Lema-KaJuana v. Garland

20-3096
Lema-KaJuana v. Garland
BIA
Wright, IJ
A206 369 531
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 9th day of January, 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 MARIA GLADIS LEMA-KAJUANA,
15 Petitioner,
16
17 v. 20-3096
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; Janice K.
1 Redfern, Senior Litigation
2 Counsel; Gerald M. Alexander,
3 Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Maria Gladis Lema-Kajuana, a native and
12 citizen of Ecuador, seeks review of an August 14, 2020
13 decision of the BIA affirming an August 14, 2018 decision of
14 an Immigration Judge (“IJ”) denying her application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Maria Gladis Lema-
17 Kajuana, No. A 206 369 531 (B.I.A. Aug. 14, 2020), aff’g No.
18 A 206 369 531 (Immig. Ct. N.Y. City Aug. 14, 2018). We assume
19 the parties’ familiarity with the underlying facts and
20 procedural history.
21 We have reviewed both the IJ’s and the BIA’s opinions.
22 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
23 (2d Cir. 2006). The applicable standards of review are well
24 established. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,
2
1 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings
2 for substantial evidence and questions of law de novo). In
3 lieu of filing a brief, the Government has moved for summary
4 denial of the petition for review. Rather than determine if
5 the petition is frivolous as is required for summary denial,
6 see Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995), we construe
7 the Government’s motion as its brief and deny the petition on
8 the merits.
9 To qualify for asylum or withholding of removal, an
10 applicant must show persecution because of a protected
11 ground, and “the conduct at issue must be attributable to the
12 government, whether directly because engaged in by government
13 officials, or indirectly because engaged in by private
14 persons whom the government is unable or unwilling to
15 control.” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020)
16 (quotation marks omitted). The agency concluded that Lema-
17 KaJuana established neither membership in a cognizable social
18 group nor that Ecuadorian authorities would be unable or
19 unwilling to protect her. We decline to reach the first
20 ground because of the change in the law since the time of the
21 agency’s decision. See Matter of A-B-, 28 I. & N. Dec. 3073
1 (A.G. 2021). However, we find no error in the agency’s second
2 and dispositive ground.
3 Substantial evidence supports the agency’s conclusion
4 that Ecuadorian authorities were not unable or unwilling to
5 protect Lema-KaJuana from her former boyfriend. See 8 U.S.C.
6 § 1158(b)(1)(B)(i) (placing burden of proof on applicant).
7 “[T]o demonstrate persecution based on private party
8 violence, an alien must show either that the government
9 condoned the action or, even if it did not, that it was
10 completely helpless to protect the victims.” Scarlett, 957
11 F.3d at 332. The record does not support such a finding.
12 To the contrary, Lema-KaJuana stated that the police
13 apprehended her former boyfriend and detained him for two
14 days until he paid bond, after her parents called to report
15 his assault of her. When her former boyfriend found her in
16 Quito weeks later and grabbed her, he released her when she
17 threatened to call the police. Absent evidence of the
18 government condoning her persecution, or being helpless in
19 preventing it, we decline to conclude that the agency erred.
20 See 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings of
21 fact are conclusive unless any reasonable adjudicator would
4
1 be compelled to conclude to the contrary.”); Jian Hui Shao v.
2 Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a
3 petitioner bears the burden of proof, his failure to adduce
4 evidence can itself constitute the ‘substantial evidence’
5 necessary to support the agency’s challenged decision.”).
6 Lema-KaJuana abandoned her CAT claim by not arguing it
7 aside from a conclusory statement in her opposition to the
8 Government’s motion for summary denial. See Yueqing Zhang
9 v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming
10 claim abandoned where brief “devote[d] only a single
11 conclusory sentence to the argument”). Moreover, the CAT
12 claim fails on the same grounds as asylum and withholding
13 because a CAT applicant must show that it is “more likely
14 than not” that she will be tortured upon removal to a country
15 or that authorities in that country will acquiesce to her
16 torture. 8 C.F.R. § 1208.16(c)(4); see also id. §
17 1208.18(a)(1).
18 For the foregoing reasons, the motion for summary denial
19 is CONSTRUED as the Government’s brief, and the petition for
20
21
5
1 review is DENIED. All other pending motions and applications
2 are DENIED and stays VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
6