Herrera-Martinez v. Garland

• Decision Date: 05 January 2022
• Docket Number: No. 20-1423,20-1423
• Citation: 22 F.4th 173
• Parties: Walter Rolando HERRERA-MARTINEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

22 F.4th 173

Walter Rolando HERRERA-MARTINEZ, Petitioner,

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

No. 20-1423

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2021

Decided: January 5, 2022

ARGUED: Krystal Brunner Swendsboe, WILEY REIN LLP, Washington, D.C., for Petitioner. Sarah Kathleen Pergolizzi, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jenny Kim, Melody Vidmar, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C.; Madeline J. Cohen, WILEY REIN LLP, Washington, D.C., for Petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Motz and Judge Rushing joined.

QUATTLEBAUM, Circuit Judge

Walter Rolando Herrera-Martinez petitions this Court for review of the Board of Immigration Appeals' denial of his claims for withholding of removal under 8 U.S.C. § 1231(b)(3) and the Convention Against Torture (CAT). He argues that he suffered past persecution and will likely suffer future persecution on account of being a prosecution witness. He also argues that he more likely than not will be tortured if returned to his native country of Honduras, and the Honduran government would acquiesce in that torture. The Board, however, concluded that Herrera-Martinez's withholding claim failed because the particular social group he advanced, prosecution witnesses, was not particular. The Board also rejected his CAT claim, first affirming the Immigration Judge's conclusion that Herrera-Martinez's testimony was not credible. It then determined that Herrera-Martinez failed to show that it is more likely than not he would be tortured if he returned to Honduras and that the Honduran government would acquiesce to such torture. We agree with the Board that the social group prosecution witnesses, at least as proposed by Herrera-Martinez, is not particular. And under the applicable standard of review, we see no error in the Board's decision upholding the Immigration Judge's credibility finding and denying Herrera-Martinez's CAT claim. Therefore, we deny the petition.

I.

A.

Herrera-Martinez, a citizen and native of Honduras, owned a restaurant and a billiards bar in that country with a business partner. Due to the success of his businesses, two narcotraffickers approached him in 2002 with a proposition to sell drugs through the businesses. Herrera-Martinez refused, but the narcotraffickers continued to press him to sell drugs. In response, he reported the narcotraffickers to the police. According to Herrera-Martinez, the police informed the narcotraffickers of Herrera-Martinez's report, after which the narcotraffickers went to Herrera-Martinez's restaurant where they beat him and threatened to kill him if he "ever made any fuss about them again." A.R. 608. The same day, Herrera-Martinez left the restaurant and went into hiding in a nearby town in Honduras. But after hearing that the narcotraffickers had hired a hitman to kill him, he fled to the United States.

B.

Upon entering the United States, Herrera-Martinez turned himself in to immigration officials. Herrera-Martinez's mother hired an attorney to help him in his immigration proceedings. He claims he went to each of his immigration hearings but skipped the last one "because my attorney said to me that if I were to appear to that hearing the Judge was going to give me voluntary departure." A.R. 451. Herrera-Martinez was later deported to Honduras after a policeman, during a traffic stop, noticed an outstanding order requiring his deportation.

Herrera-Martinez stayed in Honduras for five days before returning to the United States. While living in the United States, he claims he lost his key to his apartment and attempted entry through the unlocked sliding-glass door on his balcony. To reach his balcony, he had to climb onto other residents' balconies. According to the arresting officer, however, he found Herrera-Martinez inside another resident's apartment with that resident's cell phone, wristwatch and vehicle keys. Herrera-Martinez pled guilty to burglary of a habitation with intent to commit theft. After serving his sentence, immigration officials deported him.

Herrera-Martinez stayed in Honduras for twice as long as before—ten days—before returning to the United States a third time. During his third stay in the United States, a police officer stopped him for a traffic violation. After that, immigration officials detained Herrera-Martinez for illegal reentry. Based on his testimony to an immigration officer, he received a reasonable fear interview. Herrera-Martinez also submitted an I-589 application seeking withholding of removal and protection under the CAT. Herrera-Martinez's I-589 application led to a hearing before the Immigration Judge.

C.

At his hearing, Herrera-Martinez testified about the events that led him to leave Honduras. He also testified that the narcotraffickers killed his former business partner several years after he left Honduras. He supplied a news article about that murder.

In addition, Herrera-Martinez provided affidavits from family members that he claims show that the narcotraffickers intend to harm him should he to return to Honduras. For example, his brother, Wilmer, stated in his affidavit that the narcotraffickers threatened Herrera-Martinez with death after he reported them to the police. Wilmer swore that he, too, had been approached by the same narcotraffickers, and they once pointed a gun at his head and demanded to know Herrera-Martinez's location. Even though Herrera-Martinez, Wilmer and the narcotraffickers were within a grade or two in the same elementary school, Herrera-Martinez testified that the narcotraffickers did not kill Wilmer because they did not know he was his brother.

Herrera-Martinez further testified that, several years after the death of his business partner, the same narcotraffickers that threatened him also murdered his brother-in-law. His sister, Ada, provided an affidavit about this event. Herrera-Martinez also supplied a news article showing that his brother-in-law had been killed and that one of the narcotraffickers was a suspect in the shooting.

María, the mother of Herrera-Martinez's children and his "former partner," also submitted an affidavit. A.R. 632. She corroborated Herrera-Martinez's testimony that he reported the narcotraffickers to the police and fled to the United States. She did not mention, however, the assault described by Herrera-Martinez. María also said that in the years after Herrera-Martinez left Honduras, she and her children were targeted by the narcotraffickers because of their relation to Herrera-Martinez. She described the narcotraffickers driving up to her car and shooting at her, "fir[ing] around 9 shots." A.R. 632. Although all shots missed María, the bullets shattered the driver's side window of the car. After the shooting, the car continued to follow María. María described her response:

I crouched down without releasing the steering wheel, and because I knew the road very well I was able to drive home without looking. I arrived home unharmed, but they followed me to my house and asked me if I knew the person who had come to my house to visit.

A.R. 632. To protect herself and her children, she told them Herrera-Martinez was "only a friend" and, according to her, the narcotraffickers then left her and her children unharmed. A.R. 632.

II.

At the conclusion of the hearing, the Immigration Judge first found that Herrera-Martinez's claims failed to meet his burden for withholding of removal under § 1231. The Judge held that Herrera-Martinez experienced "at best a severe level of harassment," and the death threat he received was "significantly different" from other cases in the Fourth Circuit that recognize a death threat as establishing past persecution. A.R. 381–82. The Judge also determined that Herrera-Martinez did not establish a well-founded fear of future persecution. In making this decision, the Judge mentioned "credibility issues," but explained that, beyond credibility, Herrera-Martinez still did not show persecution on account of any of his claimed protected grounds. A.R. 382. The Immigration Judge found it "unclear as to what particular social group [Herrera-Martinez] ... articulated" but found "business owners in Honduras," "business owners who refuse to cooperate with narcotraffickers," "people who refuse to cooperate with narcotraffickers" and "business owners who refuse to cooperate with narcotraffickers" were not particular social groups. A.R. 383–84.

The Immigration Judge also denied Herrera-Martinez's CAT claim because he did not meet his burden to prove that Honduran government officials would acquiesce in his alleged torture. The Immigration Judge noted that the passage of almost twenty years from Herrera-Martinez's confrontation with the narcotraffickers made him skeptical that Herrera-Martinez was at risk of harm, and Herrera-Martinez's own news articles—which reported police efforts to combat the narcotraffickers—contradicted his assertion that the police would acquiesce to his torture.

Herrera-Martinez appealed that decision to the Board, which affirmed the Immigration Judge on the § 1231 withholding claim solely on the issue of Herrera-Martinez's alleged particular social group. The Board agreed with Herrera-Martinez's argument that the Immigration Judge did not consider the group of prosecution witnesses, but nevertheless held that prosecution witnesses lacked particularity. However, with respect to the CAT claim, the Board found that the Immigration Judge had not considered Herrera-Martinez's testimony that, after he left Honduras, the narcotraffickers continued to threaten him indirectly and...