Alfaro Perez v. Garland

20-4044
Alfaro Perez v. Garland
BIA
Nelson, IJ
A209 440 119
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 26th day of April, two thousand twenty-
5 three.
6
7 PRESENT:
8 DEBRA ANN LIVINGSTON,
9 Chief Judge,
10 STEVEN J. MENASHI,
11 EUNICE C. LEE,
12 Circuit Judges.
13 _____________________________________
14
15 SANTOS E. ALFARO PEREZ,
16 Petitioner,
17
18 v. 20-4044
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25
26 FOR PETITIONER: Bruno Joseph Bembi, Hempstead,
27 NY.
28
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Jonathan
3 Robbins, Senior Litigation
4 Counsel; Andrew B. Insenga, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Santos E. Alfaro Perez, a native and citizen
14 of El Salvador, seeks review of a November 10, 2020 decision
15 of the BIA affirming an August 28, 2018 decision of an
16 Immigration Judge (“IJ”) denying her application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Santos E. Alfaro Perez, No.
19 A 209 440 119 (B.I.A. Nov. 10, 2020), aff’g No. A 209 440 119
20 (Immigr. Ct. N.Y. City Aug. 28, 2018). We assume the parties’
21 familiarity with the underlying facts and procedural history.
22 We review the IJ’s decision as modified by the BIA,
23 considering only whether Alfaro Perez established that the
24 Salvadoran government is unable or unwilling to protect her
25 or would acquiesce to her torture. See Xue Hong Yang v. U.S.
2
1 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review
2 factfinding for substantial evidence and questions of law and
3 the application of law de novo. Scarlett v. Barr, 957 F.3d
4 316, 326 (2d Cir. 2020). “[T]he administrative findings of
5 fact are conclusive unless any reasonable adjudicator would
6 be compelled to conclude to the contrary.” 8 U.S.C.
7 § 1252(b)(4)(B).
8 For asylum and withholding of removal, Alfaro Perez had
9 the burden to show past persecution or a well-founded fear or
10 likelihood of future persecution. See 8 C.F.R.
11 §§ 1208.13(a)–(b), 1208.16(b)(1)–(2). 1 “To qualify as
12 persecution the conduct at issue must be attributable to the
13 government, whether directly because engaged in by government
14 officials, or indirectly because engaged in by private
15 persons whom the government is unable or unwilling to
16 control.” Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021)
17 (internal quotation marks omitted). “Under the unwilling-
18 or-unable standard, a finding of persecution ordinarily
19 requires a determination that government authorities, if they
1 Citations are to the version of the regulations in effect
at the time of the agency’s decisions.
3
1 did not actually perpetrate or incite the persecution,
2 condoned it or at least demonstrated a complete helplessness
3 to protect the victims.” Id. at 114–15 (internal quotation
4 marks omitted). Similarly, for CAT relief, Alfaro Perez had
5 the burden to show that she would “more likely than not” be
6 tortured “at the instigation of, or with the consent or
7 acquiescence of, a public official . . . or other person
8 acting in an official capacity.” 8 C.F.R. §§ 1208.16(c)(2),
9 1208.18(a)(1). “Acquiescence of a public official requires
10 that the public official, prior to the activity constituting
11 torture, have awareness of such activity and thereafter
12 breach his or her legal responsibility to intervene to prevent
13 such activity.” Id. § 1208.18(a)(7).
14 Alfaro Perez testified that during a six-year
15 relationship, her former domestic partner beat her when he
16 drank, raped her, resulting in her first pregnancy, and
17 threatened to kill her. She left him when he threw a knife
18 at her, and he was arrested and detained for three days after
19 her mother called the police. When he continued to seek her
20 out and threaten her, she obtained a two-year order of
21 protection from a Salvadoran court. Her former partner found
4
1 her after that order expired. She believes he killed her new
2 partner, but she never reported that suspicion or further
3 threats to the authorities. He stopped trying to see her
4 after she moved a half hour away, but she believes he called
5 her and threatened to kill her.
6 The fact that her former partner was arrested, detained,
7 and later subject to a two-year restraining order undermines
8 Alfaro Perez’s claim that the Salvadoran government is
9 “unwilling or unable” to protect her. Given this evidence
10 that the authorities reacted each time she complained, that
11 her former partner did not violate the order of protection
12 while it was in place, and that she did not report his later
13 actions to the authorities, she has not demonstrated that the
14 government would refuse to or be unable to help her or that
15 government officials would more likely than not acquiesce to
16 her torture. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,
17 129 (2d Cir. 2005) (“Absent solid support in the record . .
18 . [an applicant’s] fear is speculative at best.”).
19
20
5
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
6