15-1054 Gonzalez-Benitez v. Lynch BIA Mulligan, IJ A094 058 886 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED**  **ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED**  **WITH THIS**  **COURT, A**  **PARTY MUST**  **CITE EITHER**  **THE FEDERAL**  **APPENDIX OR**  **AN ELECTRONIC**  **DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY**  **OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **29 th**  **day of June, two thousand sixteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **DENNY CHIN,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JOSE FRANCISCO GONZALEZ-BENITEZ,** 13 Petitioner **,** 14 15 **v. 15-1054** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Charles Richard Conroy, Law Offices 23 of Charles R. Conroy, PLLC, New York, 24 New York. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Blair T. 28 O’Connor, Assistant Director; 29 Joseph D. Hardy, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of Justice, 32 Washington, D.C. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Jose Francisco Gonzalez-Benitez, a native and 5 citizen of El Salvador, seeks review of a March 30, 2015, 6 decision of the BIA affirming a November 19, 2014, decision of 7 an Immigration Judge (“IJ”) denying Gonzalez-Benitez’s 8 application for deferral of removal under the Convention 9 Against Torture (“CAT”). In re Jose Francisco 10 Gonzalez-Benitez, No. A094 058 886 (B.I.A. Mar. 30, 2015), aff’g 11

No. A094 058 886 (Immig. Ct. N.Y. City Nov. 19, 2014). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 We have reviewed the IJ’s opinion as modified by the BIA, 15 i.e., minus the IJ’s ruling requiring Gonzalez-Benitez to 16 identify the specific officials who would acquiesce in any 17 torture by the Mara Salvatrucha (“MS-13”). See Xue Hong Yang 18 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The 19 applicable standards of review are well established. See 8 20 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 21 513 (2d Cir. 2009). 22 The CAT prohibits the removal of any person to a country 23 where “it is more likely than not” that the individual “would 243 be tortured.” 8 C.F.R. § 1208.16(c)(2). “Torture is defined 1 as any act by which severe pain or suffering, whether physical 2 or mental, is intentionally inflicted on a person . . . by or 3 at the instigation of or with the consent or acquiescence of 4 a public official or other person acting in an official 5 capacity.” Id. § 1208.18(a)(1). “Acquiescence of a public 6 official requires that the public official, prior to the 7 activity constituting torture, have awareness of such activity 8 and thereafter breach his or her legal responsibility to 9 intervene to prevent such activity.” Id. § 1208.18(a)(7). 10 “[T]orture requires only that government officials know of or 11 remain willfully blind to an act and thereafter breach their 12 legal responsibility to prevent it.” Khouzam v. Ashcroft , 361 13 F.3d 161, 171 (2d Cir. 2004). Therefore, direct government 14 involvement is not necessary in order to obtain CAT relief. 15 Rafiq v. Gonzales , 468 F.3d 165, 166 (2d Cir. 2006). 16 The record does not compel the conclusion that 17 Gonzalez-Benitez will more likely than not be tortured with the 18 acquiescence of the Salvadoran government. See Mu Xiang Lin 19 v. U.S. Dep’t of Justice , 432 F.3d 156, 159-60 (2d Cir. 2005) 20 (emphasizing that an applicant must demonstrate that someone 21 in his particular circumstances will more likely than not be 22 tortured); Hui Lin Huang v. Holder , 677 F.3d 130, 134 (2d Cir. 23 2012) (holding that “[a] determination of what will occur in 244 the future and the degree of likelihood of the occurrence has 1 been regularly regarded as fact-finding”). The record 2 contains conflicting evidence of the Salvadoran government’s 3 efforts to combat gang violence. On one hand, there is evidence 4 that MS-13 has infiltrated the police force and that gang 5 members can intimidate witnesses with impunity. On the other 6 hand, there is evidence that police and army officers with ties 7 have been identified and suspended, that the Salvadoran 8 government is attempting to fight gang violence through 9 legislation and law enforcement ini tiatives, and that these 10 initiatives have had some success. 11 Gonzalez-Benitez argues the agency ignored evidence 12 showing collusion between MS-13 and the Salvadoran police. 13 While we “require some indication that the IJ considered 14 material evidence supporting a petitioner’s claim,” Poradisova 15 v. Gonzales , 420 F.3d 70, 77 (2d Cir. 2005), we do not require 16 the IJ to “expressly parse or refute on the record each and 17 every” piece of evidence, and “we presume that an IJ has taken 18 into account all the evidence before him, unless the record 19 compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t 20 of Justice , 471 F.3d 315, 336 n.17 (2d Cir. 2006). Here, 21 nothing in the record compels the conclusion that the IJ ignored 22 Gonzalez-Benitez’s evidence: the IJ cited the State Department 23 report in his decision, and engaged in a long discussion with 245 Gonzalez-Benitez’s counsel concerning the country conditions 1 evidence. Given the conflicting evidence in the record, a 2 reasonable fact finder would not be compelled to conclude that 3 Gonzalez-Benitez is “more likely than not to be tortured” with 4 the acquiescence of the Salvadoran government. 8 C.F.R. 5 §§ 1208.16(c)(2), 1208.18(a)(1); see also Mu Xiang Lin , 432 6

F.3d at 159-60; Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 7 2007) (“Decisions as to . . . which of competing inferences to 8 draw are entirely within the province of the trier of fact.” 9 (internal quotation marks omitted)). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DISMISSED as moot. Any pending request for oral argument 15 in this petition is DENIED in accordance with Federal Rule of 16 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 17 34.1(b). 18

FOR THE COURT: 19 Catherine O = Hagan Wolfe, Clerk 20