     17-1107
     Rivas-Aparicio v. Whitaker
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A206 005 981
                             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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 31st day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LUIS RENE DARWIN RIVAS-APARICIO,
14            Petitioner,
15
16                     v.                                        17-1107
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22   FOR PETITIONER:           Anne Pilsbury, Central American
23                             Legal Assistance, Brooklyn, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Nancy E.
27                                      Friedman, Senior Litigation
28                                      Counsel; Brooke M. Maurer, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      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 GRANTED in part and DENIED in part.

5          Petitioner Luis Rene Darwin Rivas-Aparicio, a native and

6    citizen of El Salvador, seeks review of a March 24, 2017,

7    decision of the BIA affirming a June 16, 2016, decision of an

8    Immigration Judge (“IJ”) denying Rivas-Aparicio’s application

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

10   Convention Against Torture (“CAT”).         Luis Rene Darwin Rivas-

11   Aparicio, No. A 206 005 981 (B.I.A. Mar. 24, 2017), aff’g No.

12   A 206 005 981 (Immig. Ct. N.Y. City June 16, 2016).        We assume

13   the   parties’   familiarity   with   the    underlying   facts   and

14   procedural history.

15         Under the circumstances of this case, we review the IJ’s

16   decision as modified by the BIA, i.e., minus the IJ’s adverse

17   credibility determination and the IJ’s finding that torture

18   was not likely to occur.       Xue Hong Yang v. U.S. Dep’t of

19   Justice, 426 F.3d 520, 522 (2d Cir. 2005).          The applicable

20   standards of review are well established: we review factual

21   findings for substantial evidence and legal issues de novo.
                                     2
1    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

2    510, 513 (2d Cir. 2009).

3    Asylum and Withholding of Removal

4           To demonstrate eligibility for asylum and withholding of

5    removal, an “applicant must establish that race, religion,

6    nationality, membership in a particular social group, or

7    political opinion was or will be at least one central reason

8    for persecuting the applicant.”            8 U.S.C. § 1158(b)(1)(B)(i)

9    (asylum); see id. § 1231(b)(3)(A) (withholding); see also In

10   re C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (holding

11   that    the   “one   central     reason”    standard    also   applies   to

12   withholding of removal).          There may be “more than one motive

13   for mistreatment, as long as at least one central reason for

14   the    mistreatment    is   on   account     of   a   protected   ground.”

15   Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal

16   quotation marks and citations omitted).                 “Where there are

17   mixed motives for a persecutor’s actions, an asylum applicant

18   need not show with absolute certainty why the events occurred

19   . . . only that the harm was motivated, in part, by an actual

20   or imputed protected ground.”              Aliyev v. Mukasey, 549 F.3d

21   111, 116 (2d Cir. 2008).          We review for substantial evidence
                                          3
1    whether    an    applicant   was    targeted     on     account    of    group

2    membership and review de novo the agency’s application of a

3    legal standard to established facts.              See Edimo-Doualla v.

4    Gonzales, 464 F.3d 276, 282 (2d Cir. 2006).

5        Because the BIA assumed that Rivas-Aparicio’s testimony

6    was credible, we too assume its credibility.                   See Yan Chen

7    v. Gonzalez, 417 F.3d 268, 271–72 (2d Cir. 2005).                       The IJ

8    noted that Mara Salvatrucha (“MS-13”) began to target Rivas-

9    Aparicio after his wife began an affair with a gang member.

10   Among other things, the gang members stole his business

11   property, stayed at his home, and patrolled the area near his

12   daughter’s school.        The IJ highlighted these problems to

13   support    his    determination    that    the   gang     targeted      Rivas-

14   Aparicio because of a “personal vendetta,” and not because of

15   his membership in a particular social group.

16       This     finding    failed     to    consider       material   evidence

17   supporting       Rivas-Aparicio’s       claim    that    his    persecution

18   intensified after he reported the gang’s crimes to police.

19   See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)

20   (“We . . . require some indication that the IJ considered

21   material evidence supporting a petitioner’s claim.”).                      For
                                          4
1    example, Rivas-Aparicio testified that, a few days after he

2    first went to the police, gang members beat him up, menaced

3    him with a gun, and told him that he was “in trouble” because

4    he called the police and took back his property.         See Acharya,

5    761   F.3d   at   297   (explaining   that    multiple     bases   for

6    persecution can exist).        He also testified about a later

7    incident during which a gang member threatened his life

8    because he had reported the gang’s extortion attempt to

9    police.      Thus,      his   testimony,     if   deemed    credible,

10   demonstrated that the gang’s assaults, threats, and extortion

11   attempts occurred after his initial report to police, which

12   could support a finding, under a mixed-motive analysis, that

13   the gang targeted him for cooperating with the authorities.

14   See id. at 298–300.     Both Rivas-Aparicio’s asylum application

15   and supporting declaration corroborate these allegations.

16   Because Rivas-Aparicio’s allegations, assumed credible, could

17   demonstrate that MS-13 targeted him, at least in part, because

18   of his cooperation with police, the agency erred by not

19   addressing the relevant record evidence.             See Mendez v.

20   Holder, 566 F.3d 316, 323 (2d Cir. 2009) (explaining that

21   when important facts relevant to relief have been “totally
                                       5
1    overlooked” an error of law has occurred).        Accordingly, we

2    remand to the BIA to apply a “mixed-motive analysis” to the

3    pertinent evidence and determine whether Rivas-Aparicio’s

4    cooperation with police was one central reason for the gang’s

5    persecution.    See Aliyev, 549 F.3d at 119.     We also note that

6    this remand provides an opportunity for the BIA to consider

7    the IJ’s adverse credibility determination.           See Yan Chen,

8    417 F.3d at 275.

9          Because we order remand on this issue, we need not

10   address   Rivas-Aparicio’s       alternative   argument       that   he

11   presented a prima facie claim for asylum based on an imputed

12   political opinion.        See INS v. Bagamasbad, 429 U.S. 24, 25

13   (1976) (“As a general rule courts and agencies are not

14   required to make findings on issues the decision of which is

15   unnecessary to the results they reach.”).

16   CAT Relief

17         An applicant for CAT relief must show that “it is more

18   likely than not” that he will be tortured, but need not show

19   any   connection     to     a   protected   ground.       8     C.F.R.

20   § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

21   Cir. 2004).    To constitute torture under the CAT, the likely
                                        6
1    harm must be “inflicted by or at the instigation of or with

2    the consent or acquiescence of a public official or other

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

4    § 1208.18(a)(1).       “Acquiescence of a public official requires

5    that the public official, prior to the activity constituting

6    torture,     have    awareness     of    such      activity    and   thereafter

7    breach his or her legal responsibility to intervene to prevent

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

9    acquiescence “requires only that government officials know of

10   or remain willfully blind to an act and thereafter breach

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

12   at   171.     In     assessing     the       likelihood   of    torture,   “all

13   evidence relevant to the possibility of future torture shall

14   be considered, including, but not limited to . . . [e]vidence

15   of past torture,” the possibility of relocation within the

16   country, “[e]vidence of gross, flagrant or mass violations of

17   human rights . . . and . . . relevant information regarding

18   conditions      in    the    country          of   removal.”         8   C.F.R.

19   § 1208.16(c)(3).        To meet his burden of proof, an applicant

20   for CAT relief must establish that someone in his “particular

21   alleged circumstances” is more likely than not to be tortured
                                              7
1    in the country designated for removal.            Mu-Xing Wang v.

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

3         The agency did not err in determining that Rivas-Aparicio

4    failed to demonstrate that the Salvadoran government will

5    more likely than not acquiesce to his torture by MS-13 gang

6    members.   Rivas-Aparicio concedes that the police helped him

7    recover some of his stolen property, identify the perpetrator

8    of an anonymous extortion attempt, and escape from gang

9    members who were chasing him. But he argues, without citations

10   to the record, that the “majority of the record” demonstrates

11   government     acquiescence   in   torture.     This   argument     is

12   conclusory and does not support the CAT claim.              And Rivas-

13   Aparicio’s assertion that police officers “may have given”

14   his cell phone number to the gang member who called him after

15   he   changed   his   number   is   too   speculative   to    establish

16   cognizable acquiescence.      Khouzam, 361 F.3d at 171 (requiring

17   knowledge of or willful blindness to torture).         Finally, the

18   BIA was not required to further explain its determination

19   that general evidence of gang violence and police corruption

20   in El Salvador does not establish that the government would

21   acquiesce to Rivas-Aparicio’s torture.        See Mendez, 566 F.3d
                                        8
1   at 323 (The BIA is not required to “explicitly consider[]”

2   each item of evidence or even describe it perfectly).

3       For the foregoing reasons, the petition for review is

4   GRANTED in regard to asylum and withholding of removal and

5   the case is remanded to the agency.   The petition for review

6   is DENIED insofar as it seeks relief under the CAT.

7                              FOR THE COURT:
8                              Catherine O’Hagan Wolfe,
9                              Clerk of Court




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