Acevedo Ayala v. Garland ( 2023 )

20-19
Acevedo Ayala v. Garland
BIA
Montante, IJ
A206 487 735
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 16th day of March, two thousand twenty-three.
4
5 PRESENT:
6 REENA RAGGI,
7 RICHARD J. SULLIVAN,
8 WILLIAM J. NARDINI,
9 Circuit Judges.
10 _________________________________________
11
12 JONATHAN JAVIER ACEVEDO AYALA,
13 AKA JONATHAN ACEVEDO,
14 Petitioner,
15
16 v. No. 20-19
17 NAC
18 MERRICK B. GARLAND, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
1 FOR PETITIONER: Mary Slattery, Karen L. Murtagh,
2 Executive Director, Prisoners’ Legal
3 Services of New York, Albany, NY.
4
5 FOR RESPONDENT: Jeffrey B. Clark, Acting Assistant
6 Attorney General, Civil Division;
7 Anthony C. Payne, Assistant Director;
8 Judith R. O’Sullivan, Trial Attorney,
9 Office of Immigration Litigation,
10 United States Department of Justice,
11 Washington, DC.
12
13 UPON DUE CONSIDERATION of this petition for review of a Board of
14 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
15 DECREED that the petition for review is DENIED.
16 Petitioner Jonathan Javier Acevedo Ayala (“Acevedo”), a native and citizen
17 of El Salvador, seeks review of a decision of the BIA affirming a decision of an
18 Immigration Judge (“IJ”) denying relief under the Convention Against Torture
19 (“CAT”). 1 In re Jonathan Javier Acevedo Ayala, No. A206 487 735 (B.I.A. Dec. 10,
20 2019), aff’g No. A206 487 735 (Immig. Ct. Batavia July 9, 2019). We assume the
21 parties’ familiarity with the underlying facts and procedural history.
22 We have reviewed both the IJ’s and the BIA’s opinions for the sake of
23 completeness. Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
1 Acevedo does not challenge the agency’s denial of his application for withholding of removal.
2
1 2006). We review the agency’s findings of fact for substantial evidence, and we
2 review questions of law de novo. Manning v. Barr, 954 F.3d 477, 484 (2d Cir. 2020);
3 see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are
4 conclusive unless any reasonable adjudicator would be compelled to conclude to
5 the contrary.”).
6 Acevedo argues that the BIA improperly reviewed the evidence de novo in
7 determining that he had failed to establish the frequency with which former or
8 suspected gang members are tortured and killed in El Salvador. But nothing in
9 the record suggests that the BIA usurped the role of the IJ as factfinder. To the
10 contrary, the BIA found “no clear error” in the IJ’s determination that “incidents
11 of torture and killing of former or suspected gang members [in El Salvador] are
12 isolated” and not more likely than not to occur, even though the evidence
13 demonstrated that “gang-related violence” and “violent clashes between
14 Salvadoran security forces and [active] gang members” are prevalent. Certified
15 Admin. Record at 3–4; cf. Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir. 2006) (“[A]
16 review of the factual record by the BIA does not convert its discretionary
17 determination as to whether a petitioner warrants an adjustment of status into
18 improper factfinding.”).
3
1 Nor did the BIA engage in impermissible factfinding by considering the
2 State Department’s 2017 Human Rights Report. In its decision, the BIA
3 reasonably concluded that the IJ’s citation to just three of the country condition
4 reports and articles in the record did not suggest that the IJ had overlooked the
5 remaining evidence. See Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17
6 (2d Cir. 2006) (noting the general “presum[ption] that an IJ has taken into account
7 all of the evidence before him”). In any event, the BIA’s consideration of the 2017
8 report was not for factfinding purposes, but rather to reject Acevedo’s contention
9 that the IJ had failed to review relevant evidence.
10 There is also no merit to Acevedo’s argument that the agency ignored and
11 mischaracterized evidence in determining that he had failed to establish that he
12 would be tortured in El Salvador. A CAT applicant has the burden of
13 establishing that he would “more likely than not” be tortured by or with the
14 acquiescence of government officials. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). To
15 show that torture is “more likely than not,” an applicant “must establish that there
16 is greater than a fifty percent chance . . . that he will be tortured.” Mu-Xing Wang
17 v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003).
4
1 We find no error in the agency’s determination that the evidence established
2 that gang violence and violence between active gangs and police is prevalent in El
3 Salvador, but that the torture and killing of former or suspected gang members,
4 such as Acevedo, is isolated. Acevedo does not point to evidence that
5 compellingly suggests that the agency ignored or mischaracterized evidence in
6 making that determination. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d
7 Cir. 2008) (“[W]hen a petitioner bears the burden of proof, his failure to adduce
8 evidence can itself constitute the ‘substantial evidence’ necessary to support the
9 agency’s challenged decision.”). Accordingly, the agency did not err in
10 concluding that Acevedo failed to establish that he would more likely than not be
11 tortured. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); see Mu-Xing Wang, 320 F.3d
12 at 144.
13 For the foregoing reasons, the petition for review is DENIED. All pending
14 motions and applications are DENIED and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk of Court
5