20

- 1284 Varela

- Lopez v. Garland BIA Straus , IJ A 078 283 601 

### 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 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, h**  **eld at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 3**  **1 s**  **t d**  **a y of**  **A u**  **g u**  **s t**  **, two thousand twenty** 
**- two.**  4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **DENNY CHIN ,**  8 **JOSEPH F. BIANCO ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **AYLEEN FRANCELES VARELA**

**- LOPEZ**  **,** 13 **Petitioner ,**  14 15
**v. 20** 

**- 1284**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Jon E. Jessen, Esq. , Law Offices 23 of Jon E. Jessen, LLC, Stamford, 24 CT

. 25 26 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 27 Attorney General ; Nancy E. 282 Friedman , Justin R. Markel , Senior 1 Litigation Counsel , Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

6
UPON DUE CONSIDERATION of this petition for review of a 7
Board of Immigration Appeals (“BIA”) decision, it is hereby 8
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED

. 10

Petitioner Ayleen Franceles Varela

- Lopez , a native and 11

citizen of Honduras , seeks review of a March 18, 2020 decision 12

of the BIA affirming a June 29, 2018 decision of an 13
Immigration Judge (“IJ”) , which den ied her application for 14
relief under the Convention Against Torture (“CAT”)

. In re 15
Ayleen Franceles Varela

- Lopez , No. A 078 283 601 (B.I.A. Mar. 16
18, 2020 ), aff’g No. A 078 283 601 ( Immig. Ct. Hartford June 17
29, 2018 ). We assume the parties’ familiarity with the 18
underlying facts and procedural history. 19

We have consider ed both the IJ’s and the BIA’s decisions. 20

See Wangchuck v. Dep’t of Homeland Sec

. , 448 F.3d 524, 528 21
(2d Cir. 2006). We review factual findings for substantial 22
evidence and questions of law de novo

. See Yanqin Weng v. 23

Holder , 562 F.3d 510, 513 (2d Cir. 2009) ; see also Nasrallah 243 v. Barr , 140 S. Ct. 1683, 1692 (2020)

. “[T] he administrative 1
findings of fact are conclusive un less any reasonable 2
adjudicator would be compelled to conclude to the contrary .” 3

8 U.S.C. § 1252(b)(4)(B). “A determination of what will 4
occur in the future and the degree of likelihood of the 5
occurrence has been regularly regarded as fact

- finding .” Hui 6
Lin Huang v. Holder , 677 F.3d 130, 134 (2d Cir. 2012). 7

Varela

- Lopez alleged a fear of torture by gangs in Honduras. 8
A CAT applicant has the burden to show that she will 9
“more likely than not” be tortured and that authorities “more 10
likely than not” will acquiesce to that torture. 8 C.F.R. 11

§§ 1208.16(c)(2), 1208.18(a)(1); see Savchuck v. Mukasey , 518 12
F.3d 119, 123 (2d Cir. 2008) (“An alien will never be able to 13
show that he faces a more likely than not chance of torture 14

if one link in the chain cannot be shown to be more likely 15

than not to occur. It is the likelihood of all necessary 16
events coming together that must more likely than not lead to 17
torture, and a chain of events cannot be more likely than its 18
least likely link.” ( cleaned up) ). “Tor ture is defined as 19
any act by which severe pain or suffering, whether physical 20
or mental, is intentionally inflicted on a person . . . by

. 214 . . or with the consent or acquiescence of a public official 1
or other person acting in an official capacity.” 8 C.F .R. 2

§ 1208.18(a)(1) . In assessing whether an applicant has 3
satisfied her burden of proof, the agency consider s all 4
evidence relevant to the possibility of future torture, 5
including evidence of past torture, “ evidence of gross, 6
flagrant or mass violations of human rights within the country 7
of removal,” and other relevant information on country 8

conditions. 8 C.F.R. § 1208.16(c)(3)

. The agency concluded 9

that Varela

- Lopez failed to establish that she would more 10
likely than not be tortured by gangs in Hondura s. The record 11
does not compel a contrary conclusion. 12
The agency considered that gangs had extorted Varela

13
Lopez in the past and that she had been assaulted and had her 14
leg broken in 1999 , but did not err in concluding that the 15

extortion and assault did not rise to the level of torture. 16

See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of 17

cruel and inhuman treatment and does not include lesser forms 18
of cruel, inhuman or degrading treatment or punishment that 19

do not amoun t to torture.”); San Chung Jo v. Gonzales , 458 20
F.3d 104, 109

– 10 (2d Cir. 2006 ) (finding “n o indication in 215 the definition of torture that that concept was intended to 1
encompass destruction, thefts, expropriations, or other 2
deprivations of property ”) ; Kyaw Z war Tun v. INS , 445 F.3d 3
554, 567 (2d Cir. 2006) (“torture requires proof of something 4

more severe than the kind of treatment that would suffice to 5
prove persecution”). Moreover, t he alleged gang murders of 6
her father, uncle, and brother in 1984, 1988, and 2003, 7
respectively, predate her return to Honduras in 2008 when she 8
suffered only extortion . Those murders do not compel a 9
conclusion that she will more likely than not be tortur ed 10
because she has other family members who remain in Honduras 11

and who have suffered only extortion at the hands of the 12

gangs. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d 13
Cir. 1999) (finding that similarly situated family members 14

who remain unharm ed cuts against the likelihood of 15
applicant’s future harm). 16
The agency also considered the country conditions 17

evidence i n the record. Varela

- Lopez implies that the IJ 18
should have considered more recent country reports for 19

Honduras, but she had the burde n of proof and did not ask to 20

submit additional evidence on remand

. See 8 C.F.R. 216 § 1208.16(c)(2). The n ews articles and country reports 1
document ongoing gang and political violence , increased 2
violence against women, and police corruption, and report 3

that Honduras had the world’s highest murder rate per capita 4

in 2013

. A lthough this evidence reflects significant 5
violence, it does not compel the conclusion that Varela

- Lopez 6
will “more likely than not” be tortured, and her reliance on 7
evidence that 30% of the population is subject to extortion 8

is not evidence of torture

. See San Chung Jo , 458 F.3d at 9

109

– 10; Chun Gao v. Gonzales , 424 F.3d 122, 128

– 29 (2d Cir

. 10
2005) (“Relief under the CAT requires the applicant to 11
establish that there is greater than a fifty percent chance 12

( i.e., that it is more likely than not) that he will be 13
tortured upon return to his or her country of origin.” 14
(quotation marks omitted)). 15

Because Varela

- Lopez’s claim fails on the likelihood of 16

torture, we do not reach the agency’s alternative finding 17

that Varela

- Lopez did not establish that the Honduran 18
government would acquiesce to her torture. See INS v. 19
Bagamasbad , 429 U.S. 24, 25 ( 1976) (“ As a general rule courts 20
and agencies are not required to make findings on issues the 217 decision of which is unnecessary to the results they reach. ”)

. 1
For the foregoing reasons, the petition for review is 2

DENIED

. All pending motions and applications are DENIED and 3

stays VACATED. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe , 6 Clerk of Court 7