16-3821 Mercado-Leyva v. Sessions BIA Nelson, IJ A200 237 705 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of April, two thousand eighteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 ROXANA MERCADO-LEYVA, 14 Petitioner, 15 16 v. 16-3821 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Nicholas J. Mundy, Brooklyn, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; M. Jocelyn Lopez 27 Wright, Senior Litigation Counsel; 28 Sara J. Bayram, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, 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

4 is DENIED.

5 Petitioner Roxana Mercado-Leyva, a native and citizen

6 of Peru, seeks review of an October 14, 2016, decision of

7 the BIA affirming a December 3, 2015, decision of an

8 Immigration Judge (“IJ”) denying Mercado-Leyva’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Roxana

11 Mercado-Leyva, No. A 200 237 705 (B.I.A. Oct. 14, 2016),

12 aff’g No. A 200 237 705 (Immig. Ct. N.Y. City Dec. 3,

13 2015). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 We have reviewed the IJ’s decision as modified by the

16 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). Accordingly, we assume, as the

18 BIA did, that Mercado-Leyva established her membership in a

19 particular social group and address only whether she met

20 her burden of demonstrating that the Peruvian government

21 would be unwilling or unable to protect her from her ex-

22 husband.

An applicant for asylum, withholding of

23 removal, and CAT relief bears the burden of showing that 2 1 she will be persecuted or tortured “by the government . . .

2 or at the hands of an organization or person from which the

3 government cannot or will not protect [her].” Aliyev v.

4 Mukasey,

(2d Cir. 2008) (internal

5 quotation marks omitted) (addressing persecution); see also

6

(a)(1) (defining torture as “severe pain

7 or suffering . . . inflicted by or at the instigation of or

8 with the consent or acquiescence of a public official or

9 other person acting in an official capacity”). The

10 applicable standards of review are well established. 8

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009).

13 The agency reasonably concluded that Mercado-Leyva did

14 not meet this burden. Mercado-Leyva submitted court

15 records showing that a Peruvian court found that her ex-

16 husband committed domestic violence and sentenced him to

17 four months of psychological treatment, issued a protective

18 order, and ordered him to pay damages. She testified that

19 when she filed a complaint against her ex-husband in 2010,

20 a policewoman helped her fill out all the paperwork and

21 referred her to the state attorney and forensic doctor, and

22 that she participated in a court proceeding before the

23 prosecutor that resulted in her ex-husband being sentenced 3 1 to probation. Accordingly, the agency reasonably found

2 that Mercado-Leyva failed to demonstrate that Peruvian

3 authorities could not or would not protect her. Aliyev,

4

.

5 Mercado-Leyva argues that the agency disregarded her

6 testimony that the Peruvian police are reluctant to enforce

7 protective orders and must be bribed to take action.

8 Mercado-Leyva testified that the first three times she

9 called the police (before 2006), they did nothing. And she

10 alleged that when her sister asked the police to enforce

11 the protective order, she had to pay them to come to the

12 house. In fact, the agency acknowledged these allegations,

13 but did not err in concluding that Mercado-Leyva failed to

14 corroborate them with a statement from her sister or any

15 evidence of conditions in Peru relating to the

16 effectiveness of the Peruvian authorities in combatting

17 domestic violence. “Where the trier of fact determines

18 that the applicant should provide evidence that

19 corroborates otherwise credible testimony, such evidence

20 must be provided unless the applicant does not have the

21 evidence and cannot reasonably obtain the evidence.” 8

(b)(1)(B)(ii); see also Chuilu Liu v. Holder,

23

, 198 & n.5 (2d Cir. 2009). Mercado-Leyva 4 1 makes no argument that she was unable to obtain a statement

2 from her sister or that evidence of country conditions was

3 otherwise unavailable. Given this lack of evidence to

4 corroborate the authorities’ unwillingness to help, the

5 agency reasonably relied on the court proceeding against

6 Mercado-Leyva’s ex-husband and the issuance of a protective

7 order to find that the Peruvian government at least made

8 efforts to control her ex-husband. Our review of the

9 agency’s assessment of those competing inferences is

10 “necessarily deferential.” Jian Hui Shao v. Mukasey, 546

(2d Cir. 2008).

12 Mercado-Leyva’s failure to meet her burden of proof is

13 dispositive of asylum, withholding of removal, and CAT

14 relief because all three forms of relief require some

15 showing of government involvement or unwillingness or

16 inability to protect. See

(a)(1);

17 Aliyev,

.

18 For the foregoing reasons, the petition for review is

19 DENIED. As we have completed our review, any stay of removal

20 that the Court previously granted in this petition is VACATED,

21 and any pending motion for a stay of removal in this petition

22 is DISMISSED as moot. Any pending request for oral argument

23 in this petition is DENIED in accordance with Federal Rule of 5 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

6