22-6101

Martinez v. Garland

BIA

Reid, IJ

A094 106 699

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 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 the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 3rd day of July, two thousand twentyfour. 

PRESENT: 

RAYMOND J. LOHIER, JR.,

STEVEN J. MENASHI,

EUNICE C. LEE,

Circuit Judges. 

_____________________________________ 

RUBEN A. MARTINEZ, 

 Petitioner, 

v. 22-6101 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 
2 

FOR PETITIONER: Craig Relles, Esq., Law Office of Craig Relles, 

White Plains, NY. 

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 

Attorney General; Cindy S. Ferrier, Assistant 

Director; Joseph A. O’Connell, Attorney, 

Office of Immigration Litigation, United 

States Department of Justice, Washington, 

DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED. 

Petitioner Ruben A. Martinez, a native and citizen of El Salvador, seeks 

review of a February 17, 2022 decision of the BIA affirming an August 4, 2021

decision of an Immigration Judge (“IJ”) denying his application for deferral of 

removal under the Convention Against Torture (“CAT”). In re Ruben A. Martinez, 

No. A094 106 699 (B.I.A. Feb. 17, 2022), aff’g No. A094 106 699 (Immigr. Ct. N.Y.C.

Aug. 4, 2021). We assume the parties’ familiarity with the underlying facts and 

procedural history. 

We have reviewed both the IJ’s and BIA’s decisions “for the sake of 

completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006). “[W]e apply the substantial evidence standard to questions of fact raised 

in . . . CAT challenges, and de novo review to all questions of law, including the 
3 

application of law to facts.” Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 

2021). “A determination of what will occur in the future and the degree of 

likelihood of the occurrence has been regularly regarded as fact-finding . . . .” Hui 

Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012). 

A CAT applicant has the burden to show that he will “more likely than not” 

be tortured and that authorities will likely acquiesce to that torture. 8 C.F.R. 

§§ 1208.16(c)(2), 1208.18(a)(1). At the first step, “the applicant must show that he 

. . . will more likely than not be subject to ‘any act by which severe pain or 

suffering, whether physical or mental, is intentionally inflicted on a person for 

such purposes as . . . intimidating or coercing him or her or a third 

person.’” Garcia-Aranda v. Garland, 53 F.4th 752, 759 (2d Cir. 2022) (quoting

8 C.F.R. § 1208.18(a)(1)). “In assessing whether it is more likely than not that an 

applicant would be tortured . . . all evidence relevant to the possibility of future 

torture shall be considered, including, but not limited to” evidence that the 

applicant has suffered torture in the past, “[e]vidence that the applicant could 

relocate to a part of the country of removal where he . . . is not likely to be 

tortured,” “[e]vidence of gross, flagrant or mass violations of human rights within 

the country of removal,” and “[o]ther relevant information regarding conditions 
4 

in the country of removal.” 8 C.F.R. § 1208.16(c)(3). 

Substantial evidence supports the agency’s conclusion that Martinez did not 

establish that he was more likely than not to be tortured by gangs as a returning 

deportee from the United States. The IJ noted that Martinez had not been 

threatened or harmed by gangs in the past and stated that she “thoroughly 

reviewed the record,” including the fact that MS-13 gang members kidnapped and 

killed Martinez’s brother in 2006 when he refused extortion demands. The IJ’s 

decision acknowledged challenges faced by deportees and problems controlling 

gang violence, thus indicating that the country conditions evidence had been 

considered. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) 

(explaining that the agency is not required to “expressly parse or refute on the 

record each individual argument or piece of evidence offered by the petitioner” 

(quotation marks omitted)). 

Contrary to Martinez’s position here that the record reflects likely torture of 

deportees, the 2020 Human Rights Watch report he relies on identified 

approximately 200 deportees killed or abused by gangs since 2013, but also that 

there were more than 100,000 people returned to El Salvador and that certain 

groups were at greater risk, such as individuals who had been harmed in the past 
5 

and current or former gang members. Certified Administrative Record at 358–

60, 385. Martinez does not claim to fall into those higher risk categories. 

Moreover, other reports reflect that El Salvador’s homicide rate reached a historic 

low in 2020 and that the president elected in 2019 vowed to crack down on gangs, 

crime, and government corruption. Id. at 204, 287. On this record, the agency 

reasonably concluded that Martinez had not shown that he would more likely than 

not be tortured. See Quintanilla-Mejia, 3 F.4th at 592 (holding that where “the 

agency’s conclusion finds support in record evidence, [a petitioner] cannot secure 

CAT relief by pointing to conflicting evidence that might support—but not 

compel—a different conclusion”). 

Martinez’s failure to establish that he will more likely than not be tortured 

is dispositive of his CAT claim. See Garcia-Aranda, 53 F.4th at 758‒59. 

Accordingly, we do not reach the agency’s alternative conclusion that he failed to 

establish government acquiescence to torture. See INS v. Bagamasbad, 429 U.S. 24, 

25 (1976) (“As a general rule courts and agencies are not required to make findings 

on issues the decision of which is unnecessary to the results they reach.”). 
6 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court