Remy v. Barr ( 2020 )

19-3939
Remy v. Barr
BIA
Leonard, IJ
A023 725 667
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.
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 20th day of August, two thousand twenty.
PRESENT:
PETER W. HALL,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
ANTONIO ESPINOZA REMY,
Petitioner,
v. 19-3939
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Robert F. Graziano, Buffalo, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Sabatino F. Leo,
Senior Litigation Counsel; Andrew
B. Insenga, 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 Antonio Espinoza Remy, a native and citizen
of Nicaragua, seeks review of an October 24, 2019, decision
of an Immigration Judge (“IJ”) affirming an asylum officer’s
negative reasonable fear determination. In re Antonio
Espinoza Remy, No. A023 725 667 (Immig. Ct. Batavia Oct. 24,
2019). We assume the parties’ familiarity with the
underlying facts and procedural history.
The sole issue before this Court is whether the IJ erred
in affirming an asylum officer’s determination that Remy did
not establish a reasonable fear of persecution or torture in
Nicaragua. The standard of review applicable to a reasonable
fear determination is an open question in this Court. Other
circuits have held that the usual standards applicable to
review of removal proceedings apply or have applied those
standards without discussion. See Andrade-Garcia v. Lynch,
828 F.3d 829, 835–36 (9th Cir. 2016); see also Lara-Nieto v.
Barr, 945 F.3d 1054, 1060 (8th Cir. 2019) (declining to reach
issue because petition failed under standard more favorable
to petitioner); Hernandez-Aquino v. Barr, 770 F. App’x 88, 88
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n.2 (4th Cir. 2019) (same); Telles v. Lynch, 639 F.
App’x 658, 662 (1st Cir. 2016) (same). The Government
asserts that we should apply a more deferential “facially
legitimate and bona fide reason” standard. We need not
resolve that issue here because Remy’s petition fails even
under the more generous standards. See 8 U.S.C.
§ 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009) (reviewing factual findings for substantial
evidence and question of law and application of law to fact
de novo). As the asylum officer and IJ concluded, Remy did
not establish a nexus to a protected ground or a reasonable
fear of torture.
A. Withholding of Removal
In order to demonstrate eligibility for withholding of
removal, “the applicant must establish that race, religion,
nationality, membership in a particular social group, or
political opinion was or will be at least one central reason
for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
see also id. § 1231(b)(3)(A); Matter of J-B-N- and S-M-, 24
I. & N. Dec. 208, 211 (B.I.A. 2007); Matter of C-T-L-, 25 I.
& N. Dec. 341, 346-48 (B.I.A. 2010). To constitute a
particular social group, a group must be: “(1) composed of
members who share a common immutable characteristic, (2)
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defined with particularity, and (3) socially distinct within
the society in question.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey,
509 F.3d 70, 72–74 (2d Cir. 2007). There may be “more than
one motive for mistreatment, as long as at least one central
reason for the mistreatment is on account of a protected
ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)
(internal quotation marks and citations omitted).
Remy failed to provide any evidence of a nexus. Remy
speculated that police officers searched for him in 1993 when
he was deported from the United States because he had opposed
joining the military ten years earlier when he was twelve
years old. But Remy did not assert that the police officers
threatened him or said anything to make him believe they were
searching for him due to his prior opposition to recruitment
into the military, and he testified that the police look for
everyone who returns to Nicaragua. He thus did not
demonstrate that his political opinion or membership in a
social group of individuals opposed to joining the military
was a reason that he was sought by the police. See 8 U.S.C.
§ 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A).
B. CAT
Substantial evidence also supports the IJ’s finding that
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Remy had not established a reasonable fear of torture. An
applicant for CAT relief must show that “it is more likely
than not” that he will be tortured but need not show any
connection to a protected ground. See 8 C.F.R.
§ 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d
Cir. 2004). “Torture is defined as any act by which severe
pain or suffering, whether physical or mental, is
intentionally inflicted . . . by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). In assessing the likelihood of torture,
“all evidence relevant to the possibility of future torture
shall be considered, including, but not limited to . . .
[e]vidence of past torture,” the possibility of relocation
within the country, “[e]vidence of gross, flagrant or mass
violations of human rights . . . and . . . relevant
information regarding conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3).
There is insufficient evidence to support Remy’s fear of
torture. See 8 C.F.R. § 1208.18(a)(1). The only evidence
is a State Department report noting widespread corruption,
torture of some detainees, and government sanctioned violence
against citizens who engaged in civic actions or opposition
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to the government. The report did not discuss the treatment
of individuals who opposed joining the military decades
earlier or of returning deportees. See Mu-Xing Wang v.
Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring evidence
“that someone in [petitioner’s] particular alleged
circumstances is more likely than not to be tortured”
(emphasis omitted)); see also Mu Xiang Lin v. U.S. Dep’t of
Justice, 432 F.3d 156, 160 (2d Cir. 2005) (requiring
“particularized evidence” beyond general country conditions
to support a CAT claim). Additionally, Remy testified that
the police looked for him only for one week in 1993 and he
was able to stay at his mother’s and her friends’ farm for
approximately six months without harm, and thus had no
evidence that he was likely to suffer any harm, much less
harm rising to the level of torture. While he testified that
he fears retaliation, he did not provide any testimony or
country conditions evidence to show that deportees are
targeted or that the Nicaraguan government is targeting
people who opposed joining the military as children in the
1980s.
We do not reach Remy’s allegation that he may suffer
economic persecution because he did not raise that issue
before either the asylum officer or the IJ. See Lin Zhong
6
v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
(judicial review is limited to “those issues that formed the
basis for [the agency’s] decision”).
For the foregoing reasons, the petition for review is
DENIED. The temporary stay of removal previously granted is
VACATED and Petitioner’s motion for a stay of removal and the
Government’s motions to expedite are DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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