20-3997 Salgado-Medrano v. Garland BIA Zagzoug, IJ A208 191 994
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 16th day of October, two thousand 4 twenty-three. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 ERICKA LISSETH SALGADO- 14 MEDRANO, 15 Petitioner, 16 17 v. 20-3997 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Michael W. Pottetti, Port Jefferson, NY. 2 3 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 4 General; Anthony P. Nicastro, Assistant 5 Director; Patricia E. Bruckner, Trial Attorney, 6 Office of Immigration Litigation, United 7 States Department of Justice, Washington, 8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Ericka Lisseth Salgado-Medrano, a native and citizen of El
13 Salvador, seeks review of a November 19, 2020 decision of the BIA affirming an
14 October 26, 2018 decision of an Immigration Judge (“IJ”), which denied her
15 application for asylum, withholding of removal, and relief under the Convention
16 Against Torture (“CAT”). In re Ericka Lisseth Salgado-Medrano, No. A 208 191 994
17 (B.I.A. Nov. 19, 2020), aff’g No. A 208 191 994 (Immig. Ct. N.Y. City Oct. 26, 2018).
18 We assume the parties’ familiarity with the underlying facts and procedural
19 history.
20 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Salgado-Medrano did
22 not raise her CAT claim before the BIA and does not argue it in her brief here, we 2 1 consider only her claims for asylum and withholding of removal. See 8 U.S.C. §
2 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has
3 exhausted all administrative remedies available to the alien as of right.”); Yueqing
4 Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (deeming abandoned issues
5 not addressed in brief). We review factual findings for substantial evidence and
6 questions of law and application of law to fact de novo. See Bah v. Mukasey, 529
7 F.3d 99, 110 (2d Cir. 2008).
8 An applicant for asylum and withholding of removal has the burden of
9 establishing either past persecution or a well-founded fear (asylum) or likelihood
10 (withholding of removal) of future persecution and that “race, religion,
11 nationality, membership in a particular social group, or political opinion was or
12 will be at least one central reason for persecuting the applicant.” 8 U.S.C.
13 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3); 8 C.F.R. §§ 1208.13(b), 1208.16(b);
14 Quituizaca v. Garland, 52 F.4th 103, 114 (2d Cir. 2022) (holding that the “one central
15 reason” standard applies to both asylum and withholding of removal claims).
16 Under 8 U.S.C. § 1158(b)(1)(B)(ii), “[t]he testimony of the applicant may be
17 sufficient to sustain the applicant’s burden without corroboration, but only if the
18 applicant satisfies the trier of fact that the applicant’s testimony is credible, is
3 1 persuasive, and refers to specific facts sufficient to demonstrate that the applicant
2 is a refugee.” The same provision further provides that “[i]n determining”
3 whether the applicant’s burden has been met, “the trier of fact may weigh the
4 credible testimony along with other evidence of record. Where the trier of fact
5 determines that the applicant should provide evidence that corroborates
6 otherwise credible testimony, such evidence must be provided unless the
7 applicant does not have the evidence and cannot reasonably obtain the evidence.”
8 8 U.S.C. § 1158(b)(1)(B)(ii).
9 Thus, “[a]n IJ may deny a claim for relief based on the applicant’s failure to
10 provide reasonably obtainable corroborating evidence.” Pinel-Gomez v. Garland,
11 52 F.4th 523, 529 (2d Cir. 2022). To do so, “the IJ must (1) point to specific pieces
12 of missing evidence and show that it was reasonably available, (2) give the
13 applicant an opportunity to explain the omission, and (3) assess any explanation
14 given.” Id. (quotation marks omitted). “[A]n IJ’s determination about whether
15 an applicant can ‘reasonably obtain’ corroborating evidence is a finding of fact.”
16 Id. at 532. “No court shall reverse a determination made by a trier of fact with
17 respect to the availability of corroborating evidence . . . unless the court finds . . .
4 1 that a reasonable trier of fact is compelled to conclude that such corroborating
2 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
3 Salgado-Medrano alleged that she was extorted by MS-13 for a portion of
4 her salary as a teacher and that she feared being killed because MS-13 had
5 murdered two of her female cousins. The agency did not err in concluding that
6 Salgado-Medrano failed to meet her burden of proof. Nor did the IJ err in
7 requiring corroboration in light of apparent omissions and inconsistencies in
8 Salgado-Medrano’s testimony: the employment section of her application listed
9 her as unemployed during the relevant period, and neither her application,
10 written statement, nor her parents’ letters mentioned her cousins’ murders. See
11 Hong Fei Gao v. Sessions, 891 F.3d 67, 78–79 (2d Cir. 2018) (“In the immigration
12 context, in assessing the probative value of the omission of certain facts, an IJ
13 should consider whether those facts are ones that a credible petitioner would
14 reasonably have been expected to disclose under the relevant circumstances.”).
15 In addition, the IJ identified reasonably available evidence that Salgado-Medrano
16 failed to present—her parents’ letter could have mentioned the murders, Salgado-
17 Medrano testified that her aunt and uncle had death certificates for her cousins,
Free access — add to your briefcase to read the full text and ask questions with AI
20-3997 Salgado-Medrano v. Garland BIA Zagzoug, IJ A208 191 994
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 16th day of October, two thousand 4 twenty-three. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 ERICKA LISSETH SALGADO- 14 MEDRANO, 15 Petitioner, 16 17 v. 20-3997 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Michael W. Pottetti, Port Jefferson, NY. 2 3 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 4 General; Anthony P. Nicastro, Assistant 5 Director; Patricia E. Bruckner, Trial Attorney, 6 Office of Immigration Litigation, United 7 States Department of Justice, Washington, 8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Ericka Lisseth Salgado-Medrano, a native and citizen of El
13 Salvador, seeks review of a November 19, 2020 decision of the BIA affirming an
14 October 26, 2018 decision of an Immigration Judge (“IJ”), which denied her
15 application for asylum, withholding of removal, and relief under the Convention
16 Against Torture (“CAT”). In re Ericka Lisseth Salgado-Medrano, No. A 208 191 994
17 (B.I.A. Nov. 19, 2020), aff’g No. A 208 191 994 (Immig. Ct. N.Y. City Oct. 26, 2018).
18 We assume the parties’ familiarity with the underlying facts and procedural
19 history.
20 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Salgado-Medrano did
22 not raise her CAT claim before the BIA and does not argue it in her brief here, we 2 1 consider only her claims for asylum and withholding of removal. See 8 U.S.C. §
2 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has
3 exhausted all administrative remedies available to the alien as of right.”); Yueqing
4 Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (deeming abandoned issues
5 not addressed in brief). We review factual findings for substantial evidence and
6 questions of law and application of law to fact de novo. See Bah v. Mukasey, 529
7 F.3d 99, 110 (2d Cir. 2008).
8 An applicant for asylum and withholding of removal has the burden of
9 establishing either past persecution or a well-founded fear (asylum) or likelihood
10 (withholding of removal) of future persecution and that “race, religion,
11 nationality, membership in a particular social group, or political opinion was or
12 will be at least one central reason for persecuting the applicant.” 8 U.S.C.
13 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3); 8 C.F.R. §§ 1208.13(b), 1208.16(b);
14 Quituizaca v. Garland, 52 F.4th 103, 114 (2d Cir. 2022) (holding that the “one central
15 reason” standard applies to both asylum and withholding of removal claims).
16 Under 8 U.S.C. § 1158(b)(1)(B)(ii), “[t]he testimony of the applicant may be
17 sufficient to sustain the applicant’s burden without corroboration, but only if the
18 applicant satisfies the trier of fact that the applicant’s testimony is credible, is
3 1 persuasive, and refers to specific facts sufficient to demonstrate that the applicant
2 is a refugee.” The same provision further provides that “[i]n determining”
3 whether the applicant’s burden has been met, “the trier of fact may weigh the
4 credible testimony along with other evidence of record. Where the trier of fact
5 determines that the applicant should provide evidence that corroborates
6 otherwise credible testimony, such evidence must be provided unless the
7 applicant does not have the evidence and cannot reasonably obtain the evidence.”
8 8 U.S.C. § 1158(b)(1)(B)(ii).
9 Thus, “[a]n IJ may deny a claim for relief based on the applicant’s failure to
10 provide reasonably obtainable corroborating evidence.” Pinel-Gomez v. Garland,
11 52 F.4th 523, 529 (2d Cir. 2022). To do so, “the IJ must (1) point to specific pieces
12 of missing evidence and show that it was reasonably available, (2) give the
13 applicant an opportunity to explain the omission, and (3) assess any explanation
14 given.” Id. (quotation marks omitted). “[A]n IJ’s determination about whether
15 an applicant can ‘reasonably obtain’ corroborating evidence is a finding of fact.”
16 Id. at 532. “No court shall reverse a determination made by a trier of fact with
17 respect to the availability of corroborating evidence . . . unless the court finds . . .
4 1 that a reasonable trier of fact is compelled to conclude that such corroborating
2 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
3 Salgado-Medrano alleged that she was extorted by MS-13 for a portion of
4 her salary as a teacher and that she feared being killed because MS-13 had
5 murdered two of her female cousins. The agency did not err in concluding that
6 Salgado-Medrano failed to meet her burden of proof. Nor did the IJ err in
7 requiring corroboration in light of apparent omissions and inconsistencies in
8 Salgado-Medrano’s testimony: the employment section of her application listed
9 her as unemployed during the relevant period, and neither her application,
10 written statement, nor her parents’ letters mentioned her cousins’ murders. See
11 Hong Fei Gao v. Sessions, 891 F.3d 67, 78–79 (2d Cir. 2018) (“In the immigration
12 context, in assessing the probative value of the omission of certain facts, an IJ
13 should consider whether those facts are ones that a credible petitioner would
14 reasonably have been expected to disclose under the relevant circumstances.”).
15 In addition, the IJ identified reasonably available evidence that Salgado-Medrano
16 failed to present—her parents’ letter could have mentioned the murders, Salgado-
17 Medrano testified that her aunt and uncle had death certificates for her cousins,
18 and she alleged that there were newspaper accounts of the murders.
5 1 The record does not compel the conclusion that these documents were
2 unavailable. See 8 U.S.C. § 1252(b)(4). Although Salgado-Medrano stated that
3 her relatives would be at risk if they tried to obtain the certificates, Salgado-
4 Medrano did not establish that she could not have obtained copies because she
5 testified that her aunt and uncle had the certificates. Nor did she explain why her
6 aunt and uncle would not give her copies. Her only explanation for failing to
7 produce the newspaper accounts was that she did not keep them. She did not
8 describe any attempt to obtain copies.
9 In sum, the IJ did not err in concluding that Salgado-Medrano failed to meet
10 her burden of proof for asylum and withholding of removal. The IJ pointed to
11 specific missing evidence, gave Salgado-Medrano an opportunity to explain the
12 omission, and then assessed her explanation, and the record does not compel a
13 conclusion that the evidence was unavailable. See 8 U.S.C. § 1252(b)(4); Pinel-
14 Gomez, 52 F.4th at 529. Because Salgado-Medrano’s failure to satisfy her burden
15 of proof is dispositive, we do not reach the agency’s alternative conclusion that she
16 failed to identify a cognizable particular social group. See INS v. Bagamasbad, 429
17 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make
18 findings on issues the decision of which is unnecessary to the results they reach.”).
6 1 For the foregoing reasons, the petition for review is DENIED. All pending
2 motions and applications are DENIED and stays VACATED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court