Baranovic v. Garland

20-1478
Baranovic v. Garland
BIA
Straus, IJ
A208 112 914/915/916/917
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 13th day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 RAYMOND J. LOHIER, JR.,
9 MYRNA PÉREZ,
10 ALISON J. NATHAN,
11 Circuit Judges.
12 _____________________________________
13
14 JAN BARANOVIC, ERIKA
15 BARANOVICOVA, AKA ERICA
16 BARANOVICOVA, JAN BARANOVIC,
17 J.B.,
18 Petitioners,
19
20 v. 20-1478
21 NAC
22 MERRICK B. GARLAND, UNITED
23 STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27
1 FOR PETITIONERS: Justin Conlon, Law Offices of
2 Justin Conlon, Hartford, CT
3
4 FOR RESPONDENT: Brian Boynton, Acting Assistant
5 Attorney General; Melissa Neiman-
6 Kelting, Assistant Director;
7 Giovanni B. Di Maggio, Trial
8 Attorney, Office of Immigration
9 Litigation, United States
10 Department of Justice, Washington,
11 DC
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioners Jan Baranovic (“Jan Sr.”), Erika
17 Baranovicova, and their children Jan (“Jan Jr.”) and J.B.,
18 natives and citizens of Slovakia, seek review of an April 13,
19 2020 decision of the BIA affirming an April 3, 2018 decision
20 of an Immigration Judge (“IJ”) denying their applications for
21 asylum and withholding of removal. 1 In re Jan Baranovic,
22 Erika Baranovicova, Jan Baranovic, J.B., Nos. A 208 112
23 914/915/916/917 (B.I.A. Apr. 13, 2020), aff’g No. A 208 112
24 914/915/916/917 (Immig. Ct. Hartford Apr. 3, 2018). We
1Petitioners have explicitly waived relief under the Convention
Against Torture.
2
1 assume the parties’ familiarity with the underlying facts and
2 procedural history.
3 We have considered both the IJ’s and the BIA’s decisions
4 “for the sake of completeness.” Wangchuck v. Dep’t of
5 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
6 factual findings for substantial evidence and questions of
7 law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513
8 (2d Cir. 2009).
9 Petitioners sought asylum and withholding of removal
10 based on the fact that Jan Jr. was targeted by a pedophile
11 ring in Slovakia. They asserted that Jan Jr. had been
12 persecuted in the past on account of his sexual orientation
13 and membership in a particular social group of witnesses in
14 criminal proceedings, that he had a well-founded fear of
15 persecution on those grounds, and that the family would be
16 targeted because of their relationship to him. Petitioners
17 had the burden to show either past persecution or a well-
18 founded fear of future persecution on account of “race,
19 religion, nationality, membership in a particular social
20 group, or political opinion.” 8 U.S.C. §§ 1101(a)(42),
21 1158(b)(1)(B)(i), 1231(b)(3). “To qualify as persecution the
3
1 conduct at issue must be attributable to the government,
2 whether directly because engaged in by government officials,
3 or indirectly because engaged in by private persons whom the
4 government is unable or unwilling to control.” Scarlett v.
5 Barr, 957 F.3d 316, 328 (2d Cir. 2020) (quotation marks
6 omitted).
7 As an initial matter, Jan Jr.’s parents and brother do
8 not challenge in their brief to this Court the agency’s
9 conclusion that the family failed to meet its burden for
10 asylum and withholding because they did not suffer past harm
11 or establish a well-founded fear of future harm. They have
12 therefore abandoned any challenge to the agency’s conclusion
13 that they failed to meet their burden of proof. See Yueqing
14 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
15 2005) (deeming claims not discussed in brief abandoned).
16 Moreover, the agency reasonably concluded that Petitioners
17 failed to show that the government of Slovakia would be unable
18 or unwilling to protect them from the pedophile ring. The
19 record reflects that the men who targeted Jan Jr. found their
20 underage victims, including Jan Jr., in a chat room and abused
21 them by enticing them into sexual relationships and
4
1 soliciting explicit photographs. Slovak authorities
2 investigated and convicted some abusers. Although Jan Jr.
3 alleged that he subsequently received threatening texts, he
4 did not change his phone number, close his chat room accounts,
5 or report the texts to police. While Jan Sr. later informed
6 an investigator of the messages, the investigator did not
7 take any action because Jan Jr. was no longer under the age
8 of consent. The investigator did warn the family about
9 possible blackmail attempts, but no such attempts were made.
10 While Jan Sr. testified that the government of Slovakia was
11 not adequately investigating pedophiles, the authorities were
12 investigating the ring before Jan Jr.’s abuse began, and they
13 alerted Jan Jr.’s parents to what was happening. The 2016
14 State Department report on Slovakia notes official corruption
15 and low trust in the judicial system, but it also notes that
16 Slovakia has strict laws against sexual exploitation of
17 children and prohibits discrimination based on sexual
18 orientation. On this record, the agency reasonably concluded
19 that Petitioners failed to show that authorities were unable
20 or unwilling to protect them. See Scarlett, 957 F.3d at 328.
21
5
1 Petitioners argue that remand is warranted because Matter
2 of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), vacated prior
3 decisions setting out a heightened standard for showing that
4 the government was unable or unwilling to control private
5 conduct. The vacatur does not merit remand in this case.
6 First, the agency relied on authority pre-dating the vacated
7 decisions in concluding that Petitioners failed to show that
8 the government would be unable or unwilling to protect them.
9 Second, the standard set out in the vacated cases was not a
10 change from prior case law. See Scarlett, 957 F.3d at 333.
11 And regardless of the applicable standard, the facts here
12 show that the government did act to protect Jan Jr.
13 As the above-mentioned grounds are dispositive of
14 Petitioners’ asylum and withholding of removal claims, we
15 need not reach the agency’s findings related to Petitioners’
16 proposed particular social groups or nexus to a protected
17 ground, and remand for further consideration is not
18 warranted. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
19 (“As a general rule courts and agencies are not required to
20 make findings on issues the decision of which is unnecessary
21 to the results they reach.”).
6
1 For the foregoing reasons, the petition for review and
2 motion to remand are DENIED. All other pending motions and
3 applications are DENIED and stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7