     15-1054
     Gonzalez-Benitez v. Lynch
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A094 058 886
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   29th day of June, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JOSE FRANCISCO GONZALEZ-BENITEZ,
14            Petitioner,
15
16                     v.                                            15-1054
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Charles Richard Conroy, Law Offices
24                                       of Charles R. Conroy, PLLC, New York,
25                                       New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Blair T.
29                                       O’Connor, Assistant Director;
30                                       Joseph D. Hardy, Trial Attorney,
31                                       Office of Immigration Litigation,
32                                       United States Department of Justice,
33                                       Washington, D.C.
 1         UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 4   DENIED.

 5         Petitioner Jose Francisco Gonzalez-Benitez, a native and

 6   citizen of El Salvador, seeks review of a March 30, 2015,

 7   decision of the BIA affirming a November 19, 2014, decision of

 8   an    Immigration    Judge   (“IJ”)   denying    Gonzalez-Benitez’s

 9   application for deferral of removal under the Convention

10   Against    Torture     (“CAT”).        In   re     Jose   Francisco

11   Gonzalez-Benitez, No. A094 058 886 (B.I.A. Mar. 30, 2015), aff’g

12   No. A094 058 886 (Immig. Ct. N.Y. City Nov. 19, 2014).     We assume

13   the   parties’   familiarity   with   the   underlying    facts   and

14   procedural history in this case.

15         We have reviewed the IJ’s opinion as modified by the BIA,

16   i.e., minus the IJ’s ruling requiring Gonzalez-Benitez to

17   identify the specific officials who would acquiesce in any

18   torture by the Mara Salvatrucha (“MS-13”).        See Xue Hong Yang

19   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).       The

20   applicable standards of review are well established.          See 8

21   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

22   513 (2d Cir. 2009).

23         The CAT prohibits the removal of any person to a country

24   where “it is more likely than not” that the individual “would
                                       2
1    be tortured.”   8 C.F.R. § 1208.16(c)(2).       “Torture is defined

2    as any act by which severe pain or suffering, whether physical

3    or mental, is intentionally inflicted on a person . . . by or

4    at the instigation of or with the consent or acquiescence of

5    a public official or other person acting in an official

6    capacity.”   Id. § 1208.18(a)(1).     “Acquiescence of a public

7    official requires that the public official, prior to the

8    activity constituting torture, have awareness of such activity

9    and thereafter breach his or her legal responsibility to

10   intervene to prevent such activity.”        Id. § 1208.18(a)(7).

11   “[T]orture requires only that government officials know of or

12   remain willfully blind to an act and thereafter breach their

13   legal responsibility to prevent it.”     Khouzam v. Ashcroft, 361

14   F.3d 161, 171 (2d Cir. 2004).       Therefore, direct government

15   involvement is not necessary in order to obtain CAT relief.

16   Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir. 2006).

17       The   record   does   not   compel    the     conclusion   that

18   Gonzalez-Benitez will more likely than not be tortured with the

19   acquiescence of the Salvadoran government.        See Mu Xiang Lin

20   v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

21   (emphasizing that an applicant must demonstrate that someone

22   in his particular circumstances will more likely than not be

23   tortured); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.

24   2012) (holding that “[a] determination of what will occur in
                                     3
1    the future and the degree of likelihood of the occurrence has

2    been    regularly    regarded     as   fact-finding”).            The   record

3    contains conflicting evidence of the Salvadoran government’s

4    efforts to combat gang violence.            On one hand, there is evidence

5    that MS-13 has infiltrated the police force and that gang

6    members can intimidate witnesses with impunity.                   On the other

7    hand, there is evidence that police and army officers with ties

8    have    been   identified   and    suspended,       that    the    Salvadoran

9    government     is   attempting    to       fight   gang   violence      through

10   legislation and law enforcement initiatives, and that these

11   initiatives have had some success.

12          Gonzalez-Benitez     argues     the     agency     ignored    evidence

13   showing collusion between MS-13 and the Salvadoran police.

14   While we “require some indication that the IJ considered

15   material evidence supporting a petitioner’s claim,” Poradisova

16   v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005), we do not require

17   the IJ to “expressly parse or refute on the record each and

18   every” piece of evidence, and “we presume that an IJ has taken

19   into account all the evidence before him, unless the record

20   compellingly suggests otherwise,”             Xiao Ji Chen v. U.S. Dep’t

21   of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).                       Here,

22   nothing in the record compels the conclusion that the IJ ignored

23   Gonzalez-Benitez’s evidence: the IJ cited the State Department

24   report in his decision, and engaged in a long discussion with
                                            4
1    Gonzalez-Benitez’s counsel concerning the country conditions

2    evidence.     Given the conflicting evidence in the record, a

3    reasonable fact finder would not be compelled to conclude that

4    Gonzalez-Benitez is “more likely than not to be tortured” with

5    the acquiescence of the Salvadoran government.         8 C.F.R.

6    §§ 1208.16(c)(2), 1208.18(a)(1); see also Mu Xiang Lin, 432

7    F.3d at 159-60; Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.

8    2007) (“Decisions as to . . . which of competing inferences to

9    draw are entirely within the province of the trier of fact.”

10   (internal quotation marks omitted)).

11       For the foregoing reasons, the petition for review is

12   DENIED.     As we have completed our review, any stay of removal

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.     Any pending request for oral argument

16   in this petition is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

18   34.1(b).

19                                  FOR THE COURT:
20                                  Catherine O=Hagan Wolfe, Clerk




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