Villatoro-Samayoa v. Garland ( 2021 )

19-1366
Villatoro-Samayoa v. Garland
BIA
Ruehle, IJ
A205 930 285/208 173 481
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
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 24th day of November, two thousand twenty-one.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 EDELZAR VILLATORO-SAMAYOA,
14 ADILENY MARISOL CASTANEDA
15 MARTINEZ, A.K.A. ADELANY MARISOL
16 CASTANEDA-MARTINEZ
17 Petitioners,
18
19 v. 19-1366
20 NAC
21 MERRICK B. GARLAND, UNITED
22 STATES ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONERS: Stephen K. Tills, Esq., Orchard
27 Park, NY.
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Clair L. Workman, Senior
3 Litigation Counsel; John B. Holt,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioners Edelzar Villatoro-Samayoa and Adileny
13 Marisol Castaneda Martinez, natives and citizens of
14 Guatemala, seek review of a December 18, 2019, decision of
15 the BIA affirming a November 13, 2017, decision of an
16 Immigration Judge (“IJ”) denying asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Edelzar Villatoro-Samayoa, Adileny Marisol
19 Castaneda Martinez, No. A 205 930 285/208 173 481 (B.I.A. Dec.
20 18, 2019), aff’g No. A 205 930 285/208 173 481 (Immig. Ct.
21 Buffalo Nov. 13, 2017). We assume the parties’ familiarity
22 with the underlying facts and procedural history.
23 We review the IJ’s decision as modified by the BIA and
24 assume credibility as the BIA did. See Xue Hong Yang v. U.S.
25 Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
2
1 applicable standards of review are well established. See
2 Yanqin Weng v. Gonzales, 562 F.3d 510, 513 (2d Cir. 2009)
3 (reviewing factual findings for substantial evidence and
4 questions of law and application of law to fact de novo).
5 Petitioners’ claim that the immigration court lacked
6 jurisdiction over their proceedings is foreclosed by Banegas
7 Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019). In
8 Pereira v. Sessions, the Supreme Court held that the
9 Immigration and Nationality Act unambiguously requires a
10 Notice to Appear (“NTA”) to include a hearing time and place
11 to trigger the “stop-time rule,” 138 S. Ct. 2105, 2113–20
12 (2018), which cuts off an alien’s accrual of physical presence
13 or residence for the purposes of qualifying for cancellation
14 of removal, see 8 U.S.C. § 1229b(a), (b), (d)(1). The
15 Supreme Court recently clarified that an NTA that does not
16 contain a hearing date and time as required by Pereira is not
17 cured for purposes of the stop-time rule by a subsequent
18 notice of hearing that provides the missing information. See
19 Niz-Chavez v. Garland, No. 19-863, --- S. Ct. ---, 2021 WL
20 1676619, at *3, 5–6 (U.S. Apr. 29, 2021) (holding that time
21 does not stop for purposes of cancellation of removal unless
22 the Government issues a single NTA containing all statutorily
3
1 required information rather than providing the information in
2 separate documents).
3 Both Pereira — as we discussed in Banegas-Gomez — and
4 Niz-Chavez address a “narrow question” regarding the stop-
5 time rule and do not “void jurisdiction in cases in which an
6 NTA omits a hearing time or place.” Banegas Gomez, 922 F.3d
7 at 110. We have held that the regulation vesting
8 jurisdiction does not specify what information must be
9 contained in a “charging document,” nor does it require an
10 NTA to specify the time and date of the initial hearing, “so
11 long as a notice of hearing specifying this information is
12 later sent to the alien.” Id. at 111–12 (internal quotation
13 marks omitted). Although the petitioners’ NTAs did not
14 include the hearing time and date, they both subsequently
15 received hearing notices specifying that information and
16 attended their hearings.
17 As to the agency’s denial of asylum, withholding of
18 removal, and CAT relief, the petitioners challenge the IJ’s
19 adverse credibility determination. However, the BIA
20 expressly assumed credibility, so the adverse credibility
21 determination is no longer a basis for the decision under
22 review. See Xue Hong Yang, 426 F.3d at 522. Petitioners
4
1 have otherwise abandoned their claims because they only
2 briefly address the other grounds for the denial of relief,
3 arguing only generally that the Guatemalan government
4 threatened them because they protested a hydro-electric
5 project. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
6 n.7 (2d Cir. 2005) (deeming applicant’s “claim abandoned”
7 where he raised an issue in “only a single conclusory
8 sentence”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
9 1998) (“Issues not sufficiently argued in the briefs are
10 considered waived and normally will not be addressed on
11 appeal.”).
12 Were we to reach the merits of the agency’s decisions,
13 we would find no error. The record supports the IJ’s
14 conclusions that the petitioners failed to establish past
15 harm rising to the level of persecution, a nexus to a
16 protected ground, or well-founded fear of future persecution.
17 The petitioners alleged verbal threats, that one
18 petitioner was shot at but not injured by an unidentified
19 person, and that the other petitioner was threatened once in
20 person by an individual who grabbed her arm. Although
21 persecution can include “non-life-threatening violence and
22 physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3
5
1 (2d Cir. 2006), the harm must be sufficiently severe, see
2 Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 341 (2d
3 Cir. 2006), and there must be evidence that the harm was on
4 account of a protected ground, see 8 U.S.C.
5 § 1158(b)(1)(B)(i). Absent past persecution, the
6 petitioners could not meet their burden to show an objectively
7 reasonable fear of future persecution or torture because they
8 presented no evidence that anyone in Guatemala remained
9 interested in harming them and the Government presented
10 evidence that the hydro-electric project had been abandoned.
11 See 8 C.F.R. § 1208.13(a), (b)(1); Jian Xing Huang v. U.S.
12 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
13 solid support in the record . . . [an applicant’s] fear is
14 speculative at best.”).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6