    19-634
    Lopez Canas v. Barr
                                                                                  BIA
                                                                             Ruehle, IJ
                                                                          A098 589 755

                           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.

          At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    9th day of October, two thousand nineteen.

    PRESENT:
              PIERRE N. LEVAL,
              DEBRA ANN LIVINGSTON,
              RAYMOND J. LOHIER, JR.,
                   Circuit Judges.
    _____________________________________

    JOSE HENRY LOPEZ CANAS,
                   Petitioner,

                      v.                                         19-634

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
                   Respondent.
    _____________________________________

    FOR PETITIONER:                   ROBERT F. GRAZIANO, Law Office of
                                      Robert F. Graziano, Buffalo, NY.

    FOR RESPONDENT:                   LINDSAY CORLISS (Joseph H. Hunt;
                                      Brianne Whelan Cohen, on the brief),
                                      Office of Immigration Litigation,
                                      United States Department of Justice,
                                      Washington, DC.
      UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is DENIED.

      Petitioner Jose Henry Lopez Canas, a native and citizen of El

Salvador, seeks review of a March 4, 2019, decision of the BIA

affirming an August 29, 2018, decision of an Immigration Judge

(“IJ”)   denying   Lopez   Canas’s   application     for    withholding   of

removal and relief under the Convention Against Torture (“CAT”).

In re Jose Henry Lopez Canas, No. A 098 589 755 (B.I.A. Mar. 4,

2019), aff’g No. A 098 589 755           (Immig. Ct. N.Y. City Aug. 29,

2018).   We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

      Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA.          See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).            Because the

BIA assumed credibility, we assume credibility as to past events

and Lopez Canas’s subjective fear of future harm.             See Yan Chen

v. Gonzales, 417 F.3d 268, 271–72 (2d Cir. 2005).            We review the

agency’s factual findings for substantial evidence and its legal

conclusions de novo.       See 8 U.S.C. § 1252(b)(4)(B); Paloka v.

Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo

the   legal   determination   of     whether    a   group   constitutes    a

‘particular social group’ . . . .”); Yanqin Weng v. Holder, 562


                                     2
F.3d   510,    513,     516    (2d    Cir.    2009)     (reviewing   denial   of   CAT

protection under the substantial evidence standard).

Withholding of Removal

       To demonstrate eligibility for withholding of removal, an

“applicant     must      establish         that   race,    religion,    nationality,

membership in a particular social group, or political opinion was

or   will     be   at    least       one    central     reason   for”   the   claimed

persecution.         8 U.S.C. § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A);

Matter of C-T-L-, 25 I. & N. Dec. 341, 346 (BIA 2010) (holding

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

of removal).         To constitute a particular social group, a group

must be “(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question.”                   Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237 (BIA 2014); see Paloka, 762 F.3d at 195–97.

“To be socially distinct, a group . . . must be perceived as a

group by society.”           Matter of M-E-V-G-, 26 I. & N. Dec. at 240.

       The agency did not err in rejecting Lopez Canas’s proposed

social group of former bus drivers in El Salvador because there

was a lack of evidence that Salvadoran society recognizes former

bus drivers as a distinct group.                  See Matter of M-E-V-G-, 26 I. &

N. Dec. at 240 (“Social distinction refers to social recognition”).

“Evidence     such      as    country      conditions     reports,   expert   witness


                                              3
testimony, and press accounts of discriminatory laws and policies,

historical animosities, and the like may establish that a group

exists and is perceived as ‘distinct’ or ‘other’ in a particular

society.”       Id. at 244.         Here, the country conditions evidence

reflects that gangs have targeted bus drivers for extortion, and

one article reports that between 2005 and 2014, 800 transport

employees were killed.            But “a group’s recognition . . . is

determined by the perception of the society in question, rather

than by the perception of the persecutor.”              Id. at 242.      And there

is     no    evidence    that   society       generally—or    gang     members    in

particular—recognizes former bus drivers as a distinct social

group.       See id. at 240.      Lopez Canas testified that his friends

and bus dispatchers would know that he had been a bus driver, but

the    recognition       of   friends   and    former   coworkers      is   not   an

appropriate proxy for the perception of society as a whole.                       See

Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014) (“[T]here

must    be    evidence    showing    that     society   in   general    perceives,

considers,       or     recognizes      persons     sharing     the     particular

characteristic to be a group.”).

       The agency also did not err in rejecting Lopez Canas’s

proposed social group of “persons who return from the United States

to El Salvador who are presumed to have some wealth” because it

did not satisfy the social distinction requirement.                    See Matter


                                          4
of M-E-V-G-, 26 I. & N. Dec. at 240.              Lopez Canas did not submit

any country conditions evidence, or cite to any evidence in his

brief, to demonstrate that people returning from the United States

are perceived as a distinct group by Salvadoran society.                    See 8

U.S.C. § 1229a(c)(4) (providing that an “alien applying for relief

or protection from removal has the burden of proof”); 8 C.F.R.

§ 1208.16(b) (providing that the “burden of proof is on the

applicant for withholding of removal”); Matter of M-E-V-G-, 26 I.

& N. Dec. at 244.      Lopez Canas argues that “this particular social

group is of the kind that is recognized practically everywhere,”

but     counsel’s     assertion     is       insufficient      to    show   social

distinction.       See Matter of M-E-V-G-, 26 I. & N. Dec. at 244; see

also Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013)

(noting that arguments of counsel cannot substitute for evidence

of the theory asserted).

        Furthermore, we have previously affirmed the BIA’s rejection

of the affluent as a particular social group in Guatemala, finding

that,    “[w]hen    the   harm    visited     upon   members    of   a   group   is

attributable to the incentives presented to ordinary criminals

rather than to persecution, the scales are tipped away from

considering those people a ‘particular social group’ within the

meaning of the [Immigration and Nationality Act].”                    Ucelo-Gomez

v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007).                 Accordingly, Lopez


                                         5
Canas    has    not    sufficiently         demonstrated       that    his   prospective

status as a potentially wealthy person who has been to the United

States constitutes membership in a distinct social group.                          See id.

        Because      Lopez    Canas       did   not   establish       membership     in   a

cognizable      social       group,    the      agency   did    not    err    in   denying

withholding of removal.              See 8 U.S.C. § 1231(b)(3)(A).

CAT

        An applicant for CAT relief has the burden to show that “it

is more likely than not” that he will be tortured, but he need not

show    any    connection       to    a    protected     ground.        See    8    C.F.R.

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

2004).    To constitute torture under the CAT, the likely harm must

be “inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.”           8 C.F.R. § 1208.18(a)(1).               “Acquiescence of

a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and

thereafter breach his or her legal responsibility to intervene to

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

acquiescence “requires only that government officials know of or

remain willfully blind to an act and thereafter breach their legal

responsibility to prevent it.”                  Khouzam, 361 F.3d at 171.




                                                6
      The agency did not err in concluding that Lopez Canas failed

to show that Salvadoran authorities would more likely than not

acquiesce to his torture by gangs.           Lopez Canas testified that he

believed that gang members and the police were connected, but the

record contains minimal evidence suggesting that Lopez Canas would

be tortured, or that government officials would acquiesce to his

torture.     Lopez Canas testified that he reported incidents in

which gangs harmed him while he was employed as a bus driver in

1999 and 2001, in response to one of which a police officer said,

“that’s why they’re out killing you guys because you’re all

complaining all the time.”       Additionally, when he was asked if he

had any knowledge of connections between the police and the gangs,

he testified that, “when I filed the complaint when I was beaten,

that was when I felt that I was being harassed and followed the

most.”     The   agency    was   not    required      to   find   his   testimony

sufficient to show that there was collusion between gang members

and the police resulting in official acquiescence to torture.1

See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

there are two permissible views of the evidence, the factfinder’s

choice   between    them   cannot      be   clearly    erroneous.”      (internal




1
 Lopez Canas also testified as to a 2009 incident in which he was extorted and
shot by gang members, but said that he did not report the incident to the
police. He therefore cannot establish that the Salvadoran police knew about,
or were willfully blind to, this extortion and shooting. See Khouzam, 361
F.3d at 171 (requiring knowledge of or willful blindness to torture).
                                        7
quotation marks omitted)).         Moreover, the fact that the police did

not take action to address his complaints besides taking a report

is not sufficient on its own to show government acquiescence to

torture.     See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th

Cir. 2014) (“Evidence that the police were aware of a particular

crime, but failed to bring the perpetrators to justice, is not in

itself sufficient to establish acquiescence in the crime.”); Mu-

Xing Wang v. Ashcroft, 320 F.3d 130, 144 & n.21 (2d Cir. 2003)

(suggesting that evidence of pervasive human rights violations is

insufficient to show that a particular CAT applicant is more likely

than not to be tortured, with or without official assent).

      There is also minimal country conditions evidence to support

Lopez Canas’s assertion that police officers would acquiesce to

his torture.     Lopez Canas does not cite to any evidence besides

the   2017   State    Department    Report,     which   lists   “instances    of

corruption and other crimes” among several factors that “limited

the [police]’s effectiveness” and states that one of the most

significant     human    rights    problems    was   “widespread    government

corruption.”     The report does not discuss, however, whether the

reported police corruption involved colluding with gang members,

supporting     gang   activities,    or     acquiescing    to   torture.      The

specific     incidents   of   government      corruption   described    in   the

report     largely    concern     elected     officials,    including      former


                                       8
presidents and a former attorney general.          And on the whole, the

country   conditions   evidence    does   not   otherwise   describe     ties

between gangs and the police that suggest a probability that Lopez

Canas will be tortured with official assent.             Indeed, even if

Lopez Canas’s evidence were sufficient to demonstrate substantial

collusion between gang members and the police, this would be

insufficient to show that the police would acquiesce to harm to

Lopez Canas specifically.         See Wang, 320 F.3d at 144 (2d Cir.

2003) (explaining that an applicant for CAT relief must show a

likelihood of torture in “his particular alleged circumstances”).

     Based on the limited evidence of collusion between gang

members and the police, and the lack of particularized evidence

that government officials would acquiesce to Lopez Canas’s torture

specifically, the evidence does not compel a finding that Lopez

Canas will more likely than not be tortured by or with the

acquiescence   of    the   Salvadoran     authorities.      See   8   U.S.C.

§ 1252(b)(4)(B)     (“[T]he   administrative     findings   of    fact    are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary[.]”); Wang, 320 F.3d at 144.             As such,

the agency did not err in denying the requested CAT protection.

See 8 C.F.R. § 1208.18(a)(1).




                                     9
     For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, the stay of removal that the Court

previously granted in this petition is VACATED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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