under the INA and the CAT.¹ In testifying again about events that occurred in Honduras before his first illegal entry, Galeas Figueroa was no longer uncertain about who had harmed his family and threatened to kill him – it was the Mara 18 gang. Galeas Figueroa ascribed several motives to the gang's murder of his father: his father reported to the police that gang members raped his sister; his father tried to protect another woman who was raped by the gang; his father participated in a farmers’ organization (which, as Galeas Figueroa reported, was a rival of another organization comprised of gang members); and his father was involved in anti-gang political activities. Galeas Figueroa also added another previously omitted detail – in addition to threatening to kill him for taking care of his father, the gang once beat him on the back with a belt buckle. Galeas Figueroa stated that he did not inform the Immigration Judge at his prior hearing about everything that had happened to him because he feared retaliation from the gang.

Galeas Figueroa also described other later-in-time developments. He alleged that the Mara 18 gang continued to threaten him and his family, including threatening to cut out his brother's tongue. He also testified that the gang called twice (first his mother and then him directly) with death threats after his 2011 removal to Honduras.

Those threats prompted Galeas Figueroa to enter the United States again in 2012. After his arrival, Galeas Figueroa learned from his mother in Honduras that the gang shot at their house and killed his dog. And later, in 2014, the gang phoned Galeas Figueroa and threatened to kidnap his children in Honduras unless he paid a ransom. Rather than pay the gang, Galeas Figueroa's mother brought the children to the United States. Since that time, neither Galeas Figueroa nor his mother (who returned to Honduras) has received any threats from the gang.

Galeas Figueroa also submitted evidence to show that the Honduran government could not and would not protect him from the gang. He produced police reports that had been filed concerning his sister's rape, his family members’ murders, and the threatened kidnapping of his children. He also testified that those reports never resulted in any arrests and that the Honduran police were allied with the gang.

Following the hearing, the Immigration Judge determined that Galeas Figueroa was not entitled to withholding of removal under the INA or the CAT. The Immigration Judge invoked res judicata and collateral estoppel to prevent relitigating any issues resolved at his first removal hearing. And considering only the...