20-119(L) Bertrand v. Garland BIA Montante, IJ A077 889 197

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 14th day of March, two thousand twenty-two. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 SUSAN L. CARNEY, 9 Circuit Judges. * 10 _____________________________________ 11 12 ESPERANCE BERTRAND, 13 Petitioner, 14 20-119(L), 15 v. 20-4063(Con) 16 NAC 17 MERRICK B. GARLAND, UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: Robert F. Graziano, Esq., 23 Tonawanda, NY. 24 25 FOR RESPONDENT: Brian M. Boynton, Acting 26 Assistant Attorney General, Civil 27 Division; John S. Hogan, Assistant

* Judge Robert A. Katzmann, originally assigned to this panel, has since died. The remaining two judges, being in agreement, have decided the matter. See 2d Cir. IOP E(b). 1 Director, Office of Immigration 2 Litigation; Todd J. Cochran, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of these petitions for review of

8 Board of Immigration Appeals (“BIA”) decisions, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 in 20-119(L) is DENIED and the petition for review in 20-

11 4063(Con) is DENIED in part and DISMISSED in part.

12 Petitioner Esperance Bertrand, a native and citizen of

13 Haiti, seeks review of (1) a November 23, 2020 decision of

14 the BIA denying his motion to reopen, In re Esperance

15 Bertrand, No. A077 889 197 (B.I.A. Nov. 23, 2020), and (2) a

16 December 31, 2019 decision of the BIA affirming an August 5,

17 2019 decision of an Immigration Judge (“IJ”) denying his

18 application for withholding of removal and relief under the

19 Convention Against Torture (“CAT”), In re Esperance Bertrand,

20 No. A077 889 197 (B.I.A. Dec. 31, 2019), aff’g No. A077 889

21 197 (Immig. Ct. Batavia Aug. 5, 2019). We denied a request

22 for stay of removal, Dkt. No. 54 (May 18, 2020), and we are

23 advised that Petitioner has been removed. We assume the

24 parties’ familiarity with the underlying facts and procedural

25 history. 2

-119(L), Order of Removal

2 Because the BIA’s decision “closely tracks the IJ's

3 reasoning,” we have “review[ed] the IJ’s and the BIA’s

4 decisions together,” Wangchuck v. Dep’t of Homeland Sec., 448

, 528 (2d Cir. 2006), excluding from our review any

6 grounds that the BIA explicitly rejected, Hong Fei Gao v.

7 Sessions,

(2d Cir. 2018). On review, we will

8 uphold the BIA’s factual findings if they are supported by

9 substantial evidence, affording particular deference to the

10 IJ’s credibility findings. Xiu Xia Lin v. Mukasey,

, 165–66 (2d Cir. 2008); see

(b)(4).

12 Withholding of Removal

13 To establish eligibility for withholding of removal, an

14 applicant must show past persecution or a likelihood of future

15 persecution on account “of the [applicant’s] race, religion,

16 nationality, membership in a particular social group, or

17 political opinion.”

(b)(3)(A); 8 C.F.R.

18 § 1208.16(b). A valid past persecution claim can be based

19 on harm other than threats to life or freedom, including “non-

20 life-threatening violence and physical abuse,” Beskovic v.

21 Gonzales,

, 226 n.3 (2d Cir. 2006), but the harm

22 must be sufficiently severe, rising above “mere harassment,”

3 1 to provide a cognizable basis for the claim, Ivanishvili v.

2 U.S. Dep’t of Justice,

(2d Cir. 2006).

3 The agency did not err in finding that Bertrand failed

4 to establish that his experiences in Haiti in the early 1990s

5 constituted persecution on account of his political opinion.

6 Bertrand’s claim rested on his testimony regarding a 1991

7 threat made to him by Chrisner Desholmes, a local military

8 “section chief” for a group known as the Association

9 Progressive of Laroche (“APL”). He reported that Desholmes

10 directed him to stop holding meetings. He also recounted a

11 1994 incident in which Desholmes, whom Bertrand had opposed

12 as section chief, and other men tied up Bertrand’s relatives

13 while looking for Bertrand and “shot up” their house, as

14 Bertrand testified his father had later reported to him.

15 Pet’r’s Br. at 14. The unfulfilled threat did not, on its

16 own, amount to persecution. See Ci Pan v. U.S. Att’y General,

17

, 412–13 (2d Cir. 2006).

18 In some circumstances, an applicant may demonstrate

19 persecution by relying on an instance in which a family member

20 was harmed as a means of targeting him on a protected ground.

21 Tao Jiang v. Gonzales,

(2d Cir. 2007). We

22 identify no error here, however, in the agency’s conclusion

4 1 that the evidence Bertrand submitted does not sufficiently

2 establish his claim. First, he provided only secondhand

3 evidence of the alleged attack, and second, even that evidence

4 gives no basis for attributing the attack to any specific

5 actors, much less suggest a specific covered motive. More

6 was required to overcome the IJ’s reasonable determination

7 that Bertrand’s account of this serious event was, in the

8 absence of independent corroboration, not reliable enough to

9 support his claim for withholding of removal.

10 Nor did the agency err in finding speculative (and

11 therefore deficient) Bertrand’s claim that, if removed, he

12 will likely suffer future persecution on account of his

13 political opinion. Bertrand left Haiti in 1994; he was not

14 thereafter active in politics; he provided no information

15 about the position (if any) now held by in the Haitian

16 government by Desholmes; and his sister’s vague statement to

17 the police that unidentified “armed criminals” were targeting

18 Bertrand was insufficient to corroborate his claim. See 8

(b)(1)(B)(ii). The IJ also reasonably

20 questioned the weight fairly owed to testimony about

21 Desholmes’s alleged reappearance in recent times, and

22 Bertrand’s sister’s statement and complaint, because the

5 1 statement and asserted reappearance occurred soon after

2 Bertrand was notified of the agency’s intent to reinstate his

3 removal order. See Siewe v. Gonzales,

(2d

4 Cir. 2007) (“So long as an inferential leap is tethered to

5 the evidentiary record, we will accord deference to the

6 finding.”). Because the agency reasonably found Bertrand’s

7 testimony unpersuasive and the proffered corroborating

8 evidence insufficient, we identify no error in its conclusion

9 that Bertrand failed to establish a likelihood of future

10 persecution on account of his political opinion. See 8

(b)(3)(A); see also Jian Xing Huang v. U.S. INS,

12

(2d Cir. 2005) (“In the absence of solid

13 support in the record . . . [an applicant’s] fear is

14 speculative at best.”).

15 Because Bertrand failed to establish past persecution or

16 a likelihood of future persecution on account of his political

17 opinion, the agency did not err in denying withholding of

18 removal. See

(b)(3)(A); 8 C.F.R.

19 § 1208.16(b)(2). 1

20 Due Process

21 Bertrand argues that the IJ exhibited bias and acted in

1 On this petition for review, Bertrand does not challenge the 6 1 violation of his due process rights by (1) initially rejecting

2 his application for withholding of removal and CAT relief as

3 untimely; (2) relying on Matter of Pula,

(BIA 1987), when that case related only to asylum;

5 (3) misstating the date on which Bertrand left Haiti; and

6 (4) failing to identify the years of issuance of the State

7 Department reports of which the IJ took administrative

8 notice.

9 On appeal to the BIA, Bertrand raised each of these

10 arguments in substance. We therefore deem them exhausted and

11 amenable to review. See Gill v. INS,

(2d

12 Cir. 2005) (noting that “a petitioner is [not] limited to the

13 exact contours of his argument below”). Nevertheless,

14 Bertrand’s due process claims fail because he did not show

15 any related prejudice. See Garcia-Villeda v. Mukasey, 531

, 149 (2d Cir. 2008) (“Parties claiming denial of due

17 process in immigration cases must, in order to prevail, allege

18 some cognizable prejudice fairly attributable to the

19 challenged process.” (internal quotation marks omitted)).

agency’s denial of CAT relief. See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005) (stating that petitioner abandons claim by not raising it in his brief) and so we do not address it further. 7 1 Bertrand’s application was ultimately considered

2 notwithstanding any timeliness issues; the IJ acknowledged

3 that Matter of Pula related to asylum only and cited the

4 decision simply to note Bertrand’s prior disregard for

5 immigration laws, which it did not rely on in resolving his

6 claim; the misstated date related to a credibility finding

7 that the BIA did not rely on in its dismissal of Bertrand’s

8 appeal; and the IJ relied on the historical record created by

9 past State Department reports rather than on a report for a

10 specific year, so its failure to identify the reports’ years

11 of issuance caused no harm. Because Bertrand has not shown

12 that he was prejudiced by any of these alleged errors, he has

13 not established a due process violation. 2

-4063(Con), Motion to Reconsider and Reopen

15 We review denial of motions to reconsider and to reopen

16 for abuse of discretion and determination related to country

17 conditions for substantial evidence. Jian Hui Shao v.

18 Mukasey,

, 168–69, 173 (2d Cir. 2008).

19 As the BIA found, Bertrand’s June 2020 motion was

2 Even assuming prejudicial error, these mistakes, without more, do not demonstrate bias. See Liteky v. United States,

(1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”). 8 1 untimely because it was filed more than five months after the

2 BIA issued its December 2019 order of removal. See 8 U.S.C.

3 § 1229a(c)(6)(B) (providing 30-day filing deadline for

4 motions to reconsider), (7)(C)(i) (providing 90-day deadline

5 for motions to reopen). The statute provides no exceptions

6 to the time limitation for reconsideration motions, see 8

7 U.S.C. § 1229a(c)(6);

(b), and, as discussed

8 below, Bertrand did not establish a material change in

9 conditions in Haiti as required to excuse him from complying

10 with the deadline for motions to reopen, see

11 § 1229a(c)(7)(C)(ii);

(c)(3)(ii).

12 Bertrand alleged the occurrence of a change material to

13 his eligibility for relief arising from his sister’s report

14 that Desholmes recently looked for him and attacked his

15 nephew. The BIA reasonably declined to credit related

16 statements from Bertrand’s sister and nephew, however,

17 because the statements were unsworn, were written by

18 interested parties, were strikingly similar, and were not

19 accompanied by evidence that they were mailed from Haiti.

20 See Y.C. v. Holder,

(2d Cir. 2013)

21 (holding that “[w]e generally defer to the agency’s

22 evaluation of the weight to be afforded an applicant’s

9 1 documentary evidence” and upholding BIA’s decision not to

2 credit letter from applicant’s spouse in China); see also Mei

3 Chai Ye v. U.S. Dep’t of Justice,

(2d Cir.

4 2007) (reiterating “the commonsensical notion that striking

5 similarities between affidavits are an indication that the

6 statements are canned” (internal quotation marks omitted)).

7 Bertrand’s remaining evidence—a July 2019 report of a

8 politically motivated massacre in Haiti—did not provide a

9 basis for reopening or demonstrate changed conditions because

10 he had previously submitted it to the IJ. See 8 U.S.C.

11 § 1229a(c)(7)(C)(ii) (requiring new or previously unavailable

12 evidence of changed conditions); see also In re S-Y-G-, 24 I.

13 & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether

14 evidence accompanying a motion to reopen demonstrates a

15 material change in country conditions that would justify

16 reopening, [the BIA] compare[s] the evidence of country

17 conditions submitted with the motion to those that existed at

18 the time of the merits hearing below.”).

19 We therefore deny the consolidated petitions. In sum,

20 Bertrand failed to timely file his motion to reconsider or to

21 establish a material change in country conditions that would

22 excuse his untimely filing of his motion to reopen. See 8

10 1 U.S.C. § 1229a(c)(6)(B), (7)(C). We dismiss the petition in

2 remaining part because we lack jurisdiction to review the

3 agency’s “entirely discretionary” decision to decline to

4 reopen proceedings sua sponte. Ali v. Gonzales,

(2d Cir. 2006).

6 For the foregoing reasons, the petition for review in

7 20-119(L) is DENIED, the petition for review in 20-4063(Con)

8 is DENIED in part and DISMISSED in part, and the motion for

9 in forma pauperis status in 20-4063(Con) is DENIED as moot.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court

11