Desince v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: July 10, 2018
• Docket: 17-796
• Status: Unpublished

Opinion

17-796 Desince v. Sessions BIA Renner, IJ A030 675 079 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 10th day of July, two thousand eighteen. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 YANICK DESINCE, 14 Petitioner, 15 16 v. 17-796 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael L. Walker, Brooklyn, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Derek C. Julius, 27 Assistant Director; Enitan O. 28 Otunla, Trial Attorney, Office of 29 Immigration Litigation, United 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 Yanick Desince, a native and citizen of Haiti,

9 seeks review of a February 22, 2017, decision of the BIA

10 affirming an October 12, 2016, decision of an Immigration

11 Judge (“IJ”) denying Desince’s application for withholding of

12 removal and relief under the Convention Against Torture

13 (“CAT”). In re Yanick Desince, No. A 030 675 079 (B.I.A. Feb.

14 22, 2017), aff’g No. A 030 675 079 (Immig. Ct. N.Y. City Oct.

15 12, 2016). We assume the parties’ familiarity with the

16 underlying facts and procedural history in this case.

17 Under the circumstances of this case, we have reviewed

18 both the IJ’s and BIA’s decisions “for the sake of

19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

20 524, 528 (2d Cir. 2006). Desince’s aggravated felony

21 conviction limits our review to constitutional claims and

22 questions of law. 8 U.S.C. §§ 1252(a)(2)(C), (D); Ortiz-

2 1 Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015).

2 Withholding of Removal

3 To qualify for withholding of removal, Desince was

4 required to show that she would more likely than not be

5 persecuted. 8 U.S.C. § 1231(b)(3); INS v. Cardoza-Fonseca,

6 480 U.S. 421, 430 (1987) (“The ‘would be threatened’ language

7 . . . requires the alien to establish by objective evidence

8 that it is more likely than not that he or she will be subject

9 to persecution upon deportation.”). She also needed to

10 establish that her race, religion, nationality, political

11 opinion, or membership in a particular social group would be

12 “one central reason” for such persecution. See 8 U.S.C.

13 §§ 1101(a)(42), 1158(b)(1)(B)(i); Matter of C–T–L–, 25 I. &

14 N. Dec. 341, 344–46 (BIA 2010) (extending the “one central

15 reason” standard to withholding of removal).

16 The agency’s rejection of Desince’s particular social

17 group raises a reviewable question of law. Paloka v. Holder,

18 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the

19 legal determination of whether a group constitutes a

20 ‘particular social group’ under the [Immigration and

21 Nationality Act].”). We uphold the agency’s social group 3 1 determination because Desince did not show that wealthy or

2 “Americanized” deportees meet the social distinction or

3 particularity requirements for a particular social group.

4 See Paloka, 762 F.3d at 195-97 (discussing social distinction

5 and particularity requirements); Ucelo-Gomez v. Mukasey, 509

6 F.3d 70, 72-74 (2d Cir. 2007) (holding that “affluent

7 Guatemalans” are not a particular social group).

8 The agency’s factual determination that Desince was

9 unlikely to face persecution as a Seventh Day Adventist is

10 not subject to review. See Hui Lin Huang v. Holder, 677 F.3d

11 130, 134 (2d Cir. 2012) (a determination of what will happen

12 in the future is a finding of fact). Although the agency may

13 commit legal error if it overlooks or mischaracterizes an

14 applicant’s testimony or evidence, see Mendez v. Holder, 566

15 F.3d 316, 323 (2d Cir. 2009), it did not do so here. The

16 agency acknowledged Desince’s testimony that someone set fire

17 to her pastor’s house in Haiti, but discounted this testimony

18 because Desince did not know who the culprits were and could

19 not establish that her pastor was targeted because of his

20 religion.

21 4 1 CAT Relief

2 To qualify for CAT relief, an applicant must show that

3 she is “more likely than not” to be tortured. 8 C.F.R.

4 § 1208.16(c)(2). Torture is defined as “severe pain or

5 suffering . . . inflicted by or at the instigation of or with

6 the consent or acquiescence of a public official or other

7 person acting in an official capacity.” Id. § 1208.18(a)(1).

8 Acquiescence, in turn, “requires that the public official,

9 prior to the activity constituting torture, have awareness of

10 such activity and thereafter breach his or her legal

11 responsibility to intervene to prevent such activity.” Id.

12 § 1208.18(a)(7).

13 Desince has not identified any colorable questions of

14 law with respect to the BIA’s conclusion that she did not

15 demonstrate a likelihood of torture. See Ortiz-Franco, 782

16 F.3d at 90-91. She argues that the country reports “depict

17 Haiti as a lawless country infested with crime where public

18 officials may personally engage in theft and extortion or

19 turn a blind eye to such behavior,” and she is at greater

20 risk than others because of her age, perceived wealth, and

21 lack of family ties in Haiti. Appellant Br. 9-10. But the 5 1 record reflects that the agency considered Desince’s

2 testimony and the country conditions and determined that this

3 evidence did not establish a likelihood of harm rising to the

4 level of torture or government acquiescence to such harm,

5 especially because Desince was not harmed when she visited

6 Haiti in 2006. Any challenge to the agency’s weighing of

7 this evidence is the type of factual question that this Court

8 lacks jurisdiction to review. See Ortiz-Franco, 782 F.3d at

9 91.

10 For the foregoing reasons, the petition for review is

11 DENIED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 16