Rocha v. Sessions

16-1716
Rocha v. Sessions
BIA
Straus, IJ
A200 026 570
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 17th day of January, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 SOLANGE ROCHA, AKA SOLANGE
14 APARECIDA ROCHA,
15 Petitioner,
16
17 v. 16-1716
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Glenn T. Terk, Wethersfield, CT.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General, Carl McIntyre,
28 Assistant Director, Brooke M.
29 Maurer, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Solange Rocha, a native and citizen of
6 Brazil, illegally reentered the United States after being
7 removed in 2009. She seeks review of a May 2, 2016,
8 decision of the BIA affirming a March 31, 2914, decision of
9 an Immigration Judge (“IJ”) denying Rocha’s application for
10 withholding of removal.1 In re Solange Rocha, No. A200 026
11 570 (B.I.A. May 2, 2016), aff’g No. A200 026 570 (Immig.
12 Ct. Hartford Mar. 31, 2014). We assume the parties’
13 familiarity with the underlying facts and procedural
14 history of this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA and assume, as the
17 BIA did, that Rocha identified a cognizable social group.
18 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
19 522 (2d Cir. 2005). Accordingly, the issue is whether
20 Rocha established that she fell within that social group.
1Rocha does not challenge the denial of relief under the
Convention Against Torture.
2
1 To succeed on a claim for withholding of removal, the
2 applicant “must demonstrate that race, religion,
3 nationality, membership in a particular social group, or
4 political opinion was or will be at least one central
5 reason” for persecuting the applicant. Matter of C-T-L-,
6 25 I. & N. Dec. 341, 348 (BIA 2010) (internal quotation
7 marks omitted); 8 U.S.C. § 1231(b)(3)(A). “We review
8 factual findings under the substantial evidence standard,”
9 while “[q]uestions of law, as well as the application of
10 legal principles to undisputed facts, are reviewed de
11 novo.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
12 The agency did not err in denying relief because, as
13 discussed below, Rocha did not demonstrate that any past
14 harm or feared future harm was or would be on account of
15 her membership in her proposed particular social group.
16 The agency reasonably found that Rocha failed to
17 establish membership in her proposed social group of women
18 in relationships that they are unable to leave. Rocha was
19 in fact able to leave the relationship—she testified that
20 when she was 21, she moved out of her mother’s house and
21 was thereby able to escape her stepfather’s abuse. She
22 also had friends who helped her escape a second time when
3
1 she returned to Brazil, after the abuse resumed when she
2 voluntarily moved back in with her mother and stepfather.
3 In addition, her mother has since thrown her stepfather out
4 of the house, indicating that even if Rocha were to return
5 to Brazil and move back in with her mother, her stepfather
6 would not be there to abuse her.
7 Rocha argues that the agency should have considered the
8 issue of her ability to relocate separately from the issue
9 of whether she was a member of her proposed particular
10 social group.2 The analysis Rocha challenges, however, is
11 the agency’s evaluation of her ability to leave the
12 relationship, which is itself an element of the particular
13 social group that Rocha proposed: “Brazilian wom[en] that
14 cannot leave the relationship.” Pet’r Br. 9. Rocha also
15 asserts that the agency erred by considering events
16 “outside the relevant temporal scope of the inquiry,” i.e.,
17 her leaving home at the age of 21 to live with her
18 boyfriend. Id. at 17. But the agency is required to
19 “consider all the evidence in the record that has probative
2 Rocha argues that the agency should have shifted the burden
of reasonable relocation to the Government, but Rocha did not
establish that she suffered past persecution on account of a
protected ground, so the burden did not shift to the
Government. 8 C.F.R. § 1208.16(b)(3)(i).
4
1 value.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
2 400 (2d Cir. 2005).
3 Rocha argues that her situation is similar to Matter of
4 A-R-C-G-, which involved an applicant who was eventually
5 able to leave her relationship. 26 I. & N. Dec. 388 (BIA
6 2014). But the facts in Matter of A-R-C-G- are
7 distinguishable: the abuser followed his victim when she
8 tried to move out and threatened to kill her if she did not
9 return to him. Id. at 389, 395. Here, although Rocha
10 sometimes saw her stepfather at her boyfriend’s house,
11 there is no evidence that he threatened her or tried to
12 force her to return or that she otherwise felt any pressure
13 to return to him; instead, she testified that she returned
14 to her mother’s home of her own volition because she
15 thought the situation had changed.
16 Rocha further argues that the agency failed to consider
17 the years of abuse she suffered before she moved in with
18 her boyfriend in 2000. To the contrary, the agency
19 expressly made findings regarding that abuse and considered
20 it in determining that she may have established harm rising
21 to the level of persecution, although not on account of a
22 protected ground. Moreover, the abuse that she suffered at
5
1 that time does not take away from the fact that she was
2 able to leave the relationship by moving out of the house,
3 or that her mother has since evicted the stepfather from
4 their home.
5 Rocha was also required to show that she was harmed by
6 a governmental actor or independent actors whom the
7 government is unwilling or unable to control. See Rizal v.
8 Gonzales, 442 F.3d 84, 92 (2d Cir. 2006); Sotelo-Aquije v.
9 Slattery, 17 F.3d 33, 37 (2d Cir. 1994). The agency’s
10 finding that Rocha failed to establish that the Brazilian
11 government was unwilling or unable to protect her is
12 supported by substantial evidence. Rocha testified that
13 she never called the police or otherwise reported her abuse
14 to the authorities. Moreover, the 2012 State Department
15 report reflected that the Brazilian government was working
16 to improve resources for victims and that “police generally
17 enforced the [domestic violence] law effectively.” A 206.
18 Accordingly, the agency did not err in holding that Rocha
19 failed to meet her burden of showing that she was
20 persecuted “by the government . . . or at the hands of an
21 organization or person from which the government cannot or
22 will not protect [her].” Aliyev v. Mukasey, 549 F.3d 111,
6
1 116 (2d Cir. 2008) (internal quotation marks omitted); see
2 also 8 U.S.C. §§ 1101(a)(42), 1231(b)(3)(A).
3 The agency also reasonably held that Rocha failed to
4 meet her burden of showing that she could not reasonably
5 relocate in Brazil. 8 C.F.R. § 1208.16(b)(3)(i). Rocha
6 testified that she had safely relocated twice before, once
7 when she went to live with her boyfriend and once when she
8 stayed with her son’s grandmother. She also testified that
9 she was able to work and earn money in the past. The
10 agency’s holding that Rocha could reasonably relocate was
11 therefore supported by substantial evidence. Id.; see
12 also Singh v. BIA, 435 F.3d 216, 219 (2d Cir.
13 2006) (“Asylum in the United States is not available to
14 obviate re-location to sanctuary in one’s own country.”).
15 Finally, Rocha argues that the agency erred in not
16 granting her humanitarian asylum. But Rocha is subject to
17 a reinstatement order, meaning that she is only eligible
18 for withholding of removal and cannot qualify for asylum.
19 Herrera-Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010);
20 8 C.F.R. § 241.8(e).
21
22
7
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
8