20

- 837 Espinoza

- Archipolla v. Garland BIA Thompson , IJ A 206 727 030 

### 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 FED**  **ERAL 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** 1 **for the Second Circuit ,**  **held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **1 t**  **h da**  **y of F**  **e b**  **r u**  **a r**  **y , two thousand**  **twenty**
  4 ** two**

**.** 5 6 **PRESENT:** 7 **DEBRA ANN LIVINGSTON ,**  8 **C hief**  **Judge ,**  9 **WILLIAM J. NARDINI ,**  10 **EUNICE C. LEE ,**  11 **Circuit Judges.** 12

**_____________________________________** 13 14 **DUBAR IVAN ESPINOZA**

**- ARCHIPOLLA**  **,** 15 **Petitioner ,**  16 17
**v. 20** 

**- 837**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 25 **FOR PETITIONER :**  Michael Borja , Esq. , Borja Law 26 Firm, P.C., Jackson Heights , NY

. 27 282 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 1 Assistant Attorney General ; 2 Anthony P. Nicastro , Assistant 3 Director ; Matthew B. George , 4 Senior Litigation Counsel , Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, D C. 8

UPON DUE CONSIDERATION of th is petition for review of a 9
Board of Immigration Appeals (“BIA”) decision, it is hereby 10

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 11

is DENIED

. 12

Petitioner Dubar Ivan Espinoza

- Archipolla , a native and 13

citizen of Ecuador , seeks review of a February 19 , 20 20 , 14
decision of the BIA affirming a n April 9, 2018 , decision of 15
an Immigration Judge (“IJ”) denying asylum, withholding of 16
removal, and relief under the Convention Against Torture 17

(“CAT”)

. In re Dubar Ivan Espinoza

- Archipolla , No. A 20 6 727 18

030 (B.I.A. Feb. 19, 2020 ), aff’g No. A 20 6 727 030 (Immig r . 19

Ct. N.Y.C

. Apr

. 9, 2018 ). We assume the parties’ familiarity 20
with the underlying facts and procedural history

. 21

We have reviewed the IJ’s decision

. See Mei Chai Ye v. 22
U.S. Dep’t of Just

. , 489 F.3d 517, 523 (2d Cir. 2007). We 23
review the agency’s factual findings for substantial evidence 24

and its legal conclusions de novo

. See Paloka v. Holder , 762 253 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the legal 1
determination of whether a group constitutes a ‘particular 2
social group’ under the [Immigration and Nationality Act].”); 3

Edimo

- Doualla v. Gonzales , 464 F.3d 276, 281

– 83 (2d Cir. 2006) 4
(applying substantial evidence standard to nexus 5
determination); Yanqin Weng v. Holder , 562 F.3d 510, 513, 516 6
(2d Cir. 2009) (applying substantial evidence standard to CAT 7
claim). “[T]he administrative findings of fact are 8
conclusive unless any reasonable adjudicator would be 9
compelled to conclude to the contrary.” 8 U.S.C. 10

§ 1252(b)(4)(B). 11

Our review is limited to claims exhausted before the 12
agency and sufficiently argued here

. See Lin Zhong v. U.S. 13
Dep’t of Just

. , 480 F.3d 104, 123 (2d Cir. 2007) 14
(“usually

. . . issues not raised to the BIA will not be 15
examined by the reviewing court”); Yueqing Zhang v. Gonzales , 16
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (issues not 17
raised in briefs normally will not be addressed on appeal)

. 18
Espinoza

- Archipolla has waived review of the agency’s 19
findings related to the particula r social group he proposed 20
to the agency by failing to specifically challenge those 214 findings, and he did not exh au st the amended social group 1
that he now proposes. See Lin Zhong , 480 F.3d at 123; Yueqing 2
Zhang , 426 F.3d at 541 n.1, 545 n.7; see also Prabh udial v. 3

Holder , 780 F.3d 553, 555

– 56 (2d Cir. 2015) ( concluding that 4
BIA properly declined to “c onsider an issue that could have 5
been, but was not, raised before [the] IJ” and declining to 6
address claim in first instance)

. Accordingly, we deny 7
Espinoza

- Archipolla’s petition as to asylum and withholding 8

of removal. 9
As to CAT protection, substantial evidence supports the 10
agency’s de nial of that claim. Espinoza had the burden to 11

show that “it is more likely than not that he .

. . would be 12

tortu red , ” 8 C.F.R. § 1208.16(c) (2) , and that “government 13
officials [would] know of or remain willfully blind to an act 14

[ of torture ] ,” Khouzam v. Ashcroft , 361 F.3d 161, 171 (2d 15
Cir. 2004) ; see also 8 C.F.R. § 1208.18(a)(1) . In 16
determining whether torture is more likely than not, the 17
agency considers past torture, country conditions, and 18
whether the applicant could avoid torture by relocat ing 19
within his home country. 8 C.F.R. § 1208.16(c)(3). 20

215 Here, w hile Espinoza

- Archipolla’s treatment by gang 1

members was abhorrent, the agency reasonably concluded both 2

that the harm he suffered d id not rise to the level of torture 3

and that he failed to establish that he could not relocate 4

and avoid torture by gang members

. See 8 C.F.R. 5

§ § 1208.18(a)(2) (“Torture is an extreme form of cruel and 6
inhuman treatment and does not include lesser forms of cruel, 7
inhuman or degrading treatment or punishment that do not 8

amount to torture.”) , 1208.16(c) (3) ( IJ considers past 9
torture, possibility of reloc ation) ; Kyaw Zwar Tun v. U.S. 10

INS , 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture requires 11
proof of something more severe than the kind of treatment 12
that would suffice to prove persecution.”). Moreover, 13
Espinoza

- Archipolla’s country conditions evidence reflecting 14

a rise in drug trafficking wa s insufficient to demonstrate 15
that gang mem bers will likely single him out for torture and 16
that government officials would acquiesce to that torture, 17
particularly given evidence of the government’s actions to 18

combat that rise in criminality

. See Mu

- Xing Wang v. 19

Ashcroft , 320 F.3d 130, 144 (2d Cir. 2003) (requiring showing 20

that “ someone in [applicant’s] particular alleged 216 circumstances is more likely than not to be torture d ” 1
(emphasis omitted) ); Mu Xiang Lin v. U.S. Dep’t of Just

. , 432 2
F.3d 156, 160 (2d Cir. 2005) (requiring “parti cularized 3

evidence ” to support a CAT claim) ; see also Jian Hui Shao v. 4
Mukasey , 546 F.3d 138, 157

– 58 (2d Cir. 2008) (“[W]hen a 5
petitioner bears the burden of proof, his failure to adduce 6

evidence can itself constitute the ‘substantial evidence’ 7

necessary t o support the agency’s challenged decision.”). 8
For the foregoing reasons, the petition for review is 9

DENIED

. All pending motions and applications are DENIED and 10

stays VACATED

. 11

FOR THE COURT: 12 Catherine O ’ Hagan Wolfe , 13 Clerk of Court 14