Selvin Santos Moreno v. Loretta Lynch, No. 14-1708 (4th Cir. 2015)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1708 SELVIN SANTOS MORENO, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 16, 2015 Decided: October 20, 2015 Before KING, KEENAN, and FLOYD, Circuit Judges. Petition for review denied by unpublished opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Floyd joined. ARGUED: Jim Melo, U.S. COMMITTEE FOR REFUGEES & IMMIGRANTS, Raleigh, North Carolina; Allison Lukanich, MELO & HURTADO PLLC, Raleigh, North Carolina, for Petitioner. Timothy G. Hayes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Kevin Schroeder, Nitin Kumar Goyal, MELO & HURTADO PLLC, Raleigh, North Carolina, for Petitioner. Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Keith I. McManus, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. 2 BARBARA MILANO KEENAN, Circuit Judge: Petitioner Selvin Santos Moreno, a citizen of Honduras, seeks review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ) order of removal. The IJ ordered that Santos Moreno be removed from the United States, concluding that he was not eligible for asylum, withholding of removal, Convention Against Torture (CAT). or protection under the Santos Moreno argued before the IJ and the BIA that he fears persecution if returned to Honduras, based on his membership in a particular social group he defined as “Hondurans who have been targeted by the police and their criminal associates to engage in drug trafficking.” The BIA, relying in part on the IJ’s opinion, concluded that Santos Moreno failed to establish the required nexus between the harm he fears and his status as a member of a particular social group. Upon our review, we conclude that the BIA’s holding is supported by substantial evidence and, therefore, we deny Santos Moreno’s petition for review. I. Santos Moreno entered the United States without inspection in February 2011, and was apprehended at the border by United States Customs interviewed and Santos Border Moreno Patrol and agents. concluded 3 An that asylum he had officer shown a credible fear Department of of persecution. Homeland Security Shortly issued a thereafter, notice to the appear, charging Santos Moreno with removability. In conceded removal his proceedings removability before but the sought removal, and protection under CAT. IJ, asylum, Santos Moreno withholding of Santos Moreno argued that he is entitled to asylum because he was persecuted by a police officer in Honduras on account of Santos Moreno’s membership in a particular social group, namely, “Hondurans who have been targeted by the police and their criminal associates to engage in drug trafficking.” Santos Moreno testified that while working as a bus driver in Honduras “checkpoint” in where named Vasquez. Vasquez asked 2010, he he became stopped regularly friendly with a at a police police officer Nearly a year after their first meeting, Officer Santos Moreno if he would transport packages containing drugs, and stated that the work would be lucrative for Santos Moreno. Santos Moreno refused. According to Santos Moreno, about two weeks later, Vasquez and two other persons dressed in civilian clothes boarded Santos Moreno’s bus. When Santos Moreno reiterated that he would not participate in transporting drugs, Vasquez beat Santos Moreno with a gun and his fists until Santos Moreno lost consciousness. When he revived, Santos Moreno returned his bus to the station 4 and “took a cab” to a family member’s home, where he remained for about States. two He months did until not seek he left Honduras medical for treatment the prior United to his departure and never reported the incident to the police. Santos Moreno further testified that after his departure from Honduras, unknown individuals approached his former employer and his family members inquiring about his whereabouts. His family members later moved to a different part of Honduras, and have not received any further communications from these unknown persons. The IJ denied Santos Moreno’s application for asylum. IJ identified several issues regarding Santos credibility, but ultimately deemed him credible. The Moreno’s However, the IJ rejected Santos Moreno’s definition of the “particular social group” that concluded formed that the the basis defined of group, his mistreatment. “Hondurans who The have IJ been targeted by the police and their criminal associates to engage in drug trafficking,” reflected circular reasoning, in that the social group was defined by the alleged persecution its members suffered. The IJ also determined that Vasquez acted in his personal capacity when targeting Santos Moreno, due to their friendship and because Santos Moreno was in a position to assist Vasquez in his criminal enterprise. The IJ therefore concluded that Santos Moreno had not proved that he suffered any harm on 5 account of a protected ground and ordered his removal from the United States. The BIA decision. dismissed Citing the Santos IJ’s Moreno’s appeal that Santos conclusion from the IJ’s Moreno’s defined social group was based on circular reasoning, the BIA “agree[d] with the [IJ] that [Santos Moreno] did not submit sufficient evidence to establish the required nexus between the harm he fears and his status as a member of a particular social group whose members have faced persecution based on a protected ground.” The BIA also stated that “[t]here is no evidence to suggest that Vasquez was acting in [a] police capacity, or was part of a larger police conspiracy, at the time he asked the respondent to be a drug courier.” This petition for review followed. II. In his petition, Santos Moreno argues that the BIA erred in concluding that he did not belong to a particular social group. Santos Moreno contends that the BIA’s failure to identify properly his proposed social group also caused the BIA to err in concluding that he had failed to establish a nexus between the harm he fears and his proposed social group. further actor asserts that requirement the into BIA its improperly analysis 6 Santos Moreno collapsed whether such the state a nexus existed, and wrongly concluded that Officer Vasquez was not a state actor. Finally, Santos Moreno contends that the BIA provided insufficient analysis in concluding that he had failed to establish the required nexus, that he had not shown past persecution, and that he did not have a well-founded fear of future persecution. We disagree with Santos Moreno’s arguments. A. On a petition for review of a BIA decision holding that an applicant is ineligible for asylum, we may vacate a denial of asylum only if it is “manifestly contrary to law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). In making this determination, we consider the whole record, asking “whether the BIA’s ruling is supported probative evidence.” (4th Cir. 2004). by reasonable, substantial, and Ngarurih v. Ashcroft, 371 F.3d 182, 188 We will reverse the BIA’s determination only if the petitioner “presented evidence that was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. An applicant seeking asylum must show that he is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of” a protected ground, namely, “race, religion, nationality, membership in a particular social 1101(a)(42)(A). group, Such or political persecution 7 opinion.” occurs “on 8 U.S.C. account of” § a protected ground if the protected ground was “at least one central reason for” the persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (citing 8 U.S.C. § 1101(a)(42)(A)). B. As an initial matter, Santos Moreno contends that the BIA erred by mischaracterizing his proposed social group as “Hondurans who are pressured into running drugs,” as opposed to “Hondurans who have been targeted by the police and their criminal associates to engage in drug trafficking.” We find no merit challenged in this argument. Santos Moreno used the definition himself in his brief submitted to the BIA and, thus, we will not permit him to assign error to his own formulation. Nevertheless, we will rely on Santos Moreno’s preferred language in evaluating the BIA’s determination regarding the validity of the proposed social group. Membership in “a particular social group” is a protected ground if that group is “a group of persons all of whom share a common, immutable characteristic.” Crespin-Valladares Holder, 632 F.3d 117, 124 (4th Cir. 2011). BIA’s conclusion that Santos Moreno’s v. We agree with the proposed “particular social group” is impermissible because it is defined based on 8 circular reasoning. 1 Santos Moreno has proposed a “particular social group” that is defined after-the-fact by what happened to him and only him. Santos Moreno cannot identify any other members of this group, nor can he identify anyone else who was targeted by “the police and their criminal associates” to engage in unlawful drug activity. In the absence of a properly defined social group, Santos Moreno has failed to establish the required nexus between his feared harm and his membership in a “particular social group.” Santos erroneously Moreno collapsed contends, the nonetheless, “state actor” that requirement the BIA into the determination whether he established a nexus between the harm he feared and a protected ground. We disagree with this contention, because Santos Moreno’s definition of his particular social group required that the BIA use its employed mode of analysis. Persecution occurs when the harm is caused “by either a government or an entity that the government cannot or will not control.” Crespin-Valladares, 632 F.3d at 128. Typically, the BIA considers whether someone is a “state actor” in the context 1 This Court may consider the IJ’s opinion either when the BIA adopts the IJ’s opinion without issuing its own decision or when the BIA adopts some portion of the IJ’s reasoning. See Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014). 9 of evaluating whether such persecution occurred. Here, however, Santos Moreno’s ill-defined social group required that the BIA consider whether Vasquez was a “state actor,” in order to determine whether there was an established nexus between the harm Santos Moreno fears in returning to membership in a particular social group. Honduras and his Because Santos Moreno defined his particular social group as Hondurans targeted by “the police and trafficking, their that criminal definition associates” required aid BIA the to in to drug consider whether Vasquez was acting on behalf of the police in targeting a group of people to transport illegal drugs, and whether Vasquez attacked Santos Moreno on account of his membership in that group. We incorporated into therefore its conclude nexus that analysis the the BIA correctly question whether Vasquez’s role was that of a “state actor” when he solicited Santos Moreno to engage in illegal drug activity. We also conclude that substantial evidence supports BIA’s conclusion that Vasquez was not a “state actor.” the Although Santos Moreno is correct that some courts have assumed that a single officer’s actions can satisfy the “state actor” requirement, see Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005), the conclusion does not follow that every time a single “state employee actor” of a requirement state is inflicts met. 10 harm Fear of on another, retribution the over purely personal matters will not support an asylum application, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir. 2004), and this rule remains true even when the personal dispute involves a person employed by the state, see Zoarab v. Mukasey, 524 F.3d 777, 780-81 (6th Cir. 2008) (determining there was no nexus established between the purported persecution and a political opinion, even though the purported harm was inflicted by a member of the United Arab Emirates royalty, because the dispute was purely personal); Iliev v. I.N.S., 127 F.3d 638, 642 (7th Cir. 1997) (concluding that an asylum applicant’s dispute with a Bulgarian secret service agent was “personal, not political,” and rejecting the asylum application). In the present case, the record establishes that Vasquez targeted Santos Moreno for personal reasons. Santos Moreno testified that Vasquez tried to recruit Santos Moreno to engage in transporting illegal drugs because the two men had developed a friendship. Santos Moreno could not identify any other police officers who had asked him to engage in such conduct, nor did Santos Moreno know of any other bus drivers that either Vasquez or other police officers had targeted for the same purpose. Perhaps most importantly, Santos Moreno testified that Vasquez and his conspirators continued to look for Santos Moreno after he had left his employment out of concern that Santos Moreno might have identified Vasquez to the police. 11 This assertion by Santos Moreno, that Vasquez was concerned about being identified to the police, completely undermines Santos Moreno’s core contention that Vasquez was acting on behalf of the police as a “state actor.” We therefore agree that substantial evidence supports the BIA’s determination refusing to that participate Vasquez in attacked criminal Santos activity Moreno unrelated for to Vasquez’s role as a police officer, rather than because Santos Moreno was a member of a group who had resisted transporting drugs for the police force. Moreno’s particular Vasquez was demonstrate a a claim, “state nexus Thus, in the context of Santos because actor,” between the he he failed to prove necessarily harm he failed suffered and that to his membership in a particular social group. Santos Moreno next argues that the BIA provided insufficient analysis regarding the question whether he suffered past persecution persecution. BIA concluded or has a well-founded fear We find no merit in this contention. that Santos Moreno failed to of future Because the establish the necessary nexus between his membership in a particular social group and the harm he fears, the BIA was not required to analyze these additional, alternative components of an asylum claim. We also agree with the BIA’s conclusion that, because Santos Moreno has failed to establish a nexus between his feared 12 harm and any protected ground that would qualify him for asylum, Santos Moreno cannot meet withholding of removal. the more stringent standard for See Chen v. U.S. I.N.S., 195 F.3d 198, 205 (4th Cir. 1999) (determining an applicant is ineligible for withholding of removal based on the conclusion that he did not qualify for asylum). And, finally, although Santos Moreno does not address the BIA’s holding with respect to the CAT, we find no error in the BIA’s conclusion that Santos Moreno does not qualify for protection under the CAT, because he did not show that he likely would face torture by or with the acquiescence of the Honduran government. 8 C.F.R. § 1208.16(c)(2). III. For these reasons, we deny Santos Moreno’s petition for review. PETITION FOR REVIEW DENIED 13

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