Traore v. Garland ( 2023 )

21-6307
Traore v. Garland
BIA
Aikman, IJ
A216 083 122
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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 10th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 SUSAN L. CARNEY,
8 STEVEN J. MENASHI,
9 ALISON J. NATHAN,
10 Circuit Judges.
11 _____________________________________
12
13 OUSMANE TRAORE,
14 Petitioner,
15
16 v. 21-6307
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ousmane Traore, pro se, Batavia, NY.
24
1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
2 Attorney General; Stephen J. Flynn, Assistant
3 Director; Robert Michael Stalzer, Trial
4 Attorney, Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Ousmane Traore, a native and citizen of Burkina Faso, seeks
11 review of a May 10, 2021 decision of the BIA affirming a December 3, 2020 decision
12 of an Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Traore,
14 No. A 216 083 122 (B.I.A. May 10, 2021), aff’g No. A 216 083 122 (Immig. Ct. Batavia
15 Dec. 3, 2020). We assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 We have reviewed the IJ’s decision as modified by the BIA, i.e., without the
18 findings regarding withholding of removal that the BIA declined to reach. See
19 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
20 applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B)
21 (“[T]he administrative findings of fact are conclusive unless any reasonable
2
1 adjudicator would be compelled to conclude to the contrary.”); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for substantial
3 evidence and questions of law and application of law to fact de novo).
4 As a preliminary matter, we agree with the Government that Traore has
5 abandoned his asylum claim by failing to address, in his opening brief, the
6 agency’s ruling that the claim was untimely filed more than a year after his entry
7 and that no exception to the filing deadline applied. LoSacco v. City of Middletown,
8 71 F.3d 88, 92–93 (2d Cir. 1995) (explaining that pro se appellant abandoned issues
9 not raised in his brief). Traore has likewise abandoned his claims premised on
10 feared harm based on his religion or perpetrated by Islamic extremist groups by
11 failing to mention them in his brief. See id. What remains before us are Traore’s
12 withholding of removal and CAT claims, both premised on the risk that he would
13 be targeted by government authorities because of his father’s political activities.
14 As to withholding of removal, Traore argues that the BIA erred in
15 concluding that he waived that claim by failing to “meaningfully” challenge the
16 IJ’s denial of that form of relief in his appellate brief. The BIA’s conclusion was
17 reasonable because, while Traore’s brief contained several arguments that
18 implicitly related to the denial of withholding, he failed to challenge several
3
1 dispositive grounds that the IJ gave for denying that form of relief.
2 To establish eligibility for withholding of removal, an applicant has the
3 burden to demonstrate either past harm rising to the level of persecution or that
4 future persecution is “more likely than not” to occur, and that a protected ground
5 is “one central reason” for the past or feared harm. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
6 1231(b)(3)(A), (C); 8 C.F.R. § 1206.16(b); Quituizaca v. Garland, 52 F.4th 103, 109–14
7 (2d Cir. 2022) (upholding BIA’s application of “one central reason” standard to
8 withholding of removal). Because Traore did not challenge the conclusion that
9 he failed to show past harm rising to the level of persecution, he could not argue
10 that he was entitled to a presumption of future persecution. See 8 C.F.R.
11 § 1208.16(b)(1), (2). Accordingly, to meaningfully challenge withholding of
12 removal on appeal to the BIA, he had to argue that he would “more likely than
13 not” be targeted on account of his political opinion if he returned to Burkina Faso.
14 Id. However, he did not respond to the IJ’s reasoning that he was not involved in
15 his father’s political activities and there was no reason to believe his father’s
16 political opinions were imputed to him, or that the basis for his testimony about
17 this relationship was a series of assumptions and rumors. Accordingly, the
18 agency reasonably found that Traore waived his claim for withholding of removal.
4
1 To be eligible for CAT relief, an applicant has the burden to show that he
2 would “more likely than not” be tortured by or with the acquiescence of
3 government officials. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a), 1208.18(a)(1); Khouzam
4 v. Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004). In assessing whether an applicant
5 has satisfied his burden of proof, the agency must consider all evidence relevant
6 to the possibility of future torture, including evidence of past torture. 8 C.F.R.
7 § 1208.16(c)(3). The applicant “will never be able to show that he faces a more
8 likely than not chance of torture if one link in the chain cannot be shown to be
9 more likely than not to occur. It is the likelihood of all necessary events coming
10 together that must more likely than not lead to torture, and a chain of events
11 cannot be more likely than its least likely link.” Savchuck v. Mukasey, 518 F.3d 119,
12 123 (2d Cir. 2008) (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)).
13 Substantial evidence supports the agency’s conclusion that Traore failed to
14 satisfy his burden for establishing CAT relief. First, the agency reasonably
15 concluded that Traore was not previously tortured. He testified that he was
16 assaulted during his father’s first arrest, resulting in swelling to his face and a
17 bloody nose, but he did not provide sufficient detail about the nature and severity
18 of the assault to compel the conclusion that it amounted to “an extreme form of
5
1 cruel and inhuman treatment.” 8 C.F.R. § 1208.18(a)(2) (defining “torture” and
2 explaining that the definition “does not include lesser forms of cruel, inhuman or
3 degrading treatment or punishment”); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d
4 Cir. 2006) (holding that “torture requires proof of something more severe than the
5 kind of treatment that would suffice to prove persecution”).
6 Second, substantial evidence also supports the finding that Traore’s fear that
7 government officials are more likely than not to torture him because of his father’s
8 political beliefs is speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
9 Cir. 2005) (per curiam) (“In the absence of solid support in the record . . . [an
10 applicant’s] fear is speculative at best.”). Even assuming Traore presented
11 sufficient evidence to establish that his father was harmed because of his political
12 opinion, it does not follow that Traore can show that he himself is more likely than
13 not to be harmed in the future based on his father’s political opinion. Traore
14 testified that he never participated in political activities and that he is no longer in
15 contact with his family, and a reasonable factfinder could conclude that he was
16 previously harmed because he was present when his father was being arrested,
17 not because of an imputed political opinion. Traore did not allege there were any
18 threats or attempts to harm him during the period of more than a year that he
6
1 remained in Burkina Faso after the 2014 beating. See Mu Xiang Lin v. U.S. Dep’t of
2 Justice, 432 F.3d 156, 160 (2d Cir. 2005) (requiring “particularized evidence” to
3 support a CAT claim).
4 For the foregoing reasons, the petition for review is DENIED. All pending
5 motions and applications are DENIED and stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
7