Gutierrez v. Garland

• Decision Date: 31 August 2021
• Docket Number: No. 19-60408,19-60408
• Citation: 12 F.4th 496
• Parties: Sergio L. TABORA GUTIERREZ, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

12 F.4th 496

Sergio L. TABORA GUTIERREZ, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60408

United States Court of Appeals, Fifth Circuit.

FILED August 31, 2021

Nischay Kishan Bhan, Esq., Charles Frank Mace, Baker Botts, L.L.P., Houston, TX, for Petitioner.

Derek C. Julius, U.S. Department of Justice, Civil Division, Regina Byrd, Esq., Zoe Jaye Heller, Esq., U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before Davis, Duncan, and Oldham, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

This is yet another immigration case involving the vicious international gang Mara Salvatrucha ("MS-13") and its brutalization of the people of Honduras.¹ The record shows that, thanks in part to MS-13, Honduras has become "one of the most violent countries on the planet that is not at war." In Honduras, "gang beheadings and dismemberment of victims are now routine; lynching and burning victims alive are commonplace; and the recruitment of children as young as 11 is an everyday occurrence." Although the Honduran government has tried to combat MS-13, it still "cannot guarantee a minimum level of security for all its citizens."

Petitioner Sergio Luis Tabora Gutierrez was born and raised in this crucible of violence. He has resisted MS-13's attempts to coerce him to join the gang or pay a "war tax." For that, gang members have repeatedly brutalized him and his wife and threatened to kill them. The record contains gruesome photos of his wounds. Tabora Gutierrez therefore entered the United States illegally and, as relevant here, sought relief under the Convention Against Torture (CAT). The immigration judge (IJ)—finding Tabora Gutierrez credible and his account "detailed, plausible, and coherent"—found that "MS-13 is more likely than not to torture or kill him upon his return." Nonetheless, the IJ denied CAT relief and ordered Tabora Gutierrez removed to Honduras because it found any such torture would not occur with the "consent or acquiescence" of Honduran officials. Finding no clear error in that determination, the BIA dismissed Tabora Gutierrez's appeal. He petitioned for our review.

We deny his petition. Tabora Gutierrez, ably represented by pro bono counsel, makes a compelling humanitarian case for why removing him to Honduras will effectively abandon him to torture and death at the hands of MS-13 thugs. Yet to make out a CAT claim, the law demands that this violence will likely occur "with the consent or acquiescence" of Honduran officials, 8 C.F.R. § 1208.18(a)(1), and the IJ and the BIA found that it would not. We can reverse that finding only if the evidence compels a contrary conclusion. Iruegas-Valdez v. Yates , 846 F.3d 806, 810 (5th Cir. 2017). It does not. We must therefore deny the petition.

During oral argument, the government—evidently troubled by Tabora Gutierrez's predicament—suggested he may be a candidate for a discretionary grant of deferred action. See O.A. Rec. at 44:55–45:30. The government was apparently referring to a form of prosecutorial discretion that "allows an otherwise deportable alien to remain in this country." Deferred Action , 1 IMMIGR. LAW AND DEFENSE , § 8:52; see also Reno v. American-Arab Anti-Discrim. Comm. , 525 U.S. 471, 484, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (discussing "deferred action," under which immigration enforcement officials would "exercis[e] [their] discretion for humanitarian reasons ... ‘[t]o ameliorate a harsh and unjust outcome’ ") (quoting 6 C. GORDON , S. MAILMAN , & S. YALE - LOER , IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)). Because federal courts lack authority to grant deferred action, we express no opinion whether it should be granted in this case.

I.

A.

Tabora Gutierrez is a native and citizen of Honduras. On March 14, 2018, he illegally sought entry into the United States and was subsequently ruled inadmissible by an immigration court. See 8 U.S.C. § 212(a)(7)(A)(i)(I). On May 24, 2018, Tabora Gutierrez submitted a pro se application for asylum and withholding of removal and, with counsel's assistance, an amended application on June 18, 2018. A hearing was held before an immigration judge (IJ) on September 5, 2018, at which Tabora Gutierrez testified.

Tabora Gutierrez was born November 1, 1987, in El Progreso, Honduras, and was raised in Choloma, Honduras by his aunt. The criminal gang MS-13 was active in Choloma during Tabora Gutierrez's adolescence. The gang would recruit children as tax collectors and spies, even sending them to beat, torture, and kill people. See, e.g. , Cabrera v. Sessions , 890 F.3d 153, 156 (5th Cir. 2018) ("As in much of the country, Honduras's large and powerful gangs—including MS-13 or ‘the Maras’ and their rivals, Barrio 18—are ubiquitous in Choloma.").

In 2006, Tabora Gutierrez traveled to the United States to meet his mother but was removed back to Honduras in 2013. While he was gone, MS-13's activities in Choloma had "multiplied": the gang controlled parts of the city and would extort a "war tax" from people by threats of torture or death. The gang had also infiltrated the school where Tabora Gutierrez and his common-law wife sent their daughter, recruiting fifth- and sixth-graders to distribute drugs.

In December 2013, gang members began trying to recruit Tabora Gutierrez. When he refused to join, they angrily threatened him. This happened again in early 2014. Tabora Gutierrez was given the choice to join or pay a war tax of $25–30 a week. He adamantly refused, and the gang members said he would be killed if he did not pay. Frightened, Tabora Gutierrez reported the threat to local police, but the officer told him he did not "have enough proof to accuse them."

Tabora Gutierrez moved his family about 30 minutes away but still felt unsafe because of MS-13's pervasive network of spies. Sure enough, gang members found him in August 2014 while he was dropping his daughter off at school and again threatened to kill him. Tabora Gutierrez began moving "from house to house out of fear." Due to these threats, he tried to enter the United States in 2016 but was returned immediately.

In September 2017, four gang members assaulted Tabora Gutierrez in a restaurant. For over twenty minutes, they beat, kicked, and stabbed him with a broken bottle, while telling him the beating was in retaliation for his not joining MS-13. Witnesses did not intervene and the police did not come. Tabora Gutierrez passed out and awoke in an emergency clinic, where a cousin had taken him. His appellate brief contains gruesome photos of his injuries. He then relocated his family to another city, where he spent almost two months recuperating. He reported the beating to local police, but was not given a police report or any information about an investigation.

In December 2017, masked gunmen confronted Tabora Gutierrez and his wife while they were riding motorcycles. Tabora Gutierrez was shot three times in the chest or stomach, buttocks, and leg; his wife was shot twice. They survived, however, after spending six days in the hospital. (His brief also contains photos of the gunshot wounds). When they returned home, neighbors told them armed men had come looking for them. Tabora Gutierrez again moved his family elsewhere.

He reported the shooting to police in Choloma and San Pedro Sula, identifying the masked shooters as MS-13 members by the tattoos on their arms. The Choloma officers told him they "could not help [him]" and that if he "valued [his] life, [he] should flee from the country." The San Pedro Sula officers sent him to a local prosecutor's office, where he filed a statement on February 1, 2018. Tabora Gutierrez admitted he did not know who had shot him and his wife. But the woman who took his statement stated "they would get [her] at [her] house" if she wrote down who shot him. She also "didn't want to include" the shooters’ gang affiliation in the report.

Finally, Tabora Gutierrez testified that, if he were returned to Honduras, MS-13 would find him again through its network of spies throughout the country. He claimed his scars from the beating and shooting would easily identify him. And given his repeated refusals to join the gang or pay the war tax, he feared he would be tortured and killed.

B.

The IJ found Tabora Gutierrez "generally credible," noting that "he provided a detailed, plausible, and coherent account of his past experiences," as well as "corroborating evidence" in the form of "medical documentation, photographs, and a police report." The IJ then assessed Tabora Gutierrez's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

As to asylum, the IJ ruled that Tabora Gutierrez's past persecution, while sufficiently severe, was not perpetrated on account of any protected ground. See 8 U.S.C. § 1158(b)(1)(B)(i) (providing "at least one central reason" for persecution must be "race, religion, nationality, membership in a particular social group, or political opinion"). Instead, his treatment resulted from "the unfortunately commonplace criminal agenda of MS-13: to recruit, extort, threaten, and retaliate against those who defy them." This conclusion also foreclosed Tabora Gutierrez's alternate claim that he had a well-founded fear of future persecution. See, e.g. , Zhao v. Gonzales , 404 F.3d 295, 307 (5th Cir. 2005) (future persecution claim must show reasonable fear of persecution on account of same protected grounds as past persecution) (citing 8 C.F.R. § 208.13(b)(2)(iii)(A)–(B) (2003) ); see also 8 U.S.C. § 1101(a)(42)(A). Moreover, the failure of Tabora Gutierrez's asylum claim meant he could not satisfy the higher standard for withholding of removal. Majd v. Gonzales , 446 F.3d 590, 595 (5th Cir. 2006) (citation omitted); see 8 U.S.C. § 1231(b)(3)(A).

As to the CAT claim, the IJ first found that Tabora Gutierrez was likely to be tortured or killed by MS-13 upon his return to Honduras, meeting the first requirement for CAT relief. See, e.g. ,...