22-6141 Dutan Vinuesa v. Garland BIA Kolbe, IJ A213 637 533
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 15th day of May, two thousand twenty- 4 three. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GERARD E. LYNCH, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN DAVID DUTAN VINUESA, 14 Petitioner, 15 16 v. 22-6141 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Scott Coomes, Brooklyn Defender Services, 24 Brooklyn, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; John S. Hogan, Assistant 3 Director; Todd J. Cochran, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Juan David Dutan Vinuesa, a native and citizen of Ecuador, seeks
11 review of a February 22, 2022 decision of the BIA affirming an August 5, 2021
12 decision of an Immigration Judge (“IJ”) denying his application for relief under
13 the Convention Against Torture (“CAT”). In re Juan David Dutan Vinuesa, No.
14 A213 637 533 (B.I.A. Feb. 22, 2022), aff’g No. A213 637 533 (Immig. Ct. N.Y.C. Aug.
15 5, 2021). We assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
19 findings for substantial evidence, and we review questions of law de novo. See
20 Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 2021). We “uphold [the]
21 agency[’s] factfinding ‘unless any reasonable adjudicator would be compelled to 2 1 conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
2 I. CAT Relief
3 An applicant for protection under the CAT has the burden of demonstrating
4 that he will “more likely than not” be tortured. 8 C.F.R. § 1208.16(c)(2). “In
5 considering a CAT claim, the agency properly considers ‘all evidence relevant to
6 the possibility of future torture,’ including evidence of ‘past torture’; of possible
7 internal relocation; of ‘gross, flagrant or mass violations of human rights’; and any
8 other relevant information regarding ‘conditions in the country of removal.’”
9 Quintanilla-Mejia, 3 F.4th at 592 (quoting 8 C.F.R. § 1208.16(c)(3)). A CAT claim
10 “requires a showing with respect to future, rather than past, treatment.”
11 Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004). A lack of corroboration
12 of “otherwise credible” evidence can be an independent basis for the denial of
13 relief if the agency identifies reasonably available evidence that should have been
14 presented. Wei Sun v. Sessions, 883 F.3d 23, 28–31 (2d Cir. 2018). In denying relief
15 on this basis, an IJ should identify specific pieces of missing documentation,
16 explain why it was reasonably available, provide the alien with an opportunity to
17 explain the omission, and assess any explanation. Id. at 31. “No court shall
18 reverse a determination made by a trier of fact with respect to the availability of
3 1 corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact
2 is compelled to conclude that such corroborating evidence is
3 unavailable.” 8 U.S.C. § 1252(b)(4).
4 Dutan alleged that police officers who assaulted him 20 years ago after he
5 witnessed them commit a murder would find and torture him, or that unnamed
6 drug traffickers would torture him because he provided information to U.S. law
7 enforcement. The agency did not err in denying his claim as to drug traffickers
8 because it was entirely speculative. Dutan did not allege that he had been
9 threatened by anyone involved in drug trafficking and he had no evidence that he
10 cooperated with law enforcement in the United States. See Jian Xing Huang v. U.S.
11 INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that a fear is “speculative at best” if
12 it lacks “solid support” in the record).
13 The agency also did not err in denying Dutan’s fear of torture by the police
14 as speculative. In addition to the fact that 20 years had passed, his evidence
15 consisted of letters from family members that did not mention his issues with the
16 police (his mother) or did not know details of the events of 2000 (his sister in the
17 United States). His brother in the United States alleged that police were still
18 bothering the family and had arrested him in 2013 when they mistook him for
4 1 Dutan. The IJ did not err in declining to credit the letters because none of the
2 declarants were made available for cross-examination. See Y.C. v. Holder, 741 F.3d
3 324, 332, 334 (2d Cir. 2013) (holding that weight of documentary evidence is within
4 agency’s discretion and deferring to the agency’s decision to give limited weight
5 to letter from applicant’s spouse); see also Likai Gao v. Barr, 968 F.3d 137, 149 (2d
6 Cir. 2020) (holding that an IJ was within her discretion in according little weight
7 to supporting letters “because the declarants (particularly [the applicant’s] wife)
8 were interested parties and neither was available for cross-examination”).
9 More specifically, we are not persuaded by Dutan’s argument that the
10 agency errantly discarded his explanation that his brother was unavailable
11 because he feared he would himself be subject to removal if he appeared to testify
12 on Dutan’s behalf. Although this Court is sensitive to such misgivings, see, e.g.,
13 Kyaw Zwar Tun v. U.S.
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22-6141 Dutan Vinuesa v. Garland BIA Kolbe, IJ A213 637 533
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 15th day of May, two thousand twenty- 4 three. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GERARD E. LYNCH, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN DAVID DUTAN VINUESA, 14 Petitioner, 15 16 v. 22-6141 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Scott Coomes, Brooklyn Defender Services, 24 Brooklyn, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; John S. Hogan, Assistant 3 Director; Todd J. Cochran, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Juan David Dutan Vinuesa, a native and citizen of Ecuador, seeks
11 review of a February 22, 2022 decision of the BIA affirming an August 5, 2021
12 decision of an Immigration Judge (“IJ”) denying his application for relief under
13 the Convention Against Torture (“CAT”). In re Juan David Dutan Vinuesa, No.
14 A213 637 533 (B.I.A. Feb. 22, 2022), aff’g No. A213 637 533 (Immig. Ct. N.Y.C. Aug.
15 5, 2021). We assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
19 findings for substantial evidence, and we review questions of law de novo. See
20 Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 2021). We “uphold [the]
21 agency[’s] factfinding ‘unless any reasonable adjudicator would be compelled to 2 1 conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
2 I. CAT Relief
3 An applicant for protection under the CAT has the burden of demonstrating
4 that he will “more likely than not” be tortured. 8 C.F.R. § 1208.16(c)(2). “In
5 considering a CAT claim, the agency properly considers ‘all evidence relevant to
6 the possibility of future torture,’ including evidence of ‘past torture’; of possible
7 internal relocation; of ‘gross, flagrant or mass violations of human rights’; and any
8 other relevant information regarding ‘conditions in the country of removal.’”
9 Quintanilla-Mejia, 3 F.4th at 592 (quoting 8 C.F.R. § 1208.16(c)(3)). A CAT claim
10 “requires a showing with respect to future, rather than past, treatment.”
11 Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004). A lack of corroboration
12 of “otherwise credible” evidence can be an independent basis for the denial of
13 relief if the agency identifies reasonably available evidence that should have been
14 presented. Wei Sun v. Sessions, 883 F.3d 23, 28–31 (2d Cir. 2018). In denying relief
15 on this basis, an IJ should identify specific pieces of missing documentation,
16 explain why it was reasonably available, provide the alien with an opportunity to
17 explain the omission, and assess any explanation. Id. at 31. “No court shall
18 reverse a determination made by a trier of fact with respect to the availability of
3 1 corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact
2 is compelled to conclude that such corroborating evidence is
3 unavailable.” 8 U.S.C. § 1252(b)(4).
4 Dutan alleged that police officers who assaulted him 20 years ago after he
5 witnessed them commit a murder would find and torture him, or that unnamed
6 drug traffickers would torture him because he provided information to U.S. law
7 enforcement. The agency did not err in denying his claim as to drug traffickers
8 because it was entirely speculative. Dutan did not allege that he had been
9 threatened by anyone involved in drug trafficking and he had no evidence that he
10 cooperated with law enforcement in the United States. See Jian Xing Huang v. U.S.
11 INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that a fear is “speculative at best” if
12 it lacks “solid support” in the record).
13 The agency also did not err in denying Dutan’s fear of torture by the police
14 as speculative. In addition to the fact that 20 years had passed, his evidence
15 consisted of letters from family members that did not mention his issues with the
16 police (his mother) or did not know details of the events of 2000 (his sister in the
17 United States). His brother in the United States alleged that police were still
18 bothering the family and had arrested him in 2013 when they mistook him for
4 1 Dutan. The IJ did not err in declining to credit the letters because none of the
2 declarants were made available for cross-examination. See Y.C. v. Holder, 741 F.3d
3 324, 332, 334 (2d Cir. 2013) (holding that weight of documentary evidence is within
4 agency’s discretion and deferring to the agency’s decision to give limited weight
5 to letter from applicant’s spouse); see also Likai Gao v. Barr, 968 F.3d 137, 149 (2d
6 Cir. 2020) (holding that an IJ was within her discretion in according little weight
7 to supporting letters “because the declarants (particularly [the applicant’s] wife)
8 were interested parties and neither was available for cross-examination”).
9 More specifically, we are not persuaded by Dutan’s argument that the
10 agency errantly discarded his explanation that his brother was unavailable
11 because he feared he would himself be subject to removal if he appeared to testify
12 on Dutan’s behalf. Although this Court is sensitive to such misgivings, see, e.g.,
13 Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d 554, 569 (2d Cir. 2006), as Dutan himself
14 emphasizes, “whether an applicant can reasonably obtain corroborating evidence
15 is a finding of fact that the BIA reviews for clear error,” Pinel-Gomez v. Garland, 52
16 F.4th 523, 532 (2d Cir. 2022) (internal quotation marks omitted). Dutan fails to
17 identify any basis for us to conclude that the IJ clearly erred in declining to credit
18 the argument that Dutan’s brother, who lived in the same city where Dutan’s
5 1 proceedings were held and (according to his declaration) had himself applied for
2 asylum, was unavailable to testify, much less that the BIA erred in affirming that
3 finding. See Wenting Huang v. Barr, 819 F. App’x 8, 10 (2d Cir. 2020) (summary
4 order) (affirming the agency’s rejection of a similar fear-based argument where the
5 would-be corroborators “were involved in their own asylum proceedings and thus
6 did not need shielding from the experience of testifying”); cf. Yan Juan Chen v.
7 Holder, 658 F.3d 246, 253 (2d Cir. 2011) (affirming the agency’s rejection of a similar
8 argument, distinguishing situations where the potential witness is a member of
9 the applicant’s family from those where the witness is “unrelated” to the applicant
10 and has absolutely “no incentive to appear on [the applicant’s] behalf that would
11 counterbalance his fear of being apprehended”).
12 Dutan also challenges the IJ’s finding that he should have provided
13 statements from his sister in Ecuador, who he alleged had been recently targeted
14 by the same police officers, and from his friends who also witnessed the murder
15 in 2000. But the agency was not compelled to accept Dutan’s explanation that he
16 did not know where his friends were: Dutan was able to obtain a letter from a
17 friend’s father in Ecuador, and he knew that his friends had moved to Spain and
18 to the United States, but he did not explain why the friend’s father could not locate
6 1 his own son or why a family member could not have tracked him down.
2 Moreover, the record does not compel the conclusion that he could not have
3 obtained a statement from his sister; to the contrary, Dutan testified that the reason
4 he did not provide a statement from his sister was because he “didn’t ask her for
5 one.” Certified Admin. Record at 139–40.
6 Dutan also argues that the IJ misapplied the CAT standard by stating that
7 the agency “may” consider, id. at 65, instead of “shall” consider, the factors in
8 8 C.F.R. § 1208.16(c)(3). The record, however, does not compel a conclusion that
9 the agency ignored relevant factors, particularly as the IJ considered Dutan’s
10 allegations of past harm and “the entirety of the Record of Proceedings, including
11 what the country conditions reflect with regard to conditions in Ecuador.”
12 Certified Admin. Record at 68–69; see also Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d
13 315, 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into account all of
14 the evidence before him, unless the record compellingly suggests otherwise.”).
15 II. Service of the Notice to Appear
16 Dutan’s challenge to his notice to appear lacks merit. He does not dispute
17 that he was personally served with a notice to appear that informed him of the
18 charges and the date and time of his hearing, that he signed that notice to confirm
7 1 service, or that he was subsequently served with a hearing notice providing an
2 updated hearing date and reiterating the potential consequences should he fail to
3 appear (or that he, in fact, appeared at that hearing). This is all the statute
4 requires. See 8 U.S.C. § 1229(a)(1) (requiring service of written notice of the
5 initiation of removal proceedings), (a)(2)(A) (requiring written notice of a change
6 in the date, time, or place of the hearing).
7 Finally, Dutan’s argument, in the alternative, that the BIA engaged in
8 improper fact-finding when it determined that Dutan had been properly served is
9 also without merit. Dutan has never disputed that he was in fact served with both
10 the initial (in his view, deficient) NTA and the updated notice. Rather, he has
11 maintained that service of the initial NTA was improper as a matter of law based on
12 what was contained in the NTA he received. As discussed above, we disagree.
13 For the foregoing reasons, the petition for review is DENIED. All pending
14 motions and applications are DENIED and stays VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court