Obando-Flores v. Holder , 496 F. App'x 107 ( 2012 )

11-3451 BIA
Obando-Flores v. Holder Straus, IJ
A076 817 577
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of September, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12
13 GERONIMO GONZALO OBANDO-FLORES,
14 Petitioner,
15
16 v. 11-3451
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23 FOR PETITIONERS: Elyssa N. Williams, Formica
24 Williams, P.C., New Haven, CT.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Richard M. Evans,
28 Assistant Director; Allen W.
29 Hausman, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Geronimo Gonzalo Obando-Flores, a native and citizen of
6 Nicaragua, seeks review of a July 29, 2011, order of the BIA
7 affirming the June 29, 2009, decision of Immigration Judge
8 (“IJ”) Michael W. Straus, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Obando-Flores,
11 No. A076 817 577 (B.I.A. July 29, 2011), aff’g No. A076 817
12 577 (Immig. Ct. Hartford, June 29, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B), (D); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009); Wu Zheng Huang v. INS, 436 F.3d 89,
21 96 (2d Cir. 2006).
22 The regulations require IJs to exercise the Attorney
23 General’s discretion to deny asylum to applicants who
24 establish eligibility based solely on past persecution when
2
1 the government establishes a fundamental change in
2 circumstances sufficient to rebut the presumption of well-
3 founded fear. 8 C.F.R. § 1208.13(b)(1). In this case, the
4 record supports the agency’s finding that there has been a
5 change in country conditions in Nicaragua sufficient to
6 rebut the presumption of a well-founded fear of future
7 persecution.
8 Obando-Flores was persecuted by members of the
9 Sandinista Liberation Front in the 1980s based on his
10 support, and the support of his family members, for the
11 Contras during the civil war in Nicaragua. He left
12 Nicaragua, but returned when the Sandinistas were no longer
13 in power, in 1990, and remained in Nicaragua without any
14 further problems from 1990 to 1998, and again from 2004
15 until 2007. While Daniel Ortega, of the Sandinista party,
16 is now president of Nicaragua, as the BIA noted, the 2008
17 United States Department of State report indicates that
18 “[t]here were no reports of political violence against
19 citizens returning from civil-war-era self-imposed exile.”
20 Furthermore, Ortega was sworn in as president in January
21 2007, and Obando-Flores remained in Nicaragua until December
22 2007 without incident. Accordingly, substantial evidence
23 supports the agency’s finding that there has been a
24 fundamental change in circumstances in Nicaragua, rebutting
3
1 the presumption that Obando-Flores has a well-founded fear
2 of future persecution. See Islami v. Gonzales, 412 F.3d
3 391, 397-98 (2d Cir. 2005).
4 Moreover, because Obando-Flores’s CAT claim is based on
5 the same factual predicate as his asylum claim, he cannot
6 show that it is more likely than not that he will be
7 tortured in Nicaragua by the Sandinistas. See Xue Hong Yang
8 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
9 In certain circumstances, an IJ may grant humanitarian
10 asylum to an applicant who has established past persecution
11 but not a well-founded fear of future persecution. See 8
12 C.F.R. § 1208.13(b)(1)(iii). Because the grant of
13 humanitarian asylum in the absence of a well-founded fear of
14 persecution is discretionary, we review the decision for
15 abuse of discretion, and for whether the decision was
16 “manifestly contrary to the law.” 8 U.S.C. § 1252(b)(4)(D);
17 see Wu Zheng Huang, 436 F.3d at 96-97 & n.9. Humanitarian
18 asylum has been reserved for applicants who have suffered
19 “atrocious forms of persecution,” Matter of Chen, 20 I. & N.
20 Dec. 16, 19 (BIA 1989), or who may suffer “other serious
21 harm upon removal to that country,” 8 C.F.R.
22 § 1208.13(b)(1)(iii); see Matter of L-S-, 25 I. & N. Dec.
23 705, 713-14 (BIA 2012).
24
4
1 The agency did not abuse its discretion in finding that
2 the persecution suffered by Obando-Flores in the 1980s was
3 not so severe as to merit a grant of humanitarian asylum.
4 See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari v. Gonzales, 468
5 F.3d 179, 184 (2d Cir. 2006) (upholding the denial of
6 humanitarian asylum to a supporter of the Albanian
7 Democratic Party who had been beaten and harassed on six
8 occasions); Wu Zheng Huang, 436 F.3d at 96-97. Moreover,
9 because Obando-Flores alleged only a fear of harm at the
10 hands of the Sandinistas, he made no showing that there was
11 a reasonable possibility that he would suffer other serious
12 harm upon return to Nicaragua. See Matter of L-S-, 25 I. &
13 N. Dec. at 715.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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