Carabal-Santos v. Barr

Opinion

17-4097(L)

Carabal-Santos v. Barr BIA

Straus, IJ

A200 689 439

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 15th day of May, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 REENA RAGGI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 SAMUEL CARABAL-SANTOS, AKA 14 SAMUEL CARVAGAL, AKA SAMUEL 15 SANTOS, 16 Petitioner, 17 17-4097(L), 18 v. 18-1358(Con) 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Robert C. Ross, West Haven, CT. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Carl McIntyre, 29 Assistant Director; Gregory A. 30 Pennington, Jr., Trial Attorney, 31 Office of Immigration Litigation, 32 United States Department of 33 Justice, Washington, DC.

1 UPON DUE CONSIDERATION of these petitions for review of 2 Board of Immigration Appeals (“BIA”) decisions, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petitions for review 4 are DENIED. 5 Petitioner Samuel Carabal-Santos, a native and citizen 6 of Mexico, seeks review of the denials of (1) his application 7 for relief from removal under the Convention Against Torture 8 (“CAT”), see In re Samuel Carabal-Santos, No. A200 689 439 9 (B.I.A. Nov. 27, 2017), aff’g No. A200 689 439 (Immig. Ct. 10 Hartford June 8, 2017), and (2) his motion to reopen, see In 11 re Samuel Carabal-Santos, No. A200 689 439 (B.I.A. Apr. 6, 12 2018). We assume the parties’ familiarity with the underlying 13 facts and procedural history in this case. 14 A. Order of Removal 15 The only issues before us in this petition are the 16 agency’s denial of deferral of removal under the CAT and its 17 denial of a continuance. Under the circumstances of this case, 18 we have reviewed both the Immigration Judge’s (“IJ”) and the 19 BIA’s opinions “for the sake of completeness,” Wangchuck v. 20 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), 21 examining factual findings for substantial evidence and

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1 questions of law de novo, see Wei Sun v. Sessions, 883 F.3d 2 23, 27 (2d Cir. 2018). 3 1. Deferral of Removal 4 An applicant seeking deferral of removal under the CAT 5 must make a preponderance showing that he would be tortured 6 upon removal. See 8 C.F.R. §§ 1208.16(c), 1208.17(a). In 7 deciding whether an applicant has carried this burden, the 8 agency must consider all relevant evidence, including past 9 torture, ability to relocate, and human rights violations 10 within the country of removal. See 8 C.F.R. § 1208.16(c)(3). 11 “‘It is the likelihood of all necessary events coming together 12 that must more likely than not lead to torture, and a chain 13 of events cannot be more likely than its least likely link.’” 14 Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (quoting 15 In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)). 16 Thus, an alien cannot carry his burden “‘if one link in the 17 chain cannot be shown to be more likely than not to occur.’” 18 Id. 19 The applicant’s testimony may be sufficient to sustain 20 his burden, even without corroboration, but only if the trier 21 of fact finds the testimony credible, persuasive, and

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1 sufficiently factually specific to demonstrate that the 2 applicant is a “refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii); 3 see also id. § 1231(b)(3)(C); 8 C.F.R. §§ 1208.16(c)(2), 4 1208.17(a). “[A]n applicant may be generally credible but 5 his testimony may not be sufficient to carry the burden of 6 persuading the fact finder of the accuracy of his claim of 7 crucial facts if he fails to put forth corroboration that 8 should be readily available.” Wei Sun, 883 F.3d at 28; see 9 also 8 U.S.C. § 1158(b)(1)(B)(ii). Applying these principles 10 here, we conclude that the agency did not err in finding that 11 Carabal-Santos failed to satisfy his burden of proving a 12 likelihood of torture. 13 Given that Carabal-Santos asserted that a drug cartel 14 last harmed or personally threatened him in Mexico sometime 15 before 2001, he had the burden of demonstrating that the 16 cartel remained interested in harming him more than 15 years 17 later. See 8 C.F.R. § 1208.16(c)(3); see also Savchuck, 518 18 F.3d at 123. Carabal-Santos attempted to satisfy that burden 19 with his testimony that cartel members cut his grandmother’s 20 face shortly after he left Mexico, killed two of his friends 21 in 2007 and 2010, kidnapped and tortured his brother-in-law

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1 in 2011, and recently threatened him through his sister’s 2 Facebook account. However, the agency reasonably found that 3 Carabal-Santos failed to corroborate these crucial facts with 4 reasonably available evidence. See Wei Sun, 883 F.3d at 28. 5 First, although he submitted letters from his grandmother 6 and brother-in-law, neither of them mentioned being harmed at 7 all or targeted by anyone as a threat to Carabal-Santos. 8 Further, although Carabal-Santos testified that cartel 9 members killed two of his friends who helped him confront 10 cartel members in 1997, his written statement asserted that 11 the murder victims were his brother’s friends who were killed 12 for reasons unrelated to Carabal-Santos. Also, the statement 13 Carabal-Santos’s sister submitted on his behalf did not 14 corroborate his testimony that cartel members had threatened 15 him via her Facebook account. 16 The agency further reasonably considered and determined 17 that Carabal-Santos could safely relocate within Mexico. See 18 8 C.F.R. § 1208.16(c)(3). Moreover, as the IJ found, 19 Carabal-Santos did not provide any country conditions 20 evidence showing that the cartel leader who targeted him 21 remains active. Indeed, although cartel control is fluid, a

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1 Drug Enforcement Agency map of the Mexican drug cartels shows 2 that the cartel Carabal-Santos fears is not active in many 3 parts of Mexico. 4 Accordingly, because Carabal-Santos failed to 5 corroborate his testimony regarding continued threats from 6 cartel members, and because evidence demonstrated he could 7 safely relocate within Mexico, the agency did not err in 8 finding that he failed to establish a chain of events showing 9 that he would more likely than not be tortured or killed if 10 removed to Mexico. See Wei Sun, 883 F.3d at 28; Savchuck, 11 518 F.3d at 123. Because that finding was dispositive of 12 deferral of removal under the CAT, see 8 C.F.R. 13 §§ 1208.16(c), 1208.17(a), 1208.18(a)(1), we do not reach the 14 agency’s alternative basis for denying CAT relief, see INS v. 15 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts 16 and agencies are not required to make findings on issues the 17 decision of which is unnecessary to the results they reach.”); 18 De La Rosa v. Holder, 598 F.3d 103, 108-09 (2d Cir. 2010) 19 (recognizing that applicant’s failure to establish likelihood 20 of torture is separate dispositive basis for denying CAT 21 relief from the requirement of establishing government

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1 acquiescence). 2 2. Continuance 3 Carabal-Santos faults the IJ for denying him a fourth 4 continuance before denying him CAT relief. We review such a 5 denial for abuse of discretion. See Morgan v. Gonzales, 445 6 F.3d 549, 551 (2d Cir. 2006). An IJ “may grant a motion for 7 continuance for good cause shown,” 8 C.F.R. § 1003.29, and 8 only “abuse[s] his discretion in denying a continuance if (1) 9 his decision rests on an error of law (such as the application 10 of the wrong legal principle) or a clearly erroneous factual 11 finding, or (2) his decision—though not necessarily the 12 product of a legal error or a clearly erroneous factual 13 finding—cannot be located within the range of permissible 14 decisions,” Morgan, 445 F.3d at 551-52 (quotation marks and 15 brackets omitted). That is not this case. 16 The IJ had already granted Carabal-Santos three 17 continuances, thereby providing him and his family 18 approximately 16 months to prepare and gather evidence from 19 Mexico. Carabal-Santos’s attorney requested a fourth 20 continuance because, although Carabal-Santos’s family had 21 submitted evidence, their statements could have been

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1 “stronger.” Certified Administrative Record at 145. The 2 denial of a fourth continuance in these circumstances was not 3 an abuse of discretion. See Wei Sun, 883 F.3d at 31 (“[I]t is 4 reasonable not to require that applicants receive a second 5 opportunity to present their case after the IJ identified the 6 specific evidence they need to prevail.”); see also Chuilu 7 Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien 8 bears the ultimate burden of introducing such evidence 9 without prompting from the IJ.”). 10 Because the IJ had already granted numerous continuances, 11 during which Carabal-Santos managed to obtain evidence from 12 family and friends, there is no merit to his argument that 13 his due process rights were violated by the IJ denying him 14 yet another opportunity to gather evidence. See Burger v. 15 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a 16 violation of due process, an alien must show that she was 17 denied a full and fair opportunity to present her claims or 18 that [she was] otherwise deprived . . . of fundamental 19 fairness.” (quotation marks omitted)). 20 Accordingly, we identify no error in the agency’s

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1 decision to deny Carabal-Santos CAT relief from removal. 2 B. Motion to Reopen 3 In challenging the agency’s refusal to reopen his removal 4 proceedings, Carabal-Santos bears a still heavier burden 5 because the law states that “[a] motion to reopen proceedings 6 shall not be granted unless it appears to the Board that 7 evidence sought to be offered is material and was not 8 available and could not have been discovered or presented at 9 the former hearing.” 8 C.F.R. § 1003.2(c)(1). Moreover, we 10 review the agency’s denial of a motion to reopen for abuse of 11 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168- 12 69 (2d Cir. 2008); Norani v. Gonzales, 451 F.3d 292, 294 (2d 13 Cir. 2006) (“[I]n reviewing the BIA’s determination of 14 whether previously unavailable evidence supported [a] motion 15 to reopen, we must inquire whether the evidence could have 16 been presented at the hearing before the IJ.”). 17 As the Government argues, Carabal-Santos does not 18 challenge the BIA’s dispositive finding that the evidence 19 he submitted in support of his motion to reopen was 20 previously available. Accordingly, that finding remains a 21 valid basis for denying reopening, and we deny the petition

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1 for review. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 2 541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner 3 abandons issues and claims not raised in his brief); see 4 also 8 C.F.R. § 1003.2(c)(1). 5 In any event, the BIA’s finding was not erroneous since 6 Carabal-Santos submitted letters that described events 7 predating his hearing. See Norani, 451 F.3d at 294. 8 Further, the BIA did not err in its alternative dispositive 9 determination that the newly submitted letters would not 10 change the outcome of Carabal-Santos’s proceedings because 11 they did not undermine the agency’s determination that he 12 could relocate within Mexico to avoid harm. See INS v. Abudu, 13 485 U.S. 94, 104-05 (1988) (recognizing failure to establish 14 prima facie eligibility for relief as a valid basis to deny 15 motion to reopen). 16 For the foregoing reasons, the petitions for review are 17 DENIED. As we have completed our review, any stay of removal 18 that the Court previously granted in these petitions is 19 VACATED, and any pending motion for a stay of removal in these 20 petitions is DISMISSED as moot. Any pending request for oral 21 argument in these petitions is DENIED in accordance with

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1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court