Filed: Apr. 29, 2019
Latest Update: Mar. 03, 2020
Summary: 17-1469 Sandoval-Flores v. Barr BIA Weisel, IJ A206 805 724/722 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: 17-1469 Sandoval-Flores v. Barr BIA Weisel, IJ A206 805 724/722 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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17-1469
Sandoval-Flores v. Barr
BIA
Weisel, IJ
A206 805 724/722
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 29th day of April, two thousand nineteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CLAUDIA INES SANDOVAL-FLORES,
14 YANCY PAOLA SANDOVAL-FLORES,
15 Petitioners,
16
17 v. 17-1469
18 NAC
19 WILLIAM P. BARR,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Steven Lyons, Martin C. Liu &
25 Associates, PLLC, New York, NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; John S. Hogan,
29 Assistant Director; Robbin K.
30 Blaya, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
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
4 is DENIED.
5 Petitioners Claudia Ines Sandoval-Flores (“Sandoval-
6 Flores”) and Yancy Paola Sandoval-Flores, natives and citizen
7 of El Salvador, seek review of an April 6, 2017, decision of
8 the BIA affirming a July 27, 2016, decision of an Immigration
9 Judge (“IJ”) denying Sandoval-Flores’s application for
10 asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Claudia Ines
12 Sandoval-Flores, Yancy Paola Sandoval-Flores, No. A 206 805
13 724/722 (B.I.A. Apr. 6, 2017), aff’g No. A 206 805 724/722
14 (Immig. Ct. N.Y. City Jul. 27, 2016). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as supplemented by the BIA. See Yan Chen
19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review
20 the agency’s factual findings under the substantial evidence
21 standard, . . . [and] review legal questions, and the
22 application of law to fact, de novo.” Gjolaj v. Bureau of
2
1 Citizenship and Immig. Servs., 468 F.3d 140, 142 (2d Cir.
2 2006) (internal citations omitted).
3 Asylum and Withholding of Removal
4 For asylum and withholding of removal, an “applicant must
5 establish that race, religion, nationality, membership in a
6 particular social group, or political opinion was or will be
7 at least one central reason for” the claimed persecution. 8
8 U.S.C. § 1158(b)(1)(B)(i); see also
id. § 1231(b)(3)(A). We
9 review the agency’s nexus finding for substantial evidence.
10 See INS v. Elias-Zacarias,
502 U.S. 478, 483 (1992); Gjolaj,
11 468 F.3d at 143. The record does not compel the conclusion
12 that MS-13’s threats against Sandoval-Flores were motivated
13 by a protected ground. See
Elias-Zacarias, 502 U.S. at 483.
14 Sandoval-Flores testified that an MS-13 member came to
15 her home and threatened to kill her and her family if she did
16 not pay a $100 monthly extortion payment. She initially
17 testified that she believed she was targeted because she had
18 siblings who lived in the United States. But she also stated
19 that her mother’s cousins are police officers and that,
20 because El Salvador is small country, it was possible that
21 the gang members knew of that family connection. But
22 Sandoval-Flores did not testify that the gang member who
3
1 threatened her ever mentioned her cousins or their
2 profession. The anonymous letter similarly made no mention
3 of Sandoval-Flores’s cousins, her familial relationship to
4 police officers, or her relatives living in the United States.
5 As such, her testimony as to MS-13’s motives was speculative
6 and did not establish that she was or would be targeted on
7 account of any familial relationships. See Jian Xing Huang
8 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
9 of solid support in the record . . . [a] fear is speculative
10 at best.”).
11 Nor could her perceived wealth establish a protected ground.
12 See Ucelo-Gomez v. Mukasey,
509 F.3d 70, 72-74 (2d Cir. 2007)
13 (explaining that wealth or affluence is “highly relative and
14 subjective” and not an appropriate metric for a particular
15 social group). Moreover, although the record reflects that
16 El Salvador is a violent country with pervasive gang activity,
17 neither high crime rates nor status as a crime victim alone
18 do not demonstrate a basis for asylum. See Melgar de Torres
19 v. Reno,
191 F.3d 307, 314 (2d Cir. 1999) (explaining that
20 “general crime conditions” do not lend support to an asylum
21 claim because they are not an “enumerated ground”). Given
22 the lack of evidence that Sandoval-Flores was singled out on
4
1 account of a protected ground, the agency did not err in
2 denying asylum and withholding of removal. See Elias-
3 Zacarias, 502 U.S. at 483;
Gjolaj, 468 F.3d at 143.
4 The agency’s nexus finding is dispositive of Sandoval-
5 Flores’s eligibility for asylum and withholding of removal
6 irrespective of credibility. As such, we need not reach her
7 argument that the administrative record is missing evidence
8 corroborating the incident she omitted from her application.
9 See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general
10 rule courts and agencies are not required to make findings on
11 issues the decision of which is unnecessary to the results
12 they reach.”).
13 CAT Relief
14 An applicant for CAT relief must show “that it is more
15 likely than not” that she will be tortured. See 8 C.F.R.
16 § 1208.16(c)(2); see also Khouzam v. Ashcroft,
361 F.3d 161,
17 168 (2d Cir. 2004). To constitute torture under the CAT, the
18 likely harm must be “inflicted by or at the instigation of or
19 with the consent or acquiescence of a public official or other
20 person acting in an official capacity.” 8 C.F.R.
21 § 1208.18(a)(1). “Acquiescence of a public official requires
22 that the public official, prior to the activity constituting
5
1 torture, have awareness of such activity and thereafter
2 breach his or her legal responsibility to intervene to prevent
3 such activity.” Id. § 1208.18(a)(7); Khouzam, 361 F.3d at
4 171 (Acquiescence occurs where “government officials know of
5 or remain willfully blind to an act and thereafter breach
6 their legal responsibility to prevent it.”). In assessing
7 the likelihood of torture, “all evidence relevant to the
8 possibility of future torture shall be considered, including,
9 but not limited to . . . [e]vidence of past torture,” the
10 possibility of relocation within the country, “[e]vidence of
11 gross, flagrant or mass violations of human rights . . . and
12 . . . relevant information regarding conditions in the country
13 of removal.” 8 C.F.R. § 1208.16(c)(3). To meet her burden
14 of proof, an applicant for CAT relief must establish that
15 someone in her “particular alleged circumstances” is more
16 likely than not to be tortured. Mu-Xing Wang v. Ashcroft,
17
320 F.3d 130, 144 (2d Cir. 2003).
18 Sandoval-Flores argues that the agency ignored country
19 reports and testimony and failed to analyze the merits of her
20 claim, and that the Salvadoran government acquiesced in her
21 torture by failing to apprehend the individual who threatened
22 her. These arguments are without merit. First, both the BIA
6
1 and IJ explicitly addressed CAT relief and concluded that
2 Sandoval-Flores failed to meet her burden. Second, her
3 testimony demonstrated that the police acted on her complaint
4 by canvassing her neighborhood for suspects and identified
5 the perpetrator based on Sandoval-Flores’s description. The
6 fact that the police did not arrest that individual does not
7 alone establish government acquiescence. See Garcia-Milian
8 v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence
9 that the police were aware of a particular crime, but failed
10 to bring the perpetrators to justice, is not in itself
11 sufficient to establish acquiescence in the crime.”). Third,
12 the record does not compellingly suggest that the agency
13 ignored evidence. “[W]e do not demand that the BIA
14 “expressly parse or refute on the record each individual
15 argument or piece of evidence offered by the petitioner,”
16 Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008),
17 and we “presume that [the agency] has taken into account all
18 the evidence before [it], unless the record compellingly
19 suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice,
20
471 F.3d 315, 336 n.17 (2d Cir. 2006). Although the agency
21 did not explicitly address the country conditions evidence,
22 given Sandoval-Flores’s testimony about the police response
7
1 and investigation of her complaint, the record does not
2 compellingly suggest that the agency ignored any evidence.
3 Denial of Remand
4 Sandoval-Flores argues that the BIA abused its discretion
5 in declining to remand for consideration of new evidence.
6 “We review the BIA’s denial of a motion to remand for
7 consideration of new evidence for abuse of discretion, and
8 will find such abuse if ‘the Board’s decision provides no
9 rational explanation, inexplicably departs from established
10 policies, is devoid of any reasoning, or contains only summary
11 or conclusory statements; that is to say, where the Board has
12 acted in an arbitrary or capricious manner.’” Li Yong Cao
13 v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005)
14 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83,
15 93 (2d Cir. 2001)). “A motion to remand that relies on newly
16 available evidence is held to the substantive requirements of
17 a motion to reopen,” and the BIA has “broad discretion” to
18 deny “such a motion unless the movant has met the heavy burden
19 of demonstrating a likelihood that the new evidence presented
20 would alter the result in the case.”
Id. at 156 (internal
21 quotation marks omitted). The BIA did not abuse its
22 discretion in denying Sandoval Flores’s motion because the
8
1 evidence would not have altered the result in her case.
2 Sandoval-Flores submitted three documents in support of
3 remand: (1) a police report documenting her mother’s
4 complaint that on August 9, 2016, three MS-13 gang members
5 forced their way into her home, questioned and assaulted her,
6 and threatened to kill Sandoval-Flores; (2) an August 9, 2016,
7 medical report that her mother was treated on August 7 for
8 injuries following an attack by three men; and (3) a hospital
9 letter confirming that her mother suffered strokes on two
10 unspecified occasions. Sandoval-Flores argues that this
11 evidence rehabilitates her credibility and corroborates her
12 fear of future persecution from MS-13.
13 Assuming arguendo that Sandoval-Flores’s new evidence
14 could rehabilitate her credibility, the BIA did not abuse its
15 discretion by concluding that the evidence would not have
16 altered the result in the case. Li Yong Cao, 421 F.3d at
17 156. Specifically, the agency’s nexus finding would be
18 undisturbed by the new evidence given that it is silent as to
19 MS-13’s motivation. Nor does the new evidence alter the
20 agency’s CAT determination because there is no indication
21 that the Salvadoran government would not respond to the
22 threat. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
9
1 Because the agency’s nexus finding is dispositive for
2 asylum and withholding of removal, and Sandoval-Flores failed
3 to meet her burden for CAT relief, we do not reach the
4 agency’s other findings. See Bagamasbad, 429 U.S. at 25.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe
15 Clerk of Court
16
10
