20

- 1909 Valenzuela Arias v. Garland BIA Farber , IJ A 055 118 087 

### 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 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 the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 0 t h da y of S e p t e m b e r , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 REENA RAGGI, 7 RAYMOND J. LOHIER, JR., 8 BETH ROBINSON, 9 Circuit Judges. 10

_____________________________________ 11 12 SANTO VALENZUELA ARIAS , AKA 13 SANTO ZEQUIEL VALENZUELA 14 ARIAS, AKA SANTO EZEQUIEL 15 VALENZU E LA ARIAS , 16 Petitioner , 17 18

v. 20

- 1909 19 NAC 20 MERRICK B. GARLAND , UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent

. 23

_____________________________________ 242 FOR PETITIONER : Ellen Kathleen Pachnanda, Meghan L. 1 McCarthy, Brooklyn Defender Services , 2 Brooklyn, NY; John M. Tanski, Axinn, Veltrop 3 & Harkrider LLP, Har t ford, CT ; Craig M. 4 Reiser, Eva H. Yung , Axinn , Veltrop & 5 Harkrider LLP, New York, NY. 6 7 FOR RESPONDENT: Brian Boynton , Acting Assistant Attorney 8 General ; Lindsay B. Glauner , Senior 9 Litigation Counsel ; Craig A. Newell, Jr. , Trial 10 Attorney, Office of Immigration Litigation, 11 United States Department of Justice, 12 Washington, D C. 13 UPON DUE CONSIDERATION of this petition for review of a Board of 14
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 15

DECREED that the petitio n for review is DENIED. 16

Petitioner Santo Valenzuela Arias , a native and citizen of the Dominican 17
Republic , seeks review of a June 3, 2020 decision of the BIA affirming a n August 18

16, 2019 decision of an Immigration Judge (“IJ”) ordering his removal and denying 19

his application for relief under the Convention Against Torture (“CAT”)

. In re 20

Santo Valenzuela Arias , No. A 055 118 087 (B.I.A. June 3, 2020 ), aff’g No. A 055 118 21

087 (Immig. Ct. N.Y. City Aug. 16, 2019 ). We assume the parties’ familiarity with 22
the underlying facts and procedural history. 23

We have consider ed both the IJ’s and the BIA’s decisions “for the sake of 243 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 1
2006). We review factual findings for substantial evidence and questions of law 2

de novo. 1 See Paloka v. Holder , 762 F.3d 191, 195 (2d Cir. 2014) ; Perriello v. 3
Napolitano , 579 F.3d 135, 138 (2d Cir. 2009) (reviewing de novo claim that IJ “erred 4

as a matter of law” in denying motion to terminate) . “[T] he administrative 5
findings of fact are conclusive unless any reasonable adjudicator would be 6
compelled to conclude to the contrary .” 8 U.S.C. § 1252(b)(4)(B)

. 7

I. Finality of Convictions 8
Arias argue s that the controlled substance convictions that formed the basis 9
of his removal order were not final for immigration purposes because his sentence 10
was to run concurrently with sentences for robbery convictions that were pending 11
on appeal. T his challenge to finality is moot because Arias’s convictions have 12
since been affirmed on appeal. 13
A case is moot where no “live case or controversy” exists. Swaby v. Ashcroft , 14
357 F.3d 156, 159 (2d Cir. 2004). “In order to satisfy the case

- or

- controversy 15

1 Although Arias was ordered removed on criminal ground s that implicate the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to consider his legal challenge to the finality of his convictions, see 8 U.S.C. § 1252(a)(2)(D), and the jurisdictional bar does not apply to his CAT claim, see Nasrallah v. Barr , 140 S. Ct. 1683, 1690

– 92 (2020)

.4 requirement, petitioner must have suffered, or be threatened with, an actual injury 1
traceable to the [respondent] and likely to be redressed by a favorable judicial 2

decision.” Id . at 159

– 60 (quotation marks omitted). The New York Appellate 3
Division, First Department, affirmed Arias’s robbery convictions in May 2020, a 4

few weeks before the BIA’s June 2020 decision. See People v. Valenzuela , 123 5

N.Y.S.3d 601 (N.Y. App. Div. 2020). And in November 2020 (a few months after 6
the BIA’s decision), the New York Court of Appeals denied leave to appeal. See 7
People v. Valenzuela , 36 N.Y.3d 932 (2020)

. In June 2021, Arias filed a letter 8
application with the New York Court of Appeals requesting reconsideration; the 9
Court of Appeals denied Arias’s request later that same month. T he time to file 10
a petition for a writ of certiorari to the U.S. Supreme Court has expired

. S ee 11

Policano v. Herbert , 7 N.Y.3d 588, 593 (N.Y. 2006) (holding that a conviction 12

“became final

. . . when

. . . time for filing a petition for writ of certiorari in the 13
United States Supreme Court expired”); S. Ct. Rule 13(1) (“[A] petition for a writ 14
of certiorari to review a judgment in any case . . . entered by a state court of last 15
resort . . . is timely when it is filed . . . within 90 days after entry of the judgment.”). 16
Arias argues that his case is not moot because “this Court can still grant the 17

relief he seeks

— prevention of premature removal from the United States.” Reply 185 Br. at 20. However, now that his robbery convictions have been affirmed and 1
there is no pending challenge to the convictions for which he was ordered 2

removed, there is no basis to grant the relief he seeks , i.e., remand to the BIA would 3
not change the outcome of the proceedings

. Cf. Swaby , 357 F.3d at 160 (finding a 4
live controversy where “[p]etitioner asserts an actual injury

— a bar to reentering 5

the United States

— that has a sufficient likelihood of being redressed by the relief 6
petitioner seeks from this Court”). 7

II. CAT Relief 8

We deny the petition as to CAT relief because the record supports the 9
agency’s decisions. See Quintanilla

- Mejia v. Garland , 3 F.4th 569, 583 (2d Cir. 2021) 10
(reviewing factual challenges to the denial of CAT relief “subject to the highly 11
deferential substantial evidence standard” (quotation marks omitted)). To 12
establish eligibility for CAT relief, an applicant must show that he would “ more 13
likely than not ” be tortured. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). Arias asserted 14
that (1) the Trinitarios would punish him for leaving the gang, (2) the Trinitarios 15
would torture him for his suspected cooperation with law enforcement, and (3) he 16
would be incarcerated because of his status as a criminal deportee from the United 17

States and , while incarcerated, prison guards and inmates would torture him. 186 The agency found his claims too speculative, that he was not credible as to his 1
attempts to leave the gang, and , alternatively, that he did not establish that the 2
Dominican government would acquiesce to his torture. 3
Arias argues that the IJ erred by failing to consider his sources of harm in 4
the aggregate

. See Matter of J

- R

- G

- P

- , 27 I. & N. Dec. 482, 484 (B.I.A. 2018) ( holding 5

that CAT claims “must be considered in terms of the aggregate risk of torture 6

from all sources” (quotation marks omitted) )

. Here, the record does not suggest 7
that the agency c onsider ed the sources of harm in isolation . To the contrary, the 8

BIA stated that it had considered the entirety of the record and concluded that 9
Arias had not shown he would likely be tortured “ for any reason, even considering 10
country conditions, his prior gang membership, or his status as a criminal 11
deportee.” Cert. Admin. Rec. 5. As discussed below, the record supports the 12
conclusion that Arias’s fear of torture was speculative. 13
A CAT claim is “too speculative” if “it involves a chain of assumptions”; an 14
applicant is required to show that each link in the chain is more likely than not to 15

occur. Savchuck v. Mukasey , 518 F.3d 119, 124 (2d Cir. 2008) (quotation marks 16
omitted). Arias acknowledges that the IJ found his fear of torture by the 17

Trinitarios too speculative, but he does not specifically challenge this 187 determination, nor does he point to evidence in the record that establishes a 1

sufficient likelihood of torture. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 2
n.7 (2d Cir. 2005) (deeming applicant’s “claim abandoned” where he raised an 3
issue in “only a single conclusory sentence”); c f. Quintanilla

- Mejia , 3 F.4th at 592 4
(“Because the agency’s conclusion finds support in record evidence, [petitioner] 5
cannot secure CAT relief by pointing to conflicting evidence that might support

— 6
but not compel

— a different conclusion.”)

. 7

Moreover, even if Arias had not abandoned this issue, the record supports 8

the agency’s decision

. The IJ did not err by giving less weight to Arias’s brother’s 9
testimony because he did not have personal knowledge of Arias’s efforts to leave 10
the gang

. See Y.C. v. Holder , 741 F.3d 324, 332, 334 (2d Cir. 2013) ( “We generally 11
defer to the agency’s evaluation of the weight to be afforded an applicant’s 12
documentary evidence.”). The IJ also reasonably determined that Arias’s claim 13
that he intended to leave the gang was unconvincing. Although Arias testified 14
that he did not want to join the gang, he also testified that he attended more than 15
20 meetings while living in New York, and never sought help to get out of the 16
gang. He also did not corroborate his claim that Trinitarios members beat him 17
while he was in prison in the United States because of his attempt to leave. S ee 188 Chuilu Liu v. Holder , 575 F.3d 193, 198 n.5 (2d Cir. 2009) (“[A] failure to corroborate 1
can suffice, without more, to support a finding that an alien has not met his burden 2

of proof.”). He was uncertain whether his intention to leave the gang was 3
communicated outside of prison , and his brother admitted that his statement that 4
a member of the Trinitarios went to his father’s house in the Dominican Republic 5
asking about Arias was inaccurate. 6
Arias does not challenge these determinations in his briefs ; he merely asserts 7
that he did attempt to leave the gang and that he was beaten for doing so. Nor 8
does he challenge the partial adverse credibility determination about his past 9
attempts to leave the gang : d espite his assertion in a footnote that he does not 10

waive th e credibility issue, he did not otherwise challenge the findings. See 11
Yueqing Zhang , 426 F.3d at 545 n.7. Similarly, A rias does not address the agency’s 12

conclusion regarding his fear that the Trinitarios would target him for cooperating 13
with law enforcement, and the record reflects that such a claim was unsupported 14
because Arias testified that the gang had determined that he had not cooperated

. 15
Finally, Arias asserted that he would be incarcerated in the Dominican 16
Republic because of his status as a criminal deportee from the United States, and 17

that he would be tortured by guards and inmates in prison. The record supports 189 the IJ ’s reject ion of this claim as speculative. The evidence established that 1
criminal deportees from the United States are placed in a parole system in the 2
Dominican Republic that last s from six months to a year and requir es deportees to 3
report monthly to the government . Their names are enter ed i n a database that 4
flags their deportee status for potential employers. B ut there was no evidence 5

that such indivi duals we re arrested or detained because of their criminal deportee 6

status

. 7

In sum, the record does not compel Arias’s preferred conclusions

— i.e. , that 8

Arias would leave the gang, that the gang still believed that he had cooperated 9
with law enforcement, or that criminal deportees are incarcerated upon return to 10
the Dominican Republic

. See 8 C.F.R. § 1208.16(c)(2) (burden on applicant to 11
show torture is “more likely than not”) ; Quintanilla

- Mejia , 3 F.4th at 583, 592. We 12
have considered Arias’s remaining arguments and find them without merit. 13
For the foregoing reasons, the petition for review is DENIED. All pending 14
motions and applications are DENIED and stays VACATED. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe , 17 Clerk of Court 18