Filed: Oct. 31, 2018
Latest Update: Mar. 03, 2020
Summary: 17-680 Canahui Gonzalez v. Sessions BIA Straus, IJ A206 222 427 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 (
Summary: 17-680 Canahui Gonzalez v. Sessions BIA Straus, IJ A206 222 427 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 (W..
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17-680
Canahui Gonzalez v. Sessions
BIA
Straus, IJ
A206 222 427
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
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 October, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ITZLER ARNALDO CANAHUI GONZALEZ, AKA
14 ITZLER ARNOLDO GONZALEZ, AKA ETZLER
15 ARNOLD CANAHUI GONZALEZ, AKA ETZLER
16 ARNOLDO CANAHUI, AKA ITXLER CANAHUI,
17 AKA ETZLER GONZALEA,
18 Petitioner,
19
20 v. 17-680
21 NAC
22 JEFFERSON B. SESSIONS III,
23 UNITED STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Jon E. Jessen, Stamford, CT.
28
29 FOR RESPONDENT: Chad A. Readler, Acting Assistant
30 Attorney General; Janette L.
31 Allen, Senior Litigation Counsel;
32 Lance L. Jolley, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED.
9 Petitioner Itzler Arnaldo Canahui Gonzalez, a native and
10 citizen of Guatemala, seeks review of a February 24, 2017,
11 decision of the BIA affirming a May 23, 2016, decision of an
12 Immigration Judge (“IJ”) denying withholding of removal and
13 relief under the Convention Against Torture (“CAT”). In re
14 Itzler Arnaldo Canahui Gonzalez, No. A206 222 427 (B.I.A.
15 Feb. 24, 2017), aff’g No. A206 222 427 (Immig. Ct. Hartford
16 May 23, 2016). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 We have reviewed the IJ’s decision as modified by the
19 BIA, i.e., minus the denial of asylum and the social group
20 finding the BIA did not reach. See Xue Hong Yang v. U.S.
21 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Where,
22 as here, a petitioner was ordered removed under 8 U.S.C.
23 § 1182(a)(2)(A)(i)(I) for having been convicted of a crime
24 involving moral turpitude, our jurisdiction is limited to
25 constitutional claims and questions of law, 8 U.S.C.
2
1 § 1252(a)(2)(C), (D), which we review de novo, Pierre v.
2 Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). For jurisdiction
3 to attach, however, such claims must be colorable. Barco-
4 Sandoval v. Gonzales,
516 F.3d 35, 40-41 (2d Cir. 2008).
5 Gonzalez does not raise a colorable constitutional claim or
6 question of law challenging the agency’s denial of
7 withholding of removal and CAT relief.
8 Absent past persecution, an alien may establish
9 eligibility for withholding of removal or CAT relief by
10 demonstrating a likelihood of persecution or torture.
11 8 C.F.R. § 1208.16(b)(2), (c)(2). Although the agency may
12 commit an error of law if it overlooks material facts, see
13 Mendez v. Holder,
566 F.3d 316, 323 (2d Cir. 2009), there is
14 no merit to Gonzalez’s contention that the agency failed to
15 adequately evaluate evidence that he will likely be
16 persecuted or tortured by gang members in Guatemala.
17 The agency did not err in finding Gonzalez’s fear of
18 future persecution and torture speculative because he did not
19 allege that he suffered any past harm, that gang members had
20 ever threatened or expressed interest in harming him, or that
21 anyone in his family had been threatened or harmed in years.
22 See Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir.
23 2005) (“In the absence of solid support in the record . . .
3
1 , [an applicant’s] fear is speculative at best.”); see also
2 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
3 (finding that an applicant’s claimed fear of future
4 persecution is weakened when similarly situated family
5 members continue to live unharmed in petitioner’s native
6 country). Further, the agency did not err as a matter of law
7 in concluding that evidence of general gang violence in
8 Guatemala was insufficient to establish a likelihood of
9 persecution or torture. See Mu-Xing Wang v. Ashcroft, 320
10 F.3d 130, 144 (2d Cir. 2003) (holding that beyond general
11 country conditions evidence demonstrating incidents of
12 torture in a country, an applicant for CAT relief must provide
13 evidence “that someone in his particular alleged
14 circumstances is more likely than not to be tortured”); cf.
15 Melgar de
Torres, 191 F.3d at 314 n.3 (“General violence . .
16 . does not constitute persecution, nor can it form a basis
17 for petitioner’s well-founded fear of persecution.”).
18 Gonzalez does not identify any specific evidence that the
19 agency mischaracterized or ignored.
20 The agency’s conclusion that Gonzalez failed to establish
21 that he would more likely than not be persecuted or tortured
22 is dispositive of withholding of removal and CAT relief. See
23 8 C.F.R. § 1208.16(b)(2), (c)(2). Accordingly, we do not
4
1 reach Gonzalez’s challenges to the agency’s alternative basis
2 for denying CAT relief—whether Guatemalan officials would
3 acquiesce in his torture. See INS v. Bagamasbad, 429 U.S.
4 24, 25 (1976) (“As a general rule courts and agencies are not
5 required to make findings on issues the decision of which is
6 unnecessary to the results they reach.”); De La Rosa v.
7 Holder,
598 F.3d 103, 108-09 (2d Cir. 2010) (recognizing that
8 an applicant’s failure to establish likelihood of torture is
9 a separate dispositive basis for denying CAT relief from the
10 requirement of establishing government acquiescence).
11 For the foregoing reasons, the petition for review is
12 DISMISSED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition is
14 VACATED, and any pending motion for a stay of removal in this
15 petition is DISMISSED as moot. Any pending request for oral
16 argument in this petition is DENIED in accordance with Federal
17 Rule of Appellate Procedure 34(a)(2), and Second Circuit
18 Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe
21 Clerk of Court
5
