15-1207 Silva v. Lynch BIA Montante, IJ A088 939 797 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **6 th**  **day of July, two thousand sixteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **RICHARD C. WESLEY,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **OSVALDO C. SILVA,** 13 Petitioner **,** 14 15 **v. 15-1207** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Joel C. Haims; Malcolm Dort, 23 Morrison & Foerster LLP, New York, 24 N.Y.; Brian R. Matsui, Morrison & 25 Foerster LLP, Washington, D.C. 26 27 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 28 Assistant Attorney General; Cindy S. 29 Ferrier, Assistant Director; 30 Lindsay M. Murphy, Trial Attorney, 31 Office of Immigration Litigation, 32 United States Department of Justice, 33 Washington, D.C. 342 UPON 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 is 3

DENIED. 4 Petitioner Osvaldo C. Silva, a native and citizen of 5 Angola, seeks review of a March 17, 2015 decision of the BIA 6 affirming a March 22, 2013 decision of an Immigration Judge 7 (“IJ”), which denied Silva’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Osvaldo C. Silva, No. A088 939 797 10 (B.I.A. Mar. 17, 2015), aff’g No. A088 939 797 (Immig. Ct. 11 Buffalo Mar. 22, 2013). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 We have reviewed both the IJ’s and the BIA’s opinions “for 14 the sake of completeness.” Wangchuck v. DHS , 448 F.3d 524, 528 15 (2d Cir. 2006). The applicable standards of review are well 16 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 17 Holder , 562 F.3d 510, 513 (2d Cir. 2009). 18 Silva did not base his claims for relief on past harm; 19 instead, he claimed only that he would be persecuted in the 20 future by his father and by the Angolan population because he 21 is gay. To establish asylum eligibility based on a 22 well-founded fear of persecution, an applicant must show that 233 he subjectively fears persecution and that this fear is 1 objectively reasonable. Ramsameachire v. Ashcroft , 357 F.3d 2 169, 178 (2d Cir. 2004) (Sotomayor, J.). An alien may make the 3 latter showing either by offering evidence that “he or she would 4 be singled out individually for persecution” or by “prov[ing] 5 the existence of ‘a pattern or practice in his or her 6 country . . . of persecution of a group of persons similarly 7 situated to the applicant.’” Kyaw Zwar Tun v. INS , 445 F.3d 8 554, 564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)). 9 Private action constitutes “persecution” only when the 10 government is unwilling or unable to control it. Rizal v. 11 Gonzales , 442 F.3d 84, 92 (2d Cir. 2006). The agency reasonably 12 concluded that Silva failed to meet his burden of proof for 13 asylum because his fear of persecution was not objectively 14 reasonable. 15 As to any persecution by Silva’s father, the agency 16 reasonably concluded that there was no evidence in the record 17 that the Angolan government would be unwilling or unable to 18 prevent Silva’s father from harming him or punishing his father 19 if he did. See id. ; Jian Xing Huang v. INS , 421 F.3d 125, 129 20 (2d Cir. 2005) (holding that “[i]n the absence of solid support 21 in the record for [an applicant’s] assertion that he will be 22 [persecuted], his fear is speculative at best”). The only 234 evidence in the record supporting Silva’s allegation that his 1 father could harm him with impun ity is a letter from his mother 2 stating that she was forced to flee to the Congo to avoid Silva’s 3 father. The agency reasonably gave limited weight to this 4 letter, however, which was from an interested witness who was 5 not subject to cross-examination. See Y.C. v. Holder , 741 F.3d 6 324, 334 (2d Cir. 2013); In re H-L-H & Z-Y-Z , 25 I. & N. Dec. 7 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin Huang 8 v. Holder , 677 F.3d 130 (2d Cir. 2012). Silva argues that the 9 agency failed to show that any other evidence was reasonably 10 available. However, even if this evidence was the only 11 evidence available, the agency found it insufficient to meet 12 his burden. Accordingly, the agency reasonably concluded that 13 Silva failed to show that the Government would allow his father 14 to harm him if removed and therefore failed to show that his 15 fear of persecution by his father was objectively reasonable. 16 The agency also reasonably concluded that Silva’s fear of 17 persecution by the Angolan population at large was not 18 objectively reasonable. Jian Xing Huang , 421 F.3d at 129. The 19 record contains conflicting evidence concerning the prevalence 20 of violence against gay men in Angola, and the task of resolving 21 conflicts in the record evidence is “largely within the 22 discretion of the agency.” Jian Hui Shao v. Mukasey , 546 F.3d 235 138, 171 (2d Cir. 2008). The 2011 State Department Report notes 1 that gay men in Angola report facing violence and 2 discrimination, but it does not disclose the extent of that 3 violence or its frequency. Silva submitted an additional 4 article stating that homosexuals in Angola do not reveal their 5 sexual orientation for fear of stigma and social exclusion; the 6 article also reported on one gay man who had rocks thrown at 7 him. DHS submitted two articles, one of which states that, 8 although homosexuality is technically illegal in Angola, there 9 are no reports of any prosecutions for violating the law, and 10 that a new proposed law criminalizes discrimination based on 11 sexual orientation. Moreover, the articles quote an HIV/AIDS 12 activist, as well as a human rights observer, to the effect that 13 violence against gay men is uncommon in Angola and that Angola 14 is ahead of other African nations with respect to the treatment 15 of LGBT individuals. Given the conflicting evidence in the 16 record, the agency reasonably determined that Silva had not 17 shown that his fear of persecution by the Angolan population 18

was objectively reasonable. See Jian Hui Shao , 546 F.3d at 171 ; 19 Jian Xing Huang , 421 F.3d at 129

. 20 Silva does not advance distinct challenges to the agency’s 21 denial of withholding of removal and CAT relief in his brief 22 to his Court; his challenges to the denials of these forms of 236 relief are entirely derivative of his challenges to the denial 1 of asylum. Because Silva’s claims for asylum, withholding of 2 removal, and CAT relief were all based on the same factual 3 predicate—Silva’s status as a gay man—the agency did not err 4 in denying these applications for relief. See Ramsameachire , 5 357 F.3d at 185. 6 For the foregoing reasons, the petition for review is 7

DENIED. 8
FOR THE COURT: 9 Catherine O = Hagan Wolfe, Clerk 10