20-2076 Vides v. Garland BIA Mulligan, IJ A213 119 468 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 12th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 RAYMOND J. LOHIER, JR., 9 MYRNA PÉREZ, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 RENEN VIDES, AKA RENEN OSIEL 15 VIDES CASTRO, 16 Petitioner, 17 18 v. 20-2076 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Sharon Katz, Luca Marzorati, 26 Davis Polk & Wardell LLP, New 27 York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Deputy 2 Assistant Attorney General; 3 Anthony P. Nicastro, Assistant 4 Director; Kristen H. Blosser, 5 Trial Attorney, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Renen Vides, a native and citizen of
14 Guatemala, seeks review of a June 2, 2020, decision of the
15 BIA affirming a November 20, 2019, decision of an Immigration
16 Judge (“IJ”) denying his application for relief under the
17 Convention Against Torture (“CAT”). In re Renen Vides, No.
18 A 213 119 468 (B.I.A. June 2, 2020), aff’g No. A 213 119 468
19 (Immig. Ct. N.Y. City Nov. 20, 2019). We assume the parties’
20 familiarity with the underlying facts and procedural history. 1
21 We have considered both the IJ’s and the BIA’s opinions.
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
23 Cir. 2006). We review factual findings for substantial
1 We commend counsel for both parties for their excellent briefs in this matter. 2 1 evidence and questions of law de novo. See Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The agency’s
3 ‘findings of fact are conclusive unless any reasonable
4 adjudicator would be compelled to conclude to the contrary.’”
5 Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8
6 U.S.C. § 1252(b)(4)(B)). “A determination of what will occur
7 in the future and the degree of likelihood of the occurrence
8 has been regularly regarded as fact-finding . . . .” Hui Lin
9 Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).
10 A CAT applicant has the burden to show that he will “more
11 likely than not” be tortured “by, or at the instigation of,
12 or with the consent or acquiescence of, a public official .
13 . . or other person acting in an official capacity.” 8 C.F.R.
14 §§ 1208.16(c)(2), 1208.18(a)(1). In assessing whether an
15 applicant has satisfied his burden of proof, the agency
16 considers all evidence relevant to the possibility of future
17 torture, including evidence that the applicant has suffered
18 torture in the past, “[e]vidence that the applicant could
19 relocate to a part of the country of removal where he . . .
20 is not likely to be tortured, . . . [e]vidence of gross,
21 flagrant or mass violations of human rights within the country
3 1 of removal, . . . and . . . [o]ther relevant information
2 regarding conditions in the country of removal.” 8 C.F.R.
3 § 1208.16(c)(3). “An alien will never be able to show that
4 he faces a more likely than not chance of torture if one link
5 in the chain cannot be shown to be more likely than not to
6 occur. It is the likelihood of all necessary events coming
7 together that must more likely than not lead to torture, and
8 a chain of events cannot be more likely than its least likely
9 link.” Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008)
10 (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G.
11 2006)) (alteration omitted).
12 We find no error in the agency’s conclusion that Vides
13 failed to establish that it was “more likely than not” that
14 MS-13 would find and torture him in Guatemala. He alleged
15 that he had a fight while detained, after which another
16 detainee, who he believed was an MS-13 member, told him that
17 he could make one phone call and have him killed. To show
18 that “each link in the chain” of torture by MS-13 was more
19 likely than not to occur, Vides had to show that gang members
20 in the United States would contact MS-13 in Guatemala, and
21 that MS-13 in Guatemala would seek to torture or kill him,
4 1 and that they would be able to locate him. Id. The record
2 does not compel such a conclusion, particularly as there was
3 only the one incident in the United States and Vides testified
4 that he had “no idea” where he might live in Guatemala. See
5 Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)
6 (“In the absence of solid support in the record” a fear of
7 future persecution “is speculative at best.”). Vides mainly
8 contends that an expert corroborated that MS-13 has the
9 connections to order hits and members “have long memories,”
10 and that the U.S. government shares deportee information with
11 the Guatemalan government such that MS-13 could access that
12 information through corrupt officials. Although the expert
13 concluded that MS-13 would likely find and kill Vides, he did
14 not give examples of anyone killed in a similar situation—
15 i.e., after one altercation with an MS-13 member in the United
16 States—except for one murder in El Salvador, not Guatemala,
17 that Vides himself reported to the expert. Id.; see Mu-Xing
18 Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring
19 evidence that “someone in [applicant’s] particular alleged
20 circumstances is more likely than not to be tortured”
21 (emphasis omitted)).
5 1 Finally, Vides’s reliance on Manning v. Barr, 954 F.3d
2 477 (2d Cir. 2020) and Ojo v. Garland, 25 F.4th 152 (2d Cir.
3 2022) is misplaced. In contrast to the single threat Vides
4 received following a fight, Manning testified against a
5 notorious Jamaican criminal, received numerous death threats
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20-2076 Vides v. Garland BIA Mulligan, IJ A213 119 468 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 12th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 RAYMOND J. LOHIER, JR., 9 MYRNA PÉREZ, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 RENEN VIDES, AKA RENEN OSIEL 15 VIDES CASTRO, 16 Petitioner, 17 18 v. 20-2076 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Sharon Katz, Luca Marzorati, 26 Davis Polk & Wardell LLP, New 27 York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Deputy 2 Assistant Attorney General; 3 Anthony P. Nicastro, Assistant 4 Director; Kristen H. Blosser, 5 Trial Attorney, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Renen Vides, a native and citizen of
14 Guatemala, seeks review of a June 2, 2020, decision of the
15 BIA affirming a November 20, 2019, decision of an Immigration
16 Judge (“IJ”) denying his application for relief under the
17 Convention Against Torture (“CAT”). In re Renen Vides, No.
18 A 213 119 468 (B.I.A. June 2, 2020), aff’g No. A 213 119 468
19 (Immig. Ct. N.Y. City Nov. 20, 2019). We assume the parties’
20 familiarity with the underlying facts and procedural history. 1
21 We have considered both the IJ’s and the BIA’s opinions.
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
23 Cir. 2006). We review factual findings for substantial
1 We commend counsel for both parties for their excellent briefs in this matter. 2 1 evidence and questions of law de novo. See Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The agency’s
3 ‘findings of fact are conclusive unless any reasonable
4 adjudicator would be compelled to conclude to the contrary.’”
5 Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8
6 U.S.C. § 1252(b)(4)(B)). “A determination of what will occur
7 in the future and the degree of likelihood of the occurrence
8 has been regularly regarded as fact-finding . . . .” Hui Lin
9 Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).
10 A CAT applicant has the burden to show that he will “more
11 likely than not” be tortured “by, or at the instigation of,
12 or with the consent or acquiescence of, a public official .
13 . . or other person acting in an official capacity.” 8 C.F.R.
14 §§ 1208.16(c)(2), 1208.18(a)(1). In assessing whether an
15 applicant has satisfied his burden of proof, the agency
16 considers all evidence relevant to the possibility of future
17 torture, including evidence that the applicant has suffered
18 torture in the past, “[e]vidence that the applicant could
19 relocate to a part of the country of removal where he . . .
20 is not likely to be tortured, . . . [e]vidence of gross,
21 flagrant or mass violations of human rights within the country
3 1 of removal, . . . and . . . [o]ther relevant information
2 regarding conditions in the country of removal.” 8 C.F.R.
3 § 1208.16(c)(3). “An alien will never be able to show that
4 he faces a more likely than not chance of torture if one link
5 in the chain cannot be shown to be more likely than not to
6 occur. It is the likelihood of all necessary events coming
7 together that must more likely than not lead to torture, and
8 a chain of events cannot be more likely than its least likely
9 link.” Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008)
10 (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G.
11 2006)) (alteration omitted).
12 We find no error in the agency’s conclusion that Vides
13 failed to establish that it was “more likely than not” that
14 MS-13 would find and torture him in Guatemala. He alleged
15 that he had a fight while detained, after which another
16 detainee, who he believed was an MS-13 member, told him that
17 he could make one phone call and have him killed. To show
18 that “each link in the chain” of torture by MS-13 was more
19 likely than not to occur, Vides had to show that gang members
20 in the United States would contact MS-13 in Guatemala, and
21 that MS-13 in Guatemala would seek to torture or kill him,
4 1 and that they would be able to locate him. Id. The record
2 does not compel such a conclusion, particularly as there was
3 only the one incident in the United States and Vides testified
4 that he had “no idea” where he might live in Guatemala. See
5 Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)
6 (“In the absence of solid support in the record” a fear of
7 future persecution “is speculative at best.”). Vides mainly
8 contends that an expert corroborated that MS-13 has the
9 connections to order hits and members “have long memories,”
10 and that the U.S. government shares deportee information with
11 the Guatemalan government such that MS-13 could access that
12 information through corrupt officials. Although the expert
13 concluded that MS-13 would likely find and kill Vides, he did
14 not give examples of anyone killed in a similar situation—
15 i.e., after one altercation with an MS-13 member in the United
16 States—except for one murder in El Salvador, not Guatemala,
17 that Vides himself reported to the expert. Id.; see Mu-Xing
18 Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring
19 evidence that “someone in [applicant’s] particular alleged
20 circumstances is more likely than not to be tortured”
21 (emphasis omitted)).
5 1 Finally, Vides’s reliance on Manning v. Barr, 954 F.3d
2 477 (2d Cir. 2020) and Ojo v. Garland, 25 F.4th 152 (2d Cir.
3 2022) is misplaced. In contrast to the single threat Vides
4 received following a fight, Manning testified against a
5 notorious Jamaican criminal, received numerous death threats
6 while incarcerated, and had evidence that his adversaries
7 would know of his release and removal because he was related
8 to the individual he had testified against. See Manning, 954
9 F.3d at 485–86. Moreover, in contrast to Ojo, the IJ stated
10 that he considered all the evidence and the BIA concluded
11 that the IJ did not err in giving less weight to expert
12 opinion than to other evidence. See Ojo, 25 F.4th at 169–
13 70; see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
14 Cir. 2008) (holding that agency need not “expressly parse or
15 refute on the record each individual argument or piece of
16 evidence offered by the petitioner” (internal quotation marks
17 omitted)).
18 Vides’s failure to show that he would more likely than
19 not be tortured is dispositive of his CAT claim, so we do not
20 reach the agency’s alternative finding that he failed to
21 establish that Guatemalan authorities would acquiesce to his
6 1 torture. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
2 general rule courts and agencies are not required to make
3 findings on issues the decision of which is unnecessary to
4 the results they reach.”).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court