22

- 6141 Dutan Vinuesa v. Garland BIA Kolbe , IJ A 213 637 533 

### 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 A NY 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 1 5 t h da y of M a y , two thousand twent y 3 t hree

. 4 5 PRESENT: 6 JON O. NEWMAN, 7 GERARD E. LYNCH, 8 RICHARD J. SULLIVAN, 9 Circuit Judges. 10

_____________________________________ 11 12 JUAN DAVID DUTAN VINU E SA , 13 Petitioner , 14 15

v. 22

- 6141 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 22 FOR PETITIONER : Scott Co o mes, Brooklyn Defender Services, 23 Brooklyn, NY

. 242 FOR RESPONDENT: Brian M. Boynton , Principal Deputy Assistant 1 Attorney General ; John S. Hogan , Assistant 2 Director ; Todd J. Cochran , Trial Attorney, 3 Office of Immigration Litigation, United 4 States Department of Justice, Washington, 5 D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7
Immigration Appeals (“BIA”) decision, it is hereb y ORDERED, ADJUDGED, AND 8
DECREED that the petitio n for review is DENIED

. 9

Petitioner Juan David Dutan Vinu e sa , a native and citizen of Ecuador , seeks 10

review of a February 22, 2022 decision of the BIA affirming a n August 5, 2021 11

decision of an Immigration Judge (“IJ”) denying his application for relief under 12
the Convention Against Torture (“CAT”)

. In re Juan David Dutan Vinu e sa , No. 13

A 213 637 533 (B.I.A. Feb. 22, 2022 ), aff’g No. A 213 637 533 (Immig. Ct. N.Y. C. Aug. 14

5, 2021 ). We assume the parties’ familiarity with the underlying facts and 15
procedural history. 16
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan 17

Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual 18
findings for substantial evidence, and we review questions of law de novo. See 19
Quintanilla

- Mejia v. Garland , 3 F.4th 569, 583 (2d Cir. 2021) . We “ uphold [the] 20

agency [’ s] factfinding ‘ unless any reasonable adjudicator would be compelled to 213 conclude to the contrary. ’ ” Id. ( quoting 8 U.S.C. § 1252(b)(4)(B) )

. 1

I. CAT Relief 2

A n applicant for protection under the CAT ha s the burden of demonstrating 3

that he w ill “ more likely than not ” be tortured. 8 C.F.R. § 1208.16(c)(2). “ In 4
considering a CAT claim, the agency properly considers ‘all evidence relevant to 5
the possibility of future torture,’ including evidence of ‘past torture’; of possible 6
internal relocation; of ‘gross, flagrant or mass violati ons of human rights’; and any 7
other relevant information regarding ‘conditions in the country of removal.’” 8
Quintanilla

- Mejia , 3 F. 4 th at 592 ( quoting 8 C.F.R. § 1208.16(c)(3) )

. A CAT claim 9
“requires a showing with respect to future, rather than past, treatment.” 10

Ramsameach ire v. Ashcroft , 357 F.3d 169, 185 (2d Cir. 2004). A lack of corroboration 11

of “otherwise credible” evidence can be an independent basis for the denial of 12
relief if the agency identifies reasonably available evidence that should have been 13
presented. Wei S un v. Sessions , 883 F.3d 23, 28

– 31 (2d Cir. 2018). In denying relief 14
on this basis, an IJ should identify specific pieces of missing documentation, 15
explain why it was reasonably available, provide the alien with an opportunity to 16
explain the omission, and assess any explanation. Id . at 31. “No court shall 17
reverse a determination made by a trier of fact with respect to the availability of 184 corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact 1
is compelled to conclude tha t such corroborating evidence is 2

unavailable.” 8 U.S.C. § 1252(b)(4). 3

Dutan alleged that police officers who assaulted him 20 years ago after he 4

witnessed them commit a murder would find and torture him, or that unnamed 5
drug traffickers would torture him because he provided information to U.S. law 6
enforcement. The agency did not err in denying his claim as to drug traffickers 7
because it was entirely speculative. Dutan did not allege that he had been 8
threatened by anyone involved in drug trafficking and he had no evidence that he 9
cooperated with law enforcement in the United States. See Jian Xing Huang v. U.S. 10

INS , 421 F.3d 125, 129 (2d Cir. 2005) (holding that a fear is “specu lative at best” if 11
it lacks “solid support” in the record). 12
The agency also did not err in denying Dutan’s fear of torture by the police 13
as speculative. In addition to the fact that 20 years had passed, his evidence 14
consisted of letters from family membe rs that did not mention his issues with the 15
police (his mother) or did not know details of the events of 2000 (his sister in the 16
United States). His brother in the United States alleged that police were still 17
bothering the family and had arrested him in 2 013 when they mistook him for 185 Dutan . The IJ did not err in declining to credit the letters because none of the 1

declarants were made available for cross

- examination. See Y.C. v. Holder , 741 F.3d 2

324, 332, 334 (2d Cir. 2013) (holding that weight of documen tary evidence is within 3
agency’s discretion and deferring to the agency’s decision to give limited weight 4
to letter from applicant’s spouse); see also Lika i Gao v. Bar r , 968 F.3d 137, 149 (2d 5
Cir. 2020) (holding that an IJ was within her discretion in according little weight 6
to supporting letters “because the declarants (particularly [the applicant’s] wife) 7
were interested parties and neither was available for cross

- examination”). 8
More specifically, we are not persuaded by Dutan’s argumen t that the 9

agency er rantly discarded his explanation that his brother was un available 10

because he feared he would himself be subject to removal if he appeared to testify 11

on Dutan’s behalf

. Although this Court is sensitive to such misgivings , see, e.g. , 12
Kyaw Zwar Tun v. U.S. I.N.S. , 445 F.3d 554, 569 (2d Cir. 2006) , as Dutan himself 13
emphasizes , “ whether an applicant can reasonably obtain corroborating evidence 14
is a finding of fact that the BIA reviews for clear error ,” Pinel

- Gomez v. Garland , 52 15

F.4th 523 , 532 (2d Cir. 2022) (internal quotation marks omitted)

. Dutan fails to 16
identify any basis for us to conclude that the IJ clearly erred in declining to credit 17

the argument that Dutan’s brother, who lived in the same city where Dutan’s 186 proceedings were hel d and (according to his declaration) had himself applied for 1
asylum , was unavailable to testify, much less that the BIA erred in affirming that 2
finding. See Wenting Huang v. Barr , 819 F. App ’ x 8, 10 (2d Cir. 2020) (summary 3
order) (affirming the agency’s rejection of a similar fear

- based argument where the 4

would

- be corroborators “ were involved in their own asylum proceedings and thus 5
did not need shielding from the experience of testifying ”) ; cf. Yan Juan Chen v. 6

Ho lder , 658 F.3d 246, 253 (2d Cir. 2011) ( affirming the agency’s rejection of a similar 7

argument, distinguishing situations where the potential witness is a member of 8
the applicant’s family from those where the witness is “ unrelated ” to the applicant 9

and has absolutely “ no incentive to appear on [ the applicant’s ] behalf that would 10
counterbalance his fear of being apprehended ” ). 11

Dutan also challenges the IJ’s finding that he should have provided 12

statements from his sister in Ecuador, who he alleged had been recently targeted 13
by the same police officers, and from his friends who also witnessed the murder 14

in 2000. But t he agency was not compelled to accept Dutan’s explanation that he 15

did not know where his friends were: Dutan was able to o btain a letter from a 16
friend’s father in Ecuador, and he knew that his friends had moved to Spain and 17
to the United States, but he did not explain why the friend’s father could not locate 187 his own son or why a family member could not have tracked him down

. 1
Moreover, the record does not compel the conclusion that he could not have 2

obtained a statement from his sister ; to the contrary, Dutan testified that the reason 3
he did not provide a statement from his sister was because he “didn’t ask her for 4

one.” Cert ified Admin. Record at 139

– 40. 5
Dutan also argues that the IJ misapplied the CAT standard by stating that 6
the agency “may ” consider, id. at 65, instead of “shall ” consider, the factors in 7

8 C.F.R. § 1208.16(c)(3). T he record , however, does not compel a conclusion that 8
the agency ignored relevant factors, particularly as the IJ considered Dutan’s 9
allegations of past harm and “the entirety of the Record of Proceedings, including 10
what the country conditions reflect with regard to conditions in Ecuador.” 11

Certified Admin. Record at 68

– 69 ; s ee also Xiao Ji Chen v. U.S. Dep’t of Just

. , 471 F.3d 12
315, 336 n.17 (2d Cir. 2006) ( “[W]e presume that an IJ has taken into account all of 13
the evidence before him, unless the record compellingly s uggests otherwise

. ”). 14

II. Service of the N otice to Appear 15
Dutan’s challenge to his notice to appear lacks merit. He does not dispute 16

that he was personally served with a notice to appear that informed him of the 17
charges and the date and time of his hearing, that he signed that notice to confirm 188 service , or that he was subsequently served with a hearing notice providing an 1
updated hearing date and reiterating the potential consequences shou ld he fail to 2

appear (or that he, in fact, appeared at that hearing ) . This is all the statute 3
requires. See 8 U.S.C. § 1229(a)(1) (requiring service of written notice of the 4
initiation of removal proceedings), (a)(2)(A) (requiring written notice of a change 5
in the date, time, or place of the hearing). 6
Finally, Dutan’s argument , in the alternative, that the BIA engaged in 7
improper fact

- finding when it determined that Dutan had been properly served is 8

also without merit

. Dutan has never disputed that he was in fact served with both 9
the initial (in his view, deficient) NTA and the updated notice. Rather, he has 10
maintained that service of the initial NTA was improper as a matter of law based on 11

what was contained in the NTA he received. As discussed above, we disagree. 12
For the foregoing reasons, the petition for review is DENIED

. All pending 13

motions and applications are DENIED and stays VACATED. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe , 16 Clerk of Court 17