                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2007

Valdiviezo-Galdamez v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-2080




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                                  PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


               No. 06-2080


 MAURICIO VALDIVIEZO-GALDAMEZ,
                     Petitioner

                    v.

         ATTORNEY GENERAL
        OF THE UNITED STATES,
                        Respondent


   Petition for Review of an Order of the
    United States Department of Justice
       Board of Immigration Appeals
          (BIA No. A97-447-286)
Immigration Judge: Honorable Mirlande Tadal


           Argued July 10, 2007
      Before: RENDELL and AMBRO, Circuit Judges,
              and SHAPIRO, * District Judge.

                 (Filed September 7, 2007 )


Martin P. Duffey [ARGUED]
Cozen & O’Connor
1900 Market Street, 3rd Floor
Philadelphia, PA 19103

Ayodele Gansallo
HIAS & Council Migration Service
of Philadelphia
2100 Arch Street, 3rd Floor
Philadelphia, PA m19103
   Counsel for Petitioner

Colette R. Buchanan [ARGUED]
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102


__________________

     *Honorable Norma L. Shapiro, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.



                              2
Janice K. Redfern
United States Department of Justice
Office of Immigration
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
  Counsel for Respondent




                 OPINION OF THE COURT


RENDELL, Circuit Judge.

       Mauricio Edgardo Valdiviezo-Galdamez (“Galdamez”)
petitions for review of the denial of his applications for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). We will grant the petition for
review, and remand for further proceedings consistent with this
opinion.

                                I.

      Galdamez is a native and citizen of Honduras, born in
May 1984.1 He came to the United States in October 2004 and
was not admitted or paroled after inspection by an immigration


       1
        The opinion of the Immigration Judge mistakenly states
that Galdamez was born in May 1981.

                                3
officer. Removal proceedings commenced in January 2005.
Galdamez admitted removability, but submitted an application
for asylum and for relief under the CAT. A hearing was held
before an Immigration Judge (“IJ”) on May 16, 2005.

        Galdamez testified that he fled Honduras because
members of a gang called “Mara Salvatrucha” threatened to kill
him if he did not join the gang. App. 11. Galdamez testified
that the young men in the gang engage in drug trafficking and,
on occasion, murder. According to Galdamez, the gang
members began making threats against him in March 2003,
while Galdamez was living in the City of San Pedro Sula in
Honduras. One day as Galdamez was leaving work, six men
approached him and robbed him. The men told Galdamez that
if he wanted his money and jewelry back, he would have to join
their gang. App. 142. After Galdamez refused, the men hit him
and told him to think about their proposal. Galdamez knew that
the men were members of Mara Salvatrucha because of their
tattoos.

        Galdamez reported the incident to the police three days
later. He delayed going to the police because he was afraid to
leave his house. After this incident, Galdamez moved to live
with his mother in Santa Rosa de Cupon because he was afraid
that the gang would come after him again in San Pedro Sula.
He testified that he did not leave his mother’s house during the
three months that he stayed in Santa Rosa. App. 173.
However, he returned to San Pedro Sula in June 2003 because
he received an offer of employment. He testified that he did not
think that he could find work in Santa Rosa because the village
is largely agricultural and most people are farmers. App. 181.

                               4
He testified that he was afraid to stay in Santa Rosa because
some of his former classmates who live there are gang members
and he feared that they would find out that he was in town.
App. 174.

        After Galdamez returned to San Pedro Sula, he tried to
avoid the members of Mara Salvatrucha and moved to a
different colony within the city. However, the gang members
spotted him and continued to threaten him. App. 176. The
gang members shot at him, and threw rocks and spears at him
about two-to-three times per week. Galdamez ran away and his
attackers screamed at him “Don’t run. Don’t be afraid. Sooner
or later you will join us.” A143-44, 178. Galdamez was able
to identify some of the men, either by the gang nicknames
inscribed in their tattoos or because they addressed one another
by those nicknames. Galdamez testified that he was not injured
in these attacks because he tried not to give the attackers an
opportunity to do so. He filed five separate police reports about
these incidents, but received no response from the police. App.
177, 147 (“The[ police] would always tell me that they were in
process, that they were investigating but we weren’t able, able
to see anything happen.”).

      Galdamez testified that on September 10, 2004, when he
was on his way to visit his sister’s husband in Guatemala, he
was kidnaped by Mara Salvatrucha members after crossing the
border into Guatemala. Galdamez was traveling with his
mother and other family members in a two-car caravan from
Honduras to Guatemala. After they crossed into Guatemala, a
pick-up truck began following the caravan. The car in which
Galdamez was traveling was stopped by the men in the truck,

                               5
who Galdamez identified as gang members by their tattoos. The
men kidnaped Galdamez and his fellow passengers and took
them to a mountain area. The gang members asked Galdamez
what he was doing in Guatemala, and he responded that he was
only traveling. He testified that his abductors thought that he
was trying to escape being a gang member. He was told by the
gang members that “they [would] no longer offer me to be a
part of the Mara but that they would kill me.” App. 147.
Galdamez was tied up and beaten by the gang members and
held for five hours.

        Galdamez was eventually freed by the Guatemalan
police, who were alerted to the attack by Galdamez’s family
members traveling in the second car in the caravan, which was
not stopped by the gang members. Galdamez filed a complaint
with the Guatemalan police, but nothing came of it. App. 163
(“[T]he Guatemalan police told us that they would protect us
until the place that we were going. And then, then the chief of
police arrived and said that’s – this is not our problem. You can
fix this whichever way you want. You’re not from this
country.”). Galdamez then briefly stayed in Guatemala with his
sister’s husband, and decided to come to the United States to
escape the Mara Salvatrucha members. He testified that he
believes that the gang members will kill him if he returns to
Honduras. App. 150. He also testified that he believes that his
family will be attacked if he returns to Honduras and continues
to refuse to join the gang.

       After a hearing, the IJ denied Galdamez’s applications
for asylum, withholding of removal, and relief under the CAT.
The IJ found no reason to disbelieve Galdamez’s testimony.

                               6
However, the IJ offered three purported failures in Galdamez’s
proof. First, Galdamez did not establish that the government
“refused” to protect him from the attacks by Mara members and
that the refusal was on account of one of the five grounds
enumerated in the Immigration and Nationality Act (i.e.,
Galdamez’s race, religion, nationality, membership in a
particular social group, or political opinion). The IJ noted that
Galdamez left San Pedro Sula almost immediately after filing
the police report concerning the March 2003 attack and
concluded that “[s]ubstantial evidence does not indicate that the
government or the police refused protection to the respondent
against these individuals.” App. 19.


        Second, the IJ found that Galdamez failed to establish
that the injuries he sustained in Honduras were inflicted “on
account of” his race, religion, nationality, membership in a
particular social group, or political opinion. She stated, without
discussion, that “[t]here is no evidence that these criminal
elements [] imputed any political opinion on the respondent or
that they sought to harm the respondent on account of any one
of the five grounds delineated in the Act.” App. 20. Lastly, the
IJ noted that Galdamez had lived in Santa Rosa without
problems and faulted Galdamez for failing to establish that the
danger of “persecution” at the hands of the gang members was
countrywide.

       On these grounds, the IJ concluded that Galdamez failed
to prove his eligibility for asylum, and, accordingly, also failed
to meet the higher burden required to prove eligibility for
withholding of removal. Furthermore, the IJ found that

                                7
Galdamez presented no evidence that he would be tortured if he
returned to Honduras and so was not eligible for relief under the
CAT. The Board of Immigration Appeals (“BIA”) summarily
affirmed the decision of the IJ. Galdamez then filed this petition
for review.

                                II.

       We have jurisdiction to review a final order of removal
pursuant to 8 U.S.C. § 1252(a)(1). When the BIA affirms the
IJ’s decision without opinion, we review the IJ’s decision. See
Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005). The
IJ’s findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary. 8
U.S.C. § 1252(b)(4)(B).

                           A. Asylum

        To prove eligibility for a grant of asylum, a petitioner
must establish that he is “a refugee,” meaning a “person who is
outside any country of such person's nationality ... and who is
unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that country because
of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42). “In order
to establish past or future persecution, an applicant must ‘show
past or potential harm rising to the level of persecution on
account of a statutorily enumerated ground that is committed by
the government or by forces the government is unable or
unwilling to control.’” Kibinda v. Att’y Gen., 477 F.3d 113, 119

                                8
(3d Cir. 2007).

       The IJ denied Galdamez’s claim for asylum on three
grounds: his failure to establish that the government “refused”
to protect him from his persecutors, his failure to prove that the
injuries that he sustained were inflicted “on account of” one of
the five statutory grounds, and his failure to show that the
danger of persecution is countrywide. We will address each of
these grounds in turn.

                    1. Government Action

        If the alleged persecution was not conducted directly by
the government, the petitioner has the burden to prove that it
was conducted “by forces the government is unable or unwilling
to control.” Kibinda, 477 F.3d at 119. Galdamez argues that the
IJ erred by requiring him to prove, not that the government was
“unable or willing” to protect him, but that the government
“refused” to protect him. App. 19 (“Substantial evidence does
not indicate that the government or the police refused protection
to the respondent against these individuals.”).

       We agree that the IJ erred by requiring Galdamez to
prove that the police “refused” to protect him, rather than that
the government was simply “unable or unwilling” to protect
him. App. 19 (“The Court must look to see whether or not the
police officials intentionally decided not to protect the
respondent against these individuals. Substantial evidence does
not indicate that the government or the police refused protection
to the respondent against these individuals.”). The IJ further
erred by placing the burden on Galdamez to prove both that the

                                9
police refused to protect him from the gang members and that
this refusal was “on account of” Galdamez’s race, religion,
nationality, membership in a particular social group, or political
opinion. App. 20 (“Based on the evidence presented it would
not support a finding that the police refused protection to the
respondent and the refusal was on account of any one of the five
enumerated grounds in the Act.”). The petitioner must prove
that persecution that he fears is “on account of” one of the
enumerated grounds, but need not show that the government’s
refusal to control a group that engages in persecution is “on
account of” one of these grounds. See In re R-A-, 22 I. & N.
Dec. 906, 923 (BIA 2001) (“[We] understand the ‘on account
of’ test to direct an inquiry into the motives of the entity actually
inflicting the harm.”).

       We also note that the IJ ignored several important pieces
of evidence in the process of making this finding, evidence that
would support a finding that the police were “unwilling or
unable” to protect Galdamez from the gang members. The IJ
made no mention of the evidence that Galdamez filed five police
reports concerning the gang members’ attacks against him or the
evidence that the police failed to take any action in response to
these reports. The IJ discussed only the police report that
Galdamez filed in March 2003 and the police follow-up to that
report. The IJ did not consider Galdamez’s testimony that, after
June 2003, he had filed five additional police reports about
incidents in San Pedro Sula, in which he was able to identify
some of his attackers by their gang nicknames. Galdamez




                                 10
received no response from the police.2 Accordingly, the IJ erred
by applying the wrong legal standard, and compounded this
error by ignoring evidence in the record supporting Galdamez’s
claim that the police were “unwilling or unable” to protect him
from the gang members.

       2. “On Account of” an Enumerated Ground

      The IJ also denied Galdamez’s request for asylum on the
ground that Galdamez “failed to establish that the injuries that


       2
        We cannot accept the government’s contention that the
background materials submitted at the hearing support the IJ’s
finding and denial of the asylum claim. First, the IJ did not
address the relevant question: whether the government was
“unwilling or unable” to control the gang members. Second, the
materials referenced by the government describe the general
negative attitude in Honduras towards “street children” and
youths with tattoos, and do not describe with any detail efforts
by the government to crack down on gangs. App. 249-52, 309-
10. The most relevant statement in these materials is that:
“During the year, nearly half of all military personnel were
assigned for most of the time to joint patrols with police to
prevent and combat high levels of criminal and gang violence.”
App. 310. This does not refute Galdamez’s credible testimony,
which the IJ failed to address, that the police took no action in
response to his complaints that he was repeatedly attacked by
gang members. If anything, the evidence that gang violence is
a serious problem in Honduras provides additional support for
Galdamez’s claims.

                               11
he sustained in Honduras [were] on account of one of the five
grounds delineated in the Act.” App. 20. Galdamez argued
before the IJ that he is a member of the particular social group
of young Honduran men who have been actively recruited by
gangs and who have refused to join the gangs.3 He maintained
that he was persecuted because he is a member of this group.
However, the IJ never referred to the social group claim, but
stated in conclusory fashion that the attacks on Galdamez had
“no nexus to a protected ground.” App. 20. We conclude that
the IJ’s finding that Galdamez was not persecuted “on account”
of his membership in this group is not supported by substantial
evidence.

       The government contends that we should deny the
petition for review and affirm the denial of asylum on the
ground that the group to which Galdamez belongs is not a
“particular social group” within the meaning of the Immigration


       3
        Before the IJ, Galdamez identified the particular social
group to which he belongs as “those who have been actively
recruited by gangs but have refused to join because they oppose
these gangs.” App. 185. In his brief, he identifies the group as
“young Honduran men who have been actively recruited by
gangs and who have been persecuted by these gangs for their
refusal to accept membership.” Appellant’s Br. 25. In
discussing the group, we omit the fact of the group’s later
persecution from its definition to make clear that the group
exists independently of its persecution. See Lukwago v.
Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (“[T]he ‘particular
social group’ must have existed before the persecution began.”).

                              12
and Nationality Act. However, neither the IJ nor the BIA
decided whether the group of which Galdamez claims to be a
member – “young Honduran men who have been actively
recruited by gangs and who have refused to join the gangs” – is
a “particular social group” within the meaning of the Act. We
decline to decide this question in the first instance. See
Gonzales v. Thomas, 547 U.S. 183 (2006) (holding that court of
appeals erred by holding in the first instance that members of a
family are a “particular social group” without prior resolution of
this issue by the BIA). The IJ denied Galdamez’s application
for asylum based not on a finding that Galdamez did not belong
to a “particular social group,” but rather based on her finding
that there was no “nexus” between the injuries Galdamez
endured and any protected ground. We conclude that this
finding as to a lack of a link, or causation, is not supported by
reasonable, substantial and probative evidence on the record
considered as a whole, and we will therefore vacate the order of
removal and remand to the agency.

       “We will not disturb the IJ’s credibility determination and
findings of fact if they are ‘supported by reasonable, substantial
and probative evidence on the record considered as a whole.’
Although we generally defer to the IJ’s inferences, ‘deference is
not due where findings and conclusions are based on inferences
or presumptions that are not reasonably grounded in the record,
viewed as a whole.’” Tarrawally v. Ashcroft, 338 F.3d 180, 184
(3d Cir. 2003) (internal citations omitted) (quoting
Balasubramanrim v. INS, 143 F.3d 157, 161, 162 (3d Cir.
1998)). Here, the IJ’s finding that Galdamez was not attacked
on account of his membership in the group of “young Honduran
men who have been actively recruited by gangs and who have

                               13
refused to join the gangs” is inconsistent with her finding that
the individuals who attacked Galdamez wanted him to join the
gang and engage in gang activities, and the IJ’s specific
recognition that Galdamez’s “refusal caused [him] to be
attacked by these men.” App. 20. Indeed, there is no evidence
in the record that the gang members attacked Galdamez for any
reason other than he is a young man who has repeatedly refused
to join the gang after being actively recruited to join. The gang
members sought out Galdamez again and again, and targeted
him for abuse based on his status as a member of this group. As
the gang members chased him, Galdamez’s persecutors shouted
“Don’t run. Don’t be afraid. Sooner or later you will join us.”
App. 143-44. No reasonable factfinder could conclude that
Galdamez was attacked for any reason other than his status as a
young Honduran man who had been recruited to join the gang
and refused to join. Thus, we hold that the IJ’s finding that
there was no “nexus” between Galdamez’s injuries and any of
the statutory grounds is not supported by substantial evidence.

        It is curious that the IJ failed to address Galdamez’s
claim based on membership in a “particular social group,” given
that the BIA’s decisions in this area, and the decision of at least
one IJ, support Galdamez’s position. The group in which
Galdamez claims membership shares the characteristics of other
groups that the BIA has found to constitute a “particular social
group.” The BIA has read the term “particular social group” to
mean that the group must be defined by a common, immutable
characteristic that the group members “either cannot change, or
should not be required to change because it is fundamental to
their individual identities or consciences.” Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993) (quoting Matter of Acosta, 19 I. & N.

                                14
Dec. 211, 233 (BIA 1985)). In In re Fauziya Kasinga, 21 I. &
N. Dec. 357 (BIA 1996), the BIA found that “young women
who are members of the Tchamba-Kunsuntu Tribe of northern
Togo who have not been subjected to female genital mutilation,
as practiced by that tribe, and who oppose the practice” are a
particular social group. Furthermore, at least one IJ has
determined that young men who have been actively recruited by
gangs and who have refused to join the gangs are members of a
“particular social group.” In an unpublished decision, IJ Susan
Castro concluded that the petitioner, D-V-, was eligible for
asylum based on his persecution by gang members on account
of his membership in the particular social group of those who
“have been actively recruited by gangs, but who have refused to
join because they oppose the gangs.” In re D-V-, slip op. at 10
(IJ Castro, Sept. 9, 2004), http://www.refugees.org/
uploadedFiles/Participate/National_Center/Resource_Library/
H.002.pdf. There was no appeal by the Attorney General from
this ruling.

        We will remand so that the agency can address the issues
that it did not reach as a result of denying Galdamez’s asylum
claim for lack of evidence of a causal “nexus” between his
injuries and membership in a particular social group: whether
the group identified by Galdamez is a “particular social group”
within the meaning of the Act, and whether the injuries that
Galdamez suffered rise to the level of persecution. See INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam).




                              15
             3. Countrywide Fear of Persecution

       The third ground upon which the IJ denied Galdamez’s
application for asylum was his alleged failure to show that the
danger of persecution he faces is countrywide. App. 12 (“Based
on the evidence before me I cannot find that the respondent has
shown countrywide persecution.”). The IJ noted that Galdamez
relocated briefly to Santa Rosa de Cupon for three months to
live with his mother and “lived quietly without any incidents and
without any evidence that the Mara group sought to harm him or
sought to recruit him to become [a] member of this group.”
App. 21.

       However, if Galdamez establishes that he was subject to
past persecution, it is not his burden to prove that it would not
be reasonable for him to relocate to another part of Honduras.
“[A]n alien who offers credible testimony regarding past
persecution is presumed to have a well-founded fear of future
persecution.” Berishaj v. Ashcroft, 378 F.3d 314, 326 (3d Cir.
2004). When an asylum applicant has demonstrated past
persecution and thus is presumed to have a well-founded fear of
future persecution, the government may rebut this presumption
by proving by a preponderance of the evidence that the applicant
“could avoid future persecution by relocating to another part of
the applicant's country of nationality or, if stateless, another part
of the applicant's country of last habitual residence, and under
all the circumstances, it would be reasonable to expect the




                                 16
applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i)(B).4 Thus, if the
agency determines on remand that Galdamez has established
past persecution, the burden is on the government to show that
Galdamez can safely relocate.

        Furthermore, we again note that the IJ failed to consider
several important pieces of evidence in the process of making
this finding. Galdamez testified that, even while he was living
in Santa Rosa, he feared that he would be targeted by the gang
members. The IJ also ignored Galdamez’s testimony that he did
not leave his house while in Santa Rosa because he was “afraid
that the groups may find [him].” App. 180. In addition, the IJ
did not make any reference to the United Nations report on
Honduras in the record, which describes the gang problem in
Honduras as countrywide. The report states that “[t]here are
several youth gangs in Honduras. Dominant among them are the
‘Mara Salvatrucha’ (better known as MS). . . . The gangs
operate throughout the country but are more visible in the urban
centres of Tegucigalpa and San Pedro Sula.” App. 249. Thus,
this finding by the IJ is suspect and is not supported by
substantial evidence.




       4
         “In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing
that it would not be reasonable for him or her to relocate, unless
the persecutor is a government or is government-sponsored.” 8
C.F.R. § 208.13(b)(3)(i).

                               17
                 B. Withholding of Removal

        The IJ denied Galdamez’s application for withholding for
removal because Galdamez had failed to prove his eligibility for
a grant of asylum. App. 21 (“Inasmuch as the respondent has
failed to satisfy the lower burden of proof required for asylum
it follows that he has failed to satisfy the clear probability
standard of eligibility for withholding of removal.”). However,
since we conclude that the IJ erred in deciding that Galdamez
failed to prove his eligibility for a grant of asylum, we
accordingly also vacate the denial of Galdamez’s application for
withholding for removal.

     C. Relief Under the Convention Against Torture

       Galdamez also argues that the IJ erred in denying his
application for relief under the CAT because she ignored
evidence that Galdamez would be tortured by gang members if
he returned to Honduras and that the government would be
unwilling or unable to prevent the torture. Torture is defined in
the CAT as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . .
when such pain or suffering is 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. §
208.18(a)(1) (emphasis added).

       As we explained above, the IJ failed to note that the
police ignored five reports filed by Galdamez concerning
violence and threats by gang members. This could arguably
constitute government “acquiescence” to torture as we now

                               18
know it. We note that in Matter of S-V-, 22 I. & N. Dec. 1306
(BIA 2000), the BIA had interpreted the use of the word
“acquiescence” in the Act to require an alien to prove that the
government approves of the torture, or that it consents to it. Here,
the IJ found that Galdamez’s CAT claim failed because he did
not prove “that he would be tortured by the government of
Honduras or anyone else with the acquiescence of the
government” if he returned to Honduras. App. 22. However,
after the IJ denied Galdamez’s claim, we opined in Silva-
Rengifo v. Attorney General, 473 F.3d 58 (3d Cir. 2007) that the
BIA’s reading of “acquiescence” in Matter of S-V- was too
narrow, and held that “acquiescence to torture requires only that
government officials remain willfully blind to torturous conduct
and breach their legal responsibility to prevent it.” See Silva-
Rengifo, 473 F.3d at 70. Accordingly, because the IJ ignored
relevant evidence, and in light of the current standard for
proving government “acquiescence” to torture, we will vacate
the denial of Galdamez’s claim for relief under the CAT.

                                III.

      For the foregoing reasons, we will grant the petition for
review, vacate the denial of Galdamez’s applications for asylum,
withholding of removal, and relief under the CAT, and remand
to the agency for further proceedings consistent with this
opinion.




                                19
