Zelaya-Moreno v. Wilkinson

• Decision Date: 26 February 2021
• Docket Number: August Term 2019,No. 17-2284,17-2284
• Citation: 989 F.3d 190
• Parties: Douglas Adrian ZELAYA-MORENO, Petitioner, v. Robert M. WILKINSON, Acting United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

989 F.3d 190

Douglas Adrian ZELAYA-MORENO, Petitioner,

v.Robert M. WILKINSON, Acting United States Attorney General, Respondent.^*

No. 17-2284

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: September 27, 2019

Decided: February 26, 2021

For Petitioner: Robert C. Ross, West Haven, CT.

For Respondent: Lori B. Warlick (Chad A. Readler and M. Jocelyn Lopez Wright, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.

Before: Livingston, Chief Judge, Pooler and Sullivan, Circuit Judges.

Debra Ann Livingston, Chief Judge:

Petitioner Douglas Adrian Zelaya-Moreno ("Zelaya") seeks review of a decision of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Zelaya, a citizen of El Salvador, testified before an Immigration Judge ("IJ") that while in El Salvador, he was threatened and beaten by gang members and police officers who urged him to join the gang. The petitioner sought relief primarily on two grounds. First, Zelaya claimed that the gang persecuted him because of his political opinion that gangs are bad for his town and country. Second, he sought protection under the CAT based on an asserted likelihood of future torture at the hands of, or with the acquiescence of, the police. We conclude that Zelaya's negative view of gangs does not amount to a "political opinion" within the meaning of the immigration laws, and that substantial evidence supports the BIA's decision that he has not established a likelihood of future torture if he is removed to El Salvador. Accordingly, we deny his petition for review.

BACKGROUND

I. Factual Background¹

Zelaya was born in El Salvador, on the outskirts of the town of Pasaquina, where he lived with his parents and three siblings. Zelaya asserts that on November 16, 2013, when he was twenty years old, he was approached for the first time by three members of the Mara Salvatrucha ("MS") gang who told him that he needed to join MS. Because he believed that gangs were harmful to his hometown of Pasaquina and the country of El Salvador, Zelaya refused. Two of the men then beat Zelaya, threatening that he only had two choices: join the gang or leave town. Despite the threats, Zelaya stayed in Pasaquina. He neither sought medical treatment after the beating nor told the police about the incident, fearing that they were in thrall to MS.

Zelaya attests that about two months later, on January 23, 2014, while Zelaya was exercising in front of his home, three men wearing police uniforms approached him. The police officers insulted Zelaya and beat him as they put him into a vehicle. They drove him to a house occupied by MS members. The police escorted him into the house where about ten gang members, including the local gang leader, were waiting. The leader ordered Zelaya to join the gang; once again, Zelaya refused, reiterating his belief that gangs were bad for his hometown and his country. While the police officers stood by, five gang members proceeded to beat Zelaya for his refusal to join. They slammed Zelaya against the concrete floor, fracturing his left arm. The leader eventually called off the other gang members and offered Zelaya some time to consider the gang's demand. The police returned Zelaya to where they had picked him up and urged him to consider joining the gang. This time, Zelaya sought treatment for his broken arm from a local healer. Based on their participation in the beating, he refrained from filing a formal complaint with the police.

Zelaya relates that as he was returning home from a doctor's visit on March 18, 2014—approximately two months after the second beating—he realized that a few gang members were following him. Once again, they threatened to kill him if he did not join, but they did not physically attack him. Zelaya claims that he remained inside his home after this incident until he was able to collect enough money from relatives to flee El Salvador. Zelaya felt that he could not escape the gangs by going elsewhere in El Salvador because MS pervaded much of the country and the region.

On April 1, 2014, he left El Salvador, arriving at the United States border on April 13. He was promptly arrested by border patrol agents.

II. Procedural History

The Department of Homeland Security ("DHS") served Zelaya with a Notice to Appear, charging him as removable for seeking admission into the United States without valid entry documents. He ultimately conceded removability but applied for asylum, withholding of removal, and protection under the CAT.

At the hearing before the IJ, Zelaya testified to the events discussed above, and also stated that his parents and siblings remained in Pasaquina and had not been harassed by the gang since Zelaya's departure. He introduced letters from the mayor of Pasaquina and a member of the legislature attesting to his good character; various news articles indicating that El Salvador is rife with gang violence, corruption, and murder; and two reports from the U.S. Department of State—a 2015 Human Rights Report and a 2016 Crime and Safety Report—chronicling the myriad sources of corruption, violence, criminal activity, and governmental abuse in El Salvador.

In his decision, the IJ presumed that Zelaya was credible and found "that being attacked by the gang and having his arm broken does rise to the level of past persecution." C.A.R. 46. Furthermore, he concluded that Zelaya sincerely opposes gangs and that his opposition constitutes a political opinion. C.A.R. 47. Nevertheless, the IJ rejected Zelaya's asylum claim based on the IJ's conclusion that Zelaya had failed to establish that Zelaya's political opposition to gangs was a central reason for the mistreatment he recounted. Instead, the IJ attributed the conduct of Zelaya's alleged persecutors to Zelaya's refusal to join the gang, irrespective of his reasons. Absent past persecution on account of his political opinion, the IJ also rejected Zelaya's claim that he had a well-founded fear of future persecution on this basis. C.A.R. 46–48.

The IJ also rejected Zelaya's petition under the CAT. The IJ relied primarily on the conclusion that Zelaya had not adduced sufficient evidence to establish that anyone was still planning to harm him if he returned to El Salvador. Specifically, the IJ found that "there [was] just not enough evidence that police officers are still looking for [Zelaya]," "[t]here [was] no evidence that the gang, since March of 2014, is still looking for [Zelaya]," and there was no indication that the gang would pursue Zelaya if he moved to a different part of El Salvador. C.A.R. 48–49. The dearth of evidence that the government or the police would acquiesce in Zelaya's torture if he returned was decisive.

Zelaya appealed to the BIA. Rather than adopting the IJ's rationale, the BIA rejected Zelaya's claim that a belief that "gangs were bad for his town and country" amounts to a political opinion. C.A.R. 3. In the view of the BIA, "gangs are criminal organizations and not political or government organizations and gang activities are not political in nature. Therefore, expressing an opinion against their group is not expressing a political opinion; it is merely [Zelaya] expressing opposition to that group and its attempts to recruit him to join their ranks." C.A.R. 3. As a result, the BIA did "not reach the issue of whether this opinion was one central reason for his persecution." C.A.R. 3. As to his CAT claim, the BIA concluded that "the evidence does not demonstrate that [Zelaya's] harm rose to the level of torture" and that "there [was] no evidence that the police department is looking to harm him in the future, or would acquiesce to the infliction of torture on him by others." C.A.R. 4. Accordingly, the BIA dismissed the appeal.

Zelaya timely petitioned for review of the BIA's decision pursuant to 8 U.S.C. § 1252.

DISCUSSION

On appeal, Zelaya advances two arguments. First, he argues that the BIA erred in concluding that his anti-gang views were not a "political opinion" within the meaning of the Immigration and Nationality Act and that the BIA should have considered whether that opinion was "one central reason," 8 U.S.C. § 1158(b)(1)(B)(i), for his claimed persecution. Pet.-Appellant's Br. 10-26. Second, he contends that the BIA discounted evidence of past torture and the ease with which he could be tortured again. We address his political opinion and torture claims in turn.

Where, as here, the BIA's opinion does not "adopt the decision of the IJ to any extent" and is not "merely supplemental," "the [BIA] opinion becomes the basis for judicial review of the decision of which the alien is complaining." Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005) (quotation marks omitted); see also Kulhawik v. Holder , 571 F.3d 296, 298 (2d Cir. 2009). " ‘Legal issues, and the application of law to fact, are reviewed de novo .’ " Acharya v. Holder , 761 F.3d 289, 295 (2d Cir. 2014) (quoting Castro v. Holder , 597 F.3d 93, 99 (2d Cir. 2010) ) (italics added). "Our review of the factual findings of the agency, however, is considerably circumscribed: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Id. (quoting 8 U.S.C. § 1252(b)(4)(B) ). Finally, the IJ presumed that Zelaya's testimony was credible, and the BIA did not expressly adopt or reject that presumption. Under such circumstances, we likewise presume that Zelaya's testimony was credible and determine whether the BIA's decision is correct "in the face of his assumed (but not determined) credibility." Kayembe v. Ashcroft , 334 F.3d 231, 235 (3d Cir. 2003), cited with approval in Chen , 417 F.3d at 271.

I

We begin with Zelaya's asylum claim, which is predicated on his belief that gangs are harmful to his hometown and El Salvador. The primary question we consider is whether,...