Rodriguez Moscoso v. Garland

20-1903
Rodriguez Moscoso v. Garland
BIA
Conroy, IJ
A201 242 139
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 31st day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 REENA RAGGI,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 RAMIRO RODRIGUEZ MOSCOSO, AKA
15 RAMIRO RODRIGUEZ, AKA RAMIRO
16 MOSCOSO,
17 Petitioner,
18
19 v. 20-1903
20 NAC
21
22 MERRICK B. GARLAND, UNITED
23 STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Nicholas J. Mundy, Esq.,
28 Brooklyn, NY.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Erica B. Miles,
3 Senior Litigation Counsel, Office
4 of Immigration Litigation; Jaclyn
5 E. Shea, Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Ramiro Rodriguez Moscoso, a native and citizen
15 of Colombia, seeks review of a June 4, 2020, decision of the
16 BIA affirming a June 20, 2018, decision of an Immigration
17 Judge (“IJ”) denying his application for asylum, withholding
18 of removal, and relief under the Convention Against Torture
19 (“CAT”). In re Ramiro Rodriguez Moscoso, No. A201 242 139
20 (B.I.A. June 4, 2020), aff’g No. A201 242 139 (Immigr. Ct.
21 N.Y. City June 20, 2018). We assume the parties’ familiarity
22 with the underlying facts and procedural history.
23 We have reviewed the IJ’s decision as supplemented by
24 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
25 Cir. 2005). “The testimony of the applicant may be sufficient
26 to sustain the applicant’s burden without corroboration, but
27 only if the applicant satisfies the trier of fact that the
2
1 applicant’s testimony is credible, is persuasive, and refers
2 to specific facts sufficient to demonstrate that the
3 applicant is a refugee. . . . Where the trier of fact
4 determines that the applicant should provide evidence that
5 corroborates otherwise credible testimony, such evidence must
6 be provided unless the applicant does not have the evidence
7 and cannot reasonably obtain the evidence.” 8 U.S.C.
8 § 1158(b)(1)(B)(ii). The agency may deny relief based on a
9 lack of corroboration if it identifies reasonably available
10 evidence that the applicant should have presented. See id.;
11 Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir. 2018). Before
12 denying a claim solely on an applicant’s failure to provide
13 corroborating evidence, the IJ must, either in the decision
14 or otherwise in the record, “(1) point to specific pieces of
15 missing evidence and show that it was reasonably available,
16 (2) give the applicant an opportunity to explain the omission,
17 and (3) assess any explanation given.” Wei Sun, 883 F.3d at18 31. Advance notice of the need for specific corroboration
19 and an opportunity to gather the evidence are not required,
20 because “the alien bears the ultimate burden of introducing
21 such evidence without prompting from the IJ.” Id. (quotation
22 marks omitted). Where the IJ has identified the missing
3
1 evidence, we may reverse the agency’s decision only if “a
2 reasonable trier of fact is compelled to conclude that such
3 corroborating evidence is unavailable.” 8 U.S.C.
4 § 1252(b)(4); see Yan Juan Chen v. Holder, 658 F.3d 246, 252–
5 53 (2d Cir. 2011). The agency did not err in concluding that
6 Rodriguez Moscoso failed to meet his burden of proof.
7 The agency identified the missing evidence. See Wei Sun,
8 883 F.3d at 31. The IJ noted that Rodriguez Moscoso did not
9 provide (1) letters of supports from his siblings, even though
10 he claimed that he brought them to the United States because
11 of similar threats they received in Colombia and saw them
12 daily; (2) a letter from a friend in Colombia who told him
13 that the Cordillera gang was stronger than before he left;
14 and (3) social media posts that indicated that the Colombian
15 government would not protect him. Rodriguez Moscoso
16 explained that his siblings could not testify because they
17 were afraid of immigration officials, he did not think to ask
18 his siblings for written statements, he did not get a letter
19 from his friend in Colombia because his friend was busy, and
20 he did not document social media posts about the police
21 because he did not realize such evidence was important and he
22 was not good with technology. These explanations do not
4
1 demonstrate that the missing evidence was unavailable. Id.;
2 see also 8 U.S.C. § 1252(b)(4).
3 In addition to the missing evidence, the agency did not
4 err in finding that the evidence that Rodriguez Moscoso did
5 provide from Colombia was insufficient to corroborate his
6 account. Rodriguez Moscoso testified that the gang
7 threatened to kill him and his family and threatened his
8 parents three times. However, the letter from Rodriguez
9 Moscoso’s mother and stepfather did not mention threats
10 against them or that the family had been in danger, and
11 Rodriguez Moscoso’s explanation does not establish that
12 evidence corroborating the threats was unavailable or explain
13 why Rodriguez Moscoso did not ask his mother to supplement
14 her statement. See Wei Sun, 883 F.3d at 31.
15 Because the record does not compel a conclusion that
16 corroborating evidence was unavailable, the agency did not
17 err in finding that Rodriguez Moscoso failed to satisfy his
18 burden of proof. See 8 U.S.C. §§ 1158(b)(1)(B)(ii),
19 1252(b)(4); Wei Sun, 883 F.3d at 28. That finding is
20 dispositive of asylum, withholding of removal, and CAT relief
21 because all three forms of relief were based on the same
22 factual predicate. See Lecaj v. Holder, 616 F.3d 111, 119–
5
1 20 (2d Cir. 2010).
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
6