THE COURT OF APPEALS FOR THE THIRD CIRCUIT DENIES STATUTORY WITHHOLDING OF REMOVAL UNDER THE INA AND CAT IN THE CASE OF FIGUEROA V. ATTORNEY GENERAL UNITED STATES
Washington, D.C. – On January 13, 2021, the Court of Appeals for the Third Circuit reviewed and denied statutory withholding of removal under the INA and CAT in the case of Figueroa v. Attorney General United States, affirming that the Board of Immigration Appeals (“BIA”) did not err in its decision to impose the unable-or-unwilling-to-control test and condone-or-complete-helplessness test because the two are legally equivalent and Mr. Galeas Figueroa failed to demonstrate the Honduran government would acquiesce to the gang’s violence.
Under the Immigration and Nationality Act (“INA”), foreign nationals in removal proceedings may apply for statutory withholding of removal under INA 241(b)(3) if they can establish that it is more likely than not that they would face persecution due to one of the following protected grounds: race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
Edil Joel Galeas Figueroa, a foreign national from Honduras, applied for statutory withholding of removal and protection under both the INA and the Convention Against Torture (“CAT”) following a final order of removal for his second unlawful entry to the United States in 2012. Mr. Galeas Figueroa asserts that if he were to be deported to Honduras, he would be persecuted and tortured by a gang known as the Mara 18 which raped his sister, murdered four relatives, and threatened other family members including himself.
Mr. Galeas Figueroa first entered the United States without inspection or parole in 2010. During a credible-fear interview with an asylum officer, it was concluded that he had a credible fear of persecution and torture due to the murder of four relatives and his membership in a farmer’s organization. During removal proceedings, the Immigration Judge (“IJ”) concluded that Mr. Galeas Figueroa was not entitled to relief, denied his application for asylum and statutory withholding of removal under the INA, and ordered him removed to Honduras.
Mr. Galeas Figueroa reentered the United States without inspection or parole for a second time in 2012. After five years of living undetected in the state of New Jersey, the Department of Homeland Security (“USCIS”) reinstated his prior removal order and placed in him in removal proceedings. During a reasonable-fear interview with an asylum officer, it was concluded that Mr. Galeas Figueroa had a credible fear of persecution and torture after the Mara 18 turned their attention to him and threatened to kill him for trying to protect his father. Mr. Galeas Figueroa was then referred for a withholding-only hearing, and it was there that he submitted previously omitted details and developments to the Court including the physical harm and continued threats from the gang. This included once being beaten by gang members with a belt buckle, the murder of his dog, and violent threats to cut off his brother’s tongue and kidnap his children.
Mr. Galeas Figueroa also submitted new evidence in support of his argument that the Honduran government could not and would not protect him from persecution and torture by the Mara 18 based on their lack of action, testifying that no arrests had been made in connection to the numerous police reports filed regarding his sister’s rape, relative’s murder, and the threatened kidnapping of his children. In consideration of this new evidence, which Mr. Galeas Figueroa previously withheld in fear of retaliation from the Mara 18, the IJ determined that Mr. Galeas Figueroa was not entitled to statutory withholding of removal under the INA or CAT and invoked res judicata and collateral estoppel to prevent relitigating the issue a second time.
The IJ also concluded that although Mr. Galeas Figueroa was credible, he had failed to prove that he suffered past persecution which is a requirement for statutory withholding of removal. The IJ did find that Mr. Galeas Figueroa faced a clear probability of future harm in Honduras due to his membership in the “particular social group” of his nuclear family but because he failed to demonstrate that such harm from the Mara 18 would constitute persecution or torture, Mr. Galeas Figueroa was ineligible for relief from removal.
On appeal, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision in denying Mr. Galeas Figueroa statutory withholding of removal and entered a final order of removal for three reasons:
- Galeas Figueroa failed to demonstrate past persecution or a likelihood of future persecution or torture;
- Galeas Figueroa failed to establish that the Honduran government was “unable or unwilling to control” the Mara 18 gang as per the unable-or-unwilling-to-control test or that the government “condoned the private actions or at least demonstrated a complete helplessness to protect him as per the condone-or-complete-helplessness test; and
- Galeas Figueroa failed to demonstrate that public officials in Honduras would acquiesce to the gang’s violence which rendered him untitled to protection under the CAT.
Mr. Galeas Figueroa petitioned this decision for review by the Court of Appeals for the Third Circuit, challenging that the unable-or-unwilling-to-control test and condone-or-complete-helplessness test are not interchangeable and the BIA erred in imposing the later because it imposes a heightened standard. Mr. Galeas Figueroa argued that the unable-or-unwilling-to-control test should govern his case because the record lacks substantial evidence that the Honduran government would be able and willing to control the Mara 18 gang, rendering him entitled to statutory withholding under the CAT.
Based on its review, The Third Circuit affirmed the BIA’s decision and denied the petition for statutory withholding of removal under the INA and CAT in the case of Figueroa v. Attorney General United States, stating that that both tests are legally equivalent purposes of evaluating private-actor persecution. The unable-or-unwilling-to-control test requires that the feared harm be inflicted by “persons or forces that the government is unable or unwilling to control and examines whether the government is unable or unwilling to control the private actor who inflicts harm. Similarly, the condone-or-complete-helplessness test requires proof that “the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims” as per A-B-, 27 I. & N. Dec. at 337 but is evaluated amongst two components:
- The first component of the condone-or-complete-helplessness test assesses whether the government condoned the harm as per See A-B-, 27 I. & N. Dec. at 337; and
- The second component evaluates whether the government has demonstrated a complete helplessness to protect the potential victim of the private harm.
Despite Mr. Galeas Figueroa’s arguments that the lack of action by the Honduran government accredited for the repeated violence toward his family and the State Department’s country conditions report for Honduras, which identifies the Mara 18 gang as among the criminal elements that “committed murders, extortion, kidnappings, human trafficking, and acts of intimidation against police, prosecutors, journalists, women, and human rights defenders;” the Third Circuit concluded that Mr. Galeas Figueroa had failed to establish substantial evidence that the Honduran government “condoned the acts of violence or is completely helpless to protect victims of crime” or was “unable or unwilling to control the feared gangs” as per the unable-or-unwilling-to-control test and condone-or-complete-helplessness test.
The Third Circuit also affirmed the BIA’s denial of statutory withholding of removal under the Convention Against Torture which requires foreign nationals to demonstrate that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal” under 8 C.F.R. § 1208.16(c)(2) (2020), stating that Mr. Figueroa failed to prove that the severe pain or suffering 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” under 8 C.F.R. § 1208.18(a)(1) (2020) and that the Honduran government would acquiesce to his likely torture by the Mara 18 gang. In its analysis, the Third Circuit concluded that neither prong of the acquiescence inquiry provides a basis to Mr. Galeas Figueroa’s argument that through willful blindness, the Honduran government would acquiesce to his likely persecution and torture by the Mara 18 gang. As such, The Third Circuit held the BIA’s decisions and denied statutory withholding of removal under the INA and CAT in the case of Figueroa v. Attorney General United States.
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