Nelson Martinez Manzanares v. William Barr, U. S.

Case: 18-60315 Document: 00514970507 Page: 1 Date Filed: 05/24/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-60315 May 24, 2019

Lyle W. Cayce

NELSON ESIMAR MARTINEZ MANZANARES, Clerk

Petitioner,

v.

WILLIAM P. BARR, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Nelson Esimar Martinez Manzanares (“Martinez”) unsuccessfully

applied for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). He now asks us to review the

government’s decision and to vacate the removal order. We deny the petition.

I.

In May 2014, Martinez entered the United States near McAllen, Texas,

without the necessary entry documents. The Department of Homeland

Security (“DHS”) began removal proceedings. Martinez applied for asylum,

withholding of removal, and CAT protection. He argued he had suffered

Case: 18-60315 Document: 00514970507 Page: 2 Date Filed: 05/24/2019

No. 18-60315

persecution in Honduras based on his membership in a particular social group

related to his former work in law enforcement.

A.

Before an Immigration Judge (“IJ”), Martinez testified that he worked

as a volunteer auxiliary police officer from 2005 to 2009 in the Honduran

village of San Isidro, a small community located in the city of Victoria, in the

department of Yoro. On May 14, 2009, he arrested Edwin Giovanni Megdoreta

Montcodo, known as Edis, who was suspected of killing a man with a machete.

Honduran authorities detained Edis for seventeen days before releasing him.

According to Martinez, once released, Edis fled San Isidro for several years to

avoid being tried and convicted for murder.

Nearly five years later, however, Edis returned to San Isidro. In January

2014, as Martinez was about to leave church, people informed him Edis was

outside. When Martinez left the building, Edis pulled out a gun. Bystanders

intervened, however, and “didn’t allow [Edis] to do anything to [Martinez].”

About a month later, Edis threatened Martinez again. Martinez was

driving with his uncle and brother when he saw Edis outside of a bar-like

establishment. Edis yelled that he was going to kill Martinez, pulled out a

gun, and fired shots at the car. The bullets missed Martinez and the car.

Martinez then pulled out his own gun, and Edis fled.

Approximately two weeks later, on February 14, 2014, Martinez was

riding a motorcycle to work when Edis emerged from tall grass with a shotgun.

Edis pointed the shotgun at him. Martinez jumped into a nearby lake. When

Edis approached the lake, Martinez swam away.

Martinez testified before the IJ that he never reported any of the

incidents to the police because the Honduran police do “not function.” Martinez

did, however, report the first two incidents to a local mayor. Both times the

mayor told Martinez that he could “take vengeance in [his] own hands” and

2

Case: 18-60315 Document: 00514970507 Page: 3 Date Filed: 05/24/2019

No. 18-60315

that he “had the authority to kill [Edis] if [he] wanted to.”

After the third incident, Martinez moved to an apartment in the building

where he worked. When asked whether he had any more problems with Edis

there, Martinez said no. He explained security guards protect the building so

“nothing happens there.” For the remaining month and a half Martinez

remained in Honduras, Edis did not bother him again. On April 4, 2014,

Martinez left Honduras and traveled to the United States.

Martinez sought immigration relief based on persecution on account of

membership in a particular social group. Specifically, Martinez alleged

membership in three possible groups:

(1) ex-law enforcement officials of San Isidro, Victoria, Yoro,

Honduras who are persecuted for having performed their law

enforcement duties; (2) ex-law enforcement officials of San Isidro,

Victoria, Yoro, Honduras who participated in the capture of [Edis];

and (3) ex-law enforcement officials of San Isidro, Victoria, Yoro,

Honduras who participated in the capture of persons accused of

committing a crime.

Resp’t’s Submission in Supp. of Appl., Ex. M. The IJ concluded these groups

are not cognizable as particular social groups under the Immigration and

Nationality Act (“INA”). But even if they were, the IJ determined Martinez

failed to demonstrate persecution on account of membership in these proposed

groups. It found Martinez “is not being singled out because of his status as a

former law enforcement officer, but instead for his role in arresting a particular

individual.” Accordingly, the IJ denied relief.

B.

Martinez appealed to the Board of Immigration Appeals (“BIA”). The

BIA dismissed, concluding the IJ correctly denied the asylum and withholding

claims because Martinez failed to “show . . . the requisite nexus between the

harm he suffered and a protected ground for asylum or withholding of

removal.” Regarding the nexus requirement, Martinez admitted he had been

3

Case: 18-60315 Document: 00514970507 Page: 4 Date Filed: 05/24/2019

No. 18-60315

harmed because of specific actions he took, not because he belonged to a certain

group. Regarding the protected ground, Martinez failed to show his proposed

social groups are “socially distinct groups in Honduras.” The BIA additionally

upheld the IJ’s conclusion that Martinez did not show the Honduran

government was unable and unwilling to protect him. It further noted

Martinez did not suffer harm rising to the level of persecution.

The BIA likewise upheld the IJ’s determination that Martinez did not

qualify for CAT protection. It noted the Honduran police “initially arrested

and detained Edis,” and the mayor “effectively authorized” Martinez to kill

Edis. Based on “these circumstances,” the BIA concluded Martinez “did not

show that it is more likely than not that he will be subject to mistreatment

rising to the level of torture by Edis by or with the acquiescence of public

officials in Honduras.”

C.

Martinez petitioned this Court for review. But before the Court could

reach the issues presented, Martinez and the government filed a joint motion

to remand. The parties wanted the BIA to (1) explain the apparent assumption

that Martinez’s authorization to kill Edis made it less likely Martinez would

suffer harm, (2) reconsider its reasoning regarding Martinez’s failure to

establish a particular social group and nexus, and (3) “consider whether the

alleged harm suffered by [Martinez] ‘rises to the level’ of persecution.” Over

Judge Jones’s dissent, the Court granted the parties’ joint motion without

discussion.

On remand, the BIA said the parties misinterpreted its original decision.

Regarding the parties’ first remand issue, the BIA said it did not assume

permission to kill Edis made it less likely Martinez would be killed. The BIA

explained the authorization to kill Edis was only one basis for its conclusion

that Martinez didn’t establish the “Honduran authorities would acquiesce or

4

Case: 18-60315 Document: 00514970507 Page: 5 Date Filed: 05/24/2019

No. 18-60315

be willfully blind to any harm inflicted on [Martinez] that rose to the level of

torture.” Regarding the second issue, the BIA declined to reconsider its

analysis regarding Martinez’s alleged group because, “regardless of whether

former Auxiliary Policemen constitute a cognizable particular social group,

[Martinez] did not show that he was harmed on account of his membership in

that group.” Finally, regarding the third issue, the BIA explained it properly

concluded Martinez’s harm did not rise to the level of persecution despite the

IJ’s failure to make that explicit finding. It further noted that conclusion was

ultimately immaterial because Martinez could not connect any alleged

persecution to a protected ground. Therefore, the BIA again dismissed

Martinez’s appeal. Martinez again petitioned this Court for review.

II.

We review the BIA’s decision; we consider the IJ’s decision only to the

extent it influenced the BIA. See Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir.

2018) (per curiam). We will reverse the BIA’s factual determinations “only if

the evidence is so compelling that no reasonable fact finder could fail to find

the petitioner statutorily eligible for relief.” Qorane v. Barr, 919 F.3d 904, 909

(5th Cir. 2019) (quotation omitted). In contrast, we “review[ ] the BIA’s legal

determinations de novo.” Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir.

2019).

We begin by addressing Martinez’s claims for asylum and withholding of

removal before turning to his CAT claim. We deny the petition on each ground.

A.

To be eligible for asylum, Martinez must establish he is a refugee. 8

U.S.C. § 1158(b)(1)(B)(i). That requires showing “[past] persecution or a well-

founded fear of [future] persecution on account of . . . membership in a

particular social group.” Id. § 1101(a)(42)(A). Similarly, to obtain withholding

of removal, he must show his “life or freedom would be threatened” in

5

Case: 18-60315 Document: 00514970507 Page: 6 Date Filed: 05/24/2019

No. 18-60315

Honduras “because of . . . membership in a particular social group.” Id.

§ 1231(b)(3)(A); accord 8 C.F.R. § 208.16(b).

1.

A “particular social group” must be “a group of persons [who] share a

common immutable characteristic that they either cannot change or should not

be required to change.” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786

(5th Cir. 2016) (quotation omitted). Furthermore, the relevant society must

“perceive those with the characteristic in question as members of a social

group” (social distinction), and the proposed group must be a limited, “discrete

class of persons” (particularity). Id. at 786–87.

We doubt any of Martinez’s proposed groups qualify as a particular social

group. After all, “[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 INA.” Ucelo-Gomez v.

Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam).

At least one proposed group, “ex-law enforcement officials of San Isidro,

Victoria, Yoro, Honduras who participated in the capture of [Edis],” is clearly

not cognizable. As the BIA noted, there is no record evidence this group is

socially distinct. Likewise, it is not clear from the record that anyone other

than Martinez would fall into that group. But a “particular social group”

necessarily requires “more than one person.” Fatin v. INS, 12 F.3d 1233, 1238

(3d Cir. 1993) (Alito, J.) (emphasis added); see also Memoglu v. Holder, 556 F.

App’x 52, 53 (2d Cir. 2014) (summary order) (concluding a proposed social

group of one “lacks the requisite social visibility”).

6

Case: 18-60315 Document: 00514970507 Page: 7 Date Filed: 05/24/2019

No. 18-60315

2.

Even if Martinez’s proffered groups are cognizable, substantial evidence

supports the BIA’s determination that Martinez failed to show a nexus

between the alleged persecution and his membership in the groups.

To show persecution was “on account of ” a protected ground for asylum

and withholding of removal, Martinez must prove the protected ground was

“at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i);

Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018). The protected ground

“cannot be incidental, tangential, superficial, or subordinate to another reason

for harm.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quotation

omitted).

Martinez did not make this showing. He never once stated Edis

persecuted him because he was an ex-law enforcement officer. Instead, all the

testimony demonstrates Martinez was targeted because of his specific

involvement in Edis’s arrest, not his general status as an ex-law enforcement

official. Martinez testified that Edis “retaliated against [him]” because he

“turned [Edis] over to the authorities.” He also described the threats as being

“personal, because [he] captured and arrested [Edis] some time back.”

Persecution motivated by a personal vendetta or desire for revenge is not

persecution “on account of ” a protected ground. See Hernandez-Rivera v.

Sessions, 721 F. App’x 401, 402 (5th Cir. 2018) (per curiam) (agreeing applicant

did not establish nexus when persecution was based on “revenge,” not

applicant’s “former police officer” status); Sanjaa v. Sessions, 863 F.3d 1161,

1165 (9th Cir. 2017) (“The personal retribution [applicant] suffered . . . because

of his role in the drug-trafficking investigation is not cognizable under the

INA.”); Marin-Portillo v. Lynch, 834 F.3d 99, 101 (1st Cir. 2016) (concluding no

nexus when threats were motivated by “a personal dispute”); Rodriguez-Leiva

v. Holder, 607 F. App’x 807, 810–11 (10th Cir. 2015) (concluding a witness to a

7

Case: 18-60315 Document: 00514970507 Page: 8 Date Filed: 05/24/2019

No. 18-60315

murder “was targeted by criminals because he posed a threat to their interest

in avoiding prosecution,” not “on account of his social status”); Costa v. Holder,

733 F.3d 13, 17 (1st Cir. 2013) (concluding persecution based on a “personal

vendetta” is “not due to . . . membership in a social group”); Ayala v. Holder,

640 F.3d 1095, 1098 (9th Cir. 2011) (per curiam) (concluding persecution based

on prior arrest of a drug dealer “is not cognizable under the INA”); Pavlyk v.

Gonzales, 469 F.3d 1082, 1088–89 (7th Cir. 2006) (concluding applicant cannot

demonstrate nexus when “persecution stemmed from his conduct in [two]

particular investigations”).

At most, Edis’s desire for retribution is only tangentially related to

Martinez’s status as an ex-law enforcement officer. Martinez thus cannot show

he was persecuted on account of that status. See Shaikh, 588 F.3d at 864.

Martinez attempts to escape this conclusion by relying on Madrigal v.

Holder, 716 F.3d 499 (9th Cir. 2013). Of course, that decision is not binding on

us, and in any event, it’s readily distinguishable. In that case, the Ninth

Circuit concluded the applicant established a nexus between a protected

ground and persecution because, “even if revenge partially motivated [the gang

members’] mistreatment of him, the record makes clear that their desire to

intimidate members of his social group was another central reason for the

persecution.” Id. at 505–06. Martinez offered no similar evidence that Edis

had a reason for threatening him other than revenge, much less another

central reason.

And even if we disagreed with the agency’s factual conclusion that Edis

was motivated by personal reasons, we still could not say “a reasonable

factfinder would be compelled to conclude to the contrary.” See Thuri v.

Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (per curiam). Because substantial

evidence supports the BIA’s conclusion that Martinez didn’t show the alleged

8

Case: 18-60315 Document: 00514970507 Page: 9 Date Filed: 05/24/2019

No. 18-60315

persecution was “on account of ” a protected ground, he is not entitled to asylum

or withholding of removal.

B.

We turn now to whether Martinez established his eligibility for CAT

protection. To be eligible for CAT relief, Martinez must show it is “more likely

than not” he will be tortured if he returns to Honduras. Tamara-Gomez v.

Gonzales, 447 F.3d 343, 350 (5th Cir. 2006). In assessing whether Martinez

has made this showing, we look for record evidence regarding any past torture

he suffered, whether he could relocate within Honduras to avoid torture, and

relevant conditions in Honduras, such as whether there are flagrant human

rights violations. See Zhang v. Gonzales, 432 F.3d 339, 345 n.4 (5th Cir. 2005)

(citing 8 C.F.R. § 208.16(c)(3)).

Moreover, an applicant must demonstrate there would be “sufficient

state action involved in that torture” to be eligible for CAT relief. Tamara-

Gomez, 447 F.3d at 351. That’s because torture is defined to include only “pain

or suffering . . . inflicted by[,] 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).

Substantial evidence supports the BIA’s denial of CAT relief. Even if

Edis threatened Martinez with a sufficiently “extreme form of cruel and

inhuman treatment” to constitute torture, id. § 208.18(a)(2), Martinez failed to

show it was “more likely than not” he will be tortured if he returns to

Honduras, id. § 208.16(c)(2). For starters, the record demonstrates it is likely

he could relocate within Honduras to avoid Edis’s mistreatment. See id.

§ 208.16(c)(3)(ii). Indeed, before he left Honduras, he was able to avoid Edis

for a month and a half by relocating a short distance away, close to where he

worked. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 2015)

(agreeing torture was not likely when evidence suggested “any danger of harm

9

Case: 18-60315 Document: 00514970507 Page: 10 Date Filed: 05/24/2019

No. 18-60315

could be mitigated through relocation” because a family member had “not been

harmed since moving to another part of Honduras”).

Martinez also failed to show he suffered past torture. See 8 C.F.R.

§ 208.16(c)(3)(i). The record evidence does not prove public officials acquiesced

to any pain or suffering inflicted by Edis. Before the IJ, Martinez testified he

never reported Edis’s threats to the police. Nevertheless, he argues in his brief

that the Honduran government was “willfully blind” to his persecution,

because the “Mayor failed to mobilize law enforcement or do anything to

protect [him].” Martinez offered no testimony, however, showing the mayor of

his community could mobilize the police. Nor did Martinez testify that he

asked the mayor to have the police investigate the incident—much less that

the mayor refused. Instead, he asks this Court to infer the “Mayor of San Isidro

is akin to the mayor of a city in the U.S.” with “the authority to mobilize the

local police.” Even if these are reasonable inferences, the IJ and BIA were not

required to draw them. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007);

Tesfamichael v. Gonzales, 469 F.3d 109, 117 (5th Cir. 2006).

Furthermore, Martinez provided evidence demonstrating public officials

did not consent to previous harm Edis caused, but rather attempted to combat

it. See Chen v. Gonzales, 470 F.3d 1131, 1142 (5th Cir. 2006) (noting it is proper

to consider government efforts “to combat [criminal activity] in the willful

blindness inquiry”). He testified the Honduran authorities detained Edis for

seventeen days on suspicion of murder in 2009. And they were planning to

prosecute Edis—or at least Edis believed they were, because he fled for nearly

five years to avoid it. Record evidence also indicates Honduras had been taking

steps to reform its criminal justice institutions and better “tackle the crime

situation.”

At most, Martinez demonstrated Honduras was unable to provide

Martinez and other citizens complete protection from criminals like Edis. But

10

Case: 18-60315 Document: 00514970507 Page: 11 Date Filed: 05/24/2019

No. 18-60315

that does not suffice because “a government’s inability to protect its citizens

does not amount to acquiescence.” Qorane, 919 F.3d at 911; see also Miah v.

Mukasey, 519 F.3d 784, 788 (8th Cir. 2008) (explaining “evidence that

Bangladeshi officials have been unable to control the activities of [a] criminal

gang” is “insufficient to compel a finding of willful blindness toward the torture

of citizens by third parties” (quotation omitted)); Tamara-Gomez, 447 F.3d at

351 (concluding “neither the failure to apprehend the persons threatening the

alien, nor the lack of financial resources to eradicate the threat or risk of

torture constitute[s] sufficient state action for [CAT] purposes”).

The record evidence does not compel the conclusion that Martinez was

eligible for CAT relief.

The petition is DENIED.

11