20

- 3130 Duran De La Rosa v. Garland BIA Aikman , IJ A 0 55 969 548 

### 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 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, h**  **eld at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **7 t**  **h da**  **y of M**  **a y**  **, two thousand twenty** 

**- three** 

**.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER ,**  7 **WILLIAM J. NARDINI ,**  8 **MYRNA PÉREZ ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **WANDER DURAN DE LA ROSA ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 3**  **130** 16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 23 **FOR PETITIONER :**  Marissa A. Prianti , Kerry W. 24 Bretz , Bretz & Coven, LLP, New 25 York , NY

. 26 27 282 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 1 Attorney General ; Julie M. 2 Iversen , Senior Litigation 3 Counsel ; Arthur L. Rabin , Trial 4 Attorney , Office of Immigration 5 Litigation, United States 6 Department of Justice, Washington, 7 D C. 8
UPON DUE CONSIDERATION of this 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 Wander Duran De La Rosa , a native and citizen 13

of the Dominican Republic , seek s review of a n August 17 , 2020 , 14

decision of the BIA affirming a February 21 , 20 20 , decision 15
of an Immigration Judge (“IJ”) denying deferral of removal 16
under the Convention Against Torture (“CAT”)

. In re Duran 17

De La Rosa , No. A 055 969 548 (B.I.A. Aug

. 17 , 2020 ), aff’g 18

No. A 055 969 548 (Immig. Ct. Batavia Feb. 21 , 20 20 ). We 19
assume the parties’ familiarity with the case. 20
The Government has moved to dismiss Duran’s petition as 21
frivolous. Construing the Government’s motion instead as its 22

brief , we deny Duran’s petition on the merits. 23

We have reviewed the IJ’s decision as su pplemented by 24

the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 253 Cir. 2005). We review factfinding for substantial evidence 1
and questions of law and application of law to fact de novo. 2

Quintanilla

- Mejia v. Garland , 3 F.4th 569, 583 (2d Cir. 2021). 3

Under the substantial evidence standard, “ we must uphold 4
agency factfinding ‘unless any reasonable adjudicator would 5
be compelled to conclude to the contrary.’” Id. (emphasis 6
omitted) (quoting 8 U.S.C. § 1252(b)(4)(B)). Where, as here, 7
“a petition er bears the burden of proof, his failure to adduce 8

evidence can itself constitute the ‘substantial evidence’ 9
necessary to support the agency’s challenged decision.” Jian 10
Hui Shao v. Mukasey , 546 F.3d 138, 157

– 58 (2d Cir. 2008). 11
A CAT applicant bears th e burden of “establish[ing] that 12
it is more likely than not that he . . . would be tortured if 13
removed to the proposed country of removal.” 8 C.F.R. 14

§ 1208.16(c)(2). “Torture” is “an extreme form of cruel and 15

inhuman treatment” and is limited to acts “in flicted by, or 16
at the instigation of, or with the consent or acquiescence 17
of, a public official.” Id. § 1208.18(a)( 1 ), ( 2 ). A CAT 18
claim is “too speculative” if “it involves a chain of 19
assumptions”; an applicant is required to show that each link 20

in the c hain is more likely than not to occur. Savchuck v. 214 Mukasey , 518 F.3d 119, 12 3

– 24 (2d Cir. 2008) (quotation marks 1

omitted). 2
Duran alleged that cartel members in the Dominican 3
Republic would try to kill him because they knew or would 4

know he had cooperated with law enforcement in the United 5
States given the relatively light sentence he received 6
following his last conviction and alleged that one former 7

associate threatened to kill him and shot at his brother

. 8
Substantial evidence supports the agency ’ s conclusion 9

that Duran failed to establish that he would more likely than 10

not be tortured if he returned to the Dominican Republic

. 11
First, while Duran argue d that a former associate believed 12

him to be a snitch and shot at (but missed) his brother , his 13

evidence was not that clear. He did not identify when the 14
shooting occurred, when a phone call between him and the 15

shooter occurred, why he called the shooter in the first 16
place, whether the shooter still believes Duran is a snitch, 17

whether the shooter would have the means and knowledge to 18

harm Duran if he returned, whether the shooter was still 19
involved with such drug cartels , or whether the shooter was 20
still in the Dominican Republic, at liberty, or even alive. 215 This record does not compel a conclusion contrary to the 1
agency’s determination that Duran’s fear was “too 2
speculative.” Savchuck , 518 F.3d at 12 3

– 2 4 ; see also 8 3

U.S .C. § 1252(b)(4)(B)

. Moreover, Duran’s expert witness 4
testified that Duran could face harm subject to various 5
contingencies, variables, and suppositions . But such hedged 6

and tentative assertions do not fulfill Duran’s burden of 7
showing that each link in the chain is more likely than not 8
to occur and that he would more likely than not face torture 9
in the Dominican Republic. See Savchuck , 518 F.3d at 123

– 10

24 ; Jian Xing Huang v. INS , 421 F.3d 125, 1 29 (2d Cir. 2005) 11
(“In the absence of solid support in the record . . . 12
[petitioner’s] fear is speculative at best.”). 13
Absent a showing that he will more likely than not be 14

tortured, Dura n cannot establish a CAT claim. See 8 C.F.R. 15

§ 1208.16(c)(2). We ha ve considered Duran’s remaining 16
arguments and conclude that they are immaterial given the 17

conclusion above or lack merit

. 186 For the foregoing reasons, the petition for review is 1

DENIED

. All pending motions and applications are DENIED and 2

stays VACATED. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6