20-837

Espinoza-Archipolla v. Garland

BIA

Thompson, IJ

A206 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 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 

New York, on the 11th 4 day of February, two thousand twenty5 two.

6

7 PRESENT:

8 DEBRA ANN LIVINGSTON,

9 Chief Judge,

10 WILLIAM J. NARDINI,

11 EUNICE C. LEE,

12 Circuit Judges.

13 _____________________________________

14

15 DUBAR IVAN ESPINOZA-ARCHIPOLLA,

16 Petitioner,

17

18 v. 20-837

19 NAC

20 MERRICK B. GARLAND, UNITED

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25

26 FOR PETITIONER: Michael Borja, Esq., Borja Law 

27 Firm, P.C., Jackson Heights, NY.

28
2

1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

2 Assistant Attorney General;

3 Anthony P. Nicastro, Assistant 

4 Director; Matthew B. George,

5 Senior Litigation Counsel, Office 

6 of Immigration Litigation, United 

7 States Department of Justice, 

8 Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a 

10 Board of Immigration Appeals (“BIA”) decision, it is hereby 

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

12 is DENIED.

13 Petitioner Dubar Ivan Espinoza-Archipolla, a native and 

14 citizen of Ecuador, seeks review of a February 19, 2020, 

15 decision of the BIA affirming an April 9, 2018, decision of 

16 an Immigration Judge (“IJ”) denying asylum, withholding of 

17 removal, and relief under the Convention Against Torture 

18 (“CAT”). In re Dubar Ivan Espinoza-Archipolla, No. A206 727 

19 030 (B.I.A. Feb. 19, 2020), aff’g No. A206 727 030 (Immigr. 

20 Ct. N.Y.C. Apr. 9, 2018). We assume the parties’ familiarity 

21 with the underlying facts and procedural history.

22 We have reviewed the IJ’s decision. See Mei Chai Ye v. 

23 U.S. Dep’t of Just., 489 F.3d 517, 523 (2d Cir. 2007). We 

24 review the agency’s factual findings for substantial evidence 

25 and its legal conclusions de novo. See Paloka v. Holder, 762 
3

1 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the legal 

2 determination of whether a group constitutes a ‘particular 

3 social group’ under the [Immigration and Nationality Act].”); 

4 Edimo-Doualla v. Gonzales, 464 F.3d 276, 281–83 (2d Cir. 2006) 

5 (applying substantial evidence standard to nexus 

6 determination); Yanqin Weng v. Holder, 562 F.3d 510, 513, 516 

7 (2d Cir. 2009) (applying substantial evidence standard to CAT 

8 claim). “[T]he administrative findings of fact are 

9 conclusive unless any reasonable adjudicator would be 

10 compelled to conclude to the contrary.” 8 U.S.C.

11 § 1252(b)(4)(B).

12 Our review is limited to claims exhausted before the 

13 agency and sufficiently argued here. See Lin Zhong v. U.S. 

14 Dep’t of Just., 480 F.3d 104, 123 (2d Cir. 2007)

15 (“usually . . . issues not raised to the BIA will not be 

16 examined by the reviewing court”); Yueqing Zhang v. Gonzales, 

17 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (issues not 

18 raised in briefs normally will not be addressed on appeal). 

19 Espinoza-Archipolla has waived review of the agency’s 

20 findings related to the particular social group he proposed 

21 to the agency by failing to specifically challenge those 
4

1 findings, and he did not exhaust the amended social group 

2 that he now proposes. See Lin Zhong, 480 F.3d at 123; Yueqing 

3 Zhang, 426 F.3d at 541 n.1, 545 n.7; see also Prabhudial v. 

4 Holder, 780 F.3d 553, 555–56 (2d Cir. 2015) (concluding that 

5 BIA properly declined to “consider an issue that could have 

6 been, but was not, raised before [the] IJ” and declining to 

7 address claim in first instance). Accordingly, we deny 

8 Espinoza-Archipolla’s petition as to asylum and withholding 

9 of removal. 

10 As to CAT protection, substantial evidence supports the 

11 agency’s denial of that claim. Espinoza had the burden to 

12 show that “it is more likely than not that he . . . would be 

13 tortured,” 8 C.F.R. § 1208.16(c)(2), and that “government 

14 officials [would] know of or remain willfully blind to an act 

15 [of torture],” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d 

16 Cir. 2004); see also 8 C.F.R. § 1208.18(a)(1). In 

17 determining whether torture is more likely than not, the 

18 agency considers past torture, country conditions, and 

19 whether the applicant could avoid torture by relocating

20 within his home country. 8 C.F.R. § 1208.16(c)(3). 

21
5

1 Here, while Espinoza-Archipolla’s treatment by gang 

2 members was abhorrent, the agency reasonably concluded both 

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

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

5 and avoid torture by gang members. See 8 C.F.R. 

6 §§ 1208.18(a)(2) (“Torture is an extreme form of cruel and 

7 inhuman treatment and does not include lesser forms of cruel, 

8 inhuman or degrading treatment or punishment that do not 

9 amount to torture.”), 1208.16(c)(3) (IJ considers past 

10 torture, possibility of relocation); Kyaw Zwar Tun v. U.S. 

11 INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture requires 

12 proof of something more severe than the kind of treatment 

13 that would suffice to prove persecution.”). Moreover, 

14 Espinoza-Archipolla’s country conditions evidence reflecting 

15 a rise in drug trafficking was insufficient to demonstrate 

16 that gang members will likely single him out for torture and 

17 that government officials would acquiesce to that torture, 

18 particularly given evidence of the government’s actions to 

19 combat that rise in criminality. See Mu-Xing Wang v. 

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

21 that “someone in [applicant’s] particular alleged 
6

1 circumstances is more likely than not to be tortured”

2 (emphasis omitted)); Mu Xiang Lin v. U.S. Dep’t of Just., 432 

3 F.3d 156, 160 (2d Cir. 2005) (requiring “particularized 

4 evidence” to support a CAT claim); see also Jian Hui Shao v. 

5 Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a 

6 petitioner bears the burden of proof, his failure to adduce 

7 evidence can itself constitute the ‘substantial evidence’ 

8 necessary to support the agency’s challenged decision.”). 

9 For the foregoing reasons, the petition for review is 

10 DENIED. All pending motions and applications are DENIED and 

11 stays VACATED.

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe,

14 Clerk of Court