Ayala-Zavala v. Lynch

13-2926
Ayala-Zavala v. Lynch
BIA
Videla, IJ
A070 018 737
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 ANDRES AYALA-ZAVALA,
15 Petitioner,
16
17 v. 13-2926
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua E. Bardavid, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Luis E. Perez, Assistant
28 Director; Justin R. Markel, Trial
29 Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Andres Ayala-Zavala, a native and citizen of
9 Honduras, seeks review of a July 12, 2013 order of the BIA,
10 affirming the February 7, 2013 decision of an Immigration
11 Judge (“IJ”), which pretermitted asylum and denied
12 withholding of removal and relief under the Convention
13 Against Torture (“CAT”). In re Andres Ayala-Zavala, No.
14 A070 018 737 (B.I.A. July 12, 2013), aff’g No. A070 018 737
15 (Immig. Ct. N.Y. Feb. 7, 2013). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we review the
19 IJ’s decision as modified by the BIA. See Xue Hong Yang v.
20 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
21 The applicable standards of review are well established.
22 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Ayala-Zavala does
2
1 not challenge the pretermission of his asylum application on
2 appeal.
3 I. Impermissible Fact-Finding
4 Ayala-Zavala contends that the BIA engaged in
5 impermissible fact-finding by rejecting the IJ’s
6 determination that he established a likelihood of
7 persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec.,
8 446 F.3d 289, 296 (2d Cir. 2006) (per curiam) (observing
9 that “the BIA may only review the IJ’s factual findings to
10 determine whether they are clearly erroneous, and may not
11 engage in fact-finding, other than taking administrative
12 notice of commonly known facts”); 8 C.F.R. § 1003.1(d)(3).
13 However, the BIA properly found that the IJ’s comments,
14 taken in context, merely referenced the potential for harm
15 stemming from a general wave of violence and did not reflect
16 a conclusion that Ayala-Zavala might face mistreatment on a
17 protected ground. See 8 C.F.R. § 1208.16(b); see also
18 Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008).
19 Indeed, the IJ denied withholding of removal and clearly
20 noted Ayala-Zavala’s failure to establish that he would be
21 identified as a criminal deportee and targeted for
22 persecution on that basis.
3
1 Ayala-Zavala also contends that the BIA engaged in
2 impermissible fact-finding by rejecting the IJ’s
3 determination that his social group of criminal deportees
4 may have been cognizable. Contrary to Ayala-Zavala’s
5 assertion, however, the BIA reasonably found that the IJ’s
6 comments, taken in context, reflected a conclusion that
7 Ayala-Zavala had not shown that he would be perceived to be
8 a member of a particular social group comprised of criminal
9 deportees. That determination is consistent with
10 controlling precedent. See, e.g., Matter of W-G-R-, 26 I. &
11 N. Dec. 208, 216-17 (B.I.A. 2014). Moreover, the “ultimate
12 determination [of] whether a particular social group has
13 been established is a question of law.” Id. at 210.
14 Ayala-Zavala has therefore failed to demonstrate that the
15 BIA engaged in impermissible fact-finding.
16 II. Corroboration
17 Because Ayala-Zavala filed his asylum application in
18 2013, the REAL ID Act applies in this case. See REAL ID Act
19 of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303
20 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); In re
21 S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006). For
22 applications governed by the REAL ID Act, “[t]he testimony
4
1 of the applicant may be sufficient to sustain the
2 applicant’s burden without corroboration, but only if the
3 applicant satisfies the trier of fact that the applicant’s
4 testimony is credible, is persuasive, and refers to specific
5 facts sufficient to demonstrate that the applicant is a
6 refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis
7 added). “Where the trier of fact determines that the
8 applicant should provide evidence that corroborates
9 otherwise credible testimony, such evidence must be provided
10 unless the applicant does not have the evidence and cannot
11 reasonably obtain the evidence.” Yan Juan Chen v. Holder,
12 658 F.3d 246, 252 (2d Cir. 2011) (quoting 8 U.S.C.
13 § 1158(b)(1)(B)(ii))(internal quotation marks omitted).
14 Ayala-Zavala does not contend that his testimony was
15 sufficiently “persuasive” and “specific,” 8 U.S.C. §
16 1158(b)(1)(B)(ii), to sustain his burden of proof without
17 corroboration. Indeed, he had not been to Honduras in over
18 twenty-three years, did not assert that he had suffered past
19 persecution, and had no first-hand knowledge of current
20 conditions there. See Jian Hui Shao v. Mukasey, 546 F.3d
21 138, 162 (2d Cir. 2008) (observing that while “credible
22 testimony was sufficient to demonstrate a genuine subjective
23 fear of future persecution, more was needed to demonstrate
5
1 the objective reasonableness of that fear”); see also Jian
2 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)(per
3 curiam) (holding that “[i]n the absence of solid support in
4 the record for [an applicant’s] assertion that he will be
5 [persecuted], his fear is speculative at best”).
6 Ayala-Zavala nevertheless argues, in reliance on pre-REAL ID
7 Act case law, that the agency erred in requiring him to
8 corroborate his testimony without first considering the
9 country conditions evidence in the record. However, his
10 assertion that the agency failed to consider the country
11 conditions evidence is not supported by the record. See Zhi
12 Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (noting
13 that the agency is not required to expressly “parse or
14 refute on the record each individual argument or piece of
15 evidence offered by the petitioner”) (internal quotation
16 marks omitted); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
17 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the
18 agency “has taken into account all of the evidence before
19 [it], unless the record compellingly suggests otherwise”).
20 Indeed, both the IJ and the BIA explicitly considered the
21 country conditions evidence and reasonably found that it
22 failed to corroborate Ayala-Zavala’s testimony that he
23 believed that the gangs know everything and would learn
6
1 about his criminal convictions in the United States. See
2 Siewe v. Gonzales, 480 F.3d 160, 167-69 (2d Cir. 2007)
3 (finding that “support for a contrary inference—even one
4 more plausible or more natural—does not suggest error”);
5 Xiao Ji Chen, 471 F.3d at 342 (holding that the weight
6 accorded to the applicant’s evidence in immigration
7 proceedings lies largely within the discretion of the
8 agency). Although Ayala-Zavala points to excerpts in the
9 country conditions evidence that he contends constitute
10 circumstantial evidence that foreigners have been targeted
11 for crime due to their perceived wealth, the agency properly
12 found that Ayala-Zavala’s purported social group based on
13 his perceived wealth was improper. See Ucelo-Gomez v.
14 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per
15 curiam)(affirming BIA’s rejection of wealth as basis for
16 membership in particular social group because “the terms
17 ‘wealthy’ and ‘affluent’ are highly relative and
18 subjective”). Moreover, the task of resolving conflicts in
19 the record evidence lies “largely within the discretion of
20 the agency.” Jian Hui Shao, 546 F.3d at 171.
21 Lastly, Ayala-Zavala has waived review of the agency’s
22 denial of CAT relief by failing to meaningfully contest it
23 in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
24 541 n.1 (2d Cir. 2005).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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8