Sangurima-Nieves v. Garland ( 2022 )

19-1641
Sangurima-Nieves v. Garland
BIA
Christensen, IJ
A205 956 325/326/327
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 13th day of January, two thousand twenty-
5 two.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 RICHARD J. SULLIVAN,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 ROSA ELVIRA SANGURIMA-NIEVES,
15 JENNY MARCIELA GALLEGOS-
16 SANGURIMA, MARIA FLOR AREVALO-
17 SANGURIMA,
18 Petitioners,
19
20 v. 19-1641
21 NAC
22 MERRICK B. GARLAND, UNITED
23 STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONERS: H. Raymond Fasano, Esq., Youman,
28 Madeo & Fasano, LLP, New York, NY.
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Linda S. Wernery,
3 Assistant Director; Steven K.
4 Uejio, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioners Rosa Elvira Sangurima-Nieves, Jenny Marciela
13 Gallegos-Sangurima, and Maria Flor Arevalo-Sangurima, natives
14 and citizens of Ecuador, seek review of a May 7, 2019 decision
15 of the BIA affirming a November 17, 2017 decision of an
16 Immigration Judge (“IJ”) denying asylum, withholding of
17 removal, and protection under the Convention Against Torture
18 (“CAT”). In re Rosa Elvira Sangurima-Nieves, Jenny Marciela
19 Gallegos-Sangurima, Maria Flor Arevalo-Sangurima, Nos. A205
20 956 325/326/327 (B.I.A. May 7, 2019), aff’g No. A205 956
21 325/326/327 (Immig. Ct. N.Y. City Nov. 17, 2017). We assume
22 the parties’ familiarity with the underlying facts and
23 procedural history.
24 We have reviewed the decision of the IJ as supplemented
25 and modified by the BIA. See Yan Chen v. Gonzales, 417 F.3d
21 268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of
2 Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the
3 agency’s factual findings for substantial evidence, and we
4 review questions of law, and applications of law to facts de
5 novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
6 2009); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he
7 administrative findings of fact are conclusive unless any
8 reasonable adjudicator would be compelled to conclude to the
9 contrary.”). We deny the petition because substantial
10 evidence supports the agency’s determination that Petitioners
11 failed to establish the Ecuadorian government was or would be
12 unable or unwilling to protect them.
13 To obtain asylum or withholding of removal, an applicant
14 must establish past persecution or a fear of future
15 persecution and that “race, religion, nationality, membership
16 in a particular social group, or political opinion was or
17 will be at least one central reason for persecuting the
18 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id.19 § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1), (2).
20 Humanitarian asylum may be granted in the absence of a fear
21 of future persecution, but it requires a showing of past
22 persecution and “compelling reasons for being unwilling or
3
1 unable to return to the country arising out of the severity
2 of the past persecution.” Tao Jiang v. Gonzales, 500 F.3d
3 137, 140 (2d Cir. 2007) (internal quotation marks omitted);
4 see also 8 C.F.R. § 1208.13(b)(1)(iii)(A).
5 “To qualify as persecution the conduct at issue must be
6 attributable to the government, whether directly because
7 engaged in by government officials, or indirectly because
8 engaged in by private persons whom the government is unable
9 or unwilling to control.” Scarlett v. Barr, 957 F.3d 316,
10 328 (2d Cir. 2020) (internal quotation marks omitted); see
11 also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342
12 (2d Cir. 2006) (“[I]t is well established that private acts
13 may be persecution if the government has proved unwilling to
14 control such actions.”). “Under the unwilling-or-unable
15 standard, a finding of persecution ordinarily requires a
16 determination that government authorities, if they did not
17 actually perpetrate or incite the persecution, condoned it or
18 at least demonstrated a complete helplessness to protect the
19 victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir.
20 2021) (internal quotation marks omitted).
21 The agency reasonably found that the record did not
22 reflect an unwillingness on the part of Ecuadorian
4
1 authorities to intervene to protect Petitioners, who are
2 Catholic, from violence at the hands of their former in-laws,
3 who are Evangelical Christians. Ecuadorian police accepted
4 a complaint about a 2003 assault, launched an investigation,
5 and referred the complaint to a provincial court for
6 prosecution. The agency reasonably concluded that
7 Petitioners’ allegation that the prosecutor was bribed to
8 dismiss the case was too speculative given the lack of
9 evidence to corroborate that assertion. See 8 U.S.C. §
10 1252(b)(4)(B) (“[T]he administrative findings of fact are
11 conclusive unless any reasonable adjudicator would be
12 compelled to conclude to the contrary.”).
13 Petitioners have also failed to establish that the agency
14 overlooked or ignored country conditions evidence documenting
15 a decline in Catholicism and rise in Evangelicalism in Latin
16 America and describing an attack on Catholic worshippers in
17 Ecuador by a group of Evangelicals. “[W]e presume that [the
18 agency] has taken into account all of the
19 evidence . . . unless the record compellingly suggests
20 otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
21 315, 336 n.17 (2d Cir. 2006). The record here does not
22 suggest that the IJ ignored such evidence; to the contrary,
5
1 the IJ acknowledged Petitioners’ evidence demonstrating that
2 Catholicism is on the decline in Latin America but noted that
3 Catholicism remained the majority religion. He also noted
4 evidence of an attack on Catholics, but reasoned that the
5 record revealed police efforts to intervene in that attack.
6 We do not reach Petitioners’ remaining arguments because
7 the failure to show that Ecuadorian authorities are unwilling
8 or unable to control this type of violence is dispositive of
9 asylum, humanitarian asylum, and withholding of removal. 1 See
10 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule,
11 courts and agencies are not required to make findings on
12 issues the decision of which is unnecessary to the results
13 they reach.”).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
1 Petitioners do not challenge the denial of their CAT claim.
6