Rocha v. Sessions

Opinion

16-1716 Rocha v. Sessions BIA

Straus, IJ

A200 026 570

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 17th day of January, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 SOLANGE ROCHA, AKA SOLANGE 14 APARECIDA ROCHA, 15 Petitioner, 16 17 v. 16-1716 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Glenn T. Terk, Wethersfield, CT. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General, Carl McIntyre, 28 Assistant Director, Brooke M. 29 Maurer, 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 Solange Rocha, a native and citizen of 6 Brazil, illegally reentered the United States after being 7 removed in 2009. She seeks review of a May 2, 2016, 8 decision of the BIA affirming a March 31, 2914, decision of 9 an Immigration Judge (“IJ”) denying Rocha’s application for 10 withholding of removal.1 In re Solange Rocha, No. A200 026 11 570 (B.I.A. May 2, 2016), aff’g No. A200 026 570 (Immig. 12 Ct. Hartford Mar. 31, 2014). We assume the parties’ 13 familiarity with the underlying facts and procedural 14 history of this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA and assume, as the 17 BIA did, that Rocha identified a cognizable social group. 18 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 19 522 (2d Cir. 2005). Accordingly, the issue is whether 20 Rocha established that she fell within that social group.

1Rocha does not challenge the denial of relief under the Convention Against Torture.

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1 To succeed on a claim for withholding of removal, the 2 applicant “must demonstrate that race, religion, 3 nationality, membership in a particular social group, or 4 political opinion was or will be at least one central 5 reason” for persecuting the applicant. Matter of C-T-L-, 6 25 I. & N. Dec. 341, 348 (BIA 2010) (internal quotation 7 marks omitted); 8 U.S.C. § 1231(b)(3)(A). “We review 8 factual findings under the substantial evidence standard,” 9 while “[q]uestions of law, as well as the application of 10 legal principles to undisputed facts, are reviewed de 11 novo.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). 12 The agency did not err in denying relief because, as 13 discussed below, Rocha did not demonstrate that any past 14 harm or feared future harm was or would be on account of 15 her membership in her proposed particular social group. 16 The agency reasonably found that Rocha failed to 17 establish membership in her proposed social group of women 18 in relationships that they are unable to leave. Rocha was 19 in fact able to leave the relationship—she testified that 20 when she was 21, she moved out of her mother’s house and 21 was thereby able to escape her stepfather’s abuse. She 22 also had friends who helped her escape a second time when

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1 she returned to Brazil, after the abuse resumed when she 2 voluntarily moved back in with her mother and stepfather. 3 In addition, her mother has since thrown her stepfather out 4 of the house, indicating that even if Rocha were to return 5 to Brazil and move back in with her mother, her stepfather 6 would not be there to abuse her. 7 Rocha argues that the agency should have considered the 8 issue of her ability to relocate separately from the issue 9 of whether she was a member of her proposed particular 10 social group.2 The analysis Rocha challenges, however, is 11 the agency’s evaluation of her ability to leave the 12 relationship, which is itself an element of the particular 13 social group that Rocha proposed: “Brazilian wom[en] that 14 cannot leave the relationship.” Pet’r Br. 9. Rocha also 15 asserts that the agency erred by considering events 16 “outside the relevant temporal scope of the inquiry,” i.e., 17 her leaving home at the age of 21 to live with her 18 boyfriend. Id. at 17. But the agency is required to 19 “consider all the evidence in the record that has probative

2 Rocha argues that the agency should have shifted the burden of reasonable relocation to the Government, but Rocha did not establish that she suffered past persecution on account of a protected ground, so the burden did not shift to the Government. 8 C.F.R. § 1208.16(b)(3)(i).

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1 value.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 2 400 (2d Cir. 2005). 3 Rocha argues that her situation is similar to Matter of 4 A-R-C-G-, which involved an applicant who was eventually 5 able to leave her relationship. 26 I. & N. Dec. 388 (BIA 6 2014). But the facts in Matter of A-R-C-G- are 7 distinguishable: the abuser followed his victim when she 8 tried to move out and threatened to kill her if she did not 9 return to him. Id. at 389, 395. Here, although Rocha 10 sometimes saw her stepfather at her boyfriend’s house, 11 there is no evidence that he threatened her or tried to 12 force her to return or that she otherwise felt any pressure 13 to return to him; instead, she testified that she returned 14 to her mother’s home of her own volition because she 15 thought the situation had changed. 16 Rocha further argues that the agency failed to consider 17 the years of abuse she suffered before she moved in with 18 her boyfriend in 2000. To the contrary, the agency 19 expressly made findings regarding that abuse and considered 20 it in determining that she may have established harm rising 21 to the level of persecution, although not on account of a 22 protected ground. Moreover, the abuse that she suffered at

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1 that time does not take away from the fact that she was 2 able to leave the relationship by moving out of the house, 3 or that her mother has since evicted the stepfather from 4 their home. 5 Rocha was also required to show that she was harmed by 6 a governmental actor or independent actors whom the 7 government is unwilling or unable to control. See Rizal v. 8 Gonzales, 442 F.3d 84, 92 (2d Cir. 2006); Sotelo-Aquije v. 9 Slattery, 17 F.3d 33, 37 (2d Cir. 1994). The agency’s 10 finding that Rocha failed to establish that the Brazilian 11 government was unwilling or unable to protect her is 12 supported by substantial evidence. Rocha testified that 13 she never called the police or otherwise reported her abuse 14 to the authorities. Moreover, the 2012 State Department 15 report reflected that the Brazilian government was working 16 to improve resources for victims and that “police generally 17 enforced the [domestic violence] law effectively.” A 206. 18 Accordingly, the agency did not err in holding that Rocha 19 failed to meet her burden of showing that she was 20 persecuted “by the government . . . or at the hands of an 21 organization or person from which the government cannot or 22 will not protect [her].” Aliyev v. Mukasey, 549 F.3d 111,

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1 116 (2d Cir. 2008) (internal quotation marks omitted); see 2 also 8 U.S.C. §§ 1101(a)(42), 1231(b)(3)(A). 3 The agency also reasonably held that Rocha failed to 4 meet her burden of showing that she could not reasonably 5 relocate in Brazil. 8 C.F.R. § 1208.16(b)(3)(i). Rocha 6 testified that she had safely relocated twice before, once 7 when she went to live with her boyfriend and once when she 8 stayed with her son’s grandmother. She also testified that 9 she was able to work and earn money in the past. The 10 agency’s holding that Rocha could reasonably relocate was 11 therefore supported by substantial evidence. Id.; see 12 also Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 13 2006) (“Asylum in the United States is not available to 14 obviate re-location to sanctuary in one’s own country.”). 15 Finally, Rocha argues that the agency erred in not 16 granting her humanitarian asylum. But Rocha is subject to 17 a reinstatement order, meaning that she is only eligible 18 for withholding of removal and cannot qualify for asylum. 19 Herrera-Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010); 20 8 C.F.R. § 241.8(e).

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1 For the foregoing reasons, the petition for review is 2 DENIED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk