Molina-Avila v. Sessions

• Decision Date: 25 October 2018
• Docket Number: Nos. 17-1723 & 18-1911,s. 17-1723 & 18-1911
• Citation: 907 F.3d 977
• Parties: William Yovanni MOLINA-AVILA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

907 F.3d 977

William Yovanni MOLINA-AVILA, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

Nos. 17-1723 & 18-1911

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2018

Decided October 25, 2018

Lauren M. Blas, Attorney, GIBSON DUNN, Los Angeles, CA, for Petitoner.

Oil OIL, Attorney, Jessica Danielle Strokus, Attorney, Colette Jabes Winston, Esq., Attorney, Jeffery R. Leist, Attorney, Anthony Cardozo Payne, Attorney, DEPARTMENT OF JUSTICE, Washington, DC, for Respondent.

Before Easterbrook, Kanne, and Brennan, Circuit Judges.

Kanne, Circuit Judge.

In February 2016, the Department of Homeland Security commenced removal proceedings against William Yovanni Molina-Avila. He requested deferral of removal because he feared torture by Guatemalan gangs. The immigration judge denied the request for deferral, and the Board of Immigration Appeals denied the appeal. Months later, Molina-Avila filed a motion to reopen the proceedings. The Board also denied that request. Molina-Avila has now petitioned for judicial review. Because the immigration judge’s decision was supported by substantial evidence, we deny the petition for review of the denial of Molina-Avila’s petition for deferral of removal. And because the Board committed no legal error in its analysis, we deny the petition for review of the denial of the motion to reopen.

I. BACKGROUND

William Yovanni Molina-Avila was born in Guatemala. In 1991, at the age of eleven, William came to the United States with his sister Monica and brother Edgar. William became a legal permanent resident the same year. As a young adult, he was convicted of three drug offenses under Illinois law. On February 2, 2016, the Department of Homeland Security initiated removal proceedings. William filed an application for deferral of removal under the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c). The application focused heavily on the treatment which William’s brother, Edgar, experienced after returning to Guatemala.

Edgar was deported to Guatemala in 1998. Soon after his arrival, Edgar began experiencing violent harassment by a Guatemalan gang, the Mara 18. William believes the harassment occurred because Edgar was perceived as a wealthy former-American. The Mara 18 also targeted Edgar because he was tattooed with gang-related imagery.

The Mara 18 regularly extorted Edgar. When Edgar was unable to pay the "tax," he would be beaten, kidnapped, or forced to ingest alcohol and drugs. The Mara 18 regularly threatened Edgar’s family, including William, with similar treatment. Edgar’s mistreatment continued for years, during which time he became depressed and began drinking heavily. He died from cirrhosis of the liver in 2012.

There are slight record inconsistencies regarding whether Edgar was extorted until his death. William testified that the gang never stopped extorting Edgar. Monica—Edgar’s sister—testified that, towards the end of Edgar’s life, the Mara 18 did not extort Edgar because he had no money and was very ill. Instead, Edgar’s girlfriend paid on his behalf.

William and Monica both testified that Marisol Cordova—Edgar’s former girlfriend—has experienced extortion after Edgar’s death. That extortion included threats to harm Cordova or her children if she did not pay. No one, however, testified that Cordova or her children ever suffered physical harm.

There was also inconsistent testimony regarding whether Edgar sought help from Guatemalan police. William’s statement indicates that, "on several occasions," Edgar unsuccessfully sought help or protection from the police. (R. 36-4 at 625.) William later testified that the police were of no help because "a lot of them are corrupt" and the remainder receive threats from the gang. (R. 36-3 at 472.)

Maria Rodriguez—William’s former partner—suggested in her testimony that Edgar never contacted the police. She explained that "we were not able to understand why he was [not contacting the police] ... until we came to understand that if he was to go to the police ..., his life will be more in danger because the police work[ ] in conjunction with the gang." (R. 36-3 at 547.)

After Edgar’s death, Ms. Rodriguez persuaded the Guatemalan police to conduct an investigation. The police department confirmed that no records of Edgar’s mistreatment had ever been created. Officers briefly investigated Edgar’s death, but quickly abandoned the effort.

During the removal proceedings, William explained why he feared mistreatment by the Mara 18 if returned to Guatemala. First, William referenced the threats the Mara 18 had made—to Edgar—about William. William also believed that, like Edgar, he would be perceived as wealthy. Finally, William feared that the Mara 18 would associate several of his tattoos with rival gangs. One tattoo, on his leg, contains imagery associated with the Spanish Cobras gang, which is active in Chicago, Illinois. William believed that another tattoo—which reads "Love MOM"—might be associated with the Mexican Mafia.

The immigration judge found that Molina-Avila was credible, but nevertheless denied his request for deferral. The immigration judge found that Molina-Avila’s fears of torture were speculative and that there was insufficient evidence that government officials would acquiesce to any torture. On March 28, 2017, the Board denied the appeal on the same grounds.

Molina-Avila timely sought judicial review. On January 22, 2018, Molina-Avila’s newly-appointed counsel filed a motion to reopen proceedings before the Board. In the motion, Molina-Avila argued that he received ineffective assistance of counsel when his original attorney chose not to request withholding of removal. The Board denied the motion. Molina-Avila now seeks review of both of the Board’s decisions.

II. ANALYSIS

We begin with the question whether the immigration judge and Board erred when they rejected Molina-Avila’s argument that he would more likely than not be tortured if returned to Guatemala. We must also determine if the Board committed legal error in denying the motion to reopen.

A. Substantial Evidence Supported the Denial of Molina-Avila’s CAT Application

An applicant is eligible for withholding or deferral of removal pursuant to the CAT if the applicant can "establish that it is more likely than not that he or she would be tortured if removed." 8 C.F.R. § 1208.16(c)(2). To constitute torture, the act "must be specifically intended to inflict severe physical or mental pain or suffering." 8 C.F.R. § 1208.18(a)(5). The applicant must demonstrate that the torture was "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Id. at § 1208.18(a)(1). For a public official to acquiesce to torture, the official must "have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." Id. at § 1208.18(a)(7).

"When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board." Cece v. Holder , 733 F.3d 662, 675 (7th Cir. 2013) (en banc). "We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result." Lozano-Zuniga v. Lynch , 832 F.3d 822, 826 (7th Cir. 2016). "We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute." Id. The substantial evidence standard is "extremely deferential and this court will not reverse simply because we would have decided the case differently, but rather only if the facts compel the opposite conclusion." Id.

1. Risk of Torture

William Molina-Avila identified several reasons why he feared torture if removed to Guatemala, almost all related to his brother’s treatment. Specifically, Molina-Avila argued that the immigration judge improperly discounted the characteristics—outsider status, perceived wealth, and gang-related tattoos—which he shares with his brother. The immigration judge considered this evidence, but she ultimately concluded that his fears were hypothetical and generalized.

Molina-Avila initially argues that the immigration judge erred in focusing on whether he, specifically, would be targeted for torture. Molina-Avila believes he must only show that he is a " ‘member of a group that faces a high probability of [torture] in a foreign country.’ " (Appellant’s Br. at 14 (quoting Velasquez-Banegas v. Lynch , 846 F.3d 258, 261 (7th Cir. 2017) ) (alteration in brief) ). But that passage in Velasquez-Banegas dealt with an applicant’s petition for withholding pursuant to 8 C.F.R. § 1208.16(b)(2). To obtain withholding under that provision, the applicant must show that it is more likely than not that he or she "would be persecuted on account of ... membership in a particular social group." Id. In other words, membership in an identifiable group is an element of an application under § 1208.16(b)(2).

Molina-Avila’s claim, however, is predicated on 8 C.F.R. § 1208.16(c)(2), which requires the applicant establish "that it is more likely than not that he or she would be tortured if removed." (emphasis added). We have consistently specified that a petitioner under that section must proffer evidence "that petitioner will be tortured if he returns." Rashiah v. Ashcroft , 388 F.3d 1126, 1133 (7th Cir. 2004) ; see also Ramos-Braga v. Sessions , 900 F.3d 871, 882 (7th Cir. 2018) ; Bernard v. Sessions , 881 F.3d 1042, 1047 (7th Cir. 2018) ; Oforji v. Ashcroft , 354 F.3d 609, 615 (7th Cir. 2003) ("The language of the regulation unambiguously permits withholding of removal due to torture personally suffered by the alien....").

We do not suggest that evidence of torture of similarly situated individuals is irrelevant to a CAT petition for deferral. But the...