Vivares-Mazo v. Lynch

15-1493
Vivares-Mazo v. Lynch
BIA
Poczter, IJ
A088 077 226
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
19th day of December, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JUAN ESTEBAN VIVARES-MAZO,
Petitioner,
v. 15-1493
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Rebecca R. Press, Central American Legal
Assistance, Brooklyn, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John S. Hogan,
Assistant Director; Robbin K. Blaya, Trial
Attorney, Office of Immigration Litigation,
U.S. Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Juan Esteban Vivares-Mazo (“Vivares”), a native
and citizen of Colombia, seeks review of an April 7, 2015,
decision of the BIA affirming a July 18, 2013, decision of an
Immigration Judge (“IJ”) denying Vivares’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Juan Esteban Vivares-Mazo, No.
A088 077 226 (B.I.A. Apr. 7, 2015), aff’g No. A088 077 226 (Immig.
Ct. N.Y. City July 18, 2013). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. 8 U.S.C. § 1252(b)(4); Chuilu Liu v.
Holder, 575 F.3d 193, 194-96 (2d Cir. 2009).
An applicant for asylum has the burden to show either past
persecution, which is harm rising to the level of persecution
that is on account of a protected ground, or a well-founded fear
of future persecution, which requires a showing that the fear
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is subjectively credible and objectively reasonable. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
Although the applicant may meet this burden with credible
testimony alone, the agency may require corroboration despite
otherwise credible testimony, and deny an application based on
the failure to provide such corroboration, if the corroborating
evidence is reasonably available. 8 U.S.C.
§ 1158(b)(1)(B)(ii); Yan Juan Chen v. Holder, 658 F.3d 246,
251-52 (2d Cir. 2011). Before denying a claim solely based on
an applicant’s failure to provide corroborating evidence, the
IJ must, either in her decision or otherwise in the record,
(1) identify the missing evidence, and explain why it was
reasonably available; (2) provide an opportunity for the
applicant to explain the omission; and (3) assess any
explanation given. Chuilu Liu, 575 F.3d at 198. “[W]e review
with substantial deference an IJ’s determination that
corroborating evidence was reasonably available to the
applicant.” Id. at 197-98; see also 8 U.S.C. § 1252(b)(4) (“No
court shall reverse a determination made by a trier of fact with
respect to the availability of corroborating evidence . . .
unless the court finds . . . that a reasonable trier of fact
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is compelled to conclude that such corroborating evidence is
unavailable.”).
Here, it was reasonable for the agency to require
corroboration because Vivares’s testimony, although
consistent, and therefore not incredible, was vague and
unpersuasive. See § 1158(b)(1)(B)(ii) (“The testimony of the
applicant may be sufficient to sustain the applicant’s burden
without corroboration, but only if the applicant satisfies the
trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee.”); see also Chuilu
Liu, 575 F.3d at 196-97. For example, Vivares’s testimony
concerning the City Council political campaigns of the sister
of his ex-girlfriend lacked detail, given his assertion that
he was a high-ranking person in the campaign. Therefore,
because Vivares’s testimony was unpersuasive, the agency did
not err by requiring reasonably available corroborating
evidence. See § 1158(b)(1)(B)(i); Chuilu Liu, 575 F.3d at
196-97.
Moreover, the agency properly identified the missing
evidence, finding that, in order for Vivares to corroborate his
claimed political activities and past threats from the Aguilas
4
Negras, he needed to produce (1) a letter from the candidate
that he worked for discussing the purported threats received
during her campaigns; (2) flyers or other materials from the
campaigns; and (3) a statement or testimony from his mother,
who lived with him in New York. Vivares was provided an
opportunity to explain why this evidence was missing, but his
explanations do not compel a reasonable fact finder to conclude
that the evidence was unavailable. See Chuilu Liu, 575 F.3d at
198 (“[T]he alien bears the ultimate burden of introducing such
evidence without prompting from the IJ.”). He contacted the
candidate via Facebook to ask for a letter, but it stated only
that he had worked on the campaigns. His explanation that he
had lost touch with the candidate’s sister (his ex-girlfriend)
failed to explain why he could not contact the candidate via
Facebook for a second letter to corroborate his claim of
receiving threats. Moreover, he conceded that the candidate had
posted on Facebook about the campaigns, but he did not explain
why those Facebook posts were unavailable. And, even if his
mother did not appear at his immigration hearing, he did not
say why she could not provide a letter.
Accordingly, we find no error in the agency’s conclusion
that Vivares did not adequately corroborate his claims of past
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persecution and fear of future persecution. See 8 U.S.C.
§ 1252(b)(4). This lack of corroboration prevented Vivares
from meeting his burden to show either past persecution or a
well-founded fear of future persecution. Vivares suffered no
past harm, other than threats, and he had no evidence to
corroborate his belief that he was targeted for his political
activities. See Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412
(2d Cir. 2006). Nor did he establish an objectively reasonable
fear of future persecution: there was no evidence that the
government was unable or unwilling to protect him, given the
lack of past harm and the arrest and conviction of his attacker.
See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006). Vivares’s contention that one arrest does not show
that Colombia can control the Aguilas Negras is unavailing given
the lack of objective evidence that his attacker was a member
of any group. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,
129 (2d Cir. 2005). These corroboration and burden findings are
dispositive of asylum, withholding of removal, and CAT relief
because all three claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).
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For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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