Velez-Ramirez v. Garland

Opinion

19-688 Velez-Ramirez v. Garland BIA

Loprest, IJ

A098 238 696

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 9th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 ROSEMARY S. POOLER, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 MEDARDO VELEZ-RAMIREZ, 14 Petitioner, 15 16 v. 19-688 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo 24 & Fasano, LLP, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent.

1 General; Paul Fiorino, Senior 2 Litigation Counsel; Sherry D. 3 Soanes, Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, 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 DISMISSED in part and DENIED in part. 11 Petitioner Medardo Velez-Ramirez, a native and citizen 12 of Colombia, seeks review of a February 21, 2019 decision of 13 the BIA affirming a November 14, 2017 decision of an 14 Immigration Judge (“IJ”) denying Velez-Ramirez’s application 15 for asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Medardo Velez- 17 Ramirez, No. A 098 238 696 (B.I.A. Feb. 21, 2019), aff’g No. 18 A 098 238 696 (Immig. Ct. N.Y. City Nov. 14, 2017). We 19 assume the parties’ familiarity with the underlying facts and 20 procedural history. 21 We have reviewed both the IJ’s and the BIA’s decisions. 22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d 23 Cir. 2006). Our jurisdiction to review the agency’s finding 24 that an application was untimely or that the applicant did

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1 not show changed or extraordinary circumstances is limited to 2 “constitutional claims or questions of law.” 8 U.S.C. 3 § 1252(a)(2)(D); see id. § 1158(a)(3); Joaquin-Porras v. 4 Gonzales, 435 F.3d 172, 177–78 (2d Cir. 2006). We review the 5 agency’s legal conclusions de novo and its factual findings 6 for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); 7 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014); Edimo- 8 Doualla v. Gonzales, 464 F.3d 276, 281-83 (2d Cir. 2006). 9 Time Bar Ruling 10 An asylum applicant must demonstrate “by clear and 11 convincing evidence that the application has been filed 12 within 1 year after the date of the alien’s arrival in the 13 United States,” or must demonstrate “either the existence of 14 changed circumstances which materially affect the applicant’s 15 eligibility or extraordinary circumstances relating to the 16 delay in filing an application.” 8 U.S.C. § 1158(a)(2)(B), 17 (D). The BIA rejected Velez-Ramirez’s argument that the 18 December 2016 peace deal between the Colombian government and 19 the Revolutionary Armed Forces of Colombia (“FARC”) reflected 20 “changes circumstances” for purposes of one-year time bar. 21 Specifically, the BIA found no evidence that the change was

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1 material because the agreement decreased, rather than 2 increased, violence in Colombia. Contrary to Velez-Ramirez’s 3 argument, there is no indication that the agency overlooked 4 evidence. The agency is not required to “expressly parse or 5 refute on the record each individual argument or piece of 6 evidence offered.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 7 169 (2d Cir. 2008) (internal quotation marks omitted); see 8 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 9 17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into 10 account all of the evidence before him, unless the record 11 compellingly suggests otherwise.”). A dispute about what the 12 country conditions evidence reflects is a question of fact 13 not subject to review in this context. See 8 U.S.C. 14 §§ 1158(a)(3), 1252(a)(2)(D); Jian Hui Shao, 546 F.3d at 169 15 (reviewing country conditions determination for substantial 16 evidence). Accordingly, we dismiss the petition for review 17 of the denial of asylum because we lack jurisdiction to hear 18 it. 19 Merits 20 Unlike Velez-Ramirez’s asylum claim, his claim for 21 withholding of removal is not subject to the one-year time

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1 bar in 8 U.S.C. § 1158(a)(2)(B) and, therefore, may be 2 considered on the merits. See Xiao Ji Chen, 471 F.3d at 332. 3 To demonstrate eligibility for withholding of removal, an 4 applicant must establish that “race, religion, nationality, 5 membership in a particular social group, or political 6 opinion” was or will be at least one central reason for the 7 claimed persecution. 8 U.S.C. § 1231(b)(3)(A); Matter of C- 8 T-L-, 25 I. & N. Dec. 341, 346 (BIA 2010) (holding that 9 “Congress intended to apply the ‘one central reason’ standard 10 uniformly to both asylum and withholding claims”). Relief 11 may be granted “where there is more than one motive for 12 mistreatment, as long as at least one central reason for the 13 mistreatment is on account of a protected ground.” Acharya 14 v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal 15 quotation marks omitted). However, the applicant “must 16 provide some evidence of [a persecutor’s motives], direct or 17 circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478, 483 18 (1992). 19 Substantial evidence supports the agency’s determination 20 that Velez-Ramirez failed to establish that the harm and 21 extortion he experienced at the hands of individuals

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1 associated with FARC and paramilitary groups bore a nexus to 2 an imputed political opinion. To demonstrate that past 3 persecution or a fear of future persecution is on account of 4 political opinion, the applicant must “show, through direct 5 or circumstantial evidence, that the persecutor’s motive to 6 persecute arises from the applicant’s political belief,” 7 rather than merely by the persecutor’s own opinion. Yueqing 8 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (emphasis 9 added). Resistance to nongovernment entities, such as rebel 10 groups or gangs, is not necessarily a political opinion, nor 11 is it necessarily true that the group believes that any 12 resistance to it is politically motivated. Elias-Zacarias, 13 502 U.S. at 482. As the agency observed, the people that 14 targeted Velez-Ramirez sought money. Nothing in his account 15 indicates that he was perceived as having political beliefs. 16 To the contrary, he testified that the FARC extorted people 17 frequently throughout his city and stole from his customers 18 as well. The fact that the groups that stole from or extorted 19 him have their own political platform is not sufficient to 20 establish a nexus to a protected ground. See Yueqing Zhang, 21 426 F.3d at 545. We therefore deny Velez-Ramirez’s remaining

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1 claims on the merits. 2 For the foregoing reasons, the petition for review is 3 DISMISSED in part and DENIED in part. 4

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