Figueroa v. Attorney General United States, No. 19-1419 (3d Cir. 2021)
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In 2010, Figueroa, a citizen of Honduras, entered the U.S. unlawfully. He told an asylum officer, Figueroa stated that his father, uncle, and cousins were killed in Honduras and that he feared their killers would also kill him; he referred to rivals seeking to seize his father’s land and to his father reporting his sister’s rape by gang members. After his removal, Figueroa reentered the U.S. in 2012. DHS reinstated Figueroa’s prior removal order. This time Figueroa attributed the deaths of his family members to the gang responsible for raping his sister. He claimed that his father was involved in anti-gang political activities, that the gang once beat him, and that the gang continued to threaten him and his family. He produced police reports and testified that those reports never resulted in arrests. The IJ denied found that Figueroa faced a clear probability of future harm in Honduras due to his membership in a particular social group (his family) but that such harm from private actors would not constitute persecution or torture. The BIA determined that Figueroa did not establish either that the Honduran government was “unable or unwilling to control” the gang, or that the government “condoned the private actions or at least demonstrated a complete helplessness to protect [him].”
The Third Circuit denied relief, noting that Figueroa might be a fugitive disentitled to relief. In denying his application for statutory withholding of removal, the agency did not err in treating the unable-or-unwilling-to-control test and the condone-or-complete helplessness test as legal equivalents. Figueroa did not demonstrate the requisite connection between the gang’s acts and the government. Substantial evidence supports the BIA conclusion, in denying CAT protection, that Honduran police would investigate reports from Figueroa, so he failed to establish governmental acquiescence to torture.
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