Ulanov v. Garland ( 2021 )

18-928
Ulanov v. Garland
BIA
Thompson, IJ
A209 012 787
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 26th day of May, two thousand twenty-one.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JENNIFER DECOTEAU ULANOV,
14 Petitioner,
15
16 v. 18-928
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Lisa
1 Morinelli, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Jennifer Decoteau Ulanov, a native and citizen
10 of Trinidad and Tobago, seeks review of a March 22, 2018,
11 decision of the BIA affirming an October 26, 2017, decision
12 of an Immigration Judge (“IJ”) denying Ulanov’s application
13 for asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Jennifer Decoteau
15 Ulanov, No. A 209 012 787 (B.I.A. Mar. 22, 2018), aff’g No. A
16 209 012 787 (Immig. Ct. N.Y. City Oct. 26, 2017). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history.
19 We review the IJ’s decision as supplemented by the BIA.
20 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 We review factual findings for substantial evidence and
22 questions of law de novo. See Wei Sun v. Sessions, 883 F.3d
23 23, 27 (2d Cir. 2018).
2
1 We find no error in the agency’s conclusion that Ulanov
2 is ineligible for asylum and withholding of removal.
3 Particularly serious crimes bar asylum and withholding of
4 removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
5 Where, as here, an applicant’s conviction is not per se
6 particularly serious, the agency considers “(1) the nature of
7 the conviction, (2) the circumstances and underlying facts of
8 the conviction, (3) the type of sentence imposed and
9 (4) whether the type and circumstances of the crime indicate
10 that the alien will be a danger to the community.” Nethagani
11 v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008) (internal
12 quotation marks and citations omitted). The IJ applied the
13 proper factors and reasonably determined that Ulanov’s
14 convictions for grand larceny in the second degree, 21 counts
15 of forgery in the second degree, and 12 counts of falsifying
16 business records in the first degree in violation of New York
17 law were particularly serious under the circumstances. The
18 IJ noted that Ulanov stole $755,000 from the property
19 management company for which she worked by depositing checks
20 into her personal accounts, doctoring bank statements, and
21 forging signatures, and pointed out that Ulanov was sentenced
3
1 to five years of probation after the sentencing judge noted
2 she already had spent more than a year in jail. Contrary to
3 Ulanov’s assertion, the agency was not required to separately
4 consider her danger to the community. See Nethagani, 532
5 F.3d at 154 n.1, 155 (deferring to BIA’s interpretation that
6 the particularly serious crime determination does not require
7 a separate danger to the community analysis).
8 We also find no error in the denial of CAT relief. We
9 review the denial of CAT relief “under the deferential
10 substantial-evidence standard.” Nasrallah v. Barr, 140 S.
11 Ct. 1683, 1693 (2020). An applicant has the burden to
12 “establish that it is more likely than not that . . . she
13 would be tortured if removed to the proposed country of
14 removal.” 8 C.F.R. § 1208.16(c)(2); see id. § 1208.17(a).
15 The agency reasonably concluded that Ulanov failed to
16 establish that her inability to find employment and the
17 discrimination she would face as a criminal deportee would
18 amount to harm rising to the level of torture or involve the
19 requisite intent or government action or acquiescence. See
20 id. § 1208.18(a)(1) (defining torture as “severe pain or
21 suffering, whether physical or mental, [that] is
4
1 intentionally inflicted on a person . . . at the instigation
2 of, or with the consent or acquiescence of, a public official
3 [or other person] acting in an official capacity”). The
4 agency reasonably found too speculative Ulanov's suggestion
5 that she would be unable to find shelter, forced into
6 homelessness, and then subjected to gender-based violence
7 that would rise to the level of torture. See Savchuck v.
8 Mukasey, 518 F.3d 119, 123--24 (2d Cir. 2008) (explaining
9 that petitioner "will never be able to show that he faces a
10 more likely than not chance of torture if one link in the
11 chain cannot be shown to be more likely than not to occur.
12 It is the likelihood of all necessary events coming together
13 that must more likely than not lead to torture, and a chain
14 of events cannot be more likely than its least likely link.”
15 (internal quotation marks omitted)). As the agency
16 acknowledged, the country conditions evidence indicated harsh
17 treatment of women; however, such generalized violence does
18 not establish that someone in Ulanov’s particular
19 circumstances is more likely than not to face torture. See
20 Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d
21 Cir. 2005) (concluding that country reports of some torture
5
1 were insufficient to establish a CAT claim absent
2 “particularized evidence” that someone in applicant’s
3 circumstances would be tortured).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6