Garcia-Aranda v. Garland

• Citation: 53 F.4th 752
• Decision Date: 21 November 2022
• Docket Number: 18-2281,August Term 2021
• Parties: Karla Iveth GARCIA-ARANDA, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

53 F.4th 752

Karla Iveth GARCIA-ARANDA, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 18-2281

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: January 20, 2022

Decided: November 21, 2022

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.

Before: Kearse, Walker, and Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

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") 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 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.

I. BACKGROUND

A. Factual Background¹

Prior to fleeing 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 killed 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 local 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 to 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, and with Garcia-Aranda participating as lead applicant, the family conceded removability as charged and timely applied for asylum, withholding of removal, and protection under CAT.² At a later merits hearing before the IJ, Garcia-Aranda testified to the events discussed above. Garcia-Aranda also submitted exhibits pertaining to the country conditions in Honduras – including the U.S. Department of State's 2015 Country Report on Human Rights Practices for Honduras and Douglas Farah's "Central America's Northern Triangle: A Time of Turmoil and Transition," which chronicled the sources of corruption, violence, criminal activity, and governmental abuse in Honduras.

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, Tela, Atlantida, Honduras) did not constitute a "particular social group," as required by 8 U.S.C. § 1101(a)(42). Alternatively, the IJ found that, even if the Valerio family did qualify as a "particular social group," Garcia-Aranda did not establish that her affiliation with the family was "at least one central reason" why gang members had targeted her, as required by 8 U.S.C. § 1158(b)(1)(B)(i). Instead, the IJ concluded that the gang had targeted her due to a perception that she was wealthy. Finally, as for CAT relief, the IJ noted Garcia-Aranda's "credible testimony that there was a police officer who was involved in some of the past incidents," but determined 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." Certified Admin. Record at 90–91.

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-Aranda 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 8 U.S.C. § 1252, but the parties subsequently stipulated under Federal Rule of Appellate Procedure 42(b) to dismiss the petition and remand to the BIA so that it could reconsider certain aspects of its CAT analysis, which we so-ordered.

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, 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." 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 8 U.S.C. § 1252.³

II. DISCUSSION

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 completeness." 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...