     13-2404
     Celedon-Herrera v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 615 405
                            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   11th day of September, two thousand fifteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   WALTER U. CELEDON-HERRERA,
14            Petitioner,
15
16                     v.                                            13-2404
17                                                                   NAC
18
19   LORETTA E. LYNCH,* UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Heather Yvonne Axford, Central
25                                       American Legal Assistance,
26                                       Brooklyn, New York.
27
28   *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
29   General Loretta E. Lynch is automatically substituted for former
30   Attorney General Eric H. Holder, Jr.
31
1    FOR RESPONDENT:             Joyce R. Branda, Acting Assistant
2                                Attorney General; John S. Hogan,
3                                Senior Litigation Counsel; Rebecca
4                                Hoffberg Pjillips, Trial Attorney,
5                                Office of Immigration Litigation,
6                                United States Department of Justice,
7                                Washington, D.C.
8
9         UPON DUE CONSIDERATION of this petition for review of a

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

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

12   GRANTED.

13        Petitioner   Walter U. Celedon-Herrera, a native and

14   citizen of Honduras, seeks review of a May 20, 2013, decision

15   of the BIA affirming a January 27, 2012, decision of an

16   Immigration Judge (“IJ”) denying Celedon-Herrera’s application

17   for asylum, withholding of removal, and relief under the

18   Convention Against Torture (“CAT”).     In re Walter U.

19   Celedon-Herrera, No. A200 615 405 (B.I.A. May 20, 2013), aff’g

20   No. A200 615 405 (Immig. Ct. N.Y. City Jan. 27, 2012).   We assume

21   the parties’ familiarity with the underlying facts and

22   procedural history in this case.

23        Under the circumstances of this case, we have considered

24   both the IJ’s and the BIA’s opinions “for the sake of

25   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

26   524, 528 (2d Cir. 2006).    The applicable standards of review
                                     2
1    are well established.   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

2    v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

3    I.   Asylum and Withholding of Removal

4         In support of his asylum and withholding of removal claims,

5    Celedon-Herrera asserted that    MS-13   gang members in Honduras

6    threatened and robbed him, and murdered his      nephew   and

7    step-niece on account of their membership in the particular

8    social group of the family of Celedon-Herrera’s murdered

9    brother Ramon (against whom the gang had a vendetta).      To

10   establish eligibility for asylum or withholding of removal, an

11   applicant must show past persecution or a well-founded fear or

12   likelihood of future persecution on account of race, religion,

13   nationality, membership in a particular social group, or

14   political opinion.    See Ramsameachire v. Ashcroft, 357 F.3d

15   169, 178 (2d Cir.    2004).   “Private acts can [] constitute

16   persecution if the government is unable or unwilling to control

17   such actions.”   Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).

18        Here, the agency provided the following three alternative

19   bases for denying asylum and withholding of removal:

20   (1) Celedon-Herrera failed to demonstrate past persecution or

21   a well-founded fear of future persecution; (2) he failed to

22   establish that the harm he suffered and fears was on account
                                     3
1    of his membership in a particular social group; and (3) he did

2    not demonstrate that the Honduran government is unable or

3    unwilling to protect him.    Because the agency erred in making

4    each of these determinations, remand is required.

5        Although the agency reasonably determined that

6    Celedon-Herrera had not suffered past      persecution based on

7    harm to his relatives and unfulfilled     threats, see Shi Liang

8    Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007);

9    Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir. 2006),

10   it erred in its determination that his fear of future harm was

11   not objectively reasonable,    see Diallo v. INS, 232 F.3d 279,

12   284 (2d Cir. 2000)   (providing     that a fear is objectively

13   reasonable “even if there is only a slight, though discernible,

14   chance of persecution.” (citing INS v. Cardoza-Fonseca, 480

15   U.S. 421, 431 (1987))).   We have recognized that the agency may

16   question the objective reasonableness of an applicant’s claimed

17   fear of persecution when similarly situated relatives remain

18   unharmed in their native country.    See Melgar de Torres v. Reno,

19   191 F.3d 307, 313 (2d Cir. 1999).

20       Here, the agency found    Celendon-Herrera’s     fear of harm

21   diminished because his parents and sisters remain unharmed in

22   Honduras.   However, it failed to recognize that
                                    4
1    Celedon-Herrera’s father is not similarly situated (he is not

2    Ramon’s father and thus is not a member of the proposed social

3    group) and that, unlike Celedon-Herrera, his sisters (Ramon’s

4    half-sisters) did not have a close relationship with Ramon or

5    even attend his funeral.    Therefore, because Ramon’s son and

6    step-daughter were murdered and Ramon’s widow fled to El

7    Salvador, Celedon-Herrera’s mother is the only close relative

8    of Ramon who remains unharmed in Honduras.     We cannot

9    “confidently predict”    that the    agency would find this fact

10   alone sufficient to determine that    Celedon-Herrera’s    fear of

11   persecution was not objectively reasonable.      Xiao Ji Chen v.

12   U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).

13       The agency also erred in its determination that the harm

14   Celedon-Herrera    feared was not on account of a protected

15   ground.    We have recognized that kinship ties or membership in

16   a family “may form a cognizable shared characteristic for a

17   particular social group.”    Vumi v. Gonzales, 502 F.3d 150, 155

18   (2d Cir. 2007).   And, “asylum may be granted where there is more

19   than one motive for mistreatment, as long     as at least one

20   central reason for the mistreatment is on account of a protected

21   ground.”    Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)

22   (internal quotation marks omitted).
                                     5
1        Although the agency assumed that a family is a cognizable

2    social group, it erred in determining that gang members targeted

3    Celedon-Herrera solely on account of a personal vendetta

4    without considering the possibility that they were also

5    motivated by his membership in the particular social group of

6    Ramon’s family.   As the IJ found, Celedon-Herrera’s    credible

7    testimony established that gang members were motivated         to

8    murder Ramon for revenge and extortion, which are not protected

9    grounds under the Immigration and Nationality Act.           See

10   Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007); see also

11   Koudriachova v. Gonzales, 490 F.3d 255, 261-62 (2d Cir. 2007).

12   However, gang members targeted      Celedon-Herrera,   not

13   because they had a personal vendetta against him, but because

14   he was the brother of Ramon.    Indeed, there is nothing in the

15   record to suggest that gang members would have targeted

16   Celedon-Herrera had he not been Ramon’s kin.    Accordingly, the

17   agency’s failure to explicitly conduct a mixed motive analysis

18   constitutes reversible error.    See Acharya, 761 F.3d at 298-99

19   (“[T]he possibility of multiple motives for persecution

20   precludes this type of either/or approach to evaluating asylum

21   claims.”).

22
                                     6
1        The agency also erred in its determination that the record

2    established that the Honduran government was able and willing

3    to protect Celedon-Herrera from gang members.      As the IJ

4    recognized, the country conditions evidence demonstrated that

5    the Honduran government was unable to protect      the population

6    from the estimated 70,000 MS-13 gang members in that country.

7    Nevertheless, the agency found it significant that police had

8    arrested four suspects in Ramon’s and his son’s murders and had

9    taken a report    when   Celedon-Herrera’s store   was robbed.

10   However, the agency failed to adequately explain how these

11   arrests demonstrated the    police’s   ability to protect

12   Celedon-Herrera.   Arrested gang members are able to

13   communicate with members outside of prison, and, despite those

14   arrests, police were unable to protect Ramon’s stepdaughter

15   from being murdered on the front porch of her home (where Ramon’s

16   widow was living).   And the police did not arrest anyone for

17   that murder.   Furthermore, there is nothing to suggest that the

18   police took any action beyond writing a report in

19   Celedon-Herrera’s robbery case.     Accordingly, the agency

20   failed to adequately explain its determination that police are

21   able and willing to protect    Celedon-Herrera.    See Pan, 777

22   F.3d at 544-45.
                                     7
1    II. CAT Relief

2        The act of torture is defined as “‘any act by which severe

3    pain or suffering, whether physical or mental, is intentionally

4    inflicted on a person’ . . . by or acquiesced in by government

5    actors.”   Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir.

6    2007) (quoting 8 C.F.R. § 208.18(a)(1) and citing CAT art. 1).

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

8    remain willfully blind to an act and thereafter breach their

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

10   F.3d 161, 172 (2d Cir. 2004).

11       We have questioned whether “the preventative efforts of

12   some government actors should foreclose the possibility of

13   government acquiescence, as a matter of law, under the CAT.”

14   De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010).

15       Where a government contains officials that would be

16       complicit in torture, and that government, on the whole,

17       is admittedly incapable of actually preventing that

18       torture, the fact that some officials take action to

19       prevent the torture would seem neither inconsistent with

20       a finding of government acquiescence nor necessarily

21       responsive to the questions of whether torture would be

22       inflicted by or at the instigation of or with the consent
                                     8
1        or acquiescence of a public official or other person acting

2        in an official      capacity.

3    Id. at 110.   (internal quotation marks omitted).

4        Here, as in De La Rosa, the IJ failed to analyze why the

5    prompt response of some police officers in arresting suspects

6    for Ramon’s and his son’s murders was sufficient to overcome

7    the fact (accepted by the IJ) that the Honduran government is

8    unable to control gang violence.          This was particularly

9    problematic given that the response did not actually prevent

10   additional murders   of    Ramon’s family members from occurring.

11   See id. at 110-11.

12       For the foregoing reasons, the petition for review is

13   GRANTED.   As we have completed our review, any stay of removal

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

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

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

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

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

19   34.1(b).

20                                   FOR THE COURT:
21                                   Catherine O=Hagan Wolfe, Clerk
22
23

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