Tapia Lopez v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: August 19, 2025
• Docket: 22-6418
• Status: Unpublished

Opinion

22-6418 Tapia Lopez v. Bondi BIA Conroy, IJ A037 631 340

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of August, two thousand twenty-five.

PRESENT: RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, ALISON J. NATHAN, Circuit Judges. _____________________________________

LUIS MANUEL TAPIA LOPEZ, Petitioner,

v. 22-6418 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: John H. Peng; Karen L. Murtagh, Executive Director, Prisoners’ Legal Services of New York, Albany, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division; Sabatino F. Leo, Assistant Director; Colin J. Tucker, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Luis Manuel Tapia Lopez, a native and citizen of the Dominican

Republic, seeks review of an August 25, 2022, decision of the BIA affirming an

April 6, 2022, decision of an Immigration Judge (“IJ”) denying deferral of removal

under the Convention Against Torture (“CAT”). In re Luis Manuel Tapia Lopez, No.

A037 631 340 (B.I.A. Aug. 25, 2022), aff’g No. A037 631 340 (Immigr. Ct. N.Y.C. Apr.

6, 2022). We assume the parties’ familiarity with the underlying facts and

procedural history.

“When the BIA issues an opinion, the opinion becomes the basis for judicial

review of the decision of which the alien is complaining.” Singh v. Bondi, 139 F.4th

189, 196 (2d Cir. 2025) (quoting Bhagtana v. Garland, 93 F.4th 592, 593 (2d Cir. 2023)). 2 Nevertheless, “we have reviewed the opinions of both the IJ and the BIA ‘for the

sake of completeness.’” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (quoting

Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008)). We review factual findings for

substantial evidence and questions of law de novo. See id. “[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). In this case,

although Tapia Lopez frames his arguments as addressing questions of law, he

essentially challenges factual findings that are subject to substantial evidence

review. See Xiao Ji Chen v. DOJ, 471 F.3d 315, 330 (2d Cir. 2006)

A CAT applicant has the burden to establish that he will “more likely than

not” be tortured by or with the acquiescence of government officials. 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1); Garcia-Aranda v. Garland, 53 F.4th 752, 758-59 (2d

Cir. 2022). To show that torture is “more likely than not,” an applicant “must

establish that there is greater than a fifty percent chance . . . that he will be tortured

upon return to his . . . country of origin.” Mu-Xing Wang v. Ashcroft, 320 F.3d 130,

144 n.20 (2d Cir. 2003), superseded by statute on other grounds, 8 U.S.C. § 1252(a)(4).

“[T]o constitute torture, an act must be specifically intended to inflict severe

physical or mental pain or suffering” and the applicant “must provide some

3 evidence of specific intent, direct or circumstantial.” Pierre v. Gonzales, 502 F.3d

109, 113, 119 (2d Cir. 2007) (quotation marks omitted); see also id. at 121 (“[E]ven

suffering of the utmost severity cannot constitute torture unless it is specifically

intended[.]”).

Tapia Lopez argues that the agency erred in finding that he failed to

establish a likelihood of torture because it erroneously declined to credit his

expert’s opinion that the Dominican government underfunds mental healthcare,

mischaracterized evidence regarding his mental health, and found that the

underfunding of mental healthcare resulted from discrimination and stigma

thereby evidencing a specific intent to torture. We find no merit in these

arguments.

First, contrary to Tapia Lopez’s contention, the agency credited his expert’s

opinion that mental healthcare is underfunded in the Dominican Republic, despite

noting that the specific amount allocated was outdated. See Certified

Administrative Record (“CAR”) at 88-89, 133. Second, the agency did not

mischaracterize the record evidence in concluding that, although Tapia Lopez

suffers from long-standing mental health issues, the issues that brought him to the

attention of authorities in the United States resulted from substance abuse rather

4 than an ongoing condition. Id. at 431, 433, 983, 1013-14. Third, as the agency found,

Tapia Lopez’s evidence did not show that the Dominican Republic underfunds

mental healthcare with the specific intent to torture individuals who require such

care. Cf. Pierre, 502 F.3d at 121 (explaining that substandard prison conditions do

not constitute torture unless they are “inflicted intentionally rather than as a result

of poverty, neglect, or incompetence”). Rather, Tapia Lopez’s evidence attributed

substandard mental health care in the Dominican Republic to a variety of

structural and economic conditions. See CAR 1059; see also Petitioner’s Br. 31.

Fourth, Tapia Lopez fails to challenge the agency’s conclusion that it is

“speculative at best” that Tapia Lopez will be incarcerated at all upon his return

to the Dominican Republic, much less in a substandard prison. CAR 79; see also

Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any

claims not adequately presented in an appellant’s brief, and an appellant’s failure

to make legal or factual arguments constitutes abandonment.”) (quotation marks

omitted).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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