     18-2436
     Mendez v. Barr
                                                                                   BIA
                                                                              Farber, IJ
                                                                           A077 455 408
                      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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 17th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   RAUL FLORES MENDEZ, AKA RAUL
14   BENITEZ,
15                 Petitioner,
16            v.                                                 18-2436
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Bruno Joseph Bembi, Hempstead,
24                                    NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Acting Assistant
27                                    Attorney General; Anthony P.
28                                    Nicastro, Assistant Director;
29                                    Vanessa M. Otero, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, Washington, DC.
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

4    is DENIED.

5          Petitioner Raul Flores Mendez, a native and citizen of

6    El Salvador, seeks review of an August 15, 2018, decision of

7    the BIA affirming a March 14, 2018, decision of an Immigration

8    Judge (“IJ”) denying Mendez’s application for withholding of

9    removal     and   relief    under   the    Convention   Against    Torture

10   (“CAT”).     In re Raul Flores Mendez, No. A 077 455 408 (B.I.A.

11   Aug. 15, 2018), aff’g No. A 077 455 408 (Immig. Ct. N.Y. City

12   Mar. 14, 2018).         We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14         Because     the    BIA   adopted     and   supplemented    the   IJ’s

15   decision, we have reviewed the IJ’s decision as supplemented

16   by the BIA.       See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

17   Cir. 2005).       We review the agency’s findings of fact under

18   the     substantial        evidence       standard.      See      8 U.S.C.

19   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

20   (2d Cir. 2018) (reviewing adverse credibility determination

21   under   a   substantial        evidence    standard);   Yanqin    Weng   v.

22   Holder, 562 F.3d 510, 513, 516 (2d Cir. 2009) (reviewing

                                           2
1    denial   of   CAT   protection   under    the   substantial   evidence

2    standard).    Under this standard, “[we] treat factual findings

3    as ‘conclusive unless any reasonable adjudicator would be

4    compelled to conclude to the contrary.’”             Id. (quoting 8

5    U.S.C. § 1252(b)(4)(B)).     Mendez’s claim is based on his fear

6    that the police in El Salvador will harm him because of his

7    tattoos or that MS-13 members will retaliate against him

8    because he refused to pay extortion and cooperated with

9    federal prosecutors in the United States.

10       As to asylum, Mendez argues that he should have been

11   allowed to apply for asylum and excused from the one-year

12   filing deadline for that form of relief.           He misunderstands

13   the record.    Mendez is ineligible for asylum because he was

14   in withholding-only proceedings following reinstatement of an

15   earlier removal order.      See 8 U.S.C. § 1231(a)(5); Herrera-

16   Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).             As to

17   withholding of removal, Mendez’s brief does not dispute the

18   agency’s particularly serious crime determination but instead

19   argues that the IJ must make an additional finding that an

20   alien is a danger to the community, before applying the

21   particularly serious crime bar.          However, we have previously

22   determined that a particularly serious crime determination no

                                       3
1    longer requires a separate danger to the community analysis.

2    See Nethagani v. Mukasey, 532 F.3d 150, 154 n.1 (2d Cir. 2008)

3    (noting that we have accepted the BIA’s interpretation that

4    a   person   convicted    of   a   particularly      serious   crime,

5    “necessarily constitutes ‘a danger to the community of the

6    United   States’”).      Accordingly,   we   reach    the   merits   of

7    Mendez’s claim only to the extent that he requested protection

8    under the CAT.

9    CAT Deferral

10        The agency determined that Mendez did not meet his burden

11   for CAT protection because portions of his claim were not

12   credible and the portions of his claim that were credible

13   were unsupported by any objective evidence.          We find no error

14   in the agency’s conclusions.

15        Credibility Determination

16        The adverse credibility determination is supported by

17   substantial evidence.     The governing REAL ID Act credibility

18   standard provides as follows:

19        Considering the totality of the circumstances, and
20        all relevant factors, a trier of fact may base a
21        credibility determination on       the consistency
22        between the applicant’s or witness’s written and
23        oral statements . . . , the internal consistency of
24        each such statement, the consistency of such
25        statements with other evidence of record . . . , and

                                        4
1        any inaccuracies or falsehoods in such statements,
2        . . . or any other relevant factor.
3
4    8 U.S.C. § 1158(b)(1)(B)(iii).      “We defer . . . to an IJ’s

5    credibility determination unless . . . it is plain that no

6    reasonable fact-finder could make such an adverse credibility

7    ruling.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

8    2008); accord Hong Fei Gao, 891 F.3d at 76.

9        The IJ reasonably relied on internal discrepancies in

10   Mendez’s   testimony,   omissions   from    his    application   and

11   corroborating documents, and the lack of corroboration from

12   his family in the United States.      First, Mendez’s testimony

13   regarding his involvement in the murder changed over the

14   course of the hearing, and his testimony that he had not

15   stabbed the victim was internally inconsistent with his later

16   testimony that he told the judge at his plea hearing that he

17   was not sure if he had stabbed the victim.            See 8 U.S.C.

18   § 1158(b)(1)(B)(iii)      (permitting       IJ      to      consider

19   inconsistencies “without regard to whether an inconsistency,

20   . . . goes to the heart of the applicant’s claim”).

21       Second,   his   application     did    not    include   relevant

22   incidents that he testified to at his hearing – namely, that

23   he was beaten and threatened with death by MS-13 members while


                                    5
1    imprisoned in the United States, and that the Salvadoran

2    police almost killed him in 2007 because of his tattoos.             The

3    IJ reasonably relied on these two omissions.              See Hong Fei

4    Gao, 891 F.3d at 78-79 (“[I]n assessing the probative value

5    of the omission of certain facts, an IJ should consider

6    whether those facts are ones that a credible petitioner would

7    reasonably have been expected to disclose under the relevant

8    circumstances.”).

9          Finally, the IJ reasonably determined that Mendez did

10   not   rehabilitate    his   claim       with   reliable   corroborating

11   evidence.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

12   Cir. 2007) (“An applicant’s failure to corroborate his . . .

13   testimony may bear on credibility, because the absence of

14   corroboration    in   general   makes      an   applicant   unable   to

15   rehabilitate testimony that has already been called into

16   question.”).    In particular, the IJ reasonably faulted Mendez

17   for not providing a letter from his brother who lives in New

18   York – and who was aware of Mendez’s situation.            Furthermore,

19   although Mendez submitted death certificates of individuals

20   allegedly killed by gang members in El Salvador, Mendez did

21   not present evidence that the individuals were killed by MS-

22   13 or were his relatives.

                                         6
1           Taken together, these findings constitute substantial

2    evidence for the agency’s adverse credibility determination

3    and prevented Mendez from establishing past extortion by MS-

4    13 given evidence that he was a member of the gang, that MS-

5    13 members murdered his family members in El Salvador because

6    of his cooperation with federal prosecutors, and that the

7    police in El Salvador had previously almost killed him because

8    of his tattoos.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

9    Lin,    534   F.3d   at    167.       Of   course,    the    credibility

10   determination is not dispositive because Mendez also asserted

11   a fear of harm based on undisputed facts, his tattoos, and

12   his cooperation with law enforcement.          See Paul v. Gonzales,

13   444 F.3d 148, 154 (2d Cir. 2006) (holding that adverse

14   credibility determination as to claim of past harm does not

15   preclude claim premised on future harm, “so long as the

16   factual    predicate      of   the   applicant’s     claim   .   .   .   is

17   independent of the testimony that the IJ found not to be

18   credible”).    However, as discussed below, we find no error

19   in the agency’s conclusion that he failed to meet his burden

20   of proof for CAT deferral.

21          Burden of Proof

22          An applicant for CAT relief must show that it is more

                                          7
1    likely than not that he will be tortured.                    See 8 C.F.R.

2    § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

3    Cir. 2004).    To constitute torture under the CAT, the likely

4    harm must be “inflicted by or at the instigation of or with

5    the consent or acquiescence of a public official or other

6    person     acting    in    an     official      capacity.”       8    C.F.R.

7    § 1208.18(a)(1).      “Acquiescence of a public official requires

8    that the public official, prior to the activity constituting

9    torture,    have    awareness     of    such    activity   and   thereafter

10   breach his or her legal responsibility to intervene to prevent

11   such     activity.”         Id.        § 1208.18(a)(7).          Cognizable

12   acquiescence “requires only that government officials know of

13   or remain willfully blind to an act and thereafter breach

14   their legal responsibility to prevent it.”             Khouzam, 361 F.3d

15   at 171.     To meet his burden of proof, an applicant for CAT

16   relief must establish that someone in his “particular alleged

17   circumstances” is more likely than not to be tortured in the

18   country designated for removal.                Mu-Xing Wang v. Ashcroft,

19   320 F.3d 130, 144 (2d Cir. 2003).

20          The agency did not err in concluding that Mendez failed

21   to show that the government of El Salvador would more likely

22   than not acquiesce        to any torture by gang members.            Besides

                                             8
1    Mendez’s incredible testimony, the record contains no support

2    for Mendez’s assertion that police officers are often gang

3    members themselves.       Additionally, there is only minimal

4    support in the record that the police would acquiesce to

5    torture by gang members.     The country conditions evidence in

6    the record includes a State Department Report and one article

7    about the meaning of gang tattoos.                 The State Department

8    Report discusses one mayor who was arrested on gang-related

9    charges but does not otherwise discuss collusion between gang

10   members and government officials.              The IJ also reasonably

11   concluded that it was not more likely than not that Mendez

12   would be tortured by police officers in El Salvador.              Mendez

13   argues that his tattoos will cause the police to target him

14   for harm.    However, the record contains no support for this

15   assertion.   Given the lack of evidence that authorities would

16   torture   Mendez   or   acquiesce       to   his   torture,   substantial

17   evidence supports the agency’s denial of CAT relief.                 See

18   Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (“[A]n

19   alien will never be able to show that he faces a more likely

20   than not chance of torture if one link in the chain cannot be

21   shown to be more likely than not to occur.” (quoting In re J-

22   F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006))); see also Mu

                                         9
1    Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d

2    Cir.    2005)   (requiring   “particularized   evidence”   beyond

3    general country conditions to support a CAT claim).

4           For the foregoing reasons, the petition for review is

5    DENIED.    As we have completed our review, the temporary stay

6    of removal that the Court previously granted in this petition

7    is VACATED, and the pending motion for a stay of removal in

8    this petition is DISMISSED as moot.     Any pending request for

9    oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34.1(b).

12                                  FOR THE COURT:
13                                  Catherine O’Hagan Wolfe,
14                                  Clerk of Court




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