14-2145
    Jara v. Lynch
                                                                                 BIA
                                                                            Straus, IJ
                                                                        A200 689 312
                         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 26th day of April, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    ELIZABETH SAENZ JARA, AKA
    ELIZABETH CRISTINA SAENZ JARA,
    AKA ELIZABETH SAENZ,
             Petitioner,

                    v.                                   14-2145
                                                         NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Robert C. Ross, West Haven, CT.
FOR RESPONDENT:              Joyce R. Branda, Assistant Attorney
                             General; Francis W. Fraser, Senior
                             Litigation Counsel; W. Daniel Shieh,
                             Trial Attorney, Office of
                             Immigration Litigation, United
                             States 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.

    Elizabeth Saenz Jara, a native and citizen of Peru,

seeks   review    of    a   May   20,    2014   decision   of    the   BIA

affirming the January 19, 2012, decision of an Immigration

Judge   (“IJ”),        denying    her     application      for    asylum,

withholding      of    removal,    and    relief    pursuant     to    the

Convention Against Torture (“CAT”).             In re Elizabeth Saenz

Jara, No. A200 689 312 (B.I.A. May. 20, 2014), aff’g No.

A200 689 312 (Immig. Ct. N.Y. City Jan. 19, 2012).                      We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the decisions of the IJ and the BIA “for the sake of

completeness.”         Wangchuck v. Dep’t of Homeland Sec., 

, 528 (2d Cir. 2006).            The applicable standards of



                                    2
review are well established.              See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).

    Absent past persecution, to establish an independent

fear of persecution, an applicant must show that it is more

likely than not that his or her “life or freedom would be

threatened in [that] country because of [his or her] race,

religion, nationality, membership in a particular social

group, or political opinion.”               8 C.F.R. § 1208.16(b)(1);

Ramsameachire     v.    Ashcroft,     

,   178   (2d    Cir.

2004).    An applicant is “‘not require[d] ... to provide

evidence that he or she would be singled out individually

for such persecution’” provided the applicant proves the

existence of “‘a pattern or practice of persecution of a

group of persons similarly situated to the applicant on

account   of   race,    religion,     nationality,       membership       in   a

particular     social   group,   or       political    opinion,”    and    the

applicant establishes her “inclusion in and identification

with such group.’”       Kyaw Zwar Tun v. INS, 

, 565

(2d Cir. 2006) (quoting 8 C.F.R. § 208.16(b)(2)).

    The agency did not err in finding that Jara failed to

meet her burden to show that she would more likely than not

be persecuted in Peru on account of being homosexual.                      The



                                      3
2010    U.S.    Department      of    State     Country    Reports       on    Human

Rights Practices for Peru (“Human Rights Report”) stated

that homosexuals were “sometimes harassed and abused” by

government authorities, including police, and were subject

to    discrimination.           However,      the     report     also    described

various efforts being made to alleviate the problem.                             The

agency    did    not    err    in    giving    more     weight    to     the   Human

Rights Report—which did not show widespread mistreatment—

than various articles that gave inconsistent accounts of

the    level     of     discrimination          and     incidents        involving

homosexuals in Peru.                See Xiao Ji Chen v. U.S. Dep’t of

Justice, 

, 341-42 (2d Cir. 2006) (noting that a

country    report       from    the     U.S.     Department       of     State    is

“usually       the    best     available       source    of    information        on

country conditions” and that the weight of evidence “lies

largely”       within    the    agency’s       discretion        (citations      and

internal quotation marks omitted)); Siewe v. Gonzales, 

,    167     (2d    Cir.    2007)    (“[W]here        there    are    two

permissible views of the evidence, the fact finder’s choice

between them cannot be clearly erroneous”).

       While the agency did not make an explicit credibility

determination, we may deem this requirement satisfied if a



                                         4
credibility finding can be gleaned from the record.                              Zaman

v. Mukasey, 

, 237 (2d Cir. 2008) (concluding

that “the IJ’s analysis in the present case was sufficient

to   qualify     as    an   ‘explicit         credibility          finding’”     even

without    a   clear     adverse    credibility             finding).       Because

there    was   no     indication    that          Jara’s    testimony      had   been

called    into      question,      and       the     agency        considered     her

testimony about the treatment of homosexuals in Peru, we

find    the    agency’s     analysis         sufficient       to    qualify      as   a

finding that Jara was credible.                       See 

no

indication here that the agency failed to consider Jara’s

testimony or her documentary evidence.                       See Xiao Ji 

n.17 (presuming that the agency “has taken

into account all of the evidence before [it], unless the

record compellingly suggests otherwise”).

       Accordingly,      because    Jara           failed    to     establish     her

eligibility      for    withholding          of    removal,       she    necessarily

could not show, to qualify for CAT relief, that she would

more likely than not be tortured, as that claim was based




                                         5
on the same factual predicate.         See Paul v. Gonzales, 444
                                

, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As   we   have   completed   our   review,   the   pending

motion for a stay of removal in this petition is DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




    1
      Jara has not challenged the agency’s denial of her
asylum claim on timeliness and discretionary grounds.

                                6