Varela-Lopez v. Garland ( 2022 )

20-1284
Varela-Lopez v. Garland
BIA
Straus, IJ
A078 283 601
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 31st day of August, two thousand twenty-two.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 AYLEEN FRANCELES VARELA-LOPEZ,
14 Petitioner,
15
16 v. 20-1284
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jon E. Jessen, Esq., Law Offices
24 of Jon E. Jessen, LLC, Stamford,
25 CT.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Nancy E.
1 Friedman, Justin R. Markel, Senior
2 Litigation Counsel, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
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 DENIED.
11 Petitioner Ayleen Franceles Varela-Lopez, a native and
12 citizen of Honduras, seeks review of a March 18, 2020 decision
13 of the BIA affirming a June 29, 2018 decision of an
14 Immigration Judge (“IJ”), which denied her application for
15 relief under the Convention Against Torture (“CAT”). In re
16 Ayleen Franceles Varela-Lopez, No. A 078 283 601 (B.I.A. Mar.
17 18, 2020), aff’g No. A 078 283 601 (Immig. Ct. Hartford June
18 29, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have considered both the IJ’s and the BIA’s decisions.
21 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
22 (2d Cir. 2006). We review factual findings for substantial
23 evidence and questions of law de novo. See Yanqin Weng v.
24 Holder, 562 F.3d 510, 513 (2d Cir. 2009); see also Nasrallah
2
1 v. Barr, 140 S. Ct. 1683, 1692 (2020). “[T]he administrative
2 findings of fact are conclusive unless any reasonable
3 adjudicator would be compelled to conclude to the contrary.”
4 8 U.S.C. § 1252(b)(4)(B). “A determination of what will
5 occur in the future and the degree of likelihood of the
6 occurrence has been regularly regarded as fact-finding.” Hui
7 Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).
8 Varela-Lopez alleged a fear of torture by gangs in Honduras.
9 A CAT applicant has the burden to show that she will
10 “more likely than not” be tortured and that authorities “more
11 likely than not” will acquiesce to that torture. 8 C.F.R.
12 §§ 1208.16(c)(2), 1208.18(a)(1); see Savchuck v. Mukasey, 518
13 F.3d 119, 123 (2d Cir. 2008) (“An alien will never be able to
14 show that he faces a more likely than not chance of torture
15 if one link in the chain cannot be shown to be more likely
16 than not to occur. It is the likelihood of all necessary
17 events coming together that must more likely than not lead to
18 torture, and a chain of events cannot be more likely than its
19 least likely link.” (cleaned up)). “Torture is defined as
20 any act by which severe pain or suffering, whether physical
21 or mental, is intentionally inflicted on a person . . . by .
3
1 . . or with the consent or acquiescence of a public official
2 or other person acting in an official capacity.” 8 C.F.R.
3 § 1208.18(a)(1). In assessing whether an applicant has
4 satisfied her burden of proof, the agency considers all
5 evidence relevant to the possibility of future torture,
6 including evidence of past torture, “evidence of gross,
7 flagrant or mass violations of human rights within the country
8 of removal,” and other relevant information on country
9 conditions. 8 C.F.R. § 1208.16(c)(3). The agency concluded
10 that Varela-Lopez failed to establish that she would more
11 likely than not be tortured by gangs in Honduras. The record
12 does not compel a contrary conclusion.
13 The agency considered that gangs had extorted Varela-
14 Lopez in the past and that she had been assaulted and had her
15 leg broken in 1999, but did not err in concluding that the
16 extortion and assault did not rise to the level of torture.
17 See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of
18 cruel and inhuman treatment and does not include lesser forms
19 of cruel, inhuman or degrading treatment or punishment that
20 do not amount to torture.”); San Chung Jo v. Gonzales, 458
21 F.3d 104, 109–10 (2d Cir. 2006) (finding “no indication in
4
1 the definition of torture that that concept was intended to
2 encompass destruction, thefts, expropriations, or other
3 deprivations of property”); Kyaw Zwar Tun v. INS, 445 F.3d
4 554, 567 (2d Cir. 2006) (“torture requires proof of something
5 more severe than the kind of treatment that would suffice to
6 prove persecution”). Moreover, the alleged gang murders of
7 her father, uncle, and brother in 1984, 1988, and 2003,
8 respectively, predate her return to Honduras in 2008 when she
9 suffered only extortion. Those murders do not compel a
10 conclusion that she will more likely than not be tortured
11 because she has other family members who remain in Honduras
12 and who have suffered only extortion at the hands of the
13 gangs. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
14 Cir. 1999) (finding that similarly situated family members
15 who remain unharmed cuts against the likelihood of
16 applicant’s future harm).
17 The agency also considered the country conditions
18 evidence in the record. Varela-Lopez implies that the IJ
19 should have considered more recent country reports for
20 Honduras, but she had the burden of proof and did not ask to
21 submit additional evidence on remand. See 8 C.F.R.
5
1 § 1208.16(c)(2). The news articles and country reports
2 document ongoing gang and political violence, increased
3 violence against women, and police corruption, and report
4 that Honduras had the world’s highest murder rate per capita
5 in 2013. Although this evidence reflects significant
6 violence, it does not compel the conclusion that Varela-Lopez
7 will “more likely than not” be tortured, and her reliance on
8 evidence that 30% of the population is subject to extortion
9 is not evidence of torture. See San Chung Jo, 458 F.3d at
10 109–10; Chun Gao v. Gonzales, 424 F.3d 122, 128–29 (2d Cir.
11 2005) (“Relief under the CAT requires the applicant to
12 establish that there is greater than a fifty percent chance
13 (i.e., that it is more likely than not) that he will be
14 tortured upon return to his or her country of origin.”
15 (quotation marks omitted)).
16 Because Varela-Lopez’s claim fails on the likelihood of
17 torture, we do not reach the agency’s alternative finding
18 that Varela-Lopez did not establish that the Honduran
19 government would acquiesce to her torture. See INS v.
20 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
21 and agencies are not required to make findings on issues the
6
1 decision of which is unnecessary to the results they reach.”).
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
7