18-3431 Espinoza-Tenelcia v. Barr BIA Nelson, IJ A205 523 795 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 23rd day of December, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 DIANNA CORLINA ESPINOZA- 14 TENELCIA, 15 Petitioner, 16 17 v. 18-3431 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Usman B. Ahmad, Long Island City, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; M. Jocelyn Lopez Wright, 1 Senior Litigation Counsel; Margot 2 P. Kniffin, Trial Attorney, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 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 Dianna Corlina Espinoza-Tenelcia, a native
11 and citizen of Ecuador, seeks review of a November 1, 2018,
12 decision of the BIA affirming an October 4, 2017, decision of
13 an Immigration Judge (“IJ”) denying Espinoza-Tenelcia’s
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re
16 Espinoza-Tenelcia, No. A 205 523 795 (B.I.A. Nov. 1, 2018),
17 aff’g No. A 205 523 795 (Immig. Ct. N.Y. City Oct. 4, 2017).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed the IJ’s decision as modified and
21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
24 standards of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
2 2013).
3 Asylum and Withholding of Removal
4 An applicant for asylum or withholding of removal carries
5 the burden to demonstrate that she has experienced, or has a
6 well-founded fear of experiencing, harm inflicted by either
7 the government or by private parties that the government is
8 “unable or unwilling to control.” Pan v. Holder, 777 F.3d
9 540, 543 (2d Cir. 2015); see 8 C.F.R. §§ 1208.13(a),
10 1208.16(b). “[T]o demonstrate persecution based on private
11 party violence, an alien must show either that the government
12 condoned the action or, even if it did not, that it was
13 completely helpless to protect the victims.” Scarlett v.
14 Barr, 957 F.3d 316, 332 (2d Cir. 2020). 1 Substantial evidence
1 Espinoza-Tenelcia’s challenge to the legal standard that the BIA applied to her claim is foreclosed by our decision in Scarlett, which was decided after the parties filed their briefs. Espinoza-Tenelcia argues that the BIA improperly applied a heightened “condoned or demonstrated a complete helplessness to protect” standard to the “unable or unwilling” component of her claim. See Matter of A-B-, 27 I. & N. Dec. 316, 337 (A.G. 2018) (articulating this standard). But in Scarlett, we held that the BIA’s interpretation of the “unable or unwilling” standard in Matter of A-B- was entitled to Chevron deference. Scarlett, 957 F.3d at 331–34; see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). 3 1 supports the agency’s conclusion that Espinoza-Tenelcia did
2 not meet that burden.
3 The agency relied in part on the fact that Espinoza-
4 Tenelcia had not attempted to obtain police protection to
5 reach this determination. Espinoza-Tenelcia is correct that
6 her failure to seek police protection, alone, would be
7 insufficient to support the agency’s decision. See Pan, 777
8 F.3d at 545 (“[P]olice unwillingness to protect a similarly-
9 situated refugee may establish that the government is unable
10 or unwilling to protect the applicant.”); cf. In re S-A-, 22
11 I. & N. Dec. 1328, 1335 (BIA 2000). However, the agency
12 reasonably concluded that the country conditions evidence
13 establishes that government protection is available to those
14 who seek it.
15 The record reflects that Ecuador provides legal
16 protections to victims of domestic violence: domestic
17 violence is punishable by imprisonment or fines, and there
18 are 50 judicial units and 78 courts specializing in gender-
19 based violence. Certified Administrative Record (“CAR”) at
20 214–15 (2016 U.S. State Dep’t Rep.). Ecuadorian law also
21 requires public hospitals to provide specialized reception
4 1 halls for sexual and domestic violence cases, and the Ministry
2 of Social and Economic Inclusion provides services and
3 subsidizes shelters for victims. Id. at 215. Specialized
4 “women’s police stations” issue orders of protection and
5 documents requiring abusers to pay maintenance. Id. at 291
6 (Las Marias Rep.).
7 The record also reflects that these measures are not
8 always successful and domestic violence remains a widespread
9 problem in Ecuador. The U.S. State Department Report
10 indicates that sixty percent of women in Ecuador “suffered
11 from gender-based violence at some point during their
12 lifetimes” and reporting such violence to authorities
13 “continued to be a traumatic process,” in part because victims
14 often “fear . . . retribution from the perpetrator or social
15 stigma.” Id. at 214. Activists view specialized courts to
16 be insufficiently staffed, and their judges to be
17 insufficiently trained, and, at the time of the 2016 report,
18 there were 16,000 pending domestic violence cases. Id. at
19 215. Those who report domestic violence sometimes wait ten
20 days or more for a response from a prosecutor, who must
21 investigate before issuing a restraining order. Id. at 214–
5 1 15. Another report indicates that, “[d]espite significant
2 government progress to introduce legislation to combat
3 domestic violence, including the introduction of women’s
4 police stations . . . , only 20% of incidents are currently
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18-3431 Espinoza-Tenelcia v. Barr BIA Nelson, IJ A205 523 795 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 23rd day of December, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 DIANNA CORLINA ESPINOZA- 14 TENELCIA, 15 Petitioner, 16 17 v. 18-3431 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Usman B. Ahmad, Long Island City, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; M. Jocelyn Lopez Wright, 1 Senior Litigation Counsel; Margot 2 P. Kniffin, Trial Attorney, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 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 Dianna Corlina Espinoza-Tenelcia, a native
11 and citizen of Ecuador, seeks review of a November 1, 2018,
12 decision of the BIA affirming an October 4, 2017, decision of
13 an Immigration Judge (“IJ”) denying Espinoza-Tenelcia’s
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re
16 Espinoza-Tenelcia, No. A 205 523 795 (B.I.A. Nov. 1, 2018),
17 aff’g No. A 205 523 795 (Immig. Ct. N.Y. City Oct. 4, 2017).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed the IJ’s decision as modified and
21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
24 standards of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
2 2013).
3 Asylum and Withholding of Removal
4 An applicant for asylum or withholding of removal carries
5 the burden to demonstrate that she has experienced, or has a
6 well-founded fear of experiencing, harm inflicted by either
7 the government or by private parties that the government is
8 “unable or unwilling to control.” Pan v. Holder, 777 F.3d
9 540, 543 (2d Cir. 2015); see 8 C.F.R. §§ 1208.13(a),
10 1208.16(b). “[T]o demonstrate persecution based on private
11 party violence, an alien must show either that the government
12 condoned the action or, even if it did not, that it was
13 completely helpless to protect the victims.” Scarlett v.
14 Barr, 957 F.3d 316, 332 (2d Cir. 2020). 1 Substantial evidence
1 Espinoza-Tenelcia’s challenge to the legal standard that the BIA applied to her claim is foreclosed by our decision in Scarlett, which was decided after the parties filed their briefs. Espinoza-Tenelcia argues that the BIA improperly applied a heightened “condoned or demonstrated a complete helplessness to protect” standard to the “unable or unwilling” component of her claim. See Matter of A-B-, 27 I. & N. Dec. 316, 337 (A.G. 2018) (articulating this standard). But in Scarlett, we held that the BIA’s interpretation of the “unable or unwilling” standard in Matter of A-B- was entitled to Chevron deference. Scarlett, 957 F.3d at 331–34; see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). 3 1 supports the agency’s conclusion that Espinoza-Tenelcia did
2 not meet that burden.
3 The agency relied in part on the fact that Espinoza-
4 Tenelcia had not attempted to obtain police protection to
5 reach this determination. Espinoza-Tenelcia is correct that
6 her failure to seek police protection, alone, would be
7 insufficient to support the agency’s decision. See Pan, 777
8 F.3d at 545 (“[P]olice unwillingness to protect a similarly-
9 situated refugee may establish that the government is unable
10 or unwilling to protect the applicant.”); cf. In re S-A-, 22
11 I. & N. Dec. 1328, 1335 (BIA 2000). However, the agency
12 reasonably concluded that the country conditions evidence
13 establishes that government protection is available to those
14 who seek it.
15 The record reflects that Ecuador provides legal
16 protections to victims of domestic violence: domestic
17 violence is punishable by imprisonment or fines, and there
18 are 50 judicial units and 78 courts specializing in gender-
19 based violence. Certified Administrative Record (“CAR”) at
20 214–15 (2016 U.S. State Dep’t Rep.). Ecuadorian law also
21 requires public hospitals to provide specialized reception
4 1 halls for sexual and domestic violence cases, and the Ministry
2 of Social and Economic Inclusion provides services and
3 subsidizes shelters for victims. Id. at 215. Specialized
4 “women’s police stations” issue orders of protection and
5 documents requiring abusers to pay maintenance. Id. at 291
6 (Las Marias Rep.).
7 The record also reflects that these measures are not
8 always successful and domestic violence remains a widespread
9 problem in Ecuador. The U.S. State Department Report
10 indicates that sixty percent of women in Ecuador “suffered
11 from gender-based violence at some point during their
12 lifetimes” and reporting such violence to authorities
13 “continued to be a traumatic process,” in part because victims
14 often “fear . . . retribution from the perpetrator or social
15 stigma.” Id. at 214. Activists view specialized courts to
16 be insufficiently staffed, and their judges to be
17 insufficiently trained, and, at the time of the 2016 report,
18 there were 16,000 pending domestic violence cases. Id. at
19 215. Those who report domestic violence sometimes wait ten
20 days or more for a response from a prosecutor, who must
21 investigate before issuing a restraining order. Id. at 214–
5 1 15. Another report indicates that, “[d]espite significant
2 government progress to introduce legislation to combat
3 domestic violence, including the introduction of women’s
4 police stations . . . , only 20% of incidents are currently
5 reported to the police,” and a UNWomen Ecuador spokesperson
6 believed rates of violence remained high because the new
7 domestic violence laws “have not changed the culture or the
8 way people think.” Id. at 291 (Las Marias Rep.).
9 Espinoza-Tenelcia argues that laws and programs intended
10 to control domestic abusers are unenforced and unfunded due
11 to a “lack of political will,” and the gaps in these programs
12 allow violence to continue. She further argues that the high
13 rate of murders of female victims, and the low rate at which
14 these murders are investigated, demonstrate that the
15 government lacks the willingness or ability to enforce laws
16 protecting women from violence. However, as the Government
17 notes, there is little in the record to support Espinoza-
18 Tenelcia’s view that the Ecuadorian government adopted
19 domestic violence laws for political gain but is unwilling to
20 enforce them; Espinoza-Tenelcia points only toward the
21 limited number of shelters as evidence of unwillingness to
6 1 protect women from domestic violence. Moreover, as the
2 Government notes, Espinoza-Tenelcia’s assertion that only
3 0.02% of femicides are investigated in Ecuador
4 mischaracterizes the record: a news article reports that a
5 commission conducted a study of 170 registered homicides, and
6 specialized women’s police stations registered 64,427
7 allegations of domestic violence against female victims,
8 including an unspecified number of murders, an unspecified
9 number of which were then investigated. Id. at 287.
10 Espinoza-Tenelcia misinterprets these statistics as stating
11 that only 170 out of 64,427 femicides were registered and
12 investigated. The Government, in turn, cites a news article
13 reporting that “justice has reached 95% coverage on issues of
14 domestic violence,” id. at 298, but it is unclear what that
15 statement means. In sum, the record does not establish what
16 percentage of domestic violence reports are investigated or
17 result in prosecutions or other protective measures.
18 Although the backlog of domestic violence cases is
19 significant, the agency reasonably concluded that the
20 totality of this evidence did not satisfy Espinoza-Tenelcia’s
21 burden to demonstrate that the Ecuadorian government was
7 1 unable or unwilling to control her abuser. See 8 C.F.R.
2 §§ 1208.13(a), 1208.16(b). 2
3 CAT
4 For similar reasons, the agency’s conclusion that
5 Espinoza-Tenelcia did not carry her burden to demonstrate
6 government acquiescence is also supported by substantial
7 evidence. To receive protection under the CAT, an applicant
8 must “establish that it is more likely than not that he or
9 she would be tortured if removed to the proposed country of
10 removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is defined as
11 any act by which severe pain or suffering, whether physical
12 or mental, is intentionally inflicted on a person . . . by or
13 at the instigation of or with the consent or acquiescence of
14 a public official or other person acting in an official
15 capacity.” 8 C.F.R. § 1208.18(a)(1); see also Pierre v.
16 Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007). Government
2 Because the agency’s findings regarding the Ecuadorian government’s willingness and ability to control Espinoza- Tenelcia’s abuser are dispositive, we do not reach Espinoza- Tenelcia’s argument that she established a nexus between her feared harm and a protected ground. See Pan, 777 F.3d at 543; INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 8 1 acquiescence “requires . . . that government officials know
2 of or remain willfully blind to an act and thereafter breach
3 their legal responsibility to prevent it.” Khouzam v.
4 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004); see 8 C.F.R.
5 § 1208.18(a)(7).
6 Espinoza-Tenelcia argues that the high rates of domestic
7 violence in Ecuador, the delays victims experience in
8 obtaining restraining orders, and the backlog of domestic
9 violence cases in Ecuadorian courts establish that the
10 government is aware of or willfully blind to torture and
11 breaches a duty to prevent it; she also argues that the
12 government encourages such violence by allowing perpetrators
13 to act with impunity. But, as discussed above, the record
14 reflects that the Ecuadorian government has enacted laws
15 against domestic violence and has put in place systems to
16 prosecute crimes and provide some support to victims.
17 Although these systems undoubtedly have gaps and domestic
18 violence remains a significant problem in Ecuador, the agency
19 reasonably concluded that the evidence did not establish that
20 it was more likely than not that the Ecuadorian government
21 would acquiesce to Espinoza-Tenelcia’s torture.
9 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court