NOY OLLEY v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-08No. No. 19-72367

Summary · law.co

Holding. The petition for review was denied regarding the Convention Against Torture claim and dismissed regarding the voluntary departure claim on jurisdictional grounds.

Eswin Noy-Olley sought judicial review of the Board of Immigration Appeals' dismissal of his appeal challenging an immigration judge's denial of Convention Against Torture protection and voluntary departure. The petitioner claimed that members of the gang MS-13 in Guatemala would torture him and that Guatemalan government officials would acquiesce to such torture. He presented country conditions evidence describing general corruption and gang violence in Guatemala, along with testimony about a single instance where police officers solicited a bribe during a traffic stop.

The court upheld the denial of CAT protection because substantial evidence supported the finding that Noy-Olley failed to demonstrate that Guatemalan officials would "more likely than not" acquiesce to torture by MS-13. The petitioner produced no evidence of cooperation between government officials and gangs in his specific region, and general evidence of national-level corruption combined with some government antigang efforts was insufficient to establish the necessary government complicity. The court emphasized that mere prevalence of gang activity, without particularized proof of official enabling or involvement, cannot satisfy the CAT standard.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether substantial evidence supports a finding that the petitioner failed to prove government acquiescence to torture as required for CAT protection
What level of evidence of government complicity is necessary to establish acquiescence under CAT
Scope of appellate jurisdiction over denials of voluntary departure based on factual determinations

Procedural posture

The petitioner appealed the BIA's dismissal of his appeal of an immigration judge's denial of CAT protection and voluntary departure to the circuit court for review.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Eswin Noy-Olley petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge (“IJ”) decision denying his application for protection under the Convention Against Torture (“CAT”) and his alternative request for post-conclusion voluntary departure. We have jurisdiction to review the denial of CAT relief under 8 U.S.C. § 1252, and our jurisdiction to review the denial of voluntary departure is limited to constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (D); 1229c(f); see also Corro-Barragan v. Holder, 718 F.3d 1174, 1176–77 (9th Cir. 2013). “We review the BIAs fact-finding for substantial evidence and may grant a petition only if the evidence compels a conclusion contrary to the BIAs conclusion.” Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019).

We deny the petition in connection with the CAT claim and dismiss the remainder of the petition on jurisdictional grounds.

Substantial evidence supports the BIAs conclusion that Noy-Olley had failed to meet his burden of showing that the Guatemalan government is “more likely than not” to “acquiesce” to any torture of Noy-Olley by the gang Mara Salvatrucha (“MS-13”). 8 C.F.R. §§ 1208.16(c)(2); 1208.18(a)(1). Reyes-Reyes v. Ashcroft, 384 F.3d 782, 787 (9th Cir. 2004) (“Acquiescence ․ is not limited to actual knowledge, or willful acceptance; the willful blindness of government officials suffices.” (quotation marks omitted)).

Noy-Olley produced no evidence of cooperation between Guatemalan officials and MS-13 (or any other gang) in his hometown or the nearby towns where MS-13 members assaulted him. To the contrary, Noy-Olleys country conditions evidence contains only general references to official corruption at the national level that may hinder the effective policing of gangs in Guatemala, while also indicating that the Guatemalan government has made some progress in combating both corruption and gang violence. Notably, the only specific instance of corruption to which Noy-Olley testified did not relate to the policing of gangs, but concerned a traffic stop during which police officers pulled him over for a traffic infraction, asked him for money, and then let him go, without a citation, when he replied that he did not have any money.

Because the foregoing evidence does not amount to “significant evidence establishing government complicity” in the criminal activity that “constitutes the basis” of Noy-Olleys CAT claim, we must uphold the BIAs adjudication of that claim. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016); see also, e.g., id. (upholding denial of CAT relief because, inter alia, “testimony that a Guatemalan police officer took a bribe from a robber and released him” did not demonstrate that the Guatemalan government would acquiesce in a gangs extortion of petitioner); cf. Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013) (noting “[v]oluminous” evidence that Mexican police “frequently work[ed] directly on behalf of drug cartels” in remanding CAT claim for the BIA to consider whether local or state officials would acquiesce to a drug cartels torture of the petitioner); Zheng v. Ashcroft, 332 F.3d 1186, 1190–96 (9th Cir. 2003) (remanding CAT claim where the petitioner feared torture by human traffickers, and the record contained specific examples of collusion between local police and such traffickers in the petitioners home province).

To the extent Noy-Olley requests that we infer the governments willful blindness from the sheer number of MS-13 members in Guatemala, we decline to do so. Evidence of a serious gang problem in the country of removal is not itself sufficient to establish the requisite acquiescence, absent particularized evidence that official corruption enables or fuels that problem. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034–35 (9th Cir. 2014). The prevalence of MS-13 in Guatemala is of less probative value here in light of the record evidence reflecting that the Guatemalan government has adopted and implemented antigang measures with some success, albeit limited. See id. at 1035.

We lack jurisdiction over Noy-Olleys challenge to the denial of his request for voluntary departure because the BIA denied it on a factual basis, namely that he did not have “the means to depart the United States.” 8 U.S.C. § 1229c(b)(1)(D); see also 8 C.F.R. § 1240.26(c)(1)(iv). Because Noy-Olleys challenge to the denial of voluntary departure does not pose any questions of law, we lack jurisdiction to review it. 8 U.S.C. §§ 1252(a)(2)(B)(i), (D); 1229c(f); Corro-Barragan, 718 F.3d at 1176–77.

Accordingly, we dismiss the remainder of the petition.

DENIED in part; DISMISSED in part.

FOOTNOTES

. Because the BIA found that Noy-Olley did not meet the statutory requirements for post-conclusion voluntary departure and we cannot review that decision, we need not reach his alternative challenges to the voluntary departure decision.