Montero v. Barr ( 2019 )

16-3893
Montero v. Barr
BIA
Rohan, IJ
A012 340 992
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 20th day of December, two thousand nineteen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
PEDRO JOSE MONTERO,
Petitioner,
v. No. 16-3893
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mark S. Davies, Orrick,
Herrington & Sutcliffe LLP,
Washington, District of Columbia;
Daniel A. Rubens, Orrick,
Herrington & Sutcliffe
LLP, New York, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Terri J.
Scadron, Assistant Director;
Leslie McKay, Senior Litigation
Counsel, Office of Immigration
Litigation, United States
Department of Justice, Washington,
District of Columbia.
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 Pedro Jose Montero, a native and citizen of
Ecuador, seeks review of the BIA’s affirmance of an
Immigration Judge’s (“IJ”) denial of (1) his application for
deferral of removal under the Convention Against Torture
(“CAT”) and (2) his motion to remand.1 In re Pedro Jose
Montero, No. A012 340 992 (B.I.A. Oct. 28, 2016), aff’g No.
A012 340 992 (Immig. Ct. N.Y. City Dec. 8, 2015).
Under the circumstances of this case, we review the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because
Montero’s removal order is based on an aggravated felony
1 Montero also preserves for future review arguments that
Ortiz-Franco v. Holder, 782 F.3d 81 (2d Cir. 2015), and
Marin-Marin v. Sessions, 852 F.3d 192 (2d Cir. 2017), were
wrongly decided, while recognizing that this panel is bound
by those decisions. See Gelman v. Ashcroft, 372 F.3d 495,
499 (2d Cir. 2004).
2
conviction, our review is limited to constitutional claims
and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D);
Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015); Durant
v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2004) (applying
§ 1252(a)(2)(C) to agency’s denial of motion to reopen). We
review constitutional claims and questions of law de novo.
See Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). In
so doing, we assume the parties’ familiarity with the
underlying facts and procedural history of this case, which
we reference only as necessary to explain our decision to
deny the petition for review.
I. Deferral of Removal under CAT
Montero argues that the agency committed legal error by
overlooking evidence that Ecuadorian authorities are likely
to deny him health care because he will be a criminal deportee
and homeless. See Mendez v. Holder, 566 F.3d 316, 323 (2d
Cir. 2009) (explaining that agency commits legal error if it
“totally overlook[s]” or “seriously mischaracterize[s]”
material evidence). Montero argues that the agency also
overlooked evidence that he will become a victim of vigilante
3
“social cleansing.” The argument fails because Montero
failed to adduce evidence of the requisite official intent.
To establish eligibility for CAT relief, an applicant
must show that someone in his particular circumstances will
more likely than not be tortured “by or at the instigation of
or with the consent or acquiescence of a public official or
other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1); id. §§ 1208.16(c)(2), 1208.17(a); see also
Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d Cir. 2004); Mu-
Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).
As to Montero’s claim that he will likely be denied
health care on return to Ecuador, the agency credited
Montero’s evidence that he suffered serious ailments that
could prove fatal without treatment. Nevertheless, it also
found that Montero adduced no evidence demonstrating that the
anticipated deprivation will be intentional, rather than “a
result of poverty, neglect, or incompetence.” Pierre, 502
F.3d at 121 (“[E]ven suffering of the utmost severity cannot
constitute torture unless it is specifically intended[.]”);
see 8 C.F.R. § 208.18(a)(5) (“In order to constitute torture,
an act must be specifically intended to inflict severe
4
physical or mental pain or suffering.”). The record supports
this finding.
Accordingly, as to his health-care based claim, Montero
has not demonstrated an error of law in the agency’s
determination that he failed to satisfy his burden of showing
a likelihood of torture with the requisite specific intent.
Because this finding is dispositive, we do not reach his
additional argument that the agency applied a legally flawed
understanding of government acquiescence. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
Montero argues that the agency also erred by failing to
consider evidence describing vigilante justice; violent,
inhumane treatment of suspected criminals; police corruption;
and failure to investigate crimes. Cited evidence shows high
crime rates in Ecuador and vigilantes targeting suspected
criminals. Nevertheless, Montero offered no evidence that
vigilante groups would suspect him of crime and, accordingly,
he has not met his burden of showing that, more likely than
not, he will be tortured by them, much less tortured with the
5
requisite official intent. See 8 C.F.R. §§ 1208.16(c)(2);
1208.17(a).
II. Motion To Remand
On appeal to the BIA, Montero unsuccessfully sought
remand for the IJ to consider various materials, notably, a
United Nations report discussing “social cleansing” in
Ecuador by drug trafficking groups as well as vigilante
killings.
“A motion to remand that relies on newly available
evidence is held to the substantive requirements of a motion
to reopen.” Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d
149, 156 (2d Cir. 2005). A movant seeking remand for
consideration of new evidence must present “material,
previously unavailable evidence.” Id.; see also 8 C.F.R.
§ 1003.2(c)(1). “The BIA has ‘broad discretion’ to deny a
motion to remand grounded on new evidence.” Li Young Cao, 421
F.3d at 156 (quoting INS v. Doherty, 502 U.S. 314, 323
(1992)). We will identify abuse of that discretion only “if
the Board’s decision provides no rational explanation,
inexplicably departs from established policies, is devoid of
6
any reasoning, or contains only summary or conclusory
statements[.]” Id. That is not this case.
As the BIA observed, Montero’s evidence could have been
discovered and submitted previously because it predated his
2015 proceedings before the IJ.2 See Li Yong Cao, 421 F.3d at
156; see also Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir.
2006) (requiring agency to assess whether evidence submitted
with motion to reopen was unavailable prior to closing of
record at hearing before IJ). Montero argues that the BIA
should have excused his failure to present this evidence
sooner because, as his attorney explained, they did not
discover it due to a “good-faith oversight.” Even crediting
this explanation, because the evidence was previously
available, we cannot conclude that the BIA abused its
2 The BIA mistakenly found one article to be dated 2016, the date
of its print publication, even though it was posted online in
2011. That error worked in Montero’s favor because the BIA
considered the article. Nevertheless, the BIA concluded that the
article was not material because it did not show Montero’s prima
facie eligibility for relief. See Li Yong Cao, 421 F.3d at 156(explaining that “failure to make a prima facie case” is
permissible reason to deny motion to reopen). The conclusion was
not an abuse of discretion.
7
discretion in denying Montero’s motion to remand. See 8
C.F.R. § 1003.2(c)(1); Li Yong Cao, 421 F.3d at 156.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Petitioner’s
pending motion for a stay of removal in this petition is
DISMISSED as moot. Petitioner’s request for oral argument
is DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
8