Yucra-Santi v. Lynch ( 2016 )

15-37
Yucra-Santi v. Lynch
BIA
Verrillo, IJ
A200 689 365
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 13th day of September, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MAXIMO ALEJANDRO YUCRA-SANTI, AKA
14 ALEJANDRO JIMINEZ-SANTI,
15
16 Petitioner,
17
18 v. 15-37
19 NAC
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Elyssa N. Williams; Glenn L.
28 Formica, Formica Williams, P.C.,
29 New Haven, Connecticut.
1 FOR RESPONDENT: Benjamin C. Mizer, Principal
2 Deputy Assistant Attorney
3 General; John S. Hogan, Assistant
4 Director; Robbin K. Blaya, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DISMISSED in part and DENIED in part.
14 Petitioner Maximo Alejandro Yucra-Santi, a native and
15 citizen of Peru, seeks review of a December 9, 2014, decision
16 of the BIA, affirming a May 3, 2013, decision of an Immigration
17 Judge (“IJ”) denying Yucra-Santi’s application for asylum,
18 withholding of removal, and relief under the Convention Against
19 Torture (“CAT”). In re Maximo Alejandro Yucra-Santi, No. A200
20 689 365 (B.I.A. Dec. 9, 2014), aff’g No. A200 689 365 (Immig.
21 Ct. Hartford May 3, 2013). We assume the parties’ familiarity
22 with the underlying facts and procedural history in this case.
23 As a threshold matter, we lack jurisdiction to review the
24 agency’s denial of Yucra-Santi’s asylum application as
25 untimely. 8 U.S.C. § 1158(a)(3). Although we retain
26 jurisdiction to review “constitutional claims or questions of
27 law,” 8 U.S.C. § 1252(a)(2)(D), Yucra-Santi challenges only the
2
1 agency’s factual conclusion that there had been no material
2 change in the Shining Path’s activity. Such a claim does not
3 present a legal challenge to the decision but “merely quarrels
4 over the correctness of the factual findings.” Xiao Ji Chen
5 v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
6 Accordingly, we review only the agency’s denial of withholding
7 of removal and CAT relief.
8 Under the circumstances of this case, we have reviewed both
9 the BIA’s and IJ’s decisions “for the sake of completeness.”
10 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
11 Cir. 2006). We review factual findings under the substantial
12 evidence standard, treating them as “conclusive unless any
13 reasonable adjudicator would be compelled to conclude to the
14 contrary.” 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
15 562 F.3d 510, 513 (2d Cir. 2009). “Questions of law, as well
16 as the application of legal principles to undisputed facts, are
17 reviewed de novo.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
18 2014).
19 To establish eligibility for withholding of removal, an
20 applicant must show past persecution, or a likelihood of future
21 persecution, and must establish that the harm was, or will be,
22 “on account of race, religion, nationality, membership in a
3
1 particular social group, or political opinion.” 8 U.S.C.
2 §§ 1101(a)(42), 1231(b)(3); 8 C.F.R. § 1208.16(b)(2);
3 Paloka, 762 F.3d at 195. Accordingly, an applicant has two
4 burdens: he must demonstrate either that he suffered past
5 persecution or has an objectively reasonable fear of future
6 persecution; and he must show that the persecution was, or will
7 be, on account of a protected ground. Ramsameachire v.
8 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
9 Yucra-Santi asserts two social groups: witnesses of a 1984
10 attack in Antilla and his family. We find no error in the
11 agency’s determination that he failed to demonstrate past
12 persecution or a likelihood of future persecution on these
13 bases.
14 First, although we have recognized that a group of
15 cooperating witnesses to war crimes in Kosovo met the criteria
16 for a “particular social group,” Yucra-Santi’s claim is
17 distinguishable. Gashi v. Holder, 702 F.3d 130, 137-38 (2d
18 Cir. 2012). In Gashi, the group shared an immutable
19 characteristic by having the same past experience: witnessing
20 war crimes and cooperating with investigators on the subject
21 of those crimes. Id. at 137. The same immutable
22 characteristics also defined the group’s particularity because
4
1 “[t]he number of persons who have given interviews to, or
2 otherwise cooperated with, official war crimes investigators
3 is finite, and undoubtedly quite limited” and “[a]n
4 individual’s membership is also verifiable.” Id. Further,
5 the group was socially distinct to both potential persecutors
6 and the wider Kosovar society because the names of potential
7 witnesses were published on a list, people in Gashi’s village
8 knew that he had spoken to investigators and criticized him for
9 it, and he was attacked twice and threatened. Id. While
10 Yucra-Santi’s proffered group shares a past experience
11 (witnessing terrorist atrocities in Antilla), and is finite
12 (the number of persons who witnessed the 1984 attack), he did
13 not show that it is socially distinct. Gashi, 702 F.3d at
14 137-38. Yucra-Santi did not present any evidence that Peruvian
15 society or the village of Antilla was aware that he was a witness
16 to the 1984 attack. See Paloka, 762 F.3d at 196 (“[W]hat
17 matters is whether society as a whole views a group as socially
18 distinct, not the persecutor’s perception.”); see also In re
19 M–E–V–G–, 26 I. & N. Dec. 227, 242 (BIA 2014). Instead, he
20 presented evidence that the Antilla villagers believed that he
21 was the son of terrorists, not someone who would be targeted
22 by terrorists.
5
1 Nor did he show that he was targeted in the past on this
2 basis or would be targeted in the future. The 2005 threatening
3 note did not alone constitute past persecution. Huo Qiang Chen
4 v. Holder, 773 F.3d 396, 406 (2d Cir. 2014). Nor was it
5 sufficient to meet his burden of showing that he would likely
6 be targeted on account of his status as a witness. It did not
7 use his name or reference his status as a witness, and there
8 was no evidence, other than his own belief, that the note was
9 from the Shining Path. Jian Xing Huang v. U.S. INS, 421 F.3d
10 125, 129 (2d Cir. 2005) (“In the absence of solid support in
11 the record . . . his fear is speculative at best.”).
12 Second, the agency did not err in determining that
13 Yucra-Santi failed to demonstrate that he was persecuted or
14 would be persecuted in the future on account of his relationship
15 to his immediate family. “The BIA has long recognized that
16 ‘kinship ties’ may form a cognizable shared characteristic for
17 a particular social group.” Vumi v. Gonzales, 502 F.3d 150,
18 155 (2d Cir. 2007). However, while Yucra-Santi was recognized
19 by Antilla villagers in 1994 as the son of terrorists and
20 referred to as a “dead man,” the threats alone are insufficient
21 to demonstrate past harm on account of his family ties. Huo
22 Qiang Chen, 773 F.3d at 406. And, he did not present any other
6
1 evidence that the villagers or the Shining Path meant to harm
2 him because of his ties to his family. He alleged only that
3 the Shining Path would target him as a witness.
4 Accordingly, because Yucra-Santi did not show that he was
5 persecuted or would be persecuted on account of his membership
6 in a particular social group, the BIA did not err in denying
7 his application for withholding. See 8 U.S.C. §§ 1101(a)(42),
8 1231(b)(3); Paloka, 762 F.3d at 195. Although a claim for CAT
9 relief does not require any nexus to a protected ground,
10 Yucra-Santi’s CAT claim fails for largely the same reason. He
11 did not show past harm or a likelihood of future harm on any
12 basis. 8 C.F.R. § 1208.16(c)(2) (requiring alien to show that
13 torture “is more likely than not”). Further, he did not allege
14 that he was targeted or had reason to believe that he would be
15 targeted by or with the acquiescence of the Peruvian government
16 and spoke favorably about his two years of service in the
17 Peruvian military, during which he had no fear. See 8 C.F.R.
18 § 1208.18(a)(1) (defining torture as “pain or suffering [that]
19 is inflicted by or at the instigation of or with the consent
20 or acquiescence of a public official or other person acting in
21 an official capacity.”).
7
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed our
3 review, any stay of removal that the Court previously granted
4 in this petition is VACATED, and any pending motion for a stay
5 of removal in this petition is DISMISSED as moot. Any pending
6 request for oral argument in this petition is DENIED in
7 accordance with Federal Rule of Appellate Procedure 34(a)(2),
8 and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
8