Espinoza-Archipolla v. Garland ( 2022 )

20-837
Espinoza-Archipolla v. Garland
BIA
Thompson, IJ
A206 727 030
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 11th day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 DEBRA ANN LIVINGSTON,
9 Chief Judge,
10 WILLIAM J. NARDINI,
11 EUNICE C. LEE,
12 Circuit Judges.
13 _____________________________________
14
15 DUBAR IVAN ESPINOZA-ARCHIPOLLA,
16 Petitioner,
17
18 v. 20-837
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25
26 FOR PETITIONER: Michael Borja, Esq., Borja Law
27 Firm, P.C., Jackson Heights, NY.
28
1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
2 Assistant Attorney General;
3 Anthony P. Nicastro, Assistant
4 Director; Matthew B. George,
5 Senior Litigation Counsel, Office
6 of Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Dubar Ivan Espinoza-Archipolla, a native and
14 citizen of Ecuador, seeks review of a February 19, 2020,
15 decision of the BIA affirming an April 9, 2018, decision of
16 an Immigration Judge (“IJ”) denying asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Dubar Ivan Espinoza-Archipolla, No. A206 727
19 030 (B.I.A. Feb. 19, 2020), aff’g No. A206 727 030 (Immigr.
20 Ct. N.Y.C. Apr. 9, 2018). We assume the parties’ familiarity
21 with the underlying facts and procedural history.
22 We have reviewed the IJ’s decision. See Mei Chai Ye v.
23 U.S. Dep’t of Just., 489 F.3d 517, 523 (2d Cir. 2007). We
24 review the agency’s factual findings for substantial evidence
25 and its legal conclusions de novo. See Paloka v. Holder, 762
2
1 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the legal
2 determination of whether a group constitutes a ‘particular
3 social group’ under the [Immigration and Nationality Act].”);
4 Edimo-Doualla v. Gonzales, 464 F.3d 276, 281–83 (2d Cir. 2006)
5 (applying substantial evidence standard to nexus
6 determination); Yanqin Weng v. Holder, 562 F.3d 510, 513, 516
7 (2d Cir. 2009) (applying substantial evidence standard to CAT
8 claim). “[T]he administrative findings of fact are
9 conclusive unless any reasonable adjudicator would be
10 compelled to conclude to the contrary.” 8 U.S.C.
11 § 1252(b)(4)(B).
12 Our review is limited to claims exhausted before the
13 agency and sufficiently argued here. See Lin Zhong v. U.S.
14 Dep’t of Just., 480 F.3d 104, 123 (2d Cir. 2007)
15 (“usually . . . issues not raised to the BIA will not be
16 examined by the reviewing court”); Yueqing Zhang v. Gonzales,
17 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (issues not
18 raised in briefs normally will not be addressed on appeal).
19 Espinoza-Archipolla has waived review of the agency’s
20 findings related to the particular social group he proposed
21 to the agency by failing to specifically challenge those
3
1 findings, and he did not exhaust the amended social group
2 that he now proposes. See Lin Zhong, 480 F.3d at 123; Yueqing
3 Zhang, 426 F.3d at 541 n.1, 545 n.7; see also Prabhudial v.
4 Holder, 780 F.3d 553, 555–56 (2d Cir. 2015) (concluding that
5 BIA properly declined to “consider an issue that could have
6 been, but was not, raised before [the] IJ” and declining to
7 address claim in first instance). Accordingly, we deny
8 Espinoza-Archipolla’s petition as to asylum and withholding
9 of removal.
10 As to CAT protection, substantial evidence supports the
11 agency’s denial of that claim. Espinoza had the burden to
12 show that “it is more likely than not that he . . . would be
13 tortured,” 8 C.F.R. § 1208.16(c)(2), and that “government
14 officials [would] know of or remain willfully blind to an act
15 [of torture],” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d
16 Cir. 2004); see also 8 C.F.R. § 1208.18(a)(1). In
17 determining whether torture is more likely than not, the
18 agency considers past torture, country conditions, and
19 whether the applicant could avoid torture by relocating
20 within his home country. 8 C.F.R. § 1208.16(c)(3).
21
4
1 Here, while Espinoza-Archipolla’s treatment by gang
2 members was abhorrent, the agency reasonably concluded both
3 that the harm he suffered did not rise to the level of torture
4 and that he failed to establish that he could not relocate
5 and avoid torture by gang members. See 8 C.F.R.
6 §§ 1208.18(a)(2) (“Torture is an extreme form of cruel and
7 inhuman treatment and does not include lesser forms of cruel,
8 inhuman or degrading treatment or punishment that do not
9 amount to torture.”), 1208.16(c)(3) (IJ considers past
10 torture, possibility of relocation); Kyaw Zwar Tun v. U.S.
11 INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture requires
12 proof of something more severe than the kind of treatment
13 that would suffice to prove persecution.”). Moreover,
14 Espinoza-Archipolla’s country conditions evidence reflecting
15 a rise in drug trafficking was insufficient to demonstrate
16 that gang members will likely single him out for torture and
17 that government officials would acquiesce to that torture,
18 particularly given evidence of the government’s actions to
19 combat that rise in criminality. See Mu-Xing Wang v.
20 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring showing
21 that “someone in [applicant’s] particular alleged
5
1 circumstances is more likely than not to be tortured”
2 (emphasis omitted)); Mu Xiang Lin v. U.S. Dep’t of Just., 432
3 F.3d 156, 160 (2d Cir. 2005) (requiring “particularized
4 evidence” to support a CAT claim); see also Jian Hui Shao v.
5 Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a
6 petitioner bears the burden of proof, his failure to adduce
7 evidence can itself constitute the ‘substantial evidence’
8 necessary to support the agency’s challenged decision.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6