Buestan-Tenecora v. Sessions , 707 F. App'x 55 ( 2017 )

16-891
Buestan-Tenecora v. Sessions
BIA
Nelson, IJ
A205 480 111
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 21st day of December, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LAURA INES BUESTAN-TENECORA,
14 Petitioner,
15
16 v. 16-891
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Manuel D. Gomez, Manuel D. Gomez &
24 Associates, P.C., New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney
28 General; Kiley Kane, Senior
1 Litigation Counsel; Sergio
2 Sarkany, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a Board
8 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
9 ADJUDGED, AND DECREED that the petition for review is DENIED.
10 Petitioner Laura Ines Buestan-Tenecora, a native and
11 citizen of Ecuador, seeks review of a February 24, 2016, decision
12 of the BIA affirming a September 11, 2014, decision of an
13 Immigration Judge (“IJ”) denying Buestan-Tenecora’s
14 application for asylum, withholding of removal, and relief under
15 the Convention Against Torture (“CAT”). In re Laura Ines
16 Buestan-Tenecora, No. A205 480 111 (B.I.A. Feb. 24, 2016), aff’g
17 No. A205 480 111 (Immig. Ct. N.Y. City Sept. 11, 2014). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed the
21 IJ’s decision as supplemented by the BIA. See Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
25 Cir. 2009).
2
1 An asylum applicant bears the burden of establishing that
2 she suffered past persecution or has a well-founded fear of
3 future persecution in the country of removal on account of a
4 protected ground. 8 U.S.C. § 1101(a)(42); Mei Fun Wong v.
5 Holder, 633 F.3d 64, 68 (2d Cir. 2011). To establish a
6 well-founded fear of persecution, an applicant must show that
7 she subjectively fears persecution and that this fear is
8 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
9 169, 178 (2d Cir. 2004). “In the absence of solid support in
10 the record,” a fear of persecution is not well founded and “is
11 speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125,
12 129 (2d Cir. 2005).
13 The governing REAL ID Act corroboration standard provides
14 as follows:
15 The testimony of the applicant may be
16 sufficient to sustain the applicant’s burden
17 without corroboration, but only if the
18 applicant satisfies the trier of fact that
19 the applicant’s testimony is credible, is
20 persuasive, and refers to specific facts
21 sufficient to demonstrate that the applicant
22 is a refugee. . . . Where the trier of fact
23 determines that the applicant should provide
24 evidence that corroborates otherwise
25 credible testimony, such evidence must be
26 provided unless the applicant does not have
27 the evidence and cannot reasonably obtain the
28 evidence.
29 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).
3
1 The Government is correct that Buestan-Tenecora has waived
2 review of the agency’s corroboration finding by failing to
3 challenge it in her brief. See Norton v. Sam’s Club, 145 F.3d
4 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
5 briefs are considered waived and normally will not be addressed
6 on appeal.”). Moreover, this waiver extends both to past
7 persecution and to Buestan-Tenecora’s fear of future persecution
8 because the agency found that she failed to corroborate either
9 basis for relief. In addition to finding that Buestan-Tenecora
10 failed to produce any letters or affidavits from her daughter
11 (who witnessed the abuse) or her mother (who saw the resulting
12 injuries), the agency found that she failed to present statements
13 from the family members who reported that her abuser continues
14 to seek her out. To the extent that Buestan-Tenecora asserts
15 that the agency was required to accept as undisputed fact all
16 events to which she testified because she was found credible,
17 she is incorrect. The IJ did not err in requiring
18 Buestan-Tenecora to provide corroboration because her testimony
19 concerning her abuser’s continued interest in her was not based
20 on firsthand information and therefore did not “refer[] to
21 specific facts sufficient to demonstrate that the [she] is a
22
4
1 refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); Jian Xing Huang, 421
2 F.3d at 129.
3 Moreover, even if Buestan-Tenecora had challenged the
4 agency’s corroboration finding, we would find no error in the
5 agency’s ruling. Buestan-Tenecora failed to submit statements
6 from her daughter, mother, or family in Ecuador, and did not
7 identify any reason why that evidence was unavailable. 8 U.S.C.
8 § 1252(b)(4) (“No court shall reverse a determination made by
9 a trier of fact with respect to the availability of corroborating
10 evidence . . . [unless] a reasonable trier of fact is compelled
11 to conclude that such corroborating evidence is unavailable.”).
12 Indeed, despite compiling new evidence for her motion to remand,
13 Buestan-Tenecora neither included statements from her daughter,
14 mother, or family in Ecuador, nor attempted to explain their
15 absence.
16 We deny the petition because Buestan-Tenecora does not
17 challenge the agency’s dispositive corroboration findings.
18 Accordingly, we do not reach the agency’s alternative bases for
19 denying relief. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As
20 a general rule courts and agencies are not required to make
21 findings on issues the decision of which is unnecessary to the
22 results they reach.”).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument in
6 this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6