20

- 119 (L) Bertrand v. Garland BIA Montante , IJ A 077 889 197 

### 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 TO 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** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 14**  **th d**  **a y of**  **March , two thousand**  **twenty**

**- two** 

**.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **SUSAN L. CARNEY,** 8 **Circuit Judges.** ***** 9

**_____________________________________** 10 11 **ESPERANCE BERTRAND ,**  12 **Petitioner ,**  13 **20**

**- 119**  **(L) ,**  14
**v. 20** 

**- 4063**  **(Con)** 15 **NAC** 16 **MERRICK B. GARLAND , UNITED**  17 **STATES ATTORNEY GENERAL**  **,** 18 **Respondent**

**.** 19

**_____________________________________** 20 21 **FOR PETITIONER :**  Robert F. Graziano , Esq., 22 Tonawanda , NY

. 23 24 **FOR RESPONDENT:** Brian M. Boynton , Acting 25 Assistant Attorney General , Civil 26 Division ; John S. Hogan , Assistant 27

* Judge Robert A. Katzmann, originally assigned to this panel, has since died. The remaining two judges, being in agreement, have decided the matter. See 2d Cir. IOP E(b ).2 Director , Office of Immigration 1 Litigation ; Todd J. Cochran , Trial 2 Attorney , Office of Immigration 3 Litigation , United States 4 Department of Justice, Washington, 5 DC

. 6

UPON DUE CONSIDERATION of the s e petition s for review of 7
Board of Immigration Appeals (“BIA”) decision s , it is hereby 8
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

in 20

- 119(L) is DENIED and the petition for review in 20

- 10
4063(Con) is DENIED in part and DISMISSED in part

. 11

Petitioner Esperance Bertrand , a native and citizen of 12

Haiti , seeks review of (1) a November 23, 2020 decision of 13
the BIA denying his motion to reopen, In re Esperance 14

Bertrand , No. A 077 889 197 (B.I.A. Nov. 23, 2020 ), and (2) a 15
December 31, 2019 decision of the BIA affirming a n August 5, 16

2019 decision of an Immigration Judge (“IJ”) denying his 17
application for withholding of removal and relief under the 18
Convention Against Torture (“CAT”) , In re Esperance Bertrand , 19

No. A 077 889 197 (B.I.A. Dec. 31, 2019 ), aff’g No. A 077 889 20

197 (Immig. Ct. Batavia Aug. 5, 2019 ). We denied a request 21
for stay of removal, Dkt. No. 54 (May 18, 2020) , and we are 22

advised that Petitioner has been removed. We assume the 23
parties’ familiarity with the underlying facts and procedur al 24
history. 253 **A. 20** 

**- 119**  **(L), Order of Removal** 1

Because the BIA’s decision “ closely tracks the IJ's 2
reasoning ,” we have “review [ ed ] the IJ’s and the BIA’s 3
decisions together , ” Wangchuck v. Dep ’ t of Homeland Sec

. , 448 4
F.3d 524, 528 (2d Cir. 2006) , exclud ing from our review any 5
grounds that the BIA explicitly rejected , Hong Fei Gao v. 6

Sessions , 891 F.3d 67, 76 (2d Cir. 2018)

. On review, w e will 7
uphold the BIA’s factual findings if they are supported by 8

substantial evidence , afford ing particular deference to the 9
IJ’s credibility findings

. Xiu Xia Lin v. Mukasey , 534 F.3d 10
162, 165

– 66 (2d Cir. 2008 ); see 8 U.S.C. § 1252(b)(4)

. 11
Withholding of Removal 12
To establish eligibility for withholding of removal, an 13
applicant must show past persecution or a likelihood of future 14
persecution on account “of the [applicant’s] race, religion, 15
nationality, membership in a particular social group, or 16
political opinion.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. 17

§ 1208.16(b). A valid past persecution clai m can be based 18
on harm other than threats to life or freedom, including “ non 19

life

- threatening violence and physical abuse, ” Beskovic v. 20

Gonzales , 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm 21
must be sufficiently severe, rising above “mere harassment, ” 224 to provide a cognizable basis for the claim , Ivanishvili v. 1
U.S. Dep’t of Justice , 433 F.3d 332, 341 (2d Cir. 2006). 2
The agency did not err in finding that Bertrand failed 3
to establish that his experiences in Haiti in the early 1990s 4
constituted perse cution on account of his political opinion. 5

Bertrand’s claim rested on his testimony regarding a 1991 6

threat made to him by Chrisner Desholmes , a local military 7

“ section chief ” for a group known as the Association 8
Progressive of Laroche (“APL”) . He reported that Desholmes 9

direct ed him to stop holding meetings . He also recounted a 10

1994 incident in which Desholmes , whom Bertrand had opposed 11

as section chief , and other men tied up Bertrand’s relatives 12
while looking for Bertrand and “ shot up ” their house , as 13

Bertrand testified his father had later reported to him

. 14

Pet’r’s Br. at 14. The unfulfilled threat did not , on its 15

own, amount to persecution. See Ci Pan v. U.S. Att’y General , 16

449 F.3d 408, 412

– 13 (2d Cir. 2006 ). 17

I n some circumstances, an applicant may demonstrate 18
persecution by relying on an instance in which a family member 19
was harmed as a means of targeting him on a protected ground

. 20

Tao Jiang v. Gonzales , 500 F.3d 137, 141 (2d Cir. 2007)

. We 21
identify no error here, however, in t he agency ’s conclusion 225 that the evidence Bertrand submitted does not sufficiently 1

establish his claim. First, he provided only secondhand 2
evidence of the alleged attack, and second, even that e vidence 3
gives no basis for attribut ing the attack to any specific 4
actors, much less suggest a specific covered motive. More 5
was required to overcome the IJ’s reasonable determination 6
that Bertrand’s account of this serious event was, in the 7

absence of in dependent corroboration, not reliable enough to 8
support his claim for withholding of removal. 9

Nor did t he agency err in finding speculative (and 10

therefore deficient) Bertrand’s claim that , if removed , he 11
will likely suffer future persecution on account of his 12
political opinion. Bertrand left Haiti in 1994; he was not 13

ther e after active in politics ; he provided no information 14

about the position (if any) now held by in the Haitian 15
government by Desholmes ; and his sister’s vague statement to 16
the polic e that unidentified “ armed criminals ” were targeting 17

Bertrand was insufficient to corro b orate his claim. S ee 8 18

U.S.C. § 1158(b)(1)(B)(ii). T he IJ also reasonably 19
questioned the weight fairly owed to t estimony about 20

Desholmes ’s alleged reappearance in recent times, and 21
Bertrand’s sister’s statement and complaint , because the 226 statement and asserted reappearance occurred soon after 1

Bertrand was notified of the agency’s intent to reinstate his 2

removal order. See Siewe v. Gonzales , 480 F.3d 160, 169 (2d 3
Cir. 2007) (“So long as an inferential leap is tethered to 4
the evidentiary record, we will accord deference to the 5
finding.”). Because the agency reasonably found Bertrand’s 6
testimony unpersuasive and the proffered corr oborating 7
evidence insufficient, we identify no error in its conclusion 8

that Bertrand failed to establish a likelihood of future 9
persecution on account of his political opinion. See 8 10

U.S.C. § 1231(b)(3)(A); see also Jian Xing Huang v. U.S. INS , 11

421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid 12
support in the record

. . . [an applicant’s] fear is 13
speculative at best

. ”). 14

B ecause Bertrand failed to establish past persecution or 15
a likelihood of future persecution on account of his political 16
opinio n, the agency did n ot err in denying withholding of 17

removal. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. 18

§ 1208.16(b)(2). 1 19

Due Process 20
Bertrand argues that the IJ exhibited bias and acted in 21

1 On this petition for review, Bertrand does not challenge the7 violation of his due process rights by (1) initially rejecting 1
his application for withholding of removal and CAT relief as 2
untimely ; (2) relying on Matter of Pula , 19 I. & N. Dec. 467 3
(BIA 1987), when that case related only to asylum ; 4

(3) misstating the date on which Bertrand left Haiti ; and 5

(4) failing to identify the year s of issuance of the State 6
Department reports of which the IJ took administrative 7

notice. 8

O n appeal to the BIA, Bertrand raised each of the se 9

arguments in substance. We therefore deem them exhausted and 10

amenabl e to review

. S ee Gill v. INS , 420 F.3d 82, 86 (2d 11
Cir. 2005) (noting that “a petitioner is [not] limited to the 12
exact contours of his argument below”). Nevertheless, 13
Bertrand’s due process claims fail because he did not show 14
any related prejudice. See Garcia

- Villeda v. Mukasey , 531 15
F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due 16
process in immigration cases must, in order to prevail, allege 17
some cognizable prejudice fairly attributable to the 18
challenged process.” ( internal quotation marks omitted) )

. 19

ag ency’s denial of CAT relief. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (stating that petitioner abandons claim by not raising it in his brief) and so we do not address it further

.8 Bertrand’s applica tion was ultimately considered 1
notwithstanding any timeliness issues ; the IJ acknowledged 2

that Matter of Pula related to asylum only and cited the 3

decision simply to note Bertrand’s prior disregard for 4
immigration laws , which it did not rely on in resolving his 5

claim ; the misstated date related to a credibility finding 6

that the BIA did not rely on in its dismiss al of Bertrand’s 7
appeal ; and the IJ relied on the historical record created by 8

past State Department reports rather than on a report for a 9

s pecific year , so its failure to identify the reports ’ year s 10

of issuance caused no harm . Because Bertrand has not shown 11
that he was prejudiced by any of these alleged errors, he has 12
not established a due process violation. 2 13

**B. 20** 

**- 4063**  **(Con), Motion to Reconsider and**  **Reopen** 14

We review denial of motions to reconsider and to reopen 15

for abuse of discretion and determination related to country 16

conditions for substantial evidence. Jian Hui Shao v. 17
Mukasey , 546 F.3d 138, 168

– 69, 173 (2d Cir. 2008). 18

As the BIA found, Bertrand’s June 2020 motion was 19

2 Even assuming prejudicial error, the se mistakes , without more, do not demonstrate bias

. See Liteky v. United States , 510 U.S. 540, 555 (1994) (“ [J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” ).9 untimely because it was filed m ore than five months after the 1

BIA issued its December 2019 order of removal. See 8 U.S.C. 2

§ 1229a(c)(6)(B) (providing 30

- day filing deadline for 3
motions to reconsider), (7)(C)(i) (providing 90

- day deadline 4
for motions to reopen). The statute provides no exceptions 5
to the time limitation for reconsideration motions, see 8 6

U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b), and, as discussed 7
below, Bertrand did not establish a material change in 8
conditions in Haiti as required to excuse him from complying 9

with the deadline for motions to reopen, see 10

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 11
Bertrand alleged the occ urrence of a change material to 12
his eligibility for relief arising from his sister’s report 13

that Desholmes recently looked for him and attacked his 14
nephew. The BIA reasonably declined to credit related 15

statements from Bertrand’s sister and nephew , however , 16

because the statements were unsworn, were written by 17
interested parties, were strikingly similar, and were not 18
accompanied by evidence that they were mailed from Haiti. 19

See Y.C. v. Holder , 741 F.3d 324, 332, 334 (2d Cir. 2013) 20
(holding that “[w]e generally defer to the agency’s 21
evaluation of the weight to be afforded an applicant’s 2210 documentary evidence” and upholding BIA’s decision not to 1
credit letter from applicant’s spouse in China); see also Mei 2
Chai Ye v. U.S. Dep’t of Justice , 489 F.3d 517, 524 (2d Cir. 3

2007) (reiteratin g “ the commonsensical notion that striking 4

similarities between affidavits are an indication that the 5

statements are canned” (internal quotation marks omitted) ). 6
Bertrand’s remaining evidence

— a July 2019 report o f a 7
pol itically motivated massacre in Haiti

— did not provide a 8
basis for reopening or demonstrate changed conditions because 9

he had previously submitted it to the IJ

. See 8 U.S.C. 10

§ 1229a(c)(7)(C)(ii) (requiring new or previously unavailable 11
evidence of changed conditions) ; see also In re S

- Y

- G

- , 24 I. 12
& N. Dec. 247, 253 (B

. I

. A

. 2007) (“In determining whether 13
evidence accompanying a motion to reopen demonstrates a 14
material change in country conditions that would justify 15
reopening, [the BIA] compare[s] the evidence of country 16

conditions submitted with the motion to those that existed at 17
the time of the merits hearing below.”). 18

W e therefore deny the consolidate d petition s. In sum, 19

Bertrand failed to ti mely file his motion to reconsider or to 20
establish a material change in country conditions that would 21

excus e his untimely filing of his motion to reopen

. See 8 2211 U.S.C. § 1229a(c)(6)(B), (7)(C). W e dismiss the petition in 1
remaining part because we lack jurisdiction to review the 2
agency’s “entirely discretionary” decision to declin e to 3
reopen proceedings sua sponte

. Ali v. Gonzales , 448 F.3d 4
515, 518 (2d Cir. 2006). 5
For the foregoing reasons, the petition for review in 6

20

- 119(L) is DENIED , the petition for review in 20

- 4063(Con) 7
is DENIED in part and DISMISSED in part, and the motion for 8
in forma pauperis status in 20

- 4063(Con) is DENIED as moot

. 9

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