United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 31, 2021 No. 19-60408 Lyle W. Cayce Clerk

Sergio L. Tabora Gutierrez,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals No. A206-012-003

Before Davis, Duncan, and Oldham, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: This is yet another immigration case involving the vicious international gang Mara Salvatrucha (“MS-13”) and its brutalization of the people of Honduras. 1 The record shows that, thanks in part to MS-13, Honduras has become “one of the most violent countries on the planet that

1 See Castro-Rodriguez v. Garland, __ F. App’x __, 2021 WL 1232085 (5th Cir. Apr. 2, 2021) (per curiam); Castillo-Cruz v. Barr, 831 F. App’x 739 (5th Cir. 2020) (per curiam); Aguilar-Chavez v. Barr, 799 F. App’x 288 (5th Cir. 2020) (per curiam); Bonilla Cruz v. Barr, 777 F. App’x 119 (5th Cir. 2019) (per curiam); Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018); Paz v. Sessions, 676 F. App’x 331 (5th Cir. 2017) (per curiam). Case: 19-60408 Document: 00515999865 Page: 2 Date Filed: 08/31/2021

No. 19-60408

is not at war.” In Honduras, “gang beheadings and dismemberment of victims are now routine; lynching and burning victims alive are commonplace; and the recruitment of children as young as 11 is an everyday occurrence.” Although the Honduran government has tried to combat MS- 13, it still “cannot guarantee a minimum level of security for all its citizens.” Petitioner Sergio Luis Tabora Gutierrez was born and raised in this crucible of violence. He has resisted MS-13’s attempts to coerce him to join the gang or pay a “war tax.” For that, gang members have repeatedly brutalized him and his wife and threatened to kill them. The record contains gruesome photos of his wounds. Tabora Gutierrez therefore entered the United States illegally and, as relevant here, sought relief under the Convention Against Torture (CAT). The immigration judge (IJ)—finding Tabora Gutierrez credible and his account “detailed, plausible, and coherent”—found that “MS-13 is more likely than not to torture or kill him upon his return.” Nonetheless, the IJ denied CAT relief and ordered Tabora Gutierrez removed to Honduras because it found any such torture would not occur with the “consent or acquiescence” of Honduran officials. Finding no clear error in that determination, the BIA dismissed Tabora Gutierrez’s appeal. He petitioned for our review. We deny his petition. Tabora Gutierrez, ably represented by pro bono counsel, makes a compelling humanitarian case for why removing him to Honduras will effectively abandon him to torture and death at the hands of MS-13 thugs. Yet to make out a CAT claim, the law demands that this violence will likely occur “with the consent or acquiescence” of Honduran officials, 8 C.F.R. § 1208.18(a)(1), and the IJ and the BIA found that