Flores Flores v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: October 7, 2019
• Docket: 17-3646
• Status: Unpublished

Opinion

17-3646 Flores Flores v. Barr BIA McManus, IJ A206 223 272 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 7th day of October, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 CARLOS FLORES FLORES, 14 Petitioner, 15 16 v. 17-3646 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Daniel Spensieri, White Plains, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; John S. Hogan, 28 Assistant Director; Todd J. 29 Cochran, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Carlos Flores Flores, a native and citizen of

6 Mexico, seeks review of an October 12, 2017, decision of the

7 BIA affirming a March 1, 2017, decision of an Immigration

8 Judge (“IJ”) denying Flores Flores’s application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Carlos Flores Flores, No. A

11 206 223 272 (B.I.A. Oct. 12, 2017), aff’g No. A 206 223 272

12 (Immig. Ct. N.Y. City Mar. 1, 2017). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Because Flores Flores challenges only the denial of CAT

16 relief, we limit our review to that claim. We have reviewed

17 both the IJ’s and BIA’s decisions. See Huo Qiang Chen v.

18 Holder, 773 F.3d 396, 403 (2d Cir. 2014). The applicable

19 standards of review are well established. See 8 U.S.C.

20 § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d

21 Cir. 2018) (reviewing factual findings for substantial

22 evidence and questions of law and the application of law to

2 1 undisputed facts de novo).

2 CAT relief is mandatory if the applicant shows that he

3 would “more likely than not” be tortured. 8 C.F.R.

4 §§ 1208.16(c)(2), 1208.17(a); see Khouzam v. Ashcroft, 361

5 F.3d 161, 168 (2d Cir. 2004). Torture is defined as

6 “severe pain and suffering . . . intentionally inflicted .

7 . . by or at the instigation of or with the consent or

8 acquiescence of a public official or other person acting in

9 an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Torture

10 is an extreme form of cruel and inhuman treatment and does

11 not include lesser forms of cruel, inhuman or degrading

12 treatment or punishment that do not amount to torture.”

13 Id. § 1208.18(a)(2). Governmental acquiescence occurs when

14 an official, before the torture occurs, is aware of the

15 torture and thereafter “breach[es] his or her legal

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

17 § 1208.18(a)(7). To prevail on a CAT claim, an applicant

18 must “proffer objective evidence that he or she is likely

19 to be tortured in the future.” Ramsameachire v. Ashcroft,

20 357 F.3d 169, 185 (2d Cir. 2004).

21 We find no error in the agency’s denial of Flores

22 Flores’s CAT claim. His fear of torture was based on his

3 1 father’s torture in 1990, the theft of his car in 2003, and

2 unknown individuals inquiring about him after his departure

3 from Mexico. Flores Flores had the burden to provide

4 objective evidence that he was more likely than not to be

5 tortured, 8 C.F.R. § 1208.16(c)(2), and his speculation that

6 these past events indicated that he would likely be tortured

7 was not sufficient support for a CAT claim, Savchuck v.

8 Mukasey, 518 F.3d 119, 124 (2d Cir. 2008).

9 First, as to his father’s torture, past torture of

10 oneself, let alone of a relative, “does not give rise to a

11 presumption of future torture. Rather, it serves as evidence

12 of the possibility of future torture.” Suzhen Meng v.

13 Holder, 770 F.3d 1071, 1076 (2d Cir. 2014). Flores Flores

14 remained in Mexico unharmed for 15 years after his father’s

15 torture until his departure in 2005, undermining any claim

16 that he would face torture based on his father’s treatment.

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

18 (holding that where family members remain unharmed in

19 petitioner’s native country, objective fear of future harm is

20 undermined).

21 Second, Flores Flores alleged a fear of torture in Mexico

22 based on his experience of being followed after the 2003 theft

4 1 of his car and his claim that unidentified people inquired

2 about his whereabouts after he left Mexico. But he did not

3 submit “particularized evidence” that these unidentified

4 people would torture him or that they were affiliated with a

5 cartel or the Mexican authorities. Mu Xiang Lin v. U.S.

6 Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005) (upholding

7 denial of CAT relief where petitioner offered no

8 “particularized evidence” that she would be tortured in her

9 country of removal). His speculation that criminal gangs

10 would seek to harm him because he knew about the body found

11 in the car, that the police may have been responsible for

12 killing the person found in the car, and that the dead person

13 may have been important or involved in organized crime was

14 not sufficient to meet his burden of proof. See Jian Xing

15 Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (reasoning

16 that, absent “solid support” in the record, a fear of

17 persecution is “speculative at best”). And his aunt’s letter

18 did not identify the individuals who asked about him, stating

19 only that “some of his friends here tell me that strangers

20 ask for him and if they know Carlos and where he lives.”

21 This speculation does not state a CAT claim as there is no

22 evidence that anyone intends to torture Flores Flores. See

5 1 Savchuck, 518 F.3d at 124 (finding a CAT claim based on a

2 chain of assumptions to be speculative). Finally, although

3 the country conditions evidence reflects police corruption in

4 Mexico, it does not shed any light on the identities of Flores

5 Flores’s would-be attackers. See Mu Xiang Lin, 432 F.3d at

6 160. Accordingly, Flores Flores did not meet his burden to

7 prove that the unknown people he feared were more likely than

8 not to torture him if he returned to Mexico.

9 For the foregoing reasons, the petition for review is

10 DENIED.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court