Silva v. Lynch ( 2016 )

15-1207
Silva v. Lynch
BIA
Montante, IJ
A088 939 797
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 6th day of July, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 OSVALDO C. SILVA,
14 Petitioner,
15
16 v. 15-1207
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joel C. Haims; Malcolm Dort,
24 Morrison & Foerster LLP, New York,
25 N.Y.; Brian R. Matsui, Morrison &
26 Foerster LLP, Washington, D.C.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Cindy S.
30 Ferrier, Assistant Director;
31 Lindsay M. Murphy, Trial Attorney,
32 Office of Immigration Litigation,
33 United States Department of Justice,
34 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Osvaldo C. Silva, a native and citizen of
6 Angola, seeks review of a March 17, 2015 decision of the BIA
7 affirming a March 22, 2013 decision of an Immigration Judge
8 (“IJ”), which denied Silva’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Osvaldo C. Silva, No. A088 939 797
11 (B.I.A. Mar. 17, 2015), aff’g No. A088 939 797 (Immig. Ct.
12 Buffalo Mar. 22, 2013). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
16 (2d Cir. 2006). The applicable standards of review are well
17 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
18 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 Silva did not base his claims for relief on past harm;
20 instead, he claimed only that he would be persecuted in the
21 future by his father and by the Angolan population because he
22 is gay. To establish asylum eligibility based on a
23 well-founded fear of persecution, an applicant must show that
2
1 he subjectively fears persecution and that this fear is
2 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
3 169, 178 (2d Cir. 2004) (Sotomayor, J.). An alien may make the
4 latter showing either by offering evidence that “he or she would
5 be singled out individually for persecution” or by “prov[ing]
6 the existence of ‘a pattern or practice in his or her
7 country . . . of persecution of a group of persons similarly
8 situated to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d
9 554, 564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
10 Private action constitutes “persecution” only when the
11 government is unwilling or unable to control it. Rizal v.
12 Gonzales, 442 F.3d 84, 92 (2d Cir. 2006). The agency reasonably
13 concluded that Silva failed to meet his burden of proof for
14 asylum because his fear of persecution was not objectively
15 reasonable.
16 As to any persecution by Silva’s father, the agency
17 reasonably concluded that there was no evidence in the record
18 that the Angolan government would be unwilling or unable to
19 prevent Silva’s father from harming him or punishing his father
20 if he did. See id.; Jian Xing Huang v. INS, 421 F.3d 125, 129
21 (2d Cir. 2005) (holding that “[i]n the absence of solid support
22 in the record for [an applicant’s] assertion that he will be
23 [persecuted], his fear is speculative at best”). The only
3
1 evidence in the record supporting Silva’s allegation that his
2 father could harm him with impunity is a letter from his mother
3 stating that she was forced to flee to the Congo to avoid Silva’s
4 father. The agency reasonably gave limited weight to this
5 letter, however, which was from an interested witness who was
6 not subject to cross-examination. See Y.C. v. Holder, 741 F.3d
7 324, 334 (2d Cir. 2013); In re H-L-H & Z-Y-Z, 25 I. & N. Dec.
8 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin Huang
9 v. Holder, 677 F.3d 130 (2d Cir. 2012). Silva argues that the
10 agency failed to show that any other evidence was reasonably
11 available. However, even if this evidence was the only
12 evidence available, the agency found it insufficient to meet
13 his burden. Accordingly, the agency reasonably concluded that
14 Silva failed to show that the Government would allow his father
15 to harm him if removed and therefore failed to show that his
16 fear of persecution by his father was objectively reasonable.
17 The agency also reasonably concluded that Silva’s fear of
18 persecution by the Angolan population at large was not
19 objectively reasonable. Jian Xing Huang, 421 F.3d at 129. The
20 record contains conflicting evidence concerning the prevalence
21 of violence against gay men in Angola, and the task of resolving
22 conflicts in the record evidence is “largely within the
23 discretion of the agency.” Jian Hui Shao v. Mukasey, 546 F.3d
4
1 138, 171 (2d Cir. 2008). The 2011 State Department Report notes
2 that gay men in Angola report facing violence and
3 discrimination, but it does not disclose the extent of that
4 violence or its frequency. Silva submitted an additional
5 article stating that homosexuals in Angola do not reveal their
6 sexual orientation for fear of stigma and social exclusion; the
7 article also reported on one gay man who had rocks thrown at
8 him. DHS submitted two articles, one of which states that,
9 although homosexuality is technically illegal in Angola, there
10 are no reports of any prosecutions for violating the law, and
11 that a new proposed law criminalizes discrimination based on
12 sexual orientation. Moreover, the articles quote an HIV/AIDS
13 activist, as well as a human rights observer, to the effect that
14 violence against gay men is uncommon in Angola and that Angola
15 is ahead of other African nations with respect to the treatment
16 of LGBT individuals. Given the conflicting evidence in the
17 record, the agency reasonably determined that Silva had not
18 shown that his fear of persecution by the Angolan population
19 was objectively reasonable. See Jian Hui Shao, 546 F.3d at 171;
20 Jian Xing Huang, 421 F.3d at 129.
21 Silva does not advance distinct challenges to the agency’s
22 denial of withholding of removal and CAT relief in his brief
23 to his Court; his challenges to the denials of these forms of
5
1 relief are entirely derivative of his challenges to the denial
2 of asylum. Because Silva’s claims for asylum, withholding of
3 removal, and CAT relief were all based on the same factual
4 predicate—Silva’s status as a gay man—the agency did not err
5 in denying these applications for relief. See Ramsameachire,
6 357 F.3d at 185.
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6