     17-579
     Sanchez-Ponce v. Whitaker
                                                                                   BIA
                                                                               Kolbe, IJ
                                                                       A208 283 836/837

                            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 30th day of November, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   KAREN BEATRICE SANCHEZ-PONCE,
14   DAVID ALBERTO PACAS-SANCHEZ,
15                 Petitioners,
16
17                     v.                                        17-579
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                  Anne Pilsbury, Central American
25                                     Legal Assistance, Brooklyn, NY.
26
27   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
28                                     Attorney General; Anthony C.
1                                     Payne, Assistant Director; Yedidya
2                                     Cohen, Trial Attorney, Office of
3                                     Immigration Litigation, United
4                                     States Department of Justice,
5                                     Washington, DC.
6
7           UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED in part and GRANTED in part.

11          Petitioners Karen Beatrice Sanchez-Ponce and her son,

12   David    Alberto    Pacas-Sanchez,         natives    and    citizens    of   El

13   Salvador, seek review of a February 9, 2017, decision of the

14   BIA affirming a September 8, 2016, decision of an Immigration

15   Judge (“IJ”) denying Sanchez-Ponce’s application for asylum,

16   withholding    of     removal,   and       relief    under    the    Convention

17   Against Torture (“CAT”).         In re Karen Beatrice Sanchez-Ponce,

18   David Alberto Pacas-Sanchez, Nos. A 208 283 836/837 (B.I.A.

19   Feb. 9, 2017), aff’g Nos. A 208 283 836/837 (Immig. Ct. N.Y.

20   City Sept. 8, 2016).         We assume the parties’ familiarity with

21   the underlying facts and procedural history in this case.

22          Under the circumstances of this case, we have reviewed

23   both    the   BIA’s    and    IJ’s     decisions       “for    the    sake    of

24   completeness.”      Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
                                            2
1    2006).       The     applicable   standards   of   review   are   well

2    established.       See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,

3    762 F.3d 191, 195 (2d Cir. 2014).

4        I.      Asylum and Withholding

5        To demonstrate eligibility for asylum and withholding of

6    removal, “the applicant must establish that race, religion,

7    nationality, membership in a particular social group, or

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

9    for persecuting the applicant.”         8 U.S.C. § 1101(a)(42); see

10   also id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Matter of C-T-

11   L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).             Relief “may be

12   granted where there is more than one motive for mistreatment,

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

14   is on account of a protected ground.”         Acharya v. Holder, 761

15   F.3d 289, 297 (2d Cir. 2014) (internal quotation marks and

16   citations    omitted).        Sanchez-Ponce   asserts    that   she   is

17   eligible for asylum and withholding of removal on the basis

18   of political opinion and social group.           Both claims fail.

19               A. Political Opinion

20       To show persecution based on political opinion, the

21   applicant     must    “show   through   direct     or   circumstantial
                                         3
1    evidence” that the persecutor is motivated by the applicant’s

2    own political opinion or the persecutor’s perception of the

3    applicant’s opinion, rather than merely by his own opinion.

4    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.

5    2005).    Sanchez-Ponce presented no evidence that she was

6    expressing political opposition to the gang, or that gang

7    members believed or perceived that her resistance to gang

8    activities was a political opinion.              See INS v. Elias-

9    Zacarias, 502 U.S. 478, 482 (1992)(holding that resistance to

10   a rebel group may be for many reasons other than political

11   opposition to the group); Delgado v. Mukasey, 508 F.3d 702,

12   707 (2d Cir. 2007)(holding that resistance to rebel group

13   known for targeting political rivals was political opinion

14   when petitioner “clearly viewed her flight as a refusal to

15   cooperate” with the rebels and it was “reasonable to infer”

16   that the rebels did as well); Matter of E-A-G-, 24 I. & N.

17   Dec. 591, 596-97 (B.I.A. 2008) (holding that refusal to join

18   gang,    “without   more,   does   not     constitute    a   ‘political

19   opinion’” because refusal in and of itself does not express

20   a political opinion).       Nor did her report to the district

21   attorney’s   office   constitute       a   political    opinion.   See
                                        4
1    Yueqing Zhang, 426 F.3d at 547-48 (holding that whistle-

2    blowing may be political opinion when “when it transcends

3    mere    self-protection   and   represents   a   challenge   to   the

4    legitimacy or authority of the ruling regime”).        There is no

5    indication in the record that Sanchez-Ponce reported the MS-

6    13 leader for any reason other than protecting herself from

7    rape or other harm.

8               B. Social Group

9           Sanchez-Ponce argues that she is eligible for asylum on

10   the basis of social group.      This claim is not properly before

11   us because Sanchez-Ponce declined to press the claim before

12   the IJ and the BIA found it waived.     See Prabhudial v. Holder,

13   780 F.3d 553, 555 (2d Cir. 2015).      When asked to clarify the

14   grounds raised, Sanchez-Ponce’s counsel responded that “the

15   clearer basis is political opinion,” failed to define the

16   social group at issue, and then argued only political opinion

17   in the closing argument.

18          II. CAT Relief

19          An applicant for CAT relief has the burden to show that

20   she would more likely than not be tortured.           See 8 C.F.R.

21   §§ 1208.16(c)(2), 1208.17; Khouzam v. Ashcroft, 361 F.3d 161,
                                      5
1    168 (2d Cir. 2004).    “Torture is defined as any act by which

2    severe pain or suffering . . . is intentionally inflicted on

3    a person . . . by or at the instigation of or with the consent

4    or acquiescence of a public official or other person acting

5    in an official capacity.”     8 C.F.R. § 1208.18(a)(1).     To show

6    acquiescence, an applicant need only show “that government

7    officials know of or remain willfully blind to an act and

8    thereafter breach their legal responsibility to prevent it.”

9    Khouzam, 361 F.3d at 171.

10       A government’s inability to prevent torture—even when

11   some state actors take “preventative efforts”—may be adequate

12   to state a CAT claim.       De La Rosa v. Holder, 598 F.3d 103,

13   110 (2d Cir. 2010).    “Where a government contains officials

14   that would be complicit in torture, and that government, on

15   the whole, is admittedly incapable of actually preventing

16   that torture, the fact that some officials take action to

17   prevent   torture   would   seem   neither   inconsistent   with   a

18   finding of government acquiescence nor necessarily responsive

19   to the question of whether torture would be inflicted” with

20   the acquiescence of an official.       Id.

21
                                        6
1           We remand for further consideration of Sanchez-Ponce’s

2    CAT claim.        She testified that an official at the district

3    attorney’s office refused to act on her report of the gang

4    leader’s threats and told her that she needed to hide or flee

5    the    country.      She    also   testified     that   the   gang   leader

6    arranged for her to be brought to prison, obtained expedited

7    permission for her to be a prison visitor, and called her

8    repeatedly on two different phones.                She also points to

9    country conditions evidence showing the power of the gangs,

10   even in prison, and the pervasive corruption in El Salvador.

11   Like    De   La   Rosa,    Sanchez-Ponce     has   offered    evidence   of

12   widespread        corruption   and    the      Salvadoran     government’s

13   inability to control the gangs, even when their leaders are

14   imprisoned.        598 F.3d at 110.         Neither the IJ or the BIA

15   discussed     this    evidence,      despite    its     relevance.       See

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

17   (requiring “certain minimum level of analysis . . . if

18   judicial review is to be meaningful”).

19          For the foregoing reasons, the petition for review is

20   DENIED as to asylum and withholding of removal and GRANTED as

21   to CAT relief, and the case is REMANDED to the BIA for further
                                           7
1    proceedings consistent with this order.   As we have completed

2    our review, any stay of removal that the Court previously

3    granted in this petition is VACATED, and any pending motion

4    for a stay of removal in this petition is DISMISSED as moot.

5    Any pending request for oral argument in this petition is

6    DENIED in accordance with Federal Rule of Appellate Procedure

7    34(a)(2), and Second Circuit Local Rule 34.1(b).

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe,
10                               Clerk of Court
11




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