10-2187-ag Buitrago-Valencia v. Holder BIA Montante, Jr., IJ

A095 968 092 

### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 14 th** **day of September, two thousand eleven.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **ROBERT D. SACK,** 9 Circuit Judges**.** 10

**______________________________________** 11 12 **LUIS A. BUITRAGO-VALENCIA,** 13 Petitioner**,** 14 15 **10-2187-ag** 16 **v. NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Nancy M. Vizer, Chicago, Illinois.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; John S. Hogan, Senior** 27 **Litigation Counsel; Aimee J.** 28 **Frederickson, Trial Attorney, Office** 29 **of Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 321Yalila Buitrago Silva, Buitrago-Valencia’s daughter, is not a petitioner before this Court because the BIA remanded her proceedings to the IJ for consideration of her application for adjustment of status. 2 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Luis A. Buitrago-Valencia, a native and 5 citizen of Colombia, seeks review of a May 6, 2010, order of 6 the BIA affirming the June 10, 2009, decision of immigration 7 judge (“IJ”) Philip J. Montante, Jr., denying his 8 application for withholding of removal and relief under the 9 Convention Against Torture (“CAT”). In re Luis A. Buitrago 10 Valencia, Yalila Buitrago Silva , Nos. A095 968 092, A095 968 11 093 (B.I.A. May 6, 2010), aff’gNo. A095 968 092 (Immig. Ct. 12 Buffalo, NY June 10, 2009). 1We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 of the case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA. See Xue Hong Yang 17 v. U.S. Dep’t of Justice,426 F.3d 520, 522 (2d Cir. 2005). 18 The applicable standards of review are well-established. 19
See8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. 20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 213 As a preliminary matter, Buitrago-Valencia’s challenges 1 to the IJ’s adverse credibility determination are not 2 properly before the Court, as the BIA specifically declined 3 to address Buitrago-Valencia’s credibility, determining 4 instead that, even if deemed credible, he failed to 5 establish his eligibility for withholding of removal and CAT 6 relief. See Xue Hong Yang,426 F.3d at 522. 7 With respect to Buitrago-Valencia’s application for 8 withholding of removal, the BIA did not err in finding that 9 he failed to establish that it is more likely than not that 10 any mistreatment he suffered, or may suffer in the future, 11 would be on account of any protected ground. 8 C.F.R. 12 § 1208.16(b)(1) During his initial proceedings before the 13 IJ, Buitrago-Valencia testified that he had been the target 14 of extortion attempts by the Revolutionary Armed Forces of 15 Colombia (“FARC”) since 1998, and that “many of the people 16 who have properties” were similarly threatened, stating that 17 “[y]ou have to pay money until you die in Colombia.” On 18 remand, Buitrago-Valencia further testified that “landowners 19 always receive threats,” and that “[a]ll of the property 20 owners . . . had to pay the guerilla forces.” Thus, the 21 record indicates that Buitrago-Valencia was threatened based 22 on his perceived status as a wealthy landowner, rather than 234 his political opinion or social group membership. See 1 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007) 2 (finding no error in the BIA’s conclusion that “wealth or 3 affluence is simply too subjective, inchoate, and variable 4 to provide the sole basis for membership in a particular 5 social group.”). Furthermore, although Buitrago-Valencia 6 testified to several instances of harassment of his family 7 members, including an incident where his wife and daughter 8 were threatened by armed men on motorcycles, a kidnaping 9 attempt on another daughter, and his son’s shooting, he did 10 not indicate that they were in any way connected with his 11 political activities. Indeed, Buitrago-Valencia’s testimony 12 that his family received a letter from the FARC “asking for 13 twelve million five hundred pesos” as a “donation,” further 14 supports the agency’s determination that he and his family 15 were targeted specifically for their money. 16 With respect to Buitrago-Valencia’s application for CAT 17 relief, the BIA did not err in finding that the evidence in 18 the record was insufficient to establish that the Colombian 19 government would remain willfully blind to, or acquiesce in, 20 any acts of torture. See 8 C.F.R. § 1208.18(a)(1); see also 21 Khouzam v. Ashcroft , 361 F.3d 161, 171 (2d Cir. 2004). As 22 the BIA noted, “while the country information in the record 235 reveals that the FARC is still operative in Colombia, it 1 also reveals that the group no longer constitutes the same 2 threat in Colombia as it did in past years.” Moreover, the 3 U.S. Department of State’s 2007 Country Report on Terrorism 4 indicates that “[t]he Government of Colombia . . . [has] 5 continued vigorous law enforcement, intelligence, military, 6 and economic measures” against the FARC. Buitrago-Valencia 7 points to no evidence to the contrary. 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19