Hernandez-Martinez v. Garland

United States Court of Appeals For the First Circuit No. 21-1448 GERSON ANTONIO HERNANDEZ-MARTINEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Kayatta and Howard, Circuit Judges, and Walker,* District Judge Randy Olen on brief for appellant. Brian Boynton, Acting Assistant Attorney General, Civil Division, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, and Edward C. Durant, Trial Attorney, Office of Immigration Litigation, on brief for respondent. February 2, 2023 * Of the District of Maine, sitting by designation. KAYATTA, Circuit Judge. In the wake of a police-aided assault that left him hospitalized, Petitioner Gerson Antonio Hernandez-Martinez fled to the United States, where he sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Finding Hernandez-Martinez credible, the Immigration Judge (IJ) nevertheless denied all three forms of relief. After the Board of Immigration Appeals (BIA) affirmed the IJ's decision, Hernandez-Martinez timely petitioned for judicial review. For the following reasons, we find that the record provides the requisite support for the IJ's conclusions that Hernandez-Martinez failed to establish eligibility for asylum or withholding of removal. At the same time, we vacate the order denying CAT relief. Our reasoning follows. I. Hernandez-Martinez is a Guatemalan citizen who entered the United States without inspection in 2014. Until shortly before his departure, he had a good life in Guatemala, and made approximately $5,000 per month between his taxi business and a job with Coca-Cola. In March 2014, Hernandez-Martinez was on his way to work when two men approached him, demanding money and threatening to kill him if he did not pay. Hernandez-Martinez did not know who the men were. The men told him that they knew where he lived and - 2 - would harm him or his wife if he did not comply. They also instructed him not to go to the police. Hernandez-Martinez went to the police later that day. Two police officers told Hernandez-Martinez not to be afraid because they would "take matters into their own hands," and they offered to drive him home. Instead, they delivered him to the men who had threatened him earlier. The men hit Hernandez-Martinez in the face, cut his waist with a knife, burned his right foot with motorcycle exhaust, dragged him, repeated their threats, and beat him senseless. The police appeared to know his assailants and laughed while the men were assaulting him. Hernandez-Martinez recovered consciousness in a hospital, where he stayed for three or four days. When he had sufficiently recovered, he promptly fled to the United States to join his wife and then four- or five- year-old son, who had already made the journey. Placed in removal proceedings in 2014, Hernandez- Martinez conceded his removability but requested asylum, withholding of removal, and deferral of removal under the CAT. He argued that he qualified for asylum and withholding of removal because he had faced past persecution -- and feared future persecution -- based on his …

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