Marte Feliz v. Barr ( 2020 )

19-4118
Marte Feliz v. Barr
BIA
Sagerman, IJ
A208 910 462
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 20th day of August, two thousand twenty.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 PEDRO ANTONIO MARTE FELIZ,
14 Petitioner,
15
16 v. 19-4118
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Pedro Antonio Marte Feliz, pro
24 se, Alvarado, TX.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Bernard A.
28 Joseph, Senior Litigation Counsel;
1 Jaclyn E. Shea, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
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. 1
9 Petitioner Pedro Antonio Marte Feliz, a native and
10 citizen of the Dominican Republic, seeks review of a November
11 29, 2019, decision of the BIA affirming a June 13, 2019,
12 decision of an Immigration Judge (“IJ”) denying Marte Feliz’s
13 application for relief under the Convention Against Torture
14 (“CAT”). In re Marte Feliz, No. A 208 910 462 (B.I.A. Nov.
15 29, 2019), aff’g No. A 208 910 462 (Immig. Ct. Napanoch June
16 13, 2019). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). We review the agency’s legal conclusions de novo
1
Marte Feliz moves for leave to proceed in forma pauperis
(“IFP”). Because the parties have completed briefing
notwithstanding that pending motion, we GRANT the IFP motion
and proceed to consider the petition on the merits.
2
1 and its factual findings under the substantial evidence
2 standard. Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).
3 To receive protection under the CAT, an applicant must
4 “establish that it is more likely than not that he or she
5 would be tortured if removed to the proposed country of
6 removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is defined as
7 any act by which severe pain or suffering, whether physical
8 or mental, is intentionally inflicted on a person . . . by or
9 at the instigation of or with the consent or acquiescence of
10 a public official or other person acting in an official
11 capacity.” Id. § 1208.18(a)(1); see also Pierre v. Gonzales,
12 502 F.3d 109, 114, 118 (2d Cir. 2007). Government
13 acquiescence “requires . . . that government officials know
14 of or remain willfully blind to an act and thereafter breach
15 their legal responsibility to prevent it.” Khouzam v.
16 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004); see 8 C.F.R.
17 § 1208.18(a)(7). The agency must consider “all evidence
18 relevant to the possibility of future torture,” including
19 “[e]vidence of past torture,” evidence regarding the
20 possibility of internal relocation, “[e]vidence of gross,
21 flagrant, or mass violations of human rights,” and “[o]ther
3
1 relevant information regarding conditions in the country of
2 removal.” 8 C.F.R. § 1208.16(c)(3)(i)–(iv). Substantial
3 evidence supports the agency’s conclusion that Marte Feliz
4 did not carry his burden to demonstrate that he was more
5 likely than not to be tortured in the Dominican Republic.
6 See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012)
7 (“A determination of what will occur in the future and the
8 degree of likelihood of the occurrence has been regularly
9 regarded as fact-finding . . . .”).
10 The agency properly considered whether Marte Feliz had
11 previously experienced harm rising to the level of torture as
12 one of the factors relevant to the likelihood that he would
13 be tortured in the future. See 8 C.F.R. § 1208.16(c)(3)(i)
14 (directing the agency to consider “[e]vidence of past
15 torture”). Contrary to Marte Feliz’s argument on appeal, the
16 agency did not treat this factor as dispositive, but rather
17 considered it along with other evidence in determining the
18 likelihood that Marte Feliz would be tortured in the future.
19 Marte Feliz does not argue that the beating he experienced
20 rose to the level of torture, and he did not exhaust that
21 argument before the agency. See Lin Zhong v. U.S. Dep’t of
4
1 Justice, 480 F.3d 104, 119–20 (2d Cir. 2007) (generally
2 limiting review to issues raised before the BIA); LoSacco v.
3 Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (issues not
4 raised in an appellate brief are considered abandoned and are
5 not considered on appeal).
6 The agency also reasonably concluded that Marte Feliz
7 had not established that this harm was at the direction of
8 government officials. Marte Feliz alleged that he discovered
9 that two government officials (Jose and Abraham Perez) were
10 engaged in a fraud in which they would order unnecessary
11 supplies from the medical supply company where he worked and
12 then resell them. He reported this fraud to his supervisor,
13 who told him not to take any action, and he was then beaten
14 by three men who threatened him not to reveal the fraud. He
15 did not explain why he believed that Jose and Abraham Perez,
16 rather than his supervisor or someone else at his company,
17 ordered the beating. He also did not corroborate his claims
18 that Jose and Abraham Perez were government officials at the
19 time of his attack or show that they remained government
20 officials at the time of his hearing, and his testimony was
21 vague as to their positions. See Chuilu Liu v. Holder, 575
5
1 F.3d 193, 196 (2d Cir. 2009) (IJ may require corroboration of
2 even credible testimony).
3 Even assuming that his beating was ordered by government
4 officials, Marte Feliz did not establish that they had any
5 continued interest in harming him, given the years that had
6 passed since that 2011 beating, the fact that he no longer
7 worked at the company where the alleged fraud took place, and
8 the absence of evidence of ongoing fraud. See Jian Xing
9 Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (fear is
10 not objectively reasonable if it lacks “solid support” in the
11 record and is merely “speculative at best”). Marte Feliz
12 alleged that Jose and Abraham Perez had orchestrated the
13 forced retirement of his parents, who worked for the national
14 government, after he fled the Dominican Republic. But Marte
15 Feliz did not explain how he knew that Jose and Abraham Perez
16 were involved, and he personally had no further contact with
17 them or his former employer after 2011. Marte Feliz did not
18 claim that he would take further steps to expose their
19 wrongdoing if he returned to the Dominican Republic.
20 Finally, Marte Feliz also failed to establish that the
21 police would acquiesce to his torture. He argues that the
6
1 agency ignored testimony that the police refused to help him,
2 but the agency reasonably concluded that his exchange with
3 the police, which reflected concern for Marte Feliz’s safety
4 if he named his attackers, did not establish that the police
5 refused to help him or would acquiesce to his torture. Marte
6 Feliz also argues that country conditions evidence
7 corroborates his claim that corrupt government officials act
8 with impunity in the Dominican Republic. While the evidence
9 reflects some instances of torture in other contexts and
10 indicates that corruption is widespread and regularly goes
11 unpunished, it does not include any instances of torture used
12 to prevent exposure of corrupt activities or show that the
13 police acquiesce to such torture.
14 For the foregoing reasons, the petition for review is
15 DENIED. Marte Feliz’s motion for IFP status is GRANTED. All
16 other pending motions and applications are DENIED and stays
17 VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
7