Filed: Jun. 02, 2016
Latest Update: Mar. 02, 2020
Summary: 15-254 Feitosa v. Lynch BIA Straus, IJ A088 444 273 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 NOT
Summary: 15-254 Feitosa v. Lynch BIA Straus, IJ A088 444 273 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 NOTA..
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15-254
Feitosa v. Lynch
BIA
Straus, IJ
A088 444 273
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of June, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 FRANCO ALVES FEITOSA,
14 Petitioner,
15 v. 15-254
16 NAC
17 LORETTA E. LYNCH, UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Maria Isabel A.N. Thomas, Law
23 Offices of Thomas and Thomas, LLC,
24 Princeton, New Jersey.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John S.
28 Hogan, Assistant Director; Stefanie
29 A. Svoren-Jay, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED in part and DENIED in part.
5 Petitioner Franco Alves Feitosa, a native and citizen of
6 Brazil, seeks review of a December 31, 2014, decision of the
7 BIA affirming a January 30, 2013, decision of an Immigration
8 Judge (“IJ”) denying Feitosa’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Franco Alves Feitosa, No. A088 444 273
11 (B.I.A. Dec. 31, 2014), aff’g No. A088 444 273 (Immig. Ct.
12 Hartford Jan. 30, 2013). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
19 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
20 We lack jurisdiction to review the agency’s finding that
21 Feitosa’s asylum application was untimely filed. 8 U.S.C.
2
1 § 1158(a)(3). Although we retain jurisdiction to review
2 constitutional claims and questions of law, 8 U.S.C.
3 § 1252(a)(2)(D), Feitosa has raised no such colorable
4 questions. To determine whether jurisdiction exists in an
5 individual case, we “study the arguments asserted” to
6 determine, “regardless of the rhetoric employed in the
7 petition, whether it merely quarrels over the correctness of
8 the factual findings . . . or whether it instead raises a
9 ‘constitutional claim’ or ‘question of law.’” Xiao Ji Chen v.
10 U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). In
11 this case, Feitosa simply “quarrels over the correctness of the
12 factual findings,” i.e., the IJ’s determination that Feitosa’s
13 mental condition did not constitute an exceptional circumstance
14 that would excuse the late filing.
Id.
15 With respect to the agency’s denial of withholding of
16 removal based on past persecution, we review de novo whether
17 past harm rises to the level of persecution, and for substantial
18 evidence the agency’s finding that persecution lacks a nexus
19 to a protected ground. See Hui Lin Huang v. Holder,
677 F.3d
20 130, 136 (2d Cir. 2012); Gjolaj v. BCIS,
468 F.3d 140, 143 (2d
21 Cir. 2006). Substantial evidence supports the IJ’s conclusion
3
1 that the rapes Feitosa suffered lacked a nexus to a protected
2 ground: Feitosa did not allege any facts to support a nexus
3 finding.
4 Nor did the agency err in concluding that Feitosa’s
5 expulsion from his family’s home at age 17 did not rise to the
6 level of persecution. Economic deprivation constitutes
7 persecution “if its impact is an infliction of suffering or harm
8 that on its own would be sufficient to constitute persecution.”
9 Huo Qiang Chen v. Holder, 773 F.3d 396, 405 (2d Cir. 2014)
10 (internal quotation marks omitted). While Feitosa’s family
11 withdrew housing and economic support, he found an alternate
12 place to live and a job. Accordingly, the IJ’s determination
13 was not erroneous.
14 With respect to future persecution or torture, we review
15 a determination regarding the likelihood of future events for
16 substantial evidence. Hui Lin
Huang, 677 F.3d at 134; Yanqin
17
Weng, 562 F.3d at 513. In this case, Feitosa did not allege
18 any individualized fear of future persecution (other than his
19 claims of past persecution discussed above); accordingly, to
20 prove his entitlement to relief, he had to show a pattern or
21 practice of persecuting or torturing gay men in Brazil. See
4
1 Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).
2 His country conditions evidence consisted of two newspaper
3 articles and one report. This evidence revealed numerous
4 troubling incidents of violence towards gay men in Brazil.
5 However, as the agency concluded, the evidence of approximately
6 188 killings of gay men based on their sexual orientation in
7 2012 is not enough to establish, by a clear probability, that
8 the harm inflicted on gay men in Brazil is sufficiently
9 “systemic or pervasive as to amount to a pattern or practice
10 of persecution.” In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A.
11 2005); Mufied v. Mukasey,
508 F.3d 88, 92–93 (2d Cir. 2007)
12 (accepting BIA’s standard as reasonable); see also Hongsheng
13
Leng, 528 F.3d at 142.
14 Finally, Feitosa’s argument that the IJ was biased is not
15 supported by the record. An adverse ruling, on its own, does
16 not constitute judicial bias. See Liteky v. United States, 510
17 U.S. 540, 555 (1994). Feitosa’s argument that the IJ failed
18 to consider evidence of country conditions is refuted by the
19 record, and we do not require an IJ to “enumerate and evaluate
20 on the record each piece of evidence, item by item.” Xiao Ji
21
Chen, 471 F.3d at 341. His argument that the IJ erred in failing
5
1 to request additional evidence fails because it was Feitosa’s
2 burden to establish his eligibility for relief. 8 C.F.R.
3 § 1208.16(b), (c)(2).
4 For the foregoing reasons, the petition for review is
5 DISMISSED in part and DENIED in part.
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
6
