19-3243 Hernandez-Mendoza v. Garland BIA Kolbe, IJ A088 664 186 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 14th day of April, two thousand twenty-one.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JON O. NEWMAN, ROBERT A. KATZMANN, Circuit Judges. _____________________________________

JOSE HERNANDEZ-MENDOZA, Petitioner,

v. 19-3243 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________

FOR PETITIONER: Ayhan Ogmen, Ogmen Law, PLLC, New York, NY.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Nancy Friedman , Senior Litigation Counsel; Margaret A. O’Donnell, 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 Jose Hernandez-Mendoza, a native and citizen

of Honduras, seeks review of a September 4, 2019, decision of

the BIA affirming an April 10, 2019, decision of an

Immigration Judge (“IJ”) denying him protection under the

Convention Against Torture (“CAT”). In re Jose Hernandez-

Mendoza, No. A 088 664 186 (B.I.A. Sept. 4, 2019), aff’g No.

A 088 664 186 (Immig. Ct. N.Y. City Apr. 10, 2019). We assume

the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed both the IJ’s and the BIA’s decisions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). The

2 standards of review for a CAT claim are well established. 2

See

(b)(4)(B); Joaquin-Porras v. Gonzales,

(2d Cir. 2006) (reviewing findings of fact

for substantial evidence and “review[ing] de novo questions

of law regarding what evidence will suffice to carry an[] .

. . applicant’s burden of proof” (internal quotation marks

omitted)). The likelihood of future events is a factual

determination. See Hui Lin Huang v. Holder,

(2d Cir. 2012).

Hernandez-Mendoza had the burden to demonstrate that he

would “more likely than not” be tortured.

(c)(2). “Torture is defined as any act by which

severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . at the instigation

of, or with the consent or acquiescence of, a public official

acting in an official capacity or other person acting in an

official capacity.”

(a)(1). “[T]orture

requires . . . that government officials know of or remain

willfully blind to an act and thereafter breach their legal

responsibility to prevent it.” Khouzam v. Ashcroft,

Hernandez-Mendoza does not challenge the denial of withholding of removal. 3 161, 171 (2d Cir. 2004). The agency considers “all evidence

relevant to the possibility of future torture” including past

torture and country conditions.

(c)(3).

Substantial evidence supports the agency’s determination

that Hernandez-Mendoza failed to establish that he would more

likely than not suffer harm constituting torture as defined

under the CAT. First, the agency reasonably concluded that

one assault with no serious or lasting injury did not rise to

the level of torture. See Kyaw Zwar Tun v. INS,

(2d Cir. 2006) (“[T]orture requires proof of

something more severe than the kind of treatment that would

suffice to prove persecution.”);

(a)(2)

(“Torture is an extreme form of cruel and inhuman treatment

and does not include lesser forms of cruel, inhuman or

degrading treatment or punishment that do not amount to

torture.”). Second, there is no evidence in the record that

the men who assaulted Hernandez-Mendoza remain interested in

harming him. Given these facts, the agency did not err in

finding that he did not meet his burden of showing that he

would more likely than not be tortured. See Savchuck v.

Mukasey,

(2d Cir. 2008) (“[A]n alien will

4 never be able to show that he faces a more likely than not

chance of torture if one link in the chain cannot be shown to

be more likely than not to occur.” (quoting In re J-F-F-,

, 918 n.4 (AG 2006))); Huang v. INS,

(2d Cir. 2005) (holding that “[i]n the absence of

solid support in the record” an alien’s “fear is speculative

at best”). Because these findings are dispositive of the CAT

claim, we do not reach the agency’s additional conclusion

that Hernandez-Mendoza failed to establish that that Honduran

government would instigate or acquiesce to his torture by

gang members. See INS v. Bagamasbad,

(1976)

(“As a general rule courts and agencies are not required to

make findings on issues the decision of which is unnecessary

to the results they reach.”).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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