Omolo v. Garland

18-3052 Omolo v. Garland BIA Ruehle, IJ A206 471 505 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 12th day of April, two thousand twenty-one. [5] 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 DENNY CHIN, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ [13] 14 FELIX OTIENO OMOLO, 15 Petitioner, [16] 17 v. 18-3052 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 1 22 _____________________________________ [23] 24 FOR PETITIONER: Frederick P. Korkosz, Albany, NY. [1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Abigail 4 E. Leach, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED in part and DISMISSED in part. 12 Petitioner Felix Otieno Omolo, a native and citizen of 13 Kenya, seeks review of a September 24, 2018 decision of the 14 BIA affirming a November 16, 2017 decision of an Immigration 15 Judge (“IJ”) denying his application for asylum, withholding 16 of removal, and relief under the Convention Against Torture 17 (“CAT”). In re Felix Otieno Omolo, No. A 206 471 505 (B.I.A. 18 Sept. 24, 2018), aff’g No. A 206 471 505 (Immig. Ct. Buffalo 19 Nov. 16, 2017). We assume the parties’ familiarity with the 20 underlying facts and procedural history. 21 We have reviewed the IJ’s decision as supplemented by 22 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 23 Cir. 2005). The applicable standards of review are well 24 established. See 8 U.S.C. § 1252 (b)(4)(B); Yanqin Weng v. 25 Holder, 562 F.3d 510, 513 (2d Cir. 2009). [2] 1 As an initial matter, our jurisdiction to review the 2 agency’s denial of Omolo’s asylum application as untimely 3 filed more than one year after his arrival in the United 4 States is limited to constitutional claims and questions of 5 law. See 8 U.S.C. §§ 1158 (a)(3), 1252(a)(2)(D). His 6 argument that the agency erred in its determination that his 7 2015 application was not filed within a reasonable time 8 following alleged changes in Kenya in 2012 and 2013 is a 9 challenge to the agency’s factfinding and not subject to 10 review. See Joaquin-Porras v. Gonzales, 435 F.3d 172 , 180 11 (2d Cir. 2006). 12 We find no error in the agency’s denial of withholding 13 of removal and CAT relief. In the absence of past 14 persecution, Omolo had the burden to show he was “more likely 15 than not” to be persecuted in the future on account of his 16 Christian religion. 8 C.F.R. § 1208.16 (b)(2), (3)(i); see 17 also 8 U.S.C. § 1231 (b)(3)(A). Omolo did not allege that he 18 would be singled out individually, and thus he had to show a 19 “pattern or practice of persecution of a group of persons 20 similarly situated to [him].” 8 C.F.R. § 1208.16 (b)(2)(i). 21 Absent past persecution, an applicant cannot meet his burden [3] 1 where he can safely relocate within his country to avoid 2 persecution, and it would be reasonable to expect the 3 applicant to do so under all the circumstances. Id. 4 § 1208.16(b)(2). 5 Omolo alleged that the Al-Shabaab terrorist group 6 persecutes Christians in Kenya. To establish a pattern or 7 practice of persecution, he had to demonstrate that the harm 8 to that group constitutes persecution, is perpetrated or 9 tolerated by state actors, and is “systemic or pervasive.” 10 In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005); see also 11 Scarlett v. Barr, 957 F.3d 316 , 328 (2d Cir. 2020) 12 (persecution by private actors requires showing that 13 government is “unable or unwilling to control” those actors 14 (internal quotation marks omitted)). 15 The record supports the IJ’s conclusion that Omolo failed 16 to make this showing. The State Department’s 2016 Country 17 Report and International Religious Freedom Report reflect 18 that Al-Shabaab directed attacks against security officers 19 and government institutions, that attacks occurred in 20 isolated areas of Kenya, and that the government had engaged 21 in successful efforts combatting Al-Shabaab. Significantly, [4] 1 these reports do not describe Al-Shabaab as targeting 2 Christians in or near Nairobi, where Omolo’s family lives and 3 practices Christianity openly. See Santoso v. Holder, 580 4 F.3d 110, 112 (2d Cir. 2009) (upholding denial of pattern or 5 practice claim where evidence reflected that violence was not 6 nationwide and that Catholics in many parts of Indonesia were 7 free to practice their faith); Jian Hui Shao v. Mukasey, 546 8 F.3d 138, 149 , 169–70 (2d Cir. 2008) (finding no error in 9 agency’s requirement that applicant demonstrate a well- 10 founded fear of persecution specific to his or her local area 11 when persecutory acts vary according to locality). Omolo’s 12 remaining evidence does not compel a contrary conclusion. 13 See 8 U.S.C. § 1252 (b)(4) (B). 14 Omolo’s failure to show persecution of Christians in his 15 area of Kenya is dispositive because he had the burden to 16 show that he would “more likely than not” be persecuted. 8 17 C.F.R. § 1208.16 (b)(2), (3)(i). Because Omolo failed to meet 18 his burden of proof for withholding of removal, he 19 “necessarily” failed to meet his burden of proof for CAT 20 relief because both claims relied on the same factual basis. 21 Lecaj v. Holder, 616 F.3d 111 , 119–20 (2d Cir. 2010). [5] 1 For the foregoing reasons, the petition for review is 2 DISMISSED as to asylum and DENIED in remaining part. All 3 pending motions and applications are DENIED and stays 4 VACATED. 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court