11-3451 BIA Obando-Flores v. Holder Straus, IJ A076 817 577 

### 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 GOVER** **NED 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 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 11 th** **day of September, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSEPH M. McLAUGHLIN,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges **.** 10 11 12 **GERONIMO GONZALO OBANDO-FLORES,** 13 Petitioner**,** 14 15 **v. 11-3451** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20 21 22 **FOR PETITIONERS: Elyssa N. Williams, Formica** 23 **Williams, P.C., New Haven, CT.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Richard M. Evans,** 27 **Assistant Director; Allen W.** 28 **Hausman, Senior Litigation Counsel,** 29 **Office of Immigration Litigation,** 30 **United States Department of Justice,** 31 **Washington, D.C.** 32UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Geronimo Gonzalo Obando-Flores, a native and citizen of 5 Nicaragua, seeks review of a July 29, 2011, order of the BIA 6 affirming the June 29, 2009, decision of Immigration Judge 7 (“IJ”) Michael W. Straus, denying his application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Obando-Flores , 10 No. A076 817 577 (B.I.A. July 29, 2011),aff’gNo. A076 817 11 577 (Immig. Ct. Hartford, June 29, 2009). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as supplemented by the BIA. See Yan 16 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well established. See8 18 U.S.C. § 1252(b)(4)(B), (D);Yanqin Weng v. Holder , 562 F.3d 19 510, 513 (2d Cir. 2009); Wu Zheng Huang v. INS , 436 F.3d 89, 20 96 (2d Cir. 2006). 21 The regulations require IJs to exercise the Attorney 22 General’s discretion to deny asylum to applicants who 23 establish eligibility based solely on past persecution when 24

2the government establishes a fundamental change in 1 circumstances sufficient to rebut the presumption of well2 founded fear. 8 C.F.R. § 1208.13(b)(1). In this case, the 3 record supports the agency’s finding that there has been a 4 change in country conditions in Nicaragua sufficient to 5 rebut the presumption of a well-founded fear of future 6 persecution. 7 Obando-Flores was persecuted by members of the 8 Sandinista Liberation Front in the 1980s based on his 9 support, and the support of his family members, for the 10 Contras during the civil war in Nicaragua. He left 11 Nicaragua, but returned when the Sandinistas were no longer 12 in power, in 1990, and remained in Nicaragua without any 13 further problems from 1990 to 1998, and again from 2004 14 until 2007. While Daniel Ortega, of the Sandinista party, 15 is now president of Nicaragua, as the BIA noted, the 2008 16 United States Department of State report indicates that 17 “[t]here were no reports of political violence against 18 citizens returning from civil-war-era self-imposed exile.” 19 Furthermore, Ortega was sworn in as president in January 20 2007, and Obando-Flores remained in Nicaragua until December 21 2007 without incident. Accordingly, substantial evidence 22 supports the agency’s finding that there has been a 23 fundamental change in circumstances in Nicaragua, rebutting 24

3the presumption that Obando-Flores has a well-founded fear 1 of future persecution. See Islami v. Gonzales , 412 F.3d 2 391, 397-98 (2d Cir. 2005). 3 Moreover, because Obando-Flores’s CAT claim is based on 4 the same factual predicate as his asylum claim, he cannot 5 show that it is more likely than not that he will be 6 tortured in Nicaragua by the Sandinistas. See Xue Hong Yang 7 v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 8 In certain circumstances, an IJ may grant humanitarian 9 asylum to an applicant who has established past persecution 10 but not a well-founded fear of future persecution. See8 11 C.F.R. § 1208.13(b)(1)(iii). Because the grant of 12 humanitarian asylum in the absence of a well-founded fear of 13 persecution is discretionary, we review the decision for 14 abuse of discretion, and for whether the decision was 15 “manifestly contrary to the law.” 8 U.S.C. § 1252(b)(4)(D); 16 see Wu Zheng Huang, 436 F.3d at 96-97 & n.9. Humanitarian 17 asylum has been reserved for applicants who have suffered 18 “atrocious forms of persecution,” Matter of Chen , 20 I. & N. 19 Dec. 16, 19 (BIA 1989), or who may suffer “other serious 20 harm upon removal to that country,” 8 C.F.R. 21 § 1208.13(b)(1)(iii); see Matter of L-S- , 25 I. & N. Dec. 22 705, 713-14 (BIA 2012). 23

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4The agency did not abuse its discretion in finding that 1 the persecution suffered by Obando-Flores in the 1980s was 2 not so severe as to merit a grant of humanitarian asylum. 3

See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari v. Gonzales,468 4 F.3d 179, 184 (2d Cir. 2006) (upholding the denial of 5 humanitarian asylum to a supporter of the Albanian 6 Democratic Party who had been beaten and harassed on six 7 occasions); Wu Zheng Huang, 436 F.3d at 96-97. Moreover, 8 because Obando-Flores alleged only a fear of harm at the 9 hands of the Sandinistas, he made no showing that there was 10 a reasonable possibility that he would suffer other serious 11 harm upon return to Nicaragua. See Matter of L-S- , 25 I. & 12

N. Dec. at 715. 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34.1(b). 21

FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25 26

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