19

- 3998 Portillo v. Garland BIA Gordon

- Uruakpa , IJ A 088 445 296 

### 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 2**  **8 t**  **h da**  **y of N**  **o v**  **e m**  **b e**  **r , two thousand**  **twenty**

  4 ** two**

**.** 5 6 **PRESENT:** 7 **GERARD E. LYNCH ,**  8 **RAYMOND J. LOHIER, JR. ,**  9 **STEVEN J. MENASHI ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **CARLOS NOE PORTILLO ,**  14 **Petitioner ,**  15 16

**v. 19** 

**- 3998**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Bruno Joseph Bembi , Esq. , 24 Hempstead , NY

. 25 26 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 27
A ssistant Attorney General ; Claire 282 L. Workman , Senior Litigation 1 Counsel ; John F

. Stanton , Trial 2 Attorne y , Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5
D C. 6

UPON DUE CONSIDERATION of th is petition for review of a 7

Board of Immigration Appeals (“BIA”) decision, it is hereby 8

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED

. 10

Petitioner Carlos Noe Portillo , a native and citizen o f 11

El Salvador , seeks review of a November 4 , 20 19 decision of 12

the BIA reversing a February 15, 2018 decision of a n 13

immigration judge (“IJ”) grant ing deferral of removal under 14

the Convention Against Torture (“CAT”)

. In re Carlos Noe 15

Portillo , No. A 088 445 296 (B.I.A. Nov. 4 , 20 19 ), rev ’g No. 16

A 088 445 296 (Immig. Ct. N.Y. City Feb. 15 , 2018 ). We assume 17

the parties’ familiarity with the underlying facts and 18

procedural history

. 19

We have review ed the BIA’s decision as the final agency 20

determination. See Yan Chen v. Gonzales , 417 F.3d 268, 271 21

(2d Cir. 2005). We review factual findings for substantial 22

evidence and questions of law de novo. See Nasrallah v. 23

Barr , 140 S. Ct. 1683, 1692 (2020); Manning v. Barr , 954 F.3d 243 477, 484 (2d Cir. 2020). 1

An applicant for CAT protection must show that he w ill 2

“more likely than not” be tortured by or with the acquiescence 3

of government officials. See 8 C.F.R. §§ 1208.16(c)(2), 4

1208.17(a), 1208.18(a)(1); Khouzam v. Ashcroft , 361 F.3d 161, 5

170

– 71 (2d Cir. 2004). “Torture is defined as any act by 6

which severe pain or suffering

. . . is intentionally 7

inflicted on a person

. . . by, or at the instigation of, or 8

with the consent or acquiescence of, a public official acting 9

in an official capacity or other person acting in an official 10

capacity.” 8 C.F.R. § 1208.18(a)(1). “ [ A ] n alien will never 11

be able to show that he faces a more likely than not chance 12

of torture if one link in the chain cannot be shown to be 13

more likely than not to occur. It is the likelihood of all 14

necessary events coming together that mu st more likely than 15

not lead to torture, and a chain of events cannot be more 16

likely than its least likely link.” Savchuck v. Mukasey , 518 17

F.3d 119, 123 (2d Cir. 2008) (quoting in re J

- F

- F

- , 23 I. & 18

N. Dec. 912, 918 n.4 (A.G. 2006)). 19

T he BIA concluded that the IJ clearly erred in finding 20

that Portillo established that he would likely be torture d in 214 El Salvador because he has non
- gang tattoos. See Wu Lin v. 1

Lynch , 813 F.3d 122, 129 (2d Cir. 2016) (“[I]f the BIA says 2

that, after considering the entire record, it concludes that 3

the IJ has committed clear error in making a finding of fact 4

and provides a legally sufficient explanation for its 5

conclusion, its ruling will ordinarily be upheld.”). We see 6

no error in the BIA’s conclusion. Portillo’s evidence

— 7

which consisted of the 2016 State Department report on El 8

Salvador, and letters from his parents , his minister, and the 9

mayor of his hometown

— was insufficient to meet his burden 10

of proof because it primarily discusses general gang violence 11

and extortion. See Mu Xiang Lin v. U.S. Dep’t of Justice , 12

432 F.3d 156, 160 (2d Cir. 2005) (requiring petitioner to 13

show “that someone in his particular alleged circumstance s is 14

more likely than not to be tortured” (emphasis omitted)); 15

Jian Hui Shao v. Mukasey , 546 F.3d 138, 157

– 58 (2d Cir. 2008) 16

( “[W]hen a petitioner bears the burden of proof, his failure 17

to adduce evidence can itself constitute the substantial 18

evidence nece ssary to support the agency’s challenged 19

decision.” (quotation marks omitted) ) . The BIA’s conclusion 20

that Portillo did not demonstrate a likelihood of torture is 215 dispositive of CAT protection , 8 C.F.R. §§ 1208.16(c)(2), 1

1208.17(a) , and we therefore do not reach the issue of 2

governmental acquiescence , s ee INS v. Bagamasbad , 429 U.S. 3

24, 25 (1976) (“As a general rule courts and agencies are not 4

required to make findings on issues the decision of which is 5

unnecessary to the results they reach.”). 6

Finally, we find no merit in Portillo’s argument that 7

the BIA deprived him of due process by not issuing a new 8

briefing schedule after accepting a late filing from the 9

Department of Homeland Security

. The BIA did not preclude 10

Portillo from fil ing a brief ; rather, Portillo made no effort 11

to file a brief , or to seek an extension to the default 12

deadline to file opposition briefs within 21 days of the 13

filing of the opening brief as provided in § 4.7(a)(1) of the 14

BIA Practice Manual. 1 See Burger v. Gonzales , 498 F.3d 131, 15

134 (2d Cir. 2007) (holding that “[ t ] o establish a violation 16

of due process, an alien must show that [he] was denied a 17

full and fair opportunity to present [his] claims or that the 18

IJ or BIA otherwise deprived [ him] of fundamental f airness” 19

1 BIA Practice Manual § 4.7(a)(1), available at https://www.justice.gov/eoir/book/file/1528926/download (last visited November 21, 2022).6 (quotation marks omitted) )

. 1

For the foregoing reasons, the petition for review is 2

DENIED

. All pending motions and applications are DENIED and 3

stays VACATED

. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe , 6 Clerk of Court 7