Moreno-Osorio v. Garland

2 F.4th 245

Felix Manuel MORENO-OSORIO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1035

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: June 23, 2021

ARGUED: Arnedo Silvano Valera, LAW OFFICES OF VALERA & ASSOCIATES P.C., Fairfax, Virginia, for Petitioner. Allison Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, KING and AGEE, Circuit Judges.

Petition for review denied by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge King joined.

AGEE, Circuit Judge:

Petitioner Felix Manuel Moreno-Osorio petitions for review of the orders of the Board of Immigration Appeals ("BIA") determining that he was ineligible for asylum based upon his conviction of a crime of violence; that he was ineligible for withholding of removal; and that he did not qualify for protection from removal under the Convention Against Torture ("CAT"). Finding no factual or legal error, we deny the petition.

I.

A.

The underlying facts are largely undisputed, as the Immigration Judge ("IJ") found that Petitioner credibly testified during his initial hearing. Petitioner first arrived in the United States in 2009, and on December 17, 2016, he returned to Honduras pursuant to a grant of voluntary departure. Upon arriving that day, Petitioner and two of his cousins were confronted by "roughly eight to ten" individuals who may have been members of the Mara 18th Street gang ("Mara 18"). A.R. 142. The gang members, some of whom were armed, told Petitioner "that all those people who come back from the United States come back with money," and ordered that he give them money. A.R. 199. He told them that he had no money, so in response, they demanded that he join their gang. According to Petitioner, when he refused to join, "They told me my life was on the line and that they would kill me if I didn't either join them or give them money." A.R. 201. The gang members gave him the night to consider their demand, and ordered him to meet them at a nearby school the next morning.

Petitioner testified that this threat caused him to fear for his life, so he decided to immediately return to the United States without filing a report with Honduran police about his encounter with the gang members. He testified that he believed that filing a police report would not be helpful because "the police do nothing in these cases," as they are "corrupt." A.R. 203. He based this view largely on two anecdotal experiences. First, at some unspecified time in the past, Mara 18 members allegedly demanded that his cousin pay them "rent money," or else they would no longer allow him to operate his business as a taxi driver. A.R. 204. His cousin did not report the incident to the police, however, "because the police let the gang members know if you report." A.R. 205. In Petitioner's view, gang members would have killed his cousin had he done so. Second, Petitioner cited the experience of an individual named "Luis," who he alleged was killed in 2012 after reporting to the police threats he had received from gang members. Petitioner also testified that his aunt told him that the police have not followed up on the report of the December 17, 2016 incident she filed at some point after it occurred. Further, Petitioner testified that Mara 18 members continued to convey threats to him through his family, but had not threatened his family.

In addition to this anecdotal evidence, Petitioner supplied documentary evidence showing that Honduras is "the murder capital of the world, and that ‘[c]orruption and impunity remained serious problems with the security forces.’ " A.R. 52 (alteration in original) (citation omitted). According to the U.S. Department of State Overseas Security Advisory Council's ("OSAC") Honduras 2018 Crime and Safety Report, the Honduran Government "lacks resources to investigate and prosecute cases, and police often lack vehicles/fuel to respond to calls for assistance." A.R. 374. "This means police may take hours to arrive at the scene of a violent crime or may not respond at all. As a result, criminals operate with a high degree of impunity." Id. ; see also A.R. 330 ("Impunity ... remained a serious problem, with delays in some prosecutions and sources alleging corruption in judicial proceedings."). And according to one newspaper article from February 2014, a Honduran Government investigation at that time accused 196 police officers¹ of committing some form of crime, "includ[ing] money laundering, bribes, extortion, and bank robberies." A.R. 466. The article claimed that the government report "shows how many Honduran police have become allies of drug-traffickers and organized crime." Id. Lastly, an OSAC report indicated that some of the 52 murders of United States citizens that have occurred since 2010 "may have been based on tips from sources at airport arrival areas." A.R. 368. Based on all of this, Petitioner claimed that if he were forced to return to Honduras, the police would alert Mara 18 and that the gang members would kill him.

Other record evidence, however, demonstrates that the Honduran Government has undertaken efforts to root out public corruption and gang violence. In April 2016, Honduras created the Police Purge Commission, and from its inception until November 30, 2016––just prior to Petitioner's return to Honduras––the Commission "reviewed the conduct of approximately 14,000 ... officers and removed 4,445." A.R. 338. Indeed, the State Department recognized in its 2017 Human Rights Report that the Honduran Government "took steps to prosecute and punish officials who committed abuses." A.R. 329. The Honduran Government also "implement[ed] a series of police reforms, such as the creation of an Inter-Agency Security Task Force to combat crime." A.R. 374–75. Moreover, homicide rates in Honduras decreased from about 60 per 100,000 in 2011 to about 46.5 per 100,000 in 2016, and in that time the Honduran Government "continued to make significant advances in combatting kidnappings by criminals." A.R. 332.

B.

1.

After fleeing Honduras, Petitioner arrived in the United States on January 3, 2017, where he was apprehended by border officials and received a credible finding of fear during his subsequent asylum interview. The Department of Homeland Security ("DHS") subsequently issued him a Notice to Appear on January 18, 2017, charging him with inadmissibility for failure to possess the proper travel and identity documents, see 8 U.S.C. § 1182(a)(7)(A)(i)(I).

After being released on bond from DHS custody, Petitioner was later arrested and pled guilty to unlawful wounding in violation of Virginia Code § 18.2-51. That statute provides:

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

Va. Code Ann. § 18.2-51. The state court sentenced Petitioner to twelve months’ imprisonment.

In response to the charge of inadmissibility, Petitioner filed an application for asylum, see 8 U.S.C. § 1158 ; for withholding of removal, see 8 U.S.C. § 1231(b)(3) ; and for protection from removal under the CAT. After holding a hearing on December 7, 2018, the IJ denied Petitioner's requested relief.

First, as to the application for asylum, the IJ explained that any applicant who has previously been convicted of an "aggravated felony" is ineligible for asylum. A.R. 146. The IJ found that Petitioner's conviction for Virginia unlawful wounding qualified as an "aggravated felony" because it "require[s] [an] intent to maim, disfigure, disable, or kill." A.R. 146–47.

Next, the IJ found that Petitioner also did not qualify for asylum or for withholding of removal because he neither suffered past persecution nor established a well-founded fear of future persecution based on his membership in a particular social group ("PSG"). As to past persecution, the IJ found that the single death threat that Petitioner received did not rise to the requisite level of severity that, in the IJ's view, is required under this Court's precedents. And as to the well-founded fear of future persecution requirement, the IJ found that Petitioner failed to establish that he belonged to a PSG. The IJ explained that Petitioner's proposed PSG, "returning migrants from the United States," lacked the requisite particularity because it was "too broad" and "would place every individual who leaves Honduras as part of a [PSG] eligible for asylum." A.R. 149.

Finally, the IJ found that Petitioner did not qualify for protection under the CAT, because he "has not met his burden to show that public officials in Honduras are unable or unwilling to protect" him. A.R. 150.

Petitioner appealed the IJ's decision to the BIA. On appeal, the BIA affirmed the IJ's findings as to Petitioner's ineligibility for asylum and for withholding of removal for largely the same reasons as the IJ. However, the BIA vacated and remanded the IJ's order as to Petitioner's CAT claim because the IJ "did not make sufficient factual findings regarding how [Honduran] officials would likely react" to Petitioner's claim that he would be tortured if he returned to Honduras. A.R. 61. 2.

On remand, the only additional evidence submitted to the IJ was the brief that Petitioner submitted to the BIA during his initial appeal. A.R. 51. Based on the entirety of the record, including all evidence submitted at the December 2018 hearing, the IJ again held that Petitioner was not entitled to protection from removal under the CAT.

In his decision, the IJ...