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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 4th 4 day of August, two thousand fifteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 ROSEMARY S. POOLER,

10 DENNY CHIN,

11 Circuit Judges.

12 _____________________________________

13

14 ANDRES AYALA-ZAVALA,

15 Petitioner, 

16

17 v. 13-2926

18 NAC 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Joshua E. Bardavid, New York, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Luis E. Perez, Assistant

28 Director; Justin R. Markel, Trial

29 Attorney, Office of Immigration
1 Litigation, United States Department

2 of Justice, Washington, D.C.

3

4 UPON DUE CONSIDERATION of this petition for review of a

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

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Andres Ayala-Zavala, a native and citizen of

9 Honduras, seeks review of a July 12, 2013 order of the BIA,

10 affirming the February 7, 2013 decision of an Immigration

11 Judge (“IJ”), which pretermitted asylum and denied

12 withholding of removal and relief under the Convention

13 Against Torture (“CAT”). In re Andres Ayala-Zavala, No.

14 A070 018 737 (B.I.A. July 12, 2013), aff’g No. A070 018 737

15 (Immig. Ct. N.Y. Feb. 7, 2013). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 in this case. 

18 Under the circumstances of this case, we review the

19 IJ’s decision as modified by the BIA. See Xue Hong Yang v.

20 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

21 The applicable standards of review are well established. 

22 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

23 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Ayala-Zavala does

2
1 not challenge the pretermission of his asylum application on

2 appeal. 

3 I. Impermissible Fact-Finding

4 Ayala-Zavala contends that the BIA engaged in

5 impermissible fact-finding by rejecting the IJ’s

6 determination that he established a likelihood of

7 persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec.,

8 446 F.3d 289, 296 (2d Cir. 2006) (per curiam) (observing

9 that “the BIA may only review the IJ’s factual findings to

10 determine whether they are clearly erroneous, and may not

11 engage in fact-finding, other than taking administrative

12 notice of commonly known facts”); 8 C.F.R. § 1003.1(d)(3). 

13 However, the BIA properly found that the IJ’s comments,

14 taken in context, merely referenced the potential for harm

15 stemming from a general wave of violence and did not reflect

16 a conclusion that Ayala-Zavala might face mistreatment on a

17 protected ground. See 8 C.F.R. § 1208.16(b); see also

18 Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008). 

19 Indeed, the IJ denied withholding of removal and clearly

20 noted Ayala-Zavala’s failure to establish that he would be

21 identified as a criminal deportee and targeted for

22 persecution on that basis. 

3
1 Ayala-Zavala also contends that the BIA engaged in

2 impermissible fact-finding by rejecting the IJ’s

3 determination that his social group of criminal deportees

4 may have been cognizable. Contrary to Ayala-Zavala’s

5 assertion, however, the BIA reasonably found that the IJ’s

6 comments, taken in context, reflected a conclusion that

7 Ayala-Zavala had not shown that he would be perceived to be

8 a member of a particular social group comprised of criminal

9 deportees. That determination is consistent with

10 controlling precedent. See, e.g., Matter of W-G-R-, 26 I. &

11 N. Dec. 208, 216-17 (B.I.A. 2014). Moreover, the “ultimate

12 determination [of] whether a particular social group has

13 been established is a question of law.” Id. at 210. 

14 Ayala-Zavala has therefore failed to demonstrate that the

15 BIA engaged in impermissible fact-finding. 

16 II. Corroboration

17 Because Ayala-Zavala filed his asylum application in

18 2013, the REAL ID Act applies in this case. See REAL ID Act

19 of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303

20 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); In re

21 S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006). For

22 applications governed by the REAL ID Act, “[t]he testimony

4
1 of the applicant may be sufficient to sustain the

2 applicant’s burden without corroboration, but only if the

3 applicant satisfies the trier of fact that the applicant’s

4 testimony is credible, is persuasive, and refers to specific

5 facts sufficient to demonstrate that the applicant is a

6 refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis

7 added). “Where the trier of fact determines that the

8 applicant should provide evidence that corroborates

9 otherwise credible testimony, such evidence must be provided

10 unless the applicant does not have the evidence and cannot

11 reasonably obtain the evidence.” Yan Juan Chen v. Holder,

12 658 F.3d 246, 252 (2d Cir. 2011) (quoting 8 U.S.C. 

13 § 1158(b)(1)(B)(ii))(internal quotation marks omitted). 

14 Ayala-Zavala does not contend that his testimony was

15 sufficiently “persuasive” and “specific,” 8 U.S.C. §

16 1158(b)(1)(B)(ii), to sustain his burden of proof without

17 corroboration. Indeed, he had not been to Honduras in over

18 twenty-three years, did not assert that he had suffered past

19 persecution, and had no first-hand knowledge of current

20 conditions there. See Jian Hui Shao v. Mukasey, 546 F.3d

21 138, 162 (2d Cir. 2008) (observing that while “credible

22 testimony was sufficient to demonstrate a genuine subjective

23 fear of future persecution, more was needed to demonstrate

5
1 the objective reasonableness of that fear”); see also Jian

2 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)(per

3 curiam) (holding that “[i]n the absence of solid support in

4 the record for [an applicant’s] assertion that he will be

5 [persecuted], his fear is speculative at best”). 

6 Ayala-Zavala nevertheless argues, in reliance on pre-REAL ID

7 Act case law, that the agency erred in requiring him to

8 corroborate his testimony without first considering the

9 country conditions evidence in the record. However, his

10 assertion that the agency failed to consider the country

11 conditions evidence is not supported by the record. See Zhi

12 Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (noting

13 that the agency is not required to expressly “parse or

14 refute on the record each individual argument or piece of

15 evidence offered by the petitioner”) (internal quotation

16 marks omitted); Xiao Ji Chen v. U.S. Dep’t of Justice, 471

17 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the

18 agency “has taken into account all of the evidence before

19 [it], unless the record compellingly suggests otherwise”). 

20 Indeed, both the IJ and the BIA explicitly considered the

21 country conditions evidence and reasonably found that it

22 failed to corroborate Ayala-Zavala’s testimony that he

23 believed that the gangs know everything and would learn

6
1 about his criminal convictions in the United States. See

2 Siewe v. Gonzales, 480 F.3d 160, 167-69 (2d Cir. 2007)

3 (finding that “support for a contrary inference—even one

4 more plausible or more natural—does not suggest error”);

5 Xiao Ji Chen, 471 F.3d at 342 (holding that the weight

6 accorded to the applicant’s evidence in immigration

7 proceedings lies largely within the discretion of the

8 agency). Although Ayala-Zavala points to excerpts in the

9 country conditions evidence that he contends constitute

10 circumstantial evidence that foreigners have been targeted

11 for crime due to their perceived wealth, the agency properly

12 found that Ayala-Zavala’s purported social group based on

13 his perceived wealth was improper. See Ucelo-Gomez v.

14 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per

15 curiam)(affirming BIA’s rejection of wealth as basis for

16 membership in particular social group because “the terms

17 ‘wealthy’ and ‘affluent’ are highly relative and

18 subjective”). Moreover, the task of resolving conflicts in

19 the record evidence lies “largely within the discretion of

20 the agency.” Jian Hui Shao, 546 F.3d at 171. 

21 Lastly, Ayala-Zavala has waived review of the agency’s

22 denial of CAT relief by failing to meaningfully contest it

23 in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540,

24 541 n.1 (2d Cir. 2005). 

7
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DENIED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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8