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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

29th 4 day of June, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 DENNY CHIN, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 JOSE FRANCISCO GONZALEZ-BENITEZ, 

14 Petitioner, 

15 

16 v. 15-1054 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Charles Richard Conroy, Law Offices 

24 of Charles R. Conroy, PLLC, New York, 

25 New York. 

26 

27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

28 Assistant Attorney General; Blair T. 

29 O’Connor, Assistant Director; 

30 Joseph D. Hardy, Trial Attorney, 

31 Office of Immigration Litigation, 

32 United States Department of Justice, 

33 Washington, D.C. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

2 Board of Immigration Appeals (“BIA”) decision, it is hereby 

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner Jose Francisco Gonzalez-Benitez, a native and 

6 citizen of El Salvador, seeks review of a March 30, 2015, 

7 decision of the BIA affirming a November 19, 2014, decision of 

8 an Immigration Judge (“IJ”) denying Gonzalez-Benitez’s 

9 application for deferral of removal under the Convention 

10 Against Torture (“CAT”). In re Jose Francisco 

11 Gonzalez-Benitez, No. A094 058 886 (B.I.A. Mar. 30, 2015), aff’g

12 No. A094 058 886 (Immig. Ct. N.Y. City Nov. 19, 2014). We assume 

13 the parties’ familiarity with the underlying facts and 

14 procedural history in this case. 

15 We have reviewed the IJ’s opinion as modified by the BIA, 

16 i.e., minus the IJ’s ruling requiring Gonzalez-Benitez to 

17 identify the specific officials who would acquiesce in any 

18 torture by the Mara Salvatrucha (“MS-13”). See Xue Hong Yang 

19 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 

20 applicable standards of review are well established. See 8 

21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 

22 513 (2d Cir. 2009). 

23 The CAT prohibits the removal of any person to a country 

24 where “it is more likely than not” that the individual “would 
3

1 be tortured.” 8 C.F.R. § 1208.16(c)(2). “Torture is defined 

2 as any act by which severe pain or suffering, whether physical 

3 or mental, is intentionally inflicted on a person . . . by or 

4 at the instigation of or with the consent or acquiescence of 

5 a public official or other person acting in an official 

6 capacity.” Id. § 1208.18(a)(1). “Acquiescence of a public 

7 official requires that the public official, prior to the 

8 activity constituting torture, have awareness of such activity 

9 and thereafter breach his or her legal responsibility to 

10 intervene to prevent such activity.” Id. § 1208.18(a)(7). 

11 “[T]orture requires only that government officials know of or 

12 remain willfully blind to an act and thereafter breach their 

13 legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 

14 F.3d 161, 171 (2d Cir. 2004). Therefore, direct government 

15 involvement is not necessary in order to obtain CAT relief. 

16 Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir. 2006). 

17 The record does not compel the conclusion that 

18 Gonzalez-Benitez will more likely than not be tortured with the 

19 acquiescence of the Salvadoran government. See Mu Xiang Lin 

20 v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005) 

21 (emphasizing that an applicant must demonstrate that someone 

22 in his particular circumstances will more likely than not be 

23 tortured); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 

24 2012) (holding that “[a] determination of what will occur in 
4

1 the future and the degree of likelihood of the occurrence has 

2 been regularly regarded as fact-finding”). The record 

3 contains conflicting evidence of the Salvadoran government’s 

4 efforts to combat gang violence. On one hand, there is evidence 

5 that MS-13 has infiltrated the police force and that gang 

6 members can intimidate witnesses with impunity. On the other 

7 hand, there is evidence that police and army officers with ties 

8 have been identified and suspended, that the Salvadoran 

9 government is attempting to fight gang violence through 

10 legislation and law enforcement initiatives, and that these 

11 initiatives have had some success. 

12 Gonzalez-Benitez argues the agency ignored evidence 

13 showing collusion between MS-13 and the Salvadoran police. 

14 While we “require some indication that the IJ considered 

15 material evidence supporting a petitioner’s claim,” Poradisova 

16 v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005), we do not require 

17 the IJ to “expressly parse or refute on the record each and 

18 every” piece of evidence, and “we presume that an IJ has taken 

19 into account all the evidence before him, unless the record 

20 compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t 

21 of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006). Here, 

22 nothing in the record compels the conclusion that the IJ ignored 

23 Gonzalez-Benitez’s evidence: the IJ cited the State Department 

24 report in his decision, and engaged in a long discussion with 
5

1 Gonzalez-Benitez’s counsel concerning the country conditions 

2 evidence. Given the conflicting evidence in the record, a 

3 reasonable fact finder would not be compelled to conclude that 

4 Gonzalez-Benitez is “more likely than not to be tortured” with 

5 the acquiescence of the Salvadoran government. 8 C.F.R. 

6 §§ 1208.16(c)(2), 1208.18(a)(1); see also Mu Xiang Lin, 432 

7 F.3d at 159-60; Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 

8 2007) (“Decisions as to . . . which of competing inferences to 

9 draw are entirely within the province of the trier of fact.” 

10 (internal quotation marks omitted)). 

11 For the foregoing reasons, the petition for review is 

12 DENIED. As we have completed our review, any stay of removal 

13 that the Court previously granted in this petition is VACATED, 

14 and any pending motion for a stay of removal in this petition 

15 is DISMISSED as moot. Any pending request for oral argument 

16 in this petition is DENIED in accordance with Federal Rule of 

17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

18 34.1(b). 

19 FOR THE COURT: 

20 Catherine O=Hagan Wolfe, Clerk