Armas-Armas v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: August 1, 2023
• Docket: 20-3042
• Status: Unpublished

Opinion

20-3042 Armas-Armas v. Garland BIA Laforest, IJ A206 373 541 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 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 1st day of August, two thousand twenty- 5 three. 6 7 PRESENT: 8 DENNY CHIN, 9 RAYMOND J. LOHIER, JR., 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 SEGUNDO PABLO ARMAS-ARMAS, 15 Petitioner, 16 17 v. 20-3042 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Michael Borja, Esq., Jackson 25 Heights, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Bernard A. 1 Joseph, Senior Litigation Counsel; 2 Enitan O. Otunla, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Segundo Pablo Armas-Armas, a native and

11 citizen of Ecuador, seeks review of an August 10, 2020

12 decision of the BIA affirming a September 4, 2018 decision of

13 an Immigration Judge (“IJ”) denying his application for

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Segundo Pablo

16 Armas-Armas, No. A 206 373 541 (B.I.A. Aug. 10, 2020), aff’g

17 No. A 206 373 541 (Immig. Ct. N.Y. City Sept. 4, 2018). We

18 assume the parties’ familiarity with the underlying facts and

19 procedural history.

20 We have reviewed the IJ’s decision as supplemented by

21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

22 Cir. 2005). We review factual findings for substantial

23 evidence and questions of law de novo. See Paloka v. Holder,

24 762 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative 2 1 findings of fact are conclusive unless any reasonable

2 adjudicator would be compelled to conclude to the contrary.”

3 8 U.S.C. § 1252(b)(4)(B).

4 We deny the petition because the record supports the

5 agency’s conclusion that conditions in Ecuador have changed

6 such that Armas-Armas no longer has a well-founded fear of

7 persecution or torture, and he has both failed to exhaust and

8 waived any challenge to that determination. Applicants for

9 asylum and withholding of removal must establish past

10 persecution or a well-founded fear of future persecution.

11 8 C.F.R. §§ 1208.13(b), 1208.16(b). Past persecution

12 creates a rebuttable presumption of future “persecution on

13 the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1);

14 see also id. § 1208.16(b)(1) (same as to withholding). “That

15 presumption may be rebutted if an . . . immigration judge”

16 finds “by a preponderance of the evidence” that “[t]here has

17 been a fundamental change in circumstances such that the

18 applicant no longer has a well-founded fear of persecution.”

19 Id. § 1208.13(b)(1); id. § 1208.13(b)(1)(ii) (placing burden

20 to rebut presumption on the Government). An applicant for

21 CAT relief has the burden to establish that he would “more

3 1 likely than not” be tortured. Id. § 1208.16(c)(2). To

2 determine the likelihood of torture, the agency may consider,

3 among other things, “relevant information regarding

4 conditions in the country of removal.” Id. § 1208.16(c)(3).

5 Armas-Armas alleged past persecution in Ecuador on

6 account of his affiliation with a political party that

7 supported the rights of indigenous people. However, he

8 conceded that a new president has been elected whose policies

9 are favorable to indigenous people, and that he can return

10 and live safely in Ecuador. On this record, the

11 preponderance of the evidence reflects that Armas-Armas no

12 longer has a fear of persecution or torture. See Lecaj v.

13 Holder, 616 F.3d 111, 115 (2d Cir. 2010) (requiring “an

14 individualized analysis of how changed conditions would

15 affect the specific petitioner’s situation” (quotation marks

16 omitted)).

17 Moreover, Armas-Armas did not challenge the IJ’s finding

18 of changed circumstances on appeal to the BIA and does not

19 challenge it here. Accordingly, the issue is both

20 unexhausted and waived. See Yueqing Zhang v. Gonzales, 426

21 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (deeming abandoned

4 1 claims not argued in brief); Foster v. INS, 376 F.3d 75, 78

2 (2d Cir. 2004) (requiring applicant to raise issues before

3 the BIA to preserve them for judicial review).

4 For the foregoing reasons, the petition for review is

5 DENIED. All pending motions and applications are DENIED and

6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court