Valdiviezo-Galdamez v. Attorney Gen. of the United States

• Decision Date: 08 November 2011
• Docket Number: No. 08–4564.,08–4564.
• Citation: 663 F.3d 582
• Parties: Mauricio VALDIVIEZO–GALDAMEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

663 F.3d 582

Mauricio VALDIVIEZO–GALDAMEZ, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08–4564.

United States Court of Appeals, Third Circuit.

Argued: Feb. 3, 2010.Opinion filed: Nov. 8, 2011.

Martin Duffey, Esq. (Argued), Cozen O'Connor, Philadelphia, PA, Ayodele Gansallo, Esq., HIAS & Council Migration Services of Philadelphia, Philadelphia, PA, for Petitioner.

H. Elizabeth Dallam, Esq., Senior Protection Officer, United Nations High Commissioner for Refugees, Washington, D.C., As Amicus Curiae for the United Nations High Commissioner for Refugees, in support of Petitioner.

Tony West, Esq., Assistant Attorney General, Civil Division, Linda S. Wernery, Esq., Assistant Director, Margaret Perry, Esq., Senior Litigation Counsel, Theodore C. Hirt, Esq. (Argued), Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and DAVIS, District Judge.^*

OPINION

McKEE, Chief Judge.

Mauricio Valdiviezo–Galdamez petitions for review of a decision of the Board of Immigration Appeals dismissing his appeal from an Immigration Judge's order denying his applications for asylum, withholding of removal and relief under Article III of the Convention Against Torture. For the reasons that follow, we will grant the petition for review on the asylum and withholding of removal applications and remand for further proceedings; we will deny the petition for review on the claim for relief under the Convention Against Torture.

I. FACTUAL BACKGROUND¹

Mauricio Edgardo Valdiviezo–Galdamez was born in May 1984, and is a native and citizen of Honduras. He came to the United States in October 2004 without being admitted or paroled after inspection by an immigration officer. Removal proceedings were initiated against him in January 2005. During those proceedings, Valdiviezo–Galdamez admitted removability, but submitted an application for asylum, withholding of removal, and relief under Article III of the Convention Against Torture (“CAT”), as noted above.

At the ensuing removal hearing before an Immigration Judge, Valdiviezo–Galdamez testified that he fled Honduras because members of a gang called “Mara Salvatrucha,” a/k/a “MS–13,” had threatened to kill him if he did not join their gang. Valdiviezo–Galdamez testified that the gang engages in drug trafficking and, on occasion, commits murder. According to Valdiviezo–Galdamez, the gang members began threatening him in March 2003, when he was living in the city of San Pedro Sula in Honduras. On one occasion six men approached Valdiviezo–Galdamez and robbed him as he was leaving work. They told him that he would have to join their gang to get his money and jewelry back. When he refused, the men hit him and told him that he better think about their “proposal.” Valdiviezo–Galdamez knew that the men were members of Mara Salvatrucha because they had tattoos that were characteristic of gang membership.

Valdiviezo–Galdamez waited three days before reporting the incident to the police because he was afraid to leave his house. After this incident, he moved to live with his mother in Santa Rosa de Cupon because he was afraid the gang would come after him if he remained in San Pedro Sula. He did not leave his mother's house during the three months he stayed in Santa Rosa. He returned to San Pedro Sula in June 2003 because he received a job offer. He testified that he did not think that he could find work in Santa Rosa because the village is largely agricultural and most people are farmers. In addition, he was afraid to stay in Santa Rosa because some of his former classmates who lived there were gang members and he feared that they would discover his presence.

After Valdiviezo–Galdamez returned to San Pedro Sula, he moved to a different colony within the city in an attempt to avoid members of Mara Salvatrucha. However, gang members soon spotted him and renewed their threats. They shot at him, and threw rocks and spears at him about two-to-three times a week. When he ran, they would shout after him: “Don't run. Don't be afraid. Sooner or later you will join us.” He was able to identify some of the men, either by the gang nicknames inscribed in their tattoos or because they addressed one another by those nicknames. Valdiviezo–Galdamez filed five separate police reports about these incidents, but claimed he received no response from the police.

Valdiviezo–Galdamez testified that he was in a two car caravan on his way to visit his sister's husband in Guatemala, in September, 2004, when he and his fellow passengers in one of the cars were kidnapped by members of Mara Salvatrucha after crossing the border into Guatemala. They were taken into the mountains where the kidnappers asked Valdiviezo–Galdamez what he was doing in Guatemala. He told them that he was only traveling, but his abductors thought he was trying to escape recruitment into their gang. Valdiviezo–Galdamez testified that they told him they were no longer offering him the option of joining their gang, and had decided to kill him instead. They then tied Valdiviezo–Galdamez up and beat him for five hours.

He was eventually freed by the Guatemalan police who had been alerted by family members who were traveling behind Valdiviezo–Galdamez and had not been spotted by the attackers. Valdiviezo–Galdamez filed a complaint with the Guatemalan police, but they simply said that it was not their problem since he wasn't from Guatemala. Valdiviezo–Galdamez remained in Guatemala briefly with his sister's husband, and then decided to come to the United States to escape the gang. He testified that he believes that the gang members will kill him and attack his family if he returns to Honduras and continues to resist gang recruitment.

In his asylum application, Valdiviezo–Galdamez alleged that he had been persecuted in Honduras on account of his membership in a particular social group, that he had suffered persecution on account of his political opinion and that he had a well-founded fear that such persecution would continue if he were returned to Honduras.

II. PROCEDURAL HISTORY

On June 15, 2005, after a hearing, the Immigration Judge denied Valdiviezo–Galdamez's applications for relief although he found no reason to disbelieve Valdiviezo–Galdamez's testimony. The IJ suggested three failures of proof. The IJ concluded that Valdiviezo–Galdamez had not established that the government refused to protect him from the attacks by the Mara Salvatrucha members and that the refusal was on account of one of the five grounds enumerated in the Immigration and Nationality Act (“INA”), i.e., his race, religion, nationality, membership in a particular social group or political opinion. Second, the IJ found that Valdiviezo–Galdamez failed to establish that he had been injured on account of his race, religion, nationality, membership in a particular social group or political opinion. Third, the IJ noted that Valdiviezo–Galdamez had lived in Santa Rosa without problems and faulted him for failing to establish that the danger of persecution at the hands of the gang members was country-wide.² The IJ also found that Valdiviezo–Galdamez presented no evidence that he would be tortured if returned to Honduras.

Valdiviezo–Galdamez appealed that ruling to the Board of Immigration Appeals. In his brief to the BIA, he argued, inter alia, that he belonged to the “particular social group” of “Honduran youth who have been actively recruited by gangs but have refused to join because they oppose the gangs.” On February 27, 2006, the BIA rejected the argument and summarily affirmed the IJ's decision.

Valdiviezo–Galdamez then filed his first petition for review with this court. We granted the petition, vacated the BIA's decision and remanded for further proceedings. Valdiviezo–Galdamez v. Attorney General (“ Valdiviezo–Galdamez I ”), 502 F.3d 285 (3d Cir.2007). We held, in pertinent part, that substantial evidence did not support the IJ's determination that Valdiviezo–Galdamez had failed to establish that the harm he suffered in Honduras was on account of his membership in the group consisting of young men who had been recruited by gangs and had refused to join. Id. at 290. We remanded to the BIA for it to address the threshold question of whether “young men who have been actively recruited by gangs and who have refused to join the gangs” is a “particular social group” within the meaning of the INA—an issue that neither the IJ nor the BIA had decided—and which we declined to decide in the first instance. Id. We also directed the BIA to address whether the injures that Valdiviezo–Galdamez suffered rose to the level of persecution. Id. at 291. In addition, we held that the IJ erred in his analysis of whether Valdiviezo–Galdamez could safely relocate within Honduras. Id. at 291–92. Finally, we held that the IJ erred in denying the application for relief under the CAT because the IJ ignored relevant evidence and remanded for consideration of the relevant evidence in light of our decision in Silva–Rengifo v. Attorney General, 473 F.3d 58 (3d Cir.2007). Id. at 292–93. There, we addressed the standard for proving government acquiescence to torture.

On remand, the BIA again rejected Valdiviezo–Galdamez's claims.³ The BIA concluded that Valdiviezo–Galdamez failed to show that he had experienced past persecution or had a well-founded fear of future persecution “on account of” a classification that is protected under the INA. App. 10–11. The BIA also noted that it had decided the “closely analogous” case of Matter of S–E–G–, 24 I. & N. Dec. 579 (BIA 2008), after we remanded Valdiviezo–Galdamez's petition for review. App. 11. In Matter of S–E–G–, the BIA held that Salvadoran youth who were subjected to recruitment efforts by the Mara Salvatrucha, and who resisted gang membership “based on their own personal, moral and religious opposition to the gang's...