Armas-Armas v. Garland ( 2023 )

20-3042
Armas-Armas v. Garland
BIA
Laforest, IJ
A206 373 541
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
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 1st day of August, two thousand twenty-
5 three.
6
7 PRESENT:
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 ALISON J. NATHAN,
11 Circuit Judges.
12 _____________________________________
13
14 SEGUNDO PABLO ARMAS-ARMAS,
15 Petitioner,
16
17 v. 20-3042
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Borja, Esq., Jackson
25 Heights, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
28 Attorney General; Bernard A.
1 Joseph, Senior Litigation Counsel;
2 Enitan O. Otunla, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Segundo Pablo Armas-Armas, a native and
11 citizen of Ecuador, seeks review of an August 10, 2020
12 decision of the BIA affirming a September 4, 2018 decision of
13 an Immigration Judge (“IJ”) denying his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Segundo Pablo
16 Armas-Armas, No. A 206 373 541 (B.I.A. Aug. 10, 2020), aff’g
17 No. A 206 373 541 (Immig. Ct. N.Y. City Sept. 4, 2018). We
18 assume the parties’ familiarity with the underlying facts and
19 procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). We review factual findings for substantial
23 evidence and questions of law de novo. See Paloka v. Holder,
24 762 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative
2
1 findings of fact are conclusive unless any reasonable
2 adjudicator would be compelled to conclude to the contrary.”
3 8 U.S.C. § 1252(b)(4)(B).
4 We deny the petition because the record supports the
5 agency’s conclusion that conditions in Ecuador have changed
6 such that Armas-Armas no longer has a well-founded fear of
7 persecution or torture, and he has both failed to exhaust and
8 waived any challenge to that determination. Applicants for
9 asylum and withholding of removal must establish past
10 persecution or a well-founded fear of future persecution.
11 8 C.F.R. §§ 1208.13(b), 1208.16(b). Past persecution
12 creates a rebuttable presumption of future “persecution on
13 the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1);
14 see also id. § 1208.16(b)(1) (same as to withholding). “That
15 presumption may be rebutted if an . . . immigration judge”
16 finds “by a preponderance of the evidence” that “[t]here has
17 been a fundamental change in circumstances such that the
18 applicant no longer has a well-founded fear of persecution.”
19 Id. § 1208.13(b)(1); id. § 1208.13(b)(1)(ii) (placing burden
20 to rebut presumption on the Government). An applicant for
21 CAT relief has the burden to establish that he would “more
3
1 likely than not” be tortured. Id. § 1208.16(c)(2). To
2 determine the likelihood of torture, the agency may consider,
3 among other things, “relevant information regarding
4 conditions in the country of removal.” Id. § 1208.16(c)(3).
5 Armas-Armas alleged past persecution in Ecuador on
6 account of his affiliation with a political party that
7 supported the rights of indigenous people. However, he
8 conceded that a new president has been elected whose policies
9 are favorable to indigenous people, and that he can return
10 and live safely in Ecuador. On this record, the
11 preponderance of the evidence reflects that Armas-Armas no
12 longer has a fear of persecution or torture. See Lecaj v.
13 Holder, 616 F.3d 111, 115 (2d Cir. 2010) (requiring “an
14 individualized analysis of how changed conditions would
15 affect the specific petitioner’s situation” (quotation marks
16 omitted)).
17 Moreover, Armas-Armas did not challenge the IJ’s finding
18 of changed circumstances on appeal to the BIA and does not
19 challenge it here. Accordingly, the issue is both
20 unexhausted and waived. See Yueqing Zhang v. Gonzales, 426
21 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (deeming abandoned
4
1 claims not argued in brief); Foster v. INS, 376 F.3d 75, 78
2 (2d Cir. 2004) (requiring applicant to raise issues before
3 the BIA to preserve them for judicial review).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
5