Ntiamoah v. Lynch , 664 F. App'x 112 ( 2016 )

15-4046
Ntiamoah v. Lynch
BIA
Reid, IJ
A070 583 265
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of November, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 WILBERFORCE NTIAMOAH, AKA KWAWDO
14 AGYEMANG-BADU,
15 Petitioner,
16
17 v. 15-4046
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Justine A. Marous, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Mary
28 Jane Candaux, Assistant Director;
29 Michael C. Heyse, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, DC.
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 is
4 DENIED.
5 Petitioner Wilberforce Ntiamoah, a native and citizen of
6 Ghana, seeks review of a November 20, 2015 decision of the BIA
7 affirming a July 13, 2015 decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief under
9 the Convention Against Torture (“CAT”). In re Wilberforce
10 Ntiamoah, No. A070 583 265 (B.I.A. Nov. 20, 2015), aff’g No.
11 A070 583 265 (Immig. Ct. Batavia July 13, 2015). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). We lack jurisdiction to review a final order of removal
18 against an alien like Ntiamoah, who is removable under 8 U.S.C.
19 § 1182(a)(2)(A)(i)(I) by reason of having been convicted of a
20 crime involving moral turpitude. See 8 U.S.C.
21 § 1252(a)(2)(C). Nevertheless, we retain jurisdiction to
22 review constitutional claims or questions of law. 8 U.S.C.
2
1 § 1252(a)(2)(D). As to these matters our review is de novo.
2 Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). We
3 conclude that the agency did not err as a matter of law in finding
4 that Ntiamoah failed to establish past persecution or a
5 well-founded fear of persecution based on his claim that, in
6 1992, Ghanaian police detained and beat him for his role in
7 organizing a protest for his political party, the New Patriotic
8 Party (“NPP”).
9 A valid past persecution claim can be based on harm other
10 than threats to life or freedom, “includ[ing]
11 non-life-threatening violence and physical abuse.” Beskovic
12 v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). To establish
13 such a claim, the demonstrated harm must be sufficiently severe,
14 rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of
15 Justice, 433 F.3d 332, 341 (2d Cir. 2006). The agency did not
16 err as a matter of law in concluding that Ntiamoah failed to
17 demonstrate that his alleged detention and beating in 1992 rose
18 to the level of persecution because he failed to provide any
19 details of the beating or allege any harm suffered as a result.
20 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011);
21 see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011).
22 Because Ntiamoah did not demonstrate past persecution, he
3
1 was not entitled to a presumption of a well-founded fear of
2 future persecution. See 8 C.F.R. § 1208.13(b)(1). To
3 demonstrate a well-founded fear of future persecution, an
4 applicant must show either a reasonable possibility that he
5 would be singled out for persecution or that the country of
6 removal has a pattern or practice of persecuting individuals
7 similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).
8 The agency did not commit legal error in determining that
9 Ntiamoah failed to establish an objectively reasonable fear of
10 suffering such harm in Ghana. See Hongsheng Leng v. Mukasey,
11 528 F.3d 135, 142-43 (2d Cir. 2008).
12 The agency was permitted to find Ntiamoah’s fear diminished
13 by his family’s ability to remain unharmed in Ghana despite
14 purported threats to their safety based on his political
15 activities. See Melgar de Torres v. Reno, 191 F.3d 307, 313
16 (2d Cir. 1999). Moreover, the agency did not err as a matter
17 of law in finding Ntiamoah’s fear of being singled out
18 speculative, since neither he nor his wife had ever received
19 a threat in person, and Ntiamoah presented no evidence that such
20 a threat had been made against Ntiamoah through his family since
21 2004. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
22 Cir. 2005) (concluding that fear was “speculative” when it
4
1 lacked “solid support in the record”).
2 Insofar as Ntiamoah asserts that there is a pattern or
3 practice in Ghana of persecuting NPP members, it is not clear
4 that he adequately exhausted this claim as required. See
5 Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). Even
6 so, the IJ addressed the evidence Ntiamoah’s attorney
7 referenced in closing arguments and did not err as a matter of
8 law in concluding that the evidence did not bear on the
9 persecution of similarly situated individuals. As the IJ
10 noted, over the decades since Ntiamoah organized a NPP protest,
11 the ruling party in Ghana has changed several times, with the
12 NPP having had a period in power. Furthermore, the IJ
13 acknowledged evidence of general political violence between the
14 political parties in Ghana, and did not err in concluding that
15 such evidence as well as evidence of one attack against an NPP
16 leader did not demonstrate persecution of similarly situated
17 individuals, i.e., NPP members like Ntiamoah, who had not
18 participated in any party activities for decades.
19 Ntiamoah notes that the IJ erred in stating that the record
20 did not include any statements from Ntiamoah’s relatives in
21 Ghana, and that at one point in its decision the BIA mistakenly
22 referred to his claim as based on religion. Those errors do
5
1 not require remand, however, because we “can confidently
2 predict that the agency would reach the same decision absent
3 the errors that were made.” Xiao Ji Chen v. U.S. Dep’t of
4 Justice, 471 F.3d 315, 339 (2d Cir. 2006) (internal quotation
5 marks omitted). The record contains a statement from
6 Ntiamoah’s uncle, who lives in Ghana, but the statement does
7 no more than corroborate Ntiamoah’s arrest, which was not in
8 dispute. And, we conclude that the BIA’s reference to a
9 religious-based claim was simply a typographical error because
10 elsewhere in its decision, the BIA correctly described
11 Ntiamoah’s claim as political, and affirmed the IJ’s decision
12 to the extent that the IJ found no well-founded fear of
13 persecution, a finding that was based on Ntiamoah’s political
14 opinions.
15 Ntiamoah’s failure to demonstrate a well-founded fear of
16 future persecution was dispositive of his requests for asylum,
17 withholding of removal, and CAT relief because all three claims
18 are based on the same factual predicate. See Paul v. Gonzales,
19 444 F.3d 148, 156-57 (2d Cir. 2006).
20 There is no merit to Ntiamoah’s argument that the Eighth
21 Amendment and the Due Process Clause require an IJ to consider
22 the nature of an alien’s criminal activity and humanitarian
6
1 factors in determining whether removal is constitutionally
2 proportionate to the grounds for removability. “It is settled
3 that deportation, being a civil procedure, is not punishment
4 and the cruel and unusual punishment clause of the Eighth
5 Amendment accordingly is not applicable.” Santelises v. INS,
6 491 F.2d 1254, 1255-56 (2d Cir. 1974); Padilla v. Kentucky, 559
7 U.S. 356, 365 (2010), (stating that although “deportation is
8 a particularly severe ‘penalty,’. . . it is not, in a strict
9 sense, a criminal sanction”); see also Harisiades v.
10 Shaughnessy, 342 U.S. 580, 594 (1952) (“Deportation, however
11 severe its consequences, has been consistently classified as
12 a civil rather than a criminal procedure.”); Sunday v. Att’y
13 Gen., 832 F.3d 211, 217-19 (3d Cir. 2016); Hinds v. Lynch, 790
14 F.3d 259, 264-69 (1st Cir. 2015). Similarly, because removal
15 is not a punishment, the Due Process Clause does not require
16 an assessment of whether removal is excessive when compared to
17 the grounds for removal. See Hinds, 790 F.3d at 269 (“Because
18 . . . removal is not a punishment—for the underlying conviction
19 for which a noncitizen felon is removed or for any other
20 reason—we . . . think the Fifth Amendment does not require [a]
21 proportionality assessment . . . .”).
22 For the foregoing reasons, the petition for review is
7
1 DENIED. As we have completed our review, any stay of removal
2 that the Court previously granted in this petition is VACATED,
3 and any pending motion for a stay of removal in this petition
4 is DISMISSED as moot. Any pending request for oral argument
5 in this petition is DENIED in accordance with Federal Rule of
6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
7 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
8