Portillo v. Garland

Opinion

19-3998 Portillo v. Garland BIA

Gordon-Uruakpa, IJ

A088 445 296

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 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 28th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 CARLOS NOE PORTILLO, 15 Petitioner, 16 17 v. 19-3998 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Bruno Joseph Bembi, Esq., 25 Hempstead, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Claire

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1 L. Workman, Senior Litigation 2 Counsel; John F. Stanton, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Carlos Noe Portillo, a native and citizen of 12 El Salvador, seeks review of a November 4, 2019 decision of 13 the BIA reversing a February 15, 2018 decision of an 14 immigration judge (“IJ”) granting deferral of removal under 15 the Convention Against Torture (“CAT”). In re Carlos Noe 16 Portillo, No. A088 445 296 (B.I.A. Nov. 4, 2019), rev’g No. 17 A088 445 296 (Immig. Ct. N.Y. City Feb. 15, 2018). We assume 18 the parties’ familiarity with the underlying facts and 19 procedural history. 20 We have reviewed the BIA’s decision as the final agency 21 determination. See Yan Chen v. Gonzales, 417 F.3d 268, 271 22 (2d Cir. 2005). We review factual findings for substantial 23 evidence and questions of law de novo. See Nasrallah v. 24 Barr, 140 S. Ct. 1683, 1692 (2020); Manning v. Barr, 954 F.3d

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1 477, 484 (2d Cir. 2020). 2 An applicant for CAT protection must show that he will 3 “more likely than not” be tortured by or with the acquiescence 4 of government officials. See 8 C.F.R. §§ 1208.16(c)(2), 5 1208.17(a), 1208.18(a)(1); Khouzam v. Ashcroft, 361 F.3d 161, 6 170–71 (2d Cir. 2004). “Torture is defined as any act by 7 which severe pain or suffering . . . is intentionally 8 inflicted on a person . . . by, or at the instigation of, or 9 with the consent or acquiescence of, a public official acting 10 in an official capacity or other person acting in an official 11 capacity.” 8 C.F.R. § 1208.18(a)(1). “[A]n alien will never 12 be able to show that he faces a more likely than not chance 13 of torture if one link in the chain cannot be shown to be 14 more likely than not to occur. It is the likelihood of all 15 necessary events coming together that must more likely than 16 not lead to torture, and a chain of events cannot be more 17 likely than its least likely link.” Savchuck v. Mukasey, 518 18 F.3d 119, 123 (2d Cir. 2008) (quoting in re J-F-F-, 23 I. & 19 N. Dec. 912, 918 n.4 (A.G. 2006)). 20 The BIA concluded that the IJ clearly erred in finding 21 that Portillo established that he would likely be tortured in

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1 El Salvador because he has non-gang tattoos. See Wu Lin v. 2 Lynch, 813 F.3d 122, 129 (2d Cir. 2016) (“[I]f the BIA says 3 that, after considering the entire record, it concludes that 4 the IJ has committed clear error in making a finding of fact 5 and provides a legally sufficient explanation for its 6 conclusion, its ruling will ordinarily be upheld.”). We see 7 no error in the BIA’s conclusion. Portillo’s evidence — 8 which consisted of the 2016 State Department report on El 9 Salvador, and letters from his parents, his minister, and the 10 mayor of his hometown — was insufficient to meet his burden 11 of proof because it primarily discusses general gang violence 12 and extortion. See Mu Xiang Lin v. U.S. Dep’t of Justice, 13 432 F.3d 156, 160 (2d Cir. 2005) (requiring petitioner to 14 show “that someone in his particular alleged circumstances is 15 more likely than not to be tortured” (emphasis omitted)); 16 Jian Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) 17 (“[W]hen a petitioner bears the burden of proof, his failure 18 to adduce evidence can itself constitute the substantial 19 evidence necessary to support the agency’s challenged 20 decision.” (quotation marks omitted)). The BIA’s conclusion 21 that Portillo did not demonstrate a likelihood of torture is

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1 dispositive of CAT protection, 8 C.F.R. §§ 1208.16(c)(2), 2 1208.17(a), and we therefore do not reach the issue of 3 governmental acquiescence, see INS v. Bagamasbad, 429 U.S. 4 24, 25 (1976) (“As a general rule courts and agencies are not 5 required to make findings on issues the decision of which is 6 unnecessary to the results they reach.”). 7 Finally, we find no merit in Portillo’s argument that 8 the BIA deprived him of due process by not issuing a new 9 briefing schedule after accepting a late filing from the 10 Department of Homeland Security. The BIA did not preclude 11 Portillo from filing a brief; rather, Portillo made no effort 12 to file a brief, or to seek an extension to the default 13 deadline to file opposition briefs within 21 days of the 14 filing of the opening brief as provided in § 4.7(a)(1) of the 15 BIA Practice Manual. 1 See Burger v. Gonzales, 498 F.3d 131, 16 134 (2d Cir. 2007) (holding that “[t]o establish a violation 17 of due process, an alien must show that [he] was denied a 18 full and fair opportunity to present [his] claims or that the 19 IJ or BIA otherwise deprived [him] of fundamental fairness”

1 BIA Practice Manual § 4.7(a)(1), available at https://www.justice.gov/eoir/book/file/1528926/download (last visited November 21, 2022).

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1 (quotation marks omitted)). 2 For the foregoing reasons, the petition for review is 3 DENIED. All pending motions and applications are DENIED and 4 stays VACATED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court