Celedon-Herrera v. Lynch

SUMMARY ORDER Petitioner Walter U. Celedón-Herrera, a native and citizen of Honduras, seeks review of a May 20, 2013, decision of the BIA affirming a January 27, 2012, decision of an Immigration Judge (“U”) denying Celedon-Herrera’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Walter U. Celedon-Herrera, No. A200 615 405 (B.I.A. May 20, 2013), aff'g No. A200 615 405 (Immig.CLN.Y.City Jan. 27, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have considered both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). The applicable standards of review are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). L Asylum and Withholding of Removal In support of his asylum and withholding of removal claims, Celedón-Herrera asserted that MS-13 gang members in Honduras threatened and robbed him, and murdered his nephew and step-niece on account of their membership in the particular social group of the family of CeledonHerrera’s murdered brother Ramon (against whom the gang had a vendetta). To establish eligibility for asylum or withholding of removal, an applicant must show past persecution or a well-founded fear or likelihood of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). “Private acts can [] constitute persecution if the government is unable or unwilling to control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir.2015). Here, the agency provided the following three alternative bases for denying asylum and withholding of removal: (1) Celedón-Herrera failed to demonstrate past persecution or a well-founded fear of future persecution; (2) he failed to establish that the harm he suffered and fears was on account of his membership in a particular social group; and (3) he did not demonstrate that the Honduran government is unable or unwilling to protect him. Because the agency erred in making each of these determinations, remand is required. Although the agency reasonably determined that Celedón-Herrera had not suffered past persecution based on harm to his relatives and unfulfilled threats, see Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007); Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir.2006), it erred in its determination that his fear of future harm was not objectively reasonable, see Diallo v. INS, 232 F.3d *8 279, 284 (2d Cir.2000) (providing that a fear is objectively reasonable “even if there is only a slight, though discernible, chance of persecution.” (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987))). We have recognized that the agency may question the objective reasonableness of an applicant’s claimed fear of persecution when similarly situated relatives remain unharmed in their native country. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). Here, the agency found Celedon-Herrera’s fear of harm diminished because his parents and sisters remain unharmed in Honduras. However, it failed to recognize that Celedon-Herrera’s father is not similarly situated (he is not Ramon’s father and thus is not a member of the proposed social group) and that, unlike CeledónHerrera, his sisters (Ramon’s half-sisters) did not have a close relationship with Ramon or even attend his funeral. Therefore, because Ramon’s son and step-daughter were murdered and Ramon’s widow fled to El Salvador, Celedon-Herrera’s mother is the only close relative of Ramon who remains unharmed in Honduras. We cannot “confidently predict” that the agency would find this fact alone sufficient to determine that Celedon-Herrera’s fear of persecution was not objectively reasonable. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). The agency also erred in its determination that the harm Celedón-Herrera feared was not on account of a protected ground. We have recognized that kinship ties or membership in a family “may form a cognizable shared characteristic for a particular social group.” Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir.2007). And, “asylum may be granted where there is more than one motive for mistreatment, as long as at least one central reason for the mistreatment is on account of a protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d Cir.2014) (internal quotation marks omitted). Although the agency assumed that a family is a cognizable social group, it erred in determining that gang members targeted Celedón-Herrera solely on account of a personal vendetta without considering the possibility that they wei'e also motivated by his membership in the particular social group of Ramon's family. As the IJ found, Celedon-Herrera’s credible testimony established that gang members were motivated to murder Ramon for revenge and extortion, which are not protected grounds under the Immigration and Nationality Act. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007); see also Koudriachova v. Gonzales, 490 F.3d 255, 261-62 (2d Cir.2007). However, gang members targeted Celedón-Herrera, not because they had a personal vendetta against him, but because he was the brother of Ramon. Indeed, there is nothing in the record to suggest that gang members would have targeted Celedón-Herrera had he not been Ramon’s kin. Accordingly, the agency’s failure to explicitly conduct a mixed motive analysis constitutes reversible error. See Acharya, 761 F.3d at 298-99 (“[T]he possibility of multiple motives for persecution precludes this type of either/or approach to evaluating asylum claims.”). The agency also erred in its determination that the record established that the Honduran government was able and willing to protect Celedón-Herrera from gang members. As the IJ recognized, the country conditions evidence demonstrated that the Honduran government was unable to protect the population from the estimated 70,000 MS-13 gang members in that country. Nevertheless, the agency found it significant that police had arrested four suspects in Ramon’s and his son’s murders *9 and had taken a report when CeledonHerrera’s store was robbed. However, the agency failed to adequately explain how these arrests demonstrated the police’s ability to protect Celedón-Herrera. Arrested gang members are able to communicate with members outside of prison, and, despite those arrests, police were unable to protect Ramon’s stepdaughter from being murdered on the front porch of her home (where Ramon’s widow was living). And the police did not arrest anyone for that murder. Furthermore, there is nothing to suggest that the police took any action beyond writing a report in CeledonHerrera’s robbery case. Accordingly, the agency failed to adequately explain its determination that police are able and willing to protect Celedon-Herrera. See Pan, 777 F.3d at 544-45. II. CAT Relief The act of torture is defined as “ ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ ... by or acquiesced in by government actors.” Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir.2007) (quoting 8 C.F.R. § 208.18(a)(1) and citing CAT art. 1). “[Tjorture requires only that government officials know of or remain -willfully blind to an act and thereafter breach their legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 172 (2d Cir.2004). We have questioned whether “the preventative efforts of some government actors should foreclose the possibility of government acquiescence, as a matter of law, under the CAT.” De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir.2010). Where a government contains officials that would be complicit in torture, and that government, on the whole, is admittédly incapable of actually preventing that torture, the fact that some officials take action to prevent the torture would seem neither inconsistent with a finding of government acquiescence nor necessarily responsive to the questions of whether torture would 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. Id. at 110. (internal quotation, marks omitted). Here, as in De La Rosa, the IJ failed to analyze why the prompt response of some police officers in arresting suspects for Ramon’s and his son’s murders was sufficient to overcome the fact (accepted by the IJ) that the Honduran government is unable to control gang violence. This was particularly problematic given that the response did not actually prevent additional murders of Ramon’s family members from occurring. See id. at 110-11. For the foregoing reasons, the petition for review is GRANTED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).