Duran De La Rosa v. Garland

20-3130
Duran De La Rosa v. Garland
BIA
Aikman, IJ
A055 969 548
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 17th day of May, two thousand twenty-three.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 WILLIAM J. NARDINI,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 WANDER DURAN DE LA ROSA,
14 Petitioner,
15
16 v. 20-3130
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Marissa A. Prianti, Kerry W.
25 Bretz, Bretz & Coven, LLP, New
26 York, NY.
27
28
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Julie M.
3 Iversen, Senior Litigation
4 Counsel; Arthur L. Rabin, 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 Wander Duran De La Rosa, a native and citizen
14 of the Dominican Republic, seeks review of an August 17, 2020,
15 decision of the BIA affirming a February 21, 2020, decision
16 of an Immigration Judge (“IJ”) denying deferral of removal
17 under the Convention Against Torture (“CAT”). In re Duran
18 De La Rosa, No. A055 969 548 (B.I.A. Aug. 17, 2020), aff’g
19 No. A055 969 548 (Immig. Ct. Batavia Feb. 21, 2020). We
20 assume the parties’ familiarity with the case.
21 The Government has moved to dismiss Duran’s petition as
22 frivolous. Construing the Government’s motion instead as its
23 brief, we deny Duran’s petition on the merits.
24 We have reviewed the IJ’s decision as supplemented by
25 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
2
1 Cir. 2005). We review factfinding for substantial evidence
2 and questions of law and application of law to fact de novo.
3 Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 2021).
4 Under the substantial evidence standard, “we must uphold
5 agency factfinding ‘unless any reasonable adjudicator would
6 be compelled to conclude to the contrary.’” Id. (emphasis
7 omitted) (quoting 8 U.S.C. § 1252(b)(4)(B)). Where, as here,
8 “a petitioner bears the burden of proof, his failure to adduce
9 evidence can itself constitute the ‘substantial evidence’
10 necessary to support the agency’s challenged decision.” Jian
11 Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008).
12 A CAT applicant bears the burden of “establish[ing] that
13 it is more likely than not that he . . . would be tortured if
14 removed to the proposed country of removal.” 8 C.F.R.
15 § 1208.16(c)(2). “Torture” is “an extreme form of cruel and
16 inhuman treatment” and is limited to acts “inflicted by, or
17 at the instigation of, or with the consent or acquiescence
18 of, a public official.” Id. § 1208.18(a)(1), (2). A CAT
19 claim is “too speculative” if “it involves a chain of
20 assumptions”; an applicant is required to show that each link
21 in the chain is more likely than not to occur. Savchuck v.
3
1 Mukasey, 518 F.3d 119, 123–24 (2d Cir. 2008) (quotation marks
2 omitted).
3 Duran alleged that cartel members in the Dominican
4 Republic would try to kill him because they knew or would
5 know he had cooperated with law enforcement in the United
6 States given the relatively light sentence he received
7 following his last conviction and alleged that one former
8 associate threatened to kill him and shot at his brother.
9 Substantial evidence supports the agency’s conclusion
10 that Duran failed to establish that he would more likely than
11 not be tortured if he returned to the Dominican Republic.
12 First, while Duran argued that a former associate believed
13 him to be a snitch and shot at (but missed) his brother, his
14 evidence was not that clear. He did not identify when the
15 shooting occurred, when a phone call between him and the
16 shooter occurred, why he called the shooter in the first
17 place, whether the shooter still believes Duran is a snitch,
18 whether the shooter would have the means and knowledge to
19 harm Duran if he returned, whether the shooter was still
20 involved with such drug cartels, or whether the shooter was
21 still in the Dominican Republic, at liberty, or even alive.
4
1 This record does not compel a conclusion contrary to the
2 agency’s determination that Duran’s fear was “too
3 speculative.” Savchuck, 518 F.3d at 123–24; see also 8
4 U.S.C. § 1252(b)(4)(B). Moreover, Duran’s expert witness
5 testified that Duran could face harm subject to various
6 contingencies, variables, and suppositions. But such hedged
7 and tentative assertions do not fulfill Duran’s burden of
8 showing that each link in the chain is more likely than not
9 to occur and that he would more likely than not face torture
10 in the Dominican Republic. See Savchuck, 518 F.3d at 123–
11 24; Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
12 (“In the absence of solid support in the record . . .
13 [petitioner’s] fear is speculative at best.”).
14 Absent a showing that he will more likely than not be
15 tortured, Duran cannot establish a CAT claim. See 8 C.F.R.
16 § 1208.16(c)(2). We have considered Duran’s remaining
17 arguments and conclude that they are immaterial given the
18 conclusion above or lack merit.
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