Carcamo-Granillo v. Garland
Carcamo-Granillo v. Garland
Opinion
19-1460 Carcamo-Granillo v. Garland BIA Wilson, IJ A097 740 552 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 22nd day of December, two thousand twenty- 5 one. 6 7 PRESENT: 8 REENA RAGGI, 9 DENNY CHIN, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 YESSENIA CAROLINA CARCAMO- 15 GRANILLO, 16 Petitioner, 17 18 v. 19-1460 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Bruno Joseph Bembi, Esq., 26 Hempstead, NY. 27 28 29 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Shelley R. Goad , 3 Assistant Director; Russell J.E. 4 Verby, Senior Litigation Counsel, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, 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 Petitioner Yessenia Carolina Carcamo-Granillo, a native
13 and citizen of El Salvador, seeks review of an April 22, 2019,
14 decision of the BIA affirming a December 20, 2017, decision
15 of an Immigration Judge (“IJ”) denying her application for
16 withholding of removal and protection under the Convention
17 Against Torture (“CAT”). In re Yessenia Carolina Carcamo-
18 Granillo, No. A 097 740 552 (B.I.A. Apr. 22, 2019), aff’g No.
19 A 097 740 552 (U.S. Immig. Ct. N.Y.C. Dec. 20, 2017). We
20 assume the parties’ familiarity with the underlying facts and
21 procedural history.
22 We review the IJ’s decision as supplemented by the BIA.
23 See Yan Chen v. Gonzales,
417 F.3d 268, 271(2d Cir. 2005).
24 The applicable standards of review are well established. See
25
8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,
762 F.3d 191, 195 2 1 (2d Cir. 2014) (reviewing factual findings for substantial
2 evidence and questions of law de novo); Sanusi v.
3 Gonzales,
445 F.3d 193, 199(2d Cir. 2006) (reviewing denial
4 of continuance for abuse of discretion).
5 Carcamo-Granillo applied for withholding of removal and
6 CAT relief, 1 alleging past threats and thefts by members of
7 MS-13 and alleging that she feared future persecution and
8 torture by MS-13. On the day of her merits hearing, she
9 requested a continuance for further preparation, to call a
10 witness, and to apply for a waiver in connection with a visa
11 petition filed on her behalf by her mother. We find no abuse
12 of discretion in the denial of a continuance and no error in
13 the agency’s denial of relief.
14 The agency did not abuse its discretion in denying
15 Carcamo-Granillo’s motion to continue her removal
16 proceedings. An IJ “may grant a motion for continuance for
17 good cause shown.”
8 C.F.R. § 1003.29. The agency did not
18 abuse its discretion in finding that Carcamo-Granillo did not
19 show good cause. Her proceedings had been pending since
1 We do not address Carcamo-Granillo’s argument that the IJ erred by finding her asylum application time-barred because the record reflects that she conceded that the claim was untimely and pursued only withholding of removal and CAT relief before the IJ. 3 1 2003, she had six weeks’ notice of the change in her hearing
2 date, and she did not move for a continuance in advance of
3 her hearing. She alleges that she was deprived of due process
4 because she was unable to present a witness, but she fails to
5 allege prejudice, in that she has not identified the witness
6 or the relevance of the witness’s testimony. See Garcia-
7 Villeda v. Mukasey,
531 F.3d 141, 149(2d Cir. 2008) (“Parties
8 claiming denial of due process in immigration cases must, in
9 order to prevail, allege some cognizable prejudice fairly
10 attributable to the challenged process.” (internal quotation
11 marks omitted)). To the extent she requested a continuance
12 to pursue a waiver in connection with a visa petition, she
13 did not document a pending waiver application or an approved
14 visa petition.
15 The agency reasonably determined that Carcamo-Granillo
16 did not establish her eligibility for withholding of removal
17 or CAT relief. To qualify for withholding of removal, she
18 was required to show past persecution or a clear probability
19 of future persecution and a nexus between such harm and a
20 protected ground: “race, religion, nationality, membership
21 in a particular social group, or political opinion.” 8
4
1 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 1208.16(b)(1)(i); Wei Sun
2 v. Sessions,
883 F.3d 23, 27–28 (2d Cir. 2018). The agency
3 reasonably concluded that Carcamo-Granillo did not show past
4 persecution because she alleged that MS-13 members harassed
5 her and her friends as they left school, stole a chain, and
6 forced her to give them money, but she was never physically
7 harmed. See Ivanishvili v. U.S. Dep’t of Just.,
433 F.3d 8 332, 341(2d Cir. 2006) (“persecution does not encompass mere
9 harassment”); see also Gui Ci Pan v. U.S. Att’y Gen., 449
10 F.3d 408, 412(2d Cir. 2006) (noting that “unfulfilled threats
11 of physical mistreatment . . . were not sufficiently imminent
12 or concrete for the threats themselves to be considered past
13 persecution” (internal quotation marks omitted)). Her fear
14 of future harm from gang members is a fear of “general crime
15 conditions,” which does not implicate a protected ground.
16 Melgar de Torres v. Reno,
191 F.3d 307, 314(2d Cir. 1999).
17 Carcamo-Granillo relies on the same factual basis for
18 her CAT claim and argues that the agency failed to consider
19 that gangs are the de facto government of El Salvador. She
20 had the burden to show that more likely than not she would be
21 tortured by gang members and that public officials would
5 1 acquiesce to that torture. See
8 C.F.R. §§ 1208.16(c),
2 1208.18(a)(1); Khouzam v. Ashcroft,
361 F.3d 161, 168(2d
3 Cir. 2004); see also Rafiq v. Gonzales,
468 F.3d 165, 166(2d
4 Cir. 2006). Acquiescence means that a “public official,
5 prior to the activity constituting torture, have awareness of
6 such activity and thereafter breach his or her legal
7 responsibility to intervene to prevent such activity.” 8
8 C.F.R. § 1208.18(a)(7); see Khouzam,
361 F.3d at 171.
9 Carcamo-Granillo did not fully exhaust her argument that
10 gangs are the de facto government in El Salvador. See Lin
11 Zhong v. U.S. Dep’t of Just.,
480 F.3d 104, 119–24 (2d Cir.
12 2007) (describing issue exhaustion as “mandatory”). And the
13 record does not provide substantial evidence for such a claim:
14 although she testified that the police worked for gangs, she
15 left El Salvador in 2003 and did not submit any country
16 conditions evidence to show the level of that alleged
17 collusion or whether it existed throughout El Salvador. See
18 8 U.S.C. § 1229a(c)(4) (placing burden of proof and
19 corroboration on applicant).
20
6 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court
7
Reference
- Status
- Unpublished