Cruz v. Sessions ( 2017 )

15-2862
Cruz v. Lynch
BIA
Verrillo, IJ
A088 428 634
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
28th day of February, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
_____________________________________
JUAN CARLOS CRUZ,
Petitioner,
v. 15-2862
NAC
JEFF SESSIONS, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Elyssa N. Williams, New Haven, CT.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Janette
L. Allen, Senior Litigation Counsel;
Lauren E. Fascett, Trial Attorney;
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jeff Sessions is automatically substituted for former
Attorney General Loretta E. Lynch as Respondent.
Abigail E. Leach, Law Clerk, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Juan Carlos Cruz, a native and citizen of
Guatemala, seeks review of an August 14, 2015, decision of the
BIA affirming a February 11, 2014, decision of an Immigration
Judge (“IJ”) denying Cruz’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Juan Carlos Cruz, No. A088 428 634 (B.I.A. Aug.
14, 2015), aff’g No. A088 428 634 (Immig. Ct. Hartford Feb. 11,
2014). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions “for the sake of completeness.”
Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The agency
concluded that Cruz failed to sufficiently corroborate his
claim. In particular, Cruz based his claims for relief on a
2011 massacre committed by the Zetas, a Mexican drug cartel,
at a ranch in northern Guatemala purportedly owned by Cruz’s
2
brother, but did not present evidence establishing that he was
related to the ranch’s owners or residents.
We review the agency’s factual findings, including its
corroboration determination, for substantial evidence. See
8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d
554, 562-63 (2d Cir. 2006). An IJ may require an asylum
applicant to provide evidence that corroborates otherwise
credible testimony in order to meet the applicant’s burden of
proof for asylum. See 8 U.S.C. § 1158(b)(1)(B)(ii). “[A]
failure to corroborate can suffice, without more, to support
a finding that an alien has not met his burden of proof.” Liu
v. Holder, 575 F.3d 193, 198 n. 5 (2d Cir. 2009). When an IJ
determines that corroborating evidence is necessary, the
applicant must provide the evidence “unless the applicant does
not have the evidence and cannot reasonably obtain the
evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). We may reverse the
IJ’s determination that corroborating evidence is or is not
available only if “a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.”
8 U.S.C. § 1252(b)(4).
While the agency must identify what reasonably available
evidence should have been provided and must assess the
applicant’s explanations for any missing evidence, it is the
3
applicant’s burden to provide the evidence or an adequate
explanation for any failure to obtain it. See Liu, 575 F.3d
at 198-99. To overcome the need to corroborate, the
applicant’s explanations must compel a conclusion that the
requested evidence is not reasonably available. See 8 U.S.C.
§ 1252(b)(4); Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d
Cir. 2011); see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding, in credibility context, that explanations
for inconsistent statements must be compelling rather than
merely plausible).
The record here is, at best, mixed regarding the
availability of the relevant evidence. Cruz’s
country-conditions evidence suggests that official corruption
and ineffectiveness are widespread in Guatemala and that Petén
province, where the massacre occurred, is a remote and lawless
region. Such conditions might have made it difficult for Cruz
to obtain official documentation regarding the massacre or his
family’s ownership of the ranch. However, Cruz testified that
the police helped his family flee after the massacre and he
submitted news articles reflecting that Guatemalan officials
took the massacre very seriously. And while Cruz’s testimony
that his family could not access the ranch to obtain the physical
deed to the property or other evidence is plausible, Cruz did
4
not adequately explain his inability to obtain other records.
Nor did Cruz provide affidavits from his family members
documenting their efforts to obtain this evidence. Thus, the
agency was not compelled to conclude that this evidence was
unavailable. 8 U.S.C. § 1252(b)(4).
The agency was also not required to credit an unsworn letter
from Cruz’s purported brother that gave the wrong year for the
massacre and stated that the perpetrators were “BSZ” (and did
not mention the Zetas). See Y.C. v. Holder, 741 F.3d 324, 334
(2d Cir. 2013) (noting that we generally “defer to the agency’s
determination of the weight afforded to an alien’s documentary
evidence”). Aside from this letter, the record is devoid of
any corroborating evidence linking Cruz to the ranch where the
massacre occurred. Indeed, even if considered part of the
record, the birth certificates Cruz submitted to the BIA on
appeal do not establish his family’s ownership of the ranch or
Cruz’s relationship to Otto Salguero, the ranch’s reported
owner.
Accordingly, given the lack of materiality and
reliability of the evidence Cruz presented and his failure to
produce property records, government reports, or affidavits
from his family members, the agency’s corroboration ruling is
supported by substantial evidence. This ruling is dispositive
5
of Cruz’s application for asylum and withholding of removal.
We thus need not reach the agency’s alternative internal
relocation ruling. As for Cruz’s application for relief under
CAT, Cruz failed to establish that he would likely be tortured
by or with the acquiescence or willful blindness of the
government if removed to Guatemala. 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6