Ojeda-Lopez v. Garland

18-2476 Ojeda-Lopez v. Garland BIA Lopez Defillo, IJ A077 751 784 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of September, two thousand twenty-one. [5] 6 PRESENT: 7 JON O. NEWMAN, 8 JOSEPH F. BIANCO, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ [12] 13 SEGUNDO NICANOR OJEDA-LOPEZ, 14 Petitioner, [15] 16 v. 18-2476 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: David Jadidian, Esq., Jackson 24 Heights, NY. [25] 26 FOR RESPONDENT: Brian M. Boynton, Acting 27 Assistant Attorney General; 28 Stephen J. Flynn, Assistant 29 Director; Lynda A. Do, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 1 Department of Justice, Washington, 2 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 Segundo Nicanor Ojeda-Lopez, a native and citizen of 9 Ecuador, seeks review of a July 24, 2018 decision of the BIA 10 affirming an August 15, 2017 decision of an Immigration Judge 11 (“IJ”), which, as relevant here, denied Ojeda-Lopez 12 protection under the Convention Against Torture (“CAT”). In 13 re Segundo Nicanor Ojeda-Lopez, No. A077 751 784 (B.I.A. July 14 24, 2018), aff’g No. A077 751 784 (Immigr. Ct. N.Y.C. Aug. 15 15, 2017). We assume the parties’ familiarity with the 16 underlying facts and procedural history. 17 We have reviewed both the IJ’s and the BIA’s opinions. 18 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 , 528 19 (2d Cir. 2006). The applicable standards of review are well 20 established. See 8 U.S.C. § 1252 (b)(4)(B) (“[A]dministrative 21 findings of fact are conclusive unless any reasonable 22 adjudicator would be compelled to conclude to the 23 contrary[.]”); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 24 Cir. 2009) (“The substantial evidence standard of review [2] 1 applies and we uphold the IJ’s factual findings if they are 2 supported by reasonable, substantial and probative evidence 3 in the record[.]” (citation and internal quotation marks 4 omitted)). 5 As an initial matter, we treat Ojeda-Lopez’s arguments 6 challenging the agency’s denial of CAT relief as exhausted 7 because the BIA considered that claim despite his failure to 8 raise it on appeal. See Ruiz-Martinez v. Mukasey, 516 F.3d 9 102 , 112 n.7 (2d Cir. 2008); Xian Tuan Ye v. Dep’t of Homeland 10 Sec., 446 F.3d 289 , 296–97 (2d Cir. 2006). The agency did 11 not err in finding that Ojeda-Lopez failed to satisfy his 12 burden of proof as to his CAT claim. 13 To establish eligibility for CAT relief, an applicant 14 must show that he is more likely than not to be tortured by 15 the government or with its acquiescence. See 8 C.F.R. 16 §§ 1208.16(c)(2), 1208.17(a), 1208.18(a)(1); Khouzam v. 17 Ashcroft, 361 F.3d 161 , 170–71 (2d Cir. 2004). Government 18 acquiescence to torture “requires only that government 19 officials know of or remain willfully blind to an act and 20 thereafter breach their legal responsibility to prevent it.” 21 Khouzam, 361 F.3d at 171 ; see 8 C.F.R. § 1208.18 (a)(7). [3] 1 Substantial evidence supports the agency’s determination 2 that Ojeda-Lopez failed to establish a likelihood of torture 3 with government acquiescence. Specifically, he failed to 4 provide specific, persuasive evidence that the gang members 5 he fears had expressed interest in him over the last two 6 decades or that they operate with impunity. See 8 C.F.R. 7 § 1208.16(c) (providing that the burden of proof is on the 8 applicant); Jian Xing Huang v. U.S. INS, 421 F.3d 125 , 129 9 (2d Cir. 2005) (“In the absence of solid support in the record 10 . . . [an applicant’s] fear is speculative at best.”). 11 For the foregoing reasons, the petition for review is 12 DENIED. All pending motions and applications are DENIED and 13 stays VACATED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court