Billy Calderon-Argumedo v. Attorney General United States
Filing
NOT PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, MCKEE and RENDELL, Circuit Judges. Total Pages: 6. Judge: MCKEE Authoring.
Case: 16-3757
Document: 003112727387
Page: 1
Date Filed: 09/15/2017
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3757
_____________
BILLY KERBIN CALDERON-ARGUMEDO,
AKA Jorge Vasquez,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Final Order
Of the Board of Immigration Appeals,
Agency No. A098-617-432
(Immigration Judge: Daniel A. Morris)
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 24, 2017
______________
Before: SMITH, Chief Judge, McKEE and RENDELL, Circuit Judges.
(Opinion filed: September 15, 2017)
_______________________
OPINION *
______________________
McKEE, Circuit Judge.
Petitioner Billy Kerbin Calderon Argumedo 1 petitions for review of a ruling by the
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Because Petitioner refers to himself as “Billy Calderon” in his brief, we use his
preferred surname here.
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Board of Immigration Appeals dismissing his appeal of an Immigration Judge’s decision
denying his request for protection under the United Nations’ Convention Against Torture
(“CAT”). 2 Because we find that substantial record evidence supports the agency’s
determination that Calderon did not meet his burden of proof for CAT protection, we will
affirm.
I.
Calderon is a 32-year-old man originally from El Salvador. He first entered the
United States in 2000, when he was 15 years old. While in high school in Virginia,
Calderon became affiliated with the MS-13 gang, which also exists in El Salvador. In
2005, Calderon was arrested and charged with automobile theft. 3
In 2006, Calderon was removed to El Salvador. He reentered the United States in
August 2008, and later became an Evangelical Christian. In 2013, he was apprehended
and placed in immigration detention. During his detention, an asylum officer conducted
a reasonable fear interview, and found no reasonable fear of persecution or torture.
Calderon appealed this finding, and the Department of Homeland Security referred his
case to an Immigration Judge for withholding only proceedings. In 2016, an IJ conducted
the withholding only proceedings and (1) pretermitted Calderon’s application for
withholding of removal based on the length of his sentence for automobile theft in 2005, 4
2
S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85.
While in DHS custody, Calderon was convinced to get an MS-13 tattoo placed across
his chest. This tattoo is still visible today.
3
4
This determination was not challenged in the BIA appeal, and is not challenged here.
2
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and (2) denied Calderon’s application for deferral of removal under the Convention
Against Torture, finding that Calderon could not make a particularized showing that he
would be subjected to torture upon his return to El Salvador. The BIA affirmed, and
Calderon now appeals his CAT denial.
II. 5
Calderon presents two arguments on appeal: (1) the IJ and BIA erred in
concluding that Calderon did not prove that the Salvadoran government acquiesces to
torturous activity through the willful blindness of its public officials; and (2) Calderon
provided sufficient evidence to prove that he would more likely than not be tortured upon
return to El Salvador. We address each argument in turn.
Calderon first argues that the IJ and BIA incorrectly denied his CAT claim
because both applied an incorrect legal standard for determining whether he would be
tortured “by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 6 However, because the IJ and BIA
based their decisions on Calderon’s inability to show that he was personally in danger of
future torture by gangs in El Salvador, rather than determining whether the government’s
5
We have jurisdiction to review the IJ and BIA’s decisions regarding Calderon’s
application for deferral of removal and protection under the CAT. 8 U.S.C. § 1252(a);
Voci v. Gonzales, 409 F.3d 607, 612–13 (3d Cir. 2005) (where the BIA’s decision adopts
or defers to portions of the IJ’s decision, we will review those aspects of the IJ’s decision
as well). We review factual findings using the substantial evidence standard. Tarrawally
v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).
6
8 C.F.R. § 1208.16(c)(3).
3
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action (or inaction) regarding gang violence rose to the level of acquiescence, the
argument is meritless.
When applying for protection under the CAT, “[t]he burden of proof is on the
applicant . . . to establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 7 Both the IJ and BIA found that Calderon
had failed to meet this burden, and that failure made Calderon ineligible for relief under
the CAT. 8 Thus, Calderon’s argument that the IJ and BIA improperly assessed the
“acquiescence” prong of a CAT claim is irrelevant, because that is not why his claim
failed before the IJ or BIA. 9
Calderon next argues that the IJ and BIA were incorrect in concluding that he
could not show a likelihood of future torture because they improperly ignored the
following evidence: (1) the Salvadoran government supports the killing of gang members
as a “cleansing” of society; (2) the police are unwilling to help him despite his reports of
the threats; (3) the MS-13 gang was able to locate Calderon despite his relocations to live
with his girlfriend and relatives; (4) the MS-13 gang threatened to kill him and his
7
8 C.F.R. § 208.16(c)(2); see also id. at § 208.17 (governing deferral of removal under the
CAT).
8
See, e.g., App. at 51 (“Here, the Court is not persuaded that the respondent will be
personally at risk of torture if he is returned to his country.”); id. at 5 (“Based on the
Immigration Judge’s properly found facts, we will affirm his conclusion that the
applicant did not meet his heavy burden to show a likelihood of harm rising to the level
of torture in El Salvador.”).
9
Indeed, Calderon bases this argument on language from the portion of the IJ’s decision
discussing Calderon’s application for withholding of removal, which was not appealed to
either the BIA or this Court. See Petitioner Br. 18 (citing App. at 49).
4
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family; (5) members of his family have already been killed or severely injured by gangs;
and (6) he will now be targeted as a Christian if he returns to El Salvador, because the
church leads the anti-gang movement in the country.
We review such factual determinations under the substantial evidence standard. 10
Thus, the IJ and BIA’s determinations will only be overturned where “the evidence not
only supports [reversal] but compels it.” 11 When “assessing whether it is more likely than
not that an applicant would be tortured in the proposed country of removal,” a court
should consider:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the country of
removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights within the
country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country of
removal. 12
Finally, it is important to note that “the IJ and BIA need not ‘discuss every piece of
evidence mentioned’” by an applicant seeking relief. 13
Here, it is undisputed that Calderon was not tortured in the past. The record also
shows, as the BIA noted, that “while in El Salvador [from 2006-2008], [Calderon]
10
Wang v. Ashcroft, 368 F.3d 347, 350 (3d Cir. 2004) (“We will sustain the BIA’s
decision if substantial evidence in the record supports its decision.”).
11
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
12
8 C.F.R. § 1208.16(c)(3).
13
Green v. U.S. Att’y Gen., 694 F.3d 503, 509 (3d Cir. 2012) (quoting Huang v. U.S.
Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010)).
5
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received numerous telephone calls from gang members telling him that he had to resume
gang activities, but he was not harmed when he did not do so.” 14 Similarly, Calderon
“testified that gang members told him his family would be harmed or killed if he did not
rejoin the gang, but his family remains in El Salvador unharmed.” 15 Calderon also
testified that his cousin’s murder and his brother’s shooting were unrelated to Calderon’s
gang membership. 16 After considering Calderon’s evidence, the IJ and BIA concluded
that Calderon “has not shown that his fear of returning to El Salvador is supported by
sufficient facts, rather than based upon speculation or assumptions regarding what might
happen to him if he returns.” 17
We agree. Calderon submitted evidence that gangs in El Salvador are dangerous
and harmful. That is a proposition that cannot really be disputed. However, he did not
submit evidence sufficient to compel (or even support) a finding that it would be more
likely than not that he would personally be tortured if he were to return. Thus, neither the
IJ nor the BIA can be said to have ignored relevant record evidence that would have
changed this conclusion.
III.
For the reasons set forth above, we deny Calderon’s petition for review of his final
removal order.
14
App. at 4.
Id.
16
Id. at 132–34.
17
Id. at 51–52.
15
6
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