NOT FOR PUBLICATION FILED

APR 3 2020

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO MONTOYA, AKA Marco No. 17-72293 Montaoya, AKA Marco Tulio Montoya Muncada, Agency No. A200-431-965

Petitioner,

MEMORANDUM*

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 1, 2020** Pasadena, California

Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Yvonne Gonzalez Rogers, United States District Judge for the Northern District of California, sitting by designation. Petitioner Marco Montoya (“Petitioner”), a native and citizen of Honduras,

petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his

appeal from an Immigration Judge’s (“IJ”) final order of removal. Petitioner

argues the BIA erred in denying his application for withholding of removal under

the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §

1252. We grant Petitioner’s petition for review.

The BIA affirmed the IJ’s determination that Petitioner testified credibly to

past torture in Honduras by a gang that kidnapped, beat, and sexually assaulted

him, and to credible extortion and death threats sent by the same gang to Petitioner

at multiple homes as he moved to try to evade the gang. The IJ found Petitioner

could not relocate anywhere in the country. The BIA affirmed the IJ’s

determination that Petitioner’s expert witness Dr. Ungar was credible; he testified

that the police in Honduras do not investigate extortion or kidnapping if the victim

is released alive, and instead they allocate their limited resources to investigating

murder. Dr. Ungar testified that the government of Honduras has attempted to

combat gang violence and has reduced crime statistics for murder and drug

trafficking, areas where they have focused their resources. However, the BIA

determined that Petitioner was not eligible for withholding of removal under CAT,

2 because he had not shown that if he were returned to Honduras, he would more

likely than not be tortured with the acquiescence of a public official.

The court reviews the BIA’s decision in its entirety and the IJ’s decision to

the extent it was adopted by the BIA. Garcia-Martinez v. Sessions, 886 F.3d 1291,

1293 (9th Cir. 2018). The court reviews the agency’s factual findings for

substantial evidence and its legal conclusions de novo. Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted).

Substantial evidence means the factual finding is “supported by reasonable,

substantial, and probative evidence in the record.” Melkonian v. Ashcroft, 320

F.3d 1061, 1065 (9th Cir. 2003). Under this standard, this court “may only reverse

the agency’s determination where ‘the evidence compels a contrary conclusion

from that adopted by the BIA.’” Parada v. Sessions, 902 F.3d 901, 908–09 (9th

Cir. 2018) (quoting Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010)).

“To demonstrate eligibility for withholding of removal under the CAT, an

alien must show that it is ‘more likely than not’ that a government official or

person acting in an official capacity would torture him or aid or acquiesce in his

torture by others.” Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009)

(citing Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001); 8 C.F.R. §§

208.16(c)(2), 208.18(a)(1)). The alien must show that “he would be subject to a

3 ‘particularized threat of torture.’” Dhital v. Mukasey, 532 F.3d. 1044, 1051 (9th

Cir. 2008) (citation and emphasis omitted). Additionally, a petitioner must show

that the torture was “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.”

Zheng v. Ashcroft, 332 F.3d 1186, 1188- (9th Cir. 2003) (quoting 8 C.F.R.

§ 208.18(a)(1)). Acquiescence is defined as the “willful blindness” of public

officials “to the torture of their citizens by third parties.” Id. at 1196.

“[T]he CAT regulations cast a wide evidentiary net, providing that ‘all

evidence relevant to the possibility of future torture shall be considered.’”

Wakkary, 558 F.3d at 1068 (quoting 8 C.F.R. § 1208.16(c)(3)). This includes: (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.

8 C.F.R. § 1208.16(c)(3). To show a particularized threat of torture, the alien must

provide “evidence establishing ‘substantial grounds for believing that he [or she]

would be in danger of being subjected to torture’ in the country of removal.”

Kamalthas, 251 F.3d at 1284 (citing U.N. Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment art. 3, para. 1).

4 The agency found Petitioner testified credibly about the death threats and

extortion attempts by the same gang that had kidnapped him. Further, the agency

found Petitioner could not safely relocate anywhere in Honduras. The gang’s

threats were not idle threats. The kidnappers had shown they were willing to carry

out the threats they made against Petitioner as they had kidnapped, tortured, and

extorted him before, and then they tracked him down to continue to extort and

threaten him.

The record evidence and the agency’s factual findings compel the

conclusion that Petitioner established he faces a particularized risk of torture if he

is returned to Honduras.

To show acquiescence to torture by a public official, the alien must show

that the official is aware of the activity and breaches his “legal responsibility to

intervene to prevent such activity.” Zheng, 332 F.3d at 1194 (quoting 8 C.F.R.

§ 208.18(a)(7)). The alien is not required to show that the official “knowingly

acquiesced” to the activity or “willfully accepted” it. Id. The government’s

ineffectiveness in investigating and solving crime does not suffice to show

acquiescence. Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2013). The

government’s “inability to bring the criminals to justice is not evidence of

5 acquiescence, as defined by the applicable regulations.” Andrade-Garcia v. Lynch,

828 F.3d 829, 836 (9th Cir. 2016).

The BIA concluded that the police in Honduras may be ineffective at

combating the crimes to which Petitioner has been subjected, but a showing of

ineffectiveness is not sufficient to show acquiescence, and thus Petitioner had not

met his burden. The IJ reached the same conclusion. However, whether the police

are ultimately ineffective in investigating the types of crimes at issue here is less

relevant than whether they attempt to do so. The agency found as a matter of fact

that they do not make such attempts.

The IJ found Dr. Ungar credible, and he testified that the police in Honduras

would not attempt to investigate the type of criminal activity at issue here. The

salient point is the agency’s finding, based on credible testimony, that the police do

not investigate the types of crimes at issue here, even though they have effectively

investigated other types of crime. Where the police have tried to investigate a

crime, or would have investigated if they had sufficient information, the court has

found that their ineffectiveness or failure to successfully complete the investigation

does not amount to acquiescence. See Andrade-Garcia, 828 F.3d at 836 (police

investigated the petitioner’s aunt’s death until the petitioner’s cousin declined to

proceed because he doubted the investigation would be successful); see also

6 Garcia-Milian, 755 F.3d at 1034 (petitioner reported to police that she had been

beaten and raped, but police couldn’t investigate because she only identified the

perpetrators as masked men). However, where police were aware of tortuous

conduct and turned a blind eye, the court has found acquiescence, even where the

police did not have actual knowledge the petitioner had been tortured. See Zheng,

332 F.3d at 1192 (granting petition for review and remanding when the police were

aware of human traffickers’ operations and failed to stop them but may have

lacked actual knowledge of the torture to which the victims were subjected).

Here, the question is not whether the police in Honduras would have been

effective had they investigated. Rather, it is that the agency deemed credible

expert testimony that the police in Honduras do not investigate the type of criminal

conduct to which Petitioner was subjected. This constitutes acquiescence. See

Zheng, 332 F.3d at 1192.

The court grants Petitioner’s petition for review, vacates the BIA’s decision,

and remands this case to the BIA for further proceedings consistent with this

decision.

PETITION FOR REVIEW GRANTED.

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