Canahui Gonzalez v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: October 31, 2018
• Docket: 17-680
• Status: Unpublished

Opinion

17-680 Canahui Gonzalez v. Sessions BIA Straus, IJ A206 222 427 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 31st day of October, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GUIDO CALABRESI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ITZLER ARNALDO CANAHUI GONZALEZ, AKA 14 ITZLER ARNOLDO GONZALEZ, AKA ETZLER 15 ARNOLD CANAHUI GONZALEZ, AKA ETZLER 16 ARNOLDO CANAHUI, AKA ITXLER CANAHUI, 17 AKA ETZLER GONZALEA, 18 Petitioner, 19 20 v. 17-680 21 NAC 22 JEFFERSON B. SESSIONS III, 23 UNITED STATES ATTORNEY GENERAL, 24 Respondent. 25 _____________________________________ 26 27 FOR PETITIONER: Jon E. Jessen, Stamford, CT. 28 29 FOR RESPONDENT: Chad A. Readler, Acting Assistant 30 Attorney General; Janette L. 31 Allen, Senior Litigation Counsel; 32 Lance L. Jolley, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DISMISSED.

9 Petitioner Itzler Arnaldo Canahui Gonzalez, a native and

10 citizen of Guatemala, seeks review of a February 24, 2017,

11 decision of the BIA affirming a May 23, 2016, decision of an

12 Immigration Judge (“IJ”) denying withholding of removal and

13 relief under the Convention Against Torture (“CAT”). In re

14 Itzler Arnaldo Canahui Gonzalez, No. A206 222 427 (B.I.A.

15 Feb. 24, 2017), aff’g No. A206 222 427 (Immig. Ct. Hartford

16 May 23, 2016). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 We have reviewed the IJ’s decision as modified by the

19 BIA, i.e., minus the denial of asylum and the social group

20 finding the BIA did not reach. See Xue Hong Yang v. U.S.

21 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Where,

22 as here, a petitioner was ordered removed under 8 U.S.C.

23 § 1182(a)(2)(A)(i)(I) for having been convicted of a crime

24 involving moral turpitude, our jurisdiction is limited to

25 constitutional claims and questions of law, 8 U.S.C. 2 1 § 1252(a)(2)(C), (D), which we review de novo, Pierre v.

2 Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). For jurisdiction

3 to attach, however, such claims must be colorable. Barco-

4 Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008).

5 Gonzalez does not raise a colorable constitutional claim or

6 question of law challenging the agency’s denial of

7 withholding of removal and CAT relief.

8 Absent past persecution, an alien may establish

9 eligibility for withholding of removal or CAT relief by

10 demonstrating a likelihood of persecution or torture.

11 8 C.F.R. § 1208.16(b)(2), (c)(2). Although the agency may

12 commit an error of law if it overlooks material facts, see

13 Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009), there is

14 no merit to Gonzalez’s contention that the agency failed to

15 adequately evaluate evidence that he will likely be

16 persecuted or tortured by gang members in Guatemala.

17 The agency did not err in finding Gonzalez’s fear of

18 future persecution and torture speculative because he did not

19 allege that he suffered any past harm, that gang members had

20 ever threatened or expressed interest in harming him, or that

21 anyone in his family had been threatened or harmed in years.

22 See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.

23 2005) (“In the absence of solid support in the record . . . 3 1 , [an applicant’s] fear is speculative at best.”); see also

2 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)

3 (finding that an applicant’s claimed fear of future

4 persecution is weakened when similarly situated family

5 members continue to live unharmed in petitioner’s native

6 country). Further, the agency did not err as a matter of law

7 in concluding that evidence of general gang violence in

8 Guatemala was insufficient to establish a likelihood of

9 persecution or torture. See Mu-Xing Wang v. Ashcroft, 320

10 F.3d 130, 144 (2d Cir. 2003) (holding that beyond general

11 country conditions evidence demonstrating incidents of

12 torture in a country, an applicant for CAT relief must provide

13 evidence “that someone in his particular alleged

14 circumstances is more likely than not to be tortured”); cf.

15 Melgar de Torres, 191 F.3d at 314 n.3 (“General violence . .

16 . does not constitute persecution, nor can it form a basis

17 for petitioner’s well-founded fear of persecution.”).

18 Gonzalez does not identify any specific evidence that the

19 agency mischaracterized or ignored.

20 The agency’s conclusion that Gonzalez failed to establish

21 that he would more likely than not be persecuted or tortured

22 is dispositive of withholding of removal and CAT relief. See

23 8 C.F.R. § 1208.16(b)(2), (c)(2). Accordingly, we do not 4 1 reach Gonzalez’s challenges to the agency’s alternative basis

2 for denying CAT relief—whether Guatemalan officials would

3 acquiesce in his torture. See INS v. Bagamasbad, 429 U.S.

4 24, 25 (1976) (“As a general rule courts and agencies are not

5 required to make findings on issues the decision of which is

6 unnecessary to the results they reach.”); De La Rosa v.

7 Holder, 598 F.3d 103, 108-09 (2d Cir. 2010) (recognizing that

8 an applicant’s failure to establish likelihood of torture is

9 a separate dispositive basis for denying CAT relief from the

10 requirement of establishing government acquiescence).

11 For the foregoing reasons, the petition for review is

12 DISMISSED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition is

14 VACATED, and any pending motion for a stay of removal in this

15 petition is DISMISSED as moot. Any pending request for oral

16 argument in this petition is DENIED in accordance with Federal

17 Rule of Appellate Procedure 34(a)(2), and Second Circuit

18 Local Rule 34.1(b).

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe 21 Clerk of Court