13-2926 Ayala-Zavala v. Lynch BIA Videla, IJ A070 018 737 

### 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 4 th** **day of August, two thousand fifteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **ROSEMARY S. POOLER,** 9 **DENNY CHIN,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **ANDRES AYALA-ZAVALA,** 14 Petitioner**,** 15 16 **v. 13-2926** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Joshua E. Bardavid, New York, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Luis E. Perez, Assistant** 27 **Director; Justin R. Markel, Trial** 28 **Attorney, Office of Immigration** 29**Litigation, United States Department** 1 **of Justice, Washington, D.C.** 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Andres Ayala-Zavala, a native and citizen of 8 Honduras, seeks review of a July 12, 2013 order of the BIA, 9 affirming the February 7, 2013 decision of an Immigration 10 Judge (“IJ”), which pretermitted asylum and denied 11 withholding of removal and relief under the Convention 12 Against Torture (“CAT”). In re Andres Ayala-Zavala , No. 13 A070 018 737 (B.I.A. July 12, 2013), aff’gNo. A070 018 737 14 (Immig. Ct. N.Y. Feb. 7, 2013). We assume the parties’ 15 familiarity with the underlying facts and procedural history 16 in this case. 17 Under the circumstances of this case, we review the 18 IJ’s decision as modified by the BIA. See Xue Hong Yang v. 19 U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 20 The applicable standards of review are well established. 21

See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. 22 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Ayala-Zavala does 23

2not challenge the pretermission of his asylum application on 1 appeal. 2 I. Impermissible Fact-Finding 3 Ayala-Zavala contends that the BIA engaged in 4 impermissible fact-finding by rejecting the IJ’s 5 determination that he established a likelihood of 6 persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec. , 7 446 F.3d 289, 296 (2d Cir. 2006) (per curiam) (observing 8 that “the BIA may only review the IJ’s factual findings to 9 determine whether they are clearly erroneous, and may not 10 engage in fact-finding, other than taking administrative 11 notice of commonly known facts”); 8 C.F.R. § 1003.1(d)(3). 12 However, the BIA properly found that the IJ’s comments, 13 taken in context, merely referenced the potential for harm 14 stemming from a general wave of violence and did not reflect 15 a conclusion that Ayala-Zavala might face mistreatment on a 16 protected ground. See8 C.F.R. § 1208.16(b); see also 17 Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008). 18 Indeed, the IJ denied withholding of removal and clearly 19 noted Ayala-Zavala’s failure to establish that he would be 20 identified as a criminal deportee and targeted for 21 persecution on that basis. 22

3Ayala-Zavala also contends that the BIA engaged in 1 impermissible fact-finding by rejecting the IJ’s 2 determination that his social group of criminal deportees 3

may have been cognizable. Contrary to Ayala-Zavala’s 4 assertion, however, the BIA reasonably found that the IJ’s 5 comments, taken in context, reflected a conclusion that 6 Ayala-Zavala had not shown that he would be perceived to be 7 a member of a particular social group comprised of criminal 8 deportees. That determination is consistent with 9 controlling precedent.See, e.g., Matter of W-G-R- , 26 I. & 10 N. Dec. 208, 216-17 (B.I.A. 2014). Moreover, the “ultimate 11 determination [of] whether a particular social group has 12 been established is a question of law.” Id.at 210. 13 Ayala-Zavala has therefore failed to demonstrate that the 14 BIA engaged in impermissible fact-finding. 15 II. Corroboration 16 Because Ayala-Zavala filed his asylum application in 17 2013, the REAL ID Act applies in this case. SeeREAL ID Act 18 of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 19 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); In re 20

S-B- , 24 I. & N. Dec. 42, 45 (B.I.A. 2006). For 21 applications governed by the REAL ID Act, “[t]he testimony 22

4of the applicant may be sufficient to sustain the 1 applicant’s burden without corroboration, but only if the 2 applicant satisfies the trier of fact that the applicant’s 3 testimony is credible, is persuasive, and refers to specific 4 facts sufficient to demonstrate that the applicant is a 5 refugee.” See8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis 6 added). “Where the trier of fact determines that the 7 applicant should provide evidence that corroborates 8 otherwise credible testimony, such evidence must be provided 9 unless the applicant does not have the evidence and cannot 10 reasonably obtain the evidence.” Yan Juan Chen v. Holder, 11 658 F.3d 246, 252 (2d Cir. 2011) (quoting 8 U.S.C. 12 § 1158(b)(1)(B)(ii))(internal quotation marks omitted). 13 Ayala-Zavala does not contend that his testimony was 14 sufficiently “persuasive” and “specific,” 8 U.S.C. § 15 1158(b)(1)(B)(ii), to sustain his burden of proof without 16 corroboration. Indeed, he had not been to Honduras in over 17 twenty-three years, did not assert that he had suffered past 18 persecution, and had no first-hand knowledge of current 19 conditions there. See Jian Hui Shao v. Mukasey, 546 F.3d 20 138, 162 (2d Cir. 2008) (observing that while “credible 21 testimony was sufficient to demonstrate a genuine subjective 22 fear of future persecution, more was needed to demonstrate 23 5the objective reasonableness of that fear”);see also Jian 1 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)(per 2 curiam) (holding that “[i]n the absence of solid support in 3 the record for [an applicant’s] assertion that he will be 4 [persecuted], his fear is speculative at best”). 5 Ayala-Zavala nevertheless argues, in reliance on pre-REAL ID 6 Act case law, that the agency erred in requiring him to 7 corroborate his testimony without first considering the 8 country conditions evidence in the record. However, his 9 assertion that the agency failed to consider the country 10 conditions evidence is not supported by the record. See Zhi 11 Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (noting 12 that the agency is not required to expressly “parse or 13 refute on the record each individual argument or piece of 14 evidence offered by the petitioner”) (internal quotation 15 marks omitted) ; Xiao Ji Chen v. U.S. Dep’t of Justice , 471 16 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the 17 agency “has taken into account all of the evidence before 18 [it], unless the record compellingly suggests otherwise”). 19 Indeed, both the IJ and the BIA explicitly considered the 20 country conditions evidence and reasonably found that it 21 failed to corroborate Ayala-Zavala’s testimony that he 22 believed that the gangs know everything and would learn 23 6about his criminal convictions in the United States. See 1 Siewe v. Gonzales, 480 F.3d 160, 167-69 (2d Cir. 2007) 2 (finding that “support for a contrary inference—even one 3 more plausible or more natural—does not suggest error”); 4 Xiao Ji Chen, 471 F.3d at 342 (holding that the weight 5 accorded to the applicant’s evidence in immigration 6 proceedings lies largely within the discretion of the 7 agency). Although Ayala-Zavala points to excerpts in the 8 country conditions evidence that he contends constitute 9 circumstantial evidence that foreigners have been targeted 10 for crime due to their perceived wealth, the agency properly 11 found that Ayala-Zavala’s purported social group based on 12 his perceived wealth was improper. See Ucelo-Gomez v. 13 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per 14 curiam)(affirming BIA’s rejection of wealth as basis for 15 membership in particular social group because “the terms 16 ‘wealthy’ and ‘affluent’ are highly relative and 17 subjective”). Moreover, the task of resolving conflicts in 18 the record evidence lies “largely within the discretion of 19 the agency.” Jian Hui Shao , 546 F.3d at 171. 20 Lastly, Ayala-Zavala has waived review of the agency’s 21 denial of CAT relief by failing to meaningfully contest it 22 in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 23 541 n.1 (2d Cir. 2005). 24 7For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DENIED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12

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