Paltan-Daquilema v. Garland

19-807 Paltan-Daquilema v. Garland BIA Hom, IJ A205 703 139 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 6th day of August, two thousand twenty-one. [5] 6 PRESENT: 7 JON O. NEWMAN, 8 ROBERT D. SACK, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ [12] 13 JOSE ANTONIO PALTAN-DAQUILEMA, 14 Petitioner, [15] 16 v. 19-807 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. * 21 _____________________________________ [22] 23 FOR PETITIONER: Edgar L. Fankbonner, Goldberger & 24 Dubin, PC, New York, NY. [25] 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Anthony C. 28 Payne, Assistant Director; Joseph 29 D. Hardy, Trial Attorney, Office 30 of Immigration Litigation, United * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 States Department of Justice, 2 Washington, DC. [3] 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Jose Antonio Paltan-Daquilema, a native and 9 citizen of Ecuador, seeks review of a February 28, 2019 10 decision of the BIA affirming a November 17, 2017 decision of 11 an Immigration Judge (“IJ”) denying his application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture. In re Jose Antonio Paltan- 14 Daquilema, No. A205 703 139 (B.I.A. Feb. 28, 2019), aff’g No. 15 A205 703 139 (Immig. Ct. N.Y. City Nov. 17, 2017). We assume 16 the parties’ familiarity with the underlying facts and 17 procedural history. 18 Under the circumstances, we have reviewed the IJ’s 19 decision as modified by the BIA, i.e., minus the adverse 20 credibility determination that the BIA did not reach. See 21 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 22 Cir. 2005). We review the findings of the IJ and the BIA 23 under the substantial evidence standard, and we review [2] 1 questions of law de novo. See 8 U.S.C. § 1252 (b)(4)(B); Wei 2 Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018). We review 3 the IJ’s decision to set and enforce filing deadlines for 4 abuse of discretion. See Dedji v. Mukasey, 525 F.3d 187 , 191 5 (2d Cir. 2008). 6 Paltan-Daquilema first argues that the BIA should have 7 remanded these proceedings and directed the IJ to consider 8 evidence submitted by Paltan-Daquilema nearly six months 9 after the IJ’s deadline for evidentiary submissions. But 10 “[t]o preserve an issue for judicial review, the petitioner 11 must first raise it with specificity before the BIA.” 12 Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) 13 (internal citations omitted). Here, Paltan-Daquilema failed 14 to specifically challenge the IJ’s rejection of his late- 15 filed evidence before the BIA. As a result, Paltan-Daquilema 16 failed to exhaust his administrative remedies as to that 17 decision, and we will not review this challenge for the first 18 time on appeal. Id. at 118 . 19 Paltan-Daquilema also argues that the BIA “should have 20 reversed the IJ’s adverse credibility finding.” Petitioner’s 21 Brief at 24. But the BIA concluded that it did not need to 22 address the IJ’s adverse credibility finding because, “even [3] 1 assuming the respondent is credible, [the BIA would] affirm 2 the Immigration Judge's finding that he did not adequately 3 corroborate his claim and did not show that he has a well- 4 founded fear of future persecution on account of a protected 5 ground.” Notably, Paltan-Daquilema has not challenged before 6 this Court the agency’s dispositive finding that he failed to 7 adequately corroborate his claim that he fears persecution as 8 an indigenous evangelical Ecuadorian man who has divorced. 9 Paltan-Daquilema therefore has abandoned this claim. See 10 Yueqing Zhang v. Gonzales, 426 F.3d 540 , 541 n.1, 545 n.7 (2d 11 Cir. 2005) (petitioner abandons claim by not raising it in 12 his brief). And because it was not necessary for the BIA to 13 address the IJ’s credibility findings, much less to reverse 14 the IJ’s credibility findings, the BIA did not err by 15 declining to do so. 16 For the foregoing reasons, the petition for review is 17 DENIED. All pending motions and applications are DENIED and 18 stays VACATED. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court