Ramos-Orellana v. Holder ( 2012 )

10-5183-ag
Ramos-Orellana v. Holder
BIA
Straus, IJ
A070 953 368
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 OSCAR ANIBAL RAMOS-ORELLANA, AKA
14 OSCAR RAMOS,
15 Petitioner,
16
17 v. 10-5183-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Jon E. Jessen, Stamford,
25 Connecticut.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Jamie M. Dowd, Senior
29 Litigation Counsel; Jeffery R.
30 Leist, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
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 Oscar Anibal Ramos-Orellana, a native and
10 citizen of Guatemala, seeks review of a November 23, 2010,
11 order of the BIA, affirming the June 15, 2009, decision of
12 Immigration Judge (“IJ”) Michael W. Straus, which denied his
13 application for asylum, withholding of removal, relief under
14 the Convention Against Torture (“CAT”), and relief under the
15 Nicaraguan Adjustment and Central American Relief Act of
16 1997 (“NACARA”). In re Ramos-Orellana, No. A070 953 368
17 (B.I.A. Nov. 23, 2010), aff’g No. A070 953 368 (Immig. Ct.
18 Hartford June 15, 2009). We assume the parties’ familiarity
19 with the underlying facts and procedural history in this
20 case.
21 Under the circumstances of this case, we have reviewed
22 both the IJ’s and the BIA’s opinions “for the sake of
23 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
24 2008) (internal quotation marks omitted). The applicable
25 standards of review are well-established. See 8 U.S.C. §
21 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009).
3 As an initial matter, Ramos-Orellana challenges only
4 the agency’s determination that he failed to show past
5 persecution based on forced conscription into the army and
6 that he would likely be persecuted or tortured if returned
7 to Guatemala for his desertion from the army. The agency’s
8 determination that Ramos-Orellana failed to demonstrate that
9 his forced conscription constitutes past persecution is
10 supported by substantial evidence. See Islami v. Gonzales,
11 412 F.3d 391, 396-97 (2d Cir. 2005), overruled in part on
12 other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494
13 F.3d 296, 305 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(B).
14 While we have held that forced military service (or
15 punishment for draft evasion) may constitute persecution
16 where: (1) “an individual’s refusal to serve in the military
17 leads to disproportionately excessive penalties, inflicted
18 on him or her” on account of a protected ground; or (2) an
19 individual “is fleeing to avoid punishment for refusing to
20 join a military force condemned by the international
21 community,” Islami, 412 F.3d at 396 (internal quotation
22 marks omitted), as the agency noted, Ramos-Orellana failed
23 to present any evidence showing that he was asked to commit
3
1 human rights abuses against members of his own race,
2 religion, nationality, or social or political group; that he
3 objected to doing so; or that army leadership ever knew of
4 any such objection. Moreover, in finding that
5 Ramos-Orellana failed to establish that he would be singled
6 out for excessive penalties as a result of his desertion,
7 the agency reasonably relied on his testimony that he was
8 not treated differently than his fellow soldiers while he
9 served, as well as the fact that 75% of all conscripted
10 soldiers deserted the Guatemalan Army during the same
11 period. See id.12 The agency also reasonably determined that
13 Ramos-Orellana failed to show that it is more likely than
14 not that he would be persecuted or tortured if returned to
15 Guatemala due to his desertion from the army. See 8 U.S.C.
16 § 1252(b)(4)(B). Although Ramos-Orellana argues that the
17 agency improperly discredited his evidence of country
18 conditions and placed excessive reliance on the U.S. State
19 Department Country Reports on Human Rights Practices in
20 Guatemala (“Country Reports”), the task of resolving
21 conflicts in the record evidence lies “largely within the
22 discretion of the agency.” Jian Hui Shao v. Mukasey, 546
23 F.3d 138, 171 (2d Cir. 2008). In evaluating
4
1 Ramos-Orellana’s evidence of country conditions, the agency
2 reasonably noted that the more recent Country Reports do not
3 indicate that former army deserters are targeted for
4 persecution or death. See Xiao Ji Chen v. U.S. Dep’t of
5 Justice, 434 F.3d 144, 164 (2d Cir. 2006) (recognizing that
6 “a report from the State Department is usually the best
7 available source of information on country conditions”)
8 (internal quotation marks omitted).
9 Lastly, Ramos-Orellana’s argument that the agency erred
10 in failing to make an explicit credibility finding is
11 without merit, as the agency assumed credibility and its
12 decision does not hinge on Ramos-Orellana’s credibility.
13 See Mendez v. Holder, 566 F.3d 316, 318 (2d Cir. 2009).
14 For the foregoing reasons, the petition for review is
15 DENIED.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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