Bonilla v. Garland ( 2021 )

20-1369
Bonilla v. Garland
BIA
Conroy, IJ
A201 127 178
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 7th day of June, two thousand twenty-one.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
DUREL JORDON BONILLA, A.K.A.
BONILLA DUREL, A.K.A. BONILA
DUREL,
Petitioner,
v. 20-1369
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zoey Jones and Edward McCarthy,
Brooklyn Defender Services,
Brooklyn, NY; Matthew T. Salzmann,
Arnold & Porter Kaye Scholer LLP,
New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Kohsei Ugumori,
Senior Litigation Counsel; David
Kim, Trial Attorney, 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 Durel Jordon Bonilla, a native and citizen of
Belize, seeks review of an April 14, 2020, decision of the
BIA affirming an October 17, 2019, decision of an Immigration
Judge (“IJ”) denying asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). In
re Durel Jordon Bonilla, No. A 201 127 178 (B.I.A. Apr. 14,
2020), aff’g No. A 201 127 178 (Immig. Ct. N.Y. City Oct. 17,
2019). We assume the reader’s familiarity with the record.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well established. See
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8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
The agency did not abuse its discretion in denying
Bonilla asylum as an exercise of discretion. The agency
considered the factors that favored a grant of asylum,
including Bonilla’s sixteen years in the United States, his
lawful entrance into the country, and his pursuit of permanent
residency since his mother’s Violence Against Women Act
application, as well as the negative factors of Bonilla’s
criminal history and failure to take responsibility for his
actions. See Wu Zheng Huang v. INS, 436 F.3d 89, 98 (2d Cir.
2006) (explaining that a discretionary decision on asylum
requires the agency to review the “totality of circumstances”
by “balancing . . . favorable and adverse factors”). While
Bonilla argues that the agency did not apply the correct
standard of discretion in denying him asylum, see Doherty v.
U.S. Dep’t of Justice, INS, 908 F.2d 1108, 1120 (2d Cir. 1990)
(drawing distinction between the “‘discretion’ to
grant . . . adjustment of status” and the “‘discretion’ to
grant asylum”), rev’d on other grounds, INS v. Doherty, 502
U.S. 314 (1992), both the BIA and the IJ thoroughly reviewed
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the applicable factors, came to reasonable conclusions, and
provided a “rational explanation” for the agency’s decision,
see Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93
(2d Cir. 2001).
Substantial evidence also supports the agency’s denial
of Bonilla’s withholding of removal and CAT claims. As to
Bonilla’s sexual orientation, the IJ properly highlighted his
concerns with Bonilla’s inability to recall specific details
about his relationships with men as well as Bonilla’s failure
to provide sufficient corroboration to support his
identification as bisexual. The agency also properly
concluded that Bonilla failed to show a pattern or practice
of persecution of bisexual men in Belize; while the IJ
acknowledged that Belizean law does not expressly prohibit
discrimination based on sexual orientation, the agency
reasonably found that the Belizean government is taking
active steps to promote equality for the LGBTQ community, and
that Bonilla’s fear of persecution based on his sexual
orientation was too speculative to support his application.
Because we cannot say that any reasonable adjudicator would
be “compelled” to conclude the contrary, see Bah v. Mukasey,
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529 F.3d 99, 110 (2d Cir. 2008), we uphold the agency’s
factual determinations.
The agency also did not err in finding that “individuals
in Belize who suffer visibly from disabilities or mental
health problems” is not a cognizable social group for
withholding of removal purposes. As the IJ explained,
Bonilla’s proposed group is not sufficiently particular
because it lacks defined boundaries and covers an overly broad
swath of illness. See Mendoza-Alvarez v. Holder, 714 F.3d
1161, 1164 (9th Cir. 2013) (finding that the petitioner’s
proposed group of “insulin-dependent persons with mental-
health problems” was not sufficiently “particular”). While
Bonilla claims that the agency ignored a qualifier in
Bonilla’s proposed social group — it only includes people who
“suffer visibly” from physical or mental disabilities —
nothing in the record suggests that the agency ignored or
overlooked Bonilla’s narrower definition, or that such
qualification would change the agency’s decision. See Cert.
Admin. Rec. at 84 (“[U]nlike ‘individuals with bipolar
disorder who exhibit erratic behavior,” [Bonilla]’s proposed
group fails on particularity because it includes large
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numbers of people, different conditions, and different
severities of symptoms.” (citing Temu v. Holder, 740 F.3d
887, 895 (4th Cir. 2014)).
Bonilla also argues that the agency applied a heightened
government acquiescence standard by requiring Bonilla to
prove “that Belizean authorities would themselves torture
him” upon his return. Appellant’s Br. at 46 (emphasis in
original). Contrary to Bonilla’s argument, the IJ expressly
found that Bonilla was not only unlikely to “suffer harm
rising to the level of torture” generally, but that Bonilla
failed to show “that such harm would occur with the
participation or acquiescence of the government.” Cert.
Admin. Rec. at 89.
We have considered all of Bonilla’s remaining arguments
and find them without merit. Accordingly, we DENY this
petition for review. All pending motions and applications
are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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