     15-1207
     Silva v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A088 939 797
                           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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   6th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            RICHARD C. WESLEY,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   OSVALDO C. SILVA,
14            Petitioner,
15
16                    v.                                             15-1207
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Joel C. Haims; Malcolm Dort,
24                                       Morrison & Foerster LLP, New York,
25                                       N.Y.; Brian R. Matsui, Morrison &
26                                       Foerster LLP, Washington, D.C.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Cindy S.
30                                       Ferrier, Assistant Director;
31                                       Lindsay M. Murphy, Trial Attorney,
32                                       Office of Immigration Litigation,
33                                       United States Department of Justice,
34                                       Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5         Petitioner Osvaldo C. Silva, a native and citizen of

6    Angola, seeks review of a March 17, 2015 decision of the BIA

7    affirming a March 22, 2013 decision of an Immigration Judge

8    (“IJ”),     which     denied   Silva’s     application   for     asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).       In re Osvaldo C. Silva, No. A088 939 797

11   (B.I.A. Mar. 17, 2015), aff’g No. A088 939 797 (Immig. Ct.

12   Buffalo Mar. 22, 2013).          We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14        We have reviewed both the IJ’s and the BIA’s opinions “for

15   the sake of completeness.”        Wangchuck v. DHS, 448 F.3d 524, 528

16   (2d Cir. 2006).       The applicable standards of review are well

17   established.        See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

18   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19        Silva did not base his claims for relief on past harm;

20   instead, he claimed only that he would be persecuted in the

21   future by his father and by the Angolan population because he

22   is   gay.     To     establish    asylum   eligibility   based    on   a

23   well-founded fear of persecution, an applicant must show that


                                         2
1    he subjectively fears persecution and that this fear is

2    objectively reasonable.        Ramsameachire v. Ashcroft, 357 F.3d

3    169, 178 (2d Cir. 2004) (Sotomayor, J.).         An alien may make the

4    latter showing either by offering evidence that “he or she would

5    be singled out individually for persecution” or by “prov[ing]

6    the   existence    of   ‘a   pattern    or   practice   in   his    or   her

7    country . . . of persecution of a group of persons similarly

8    situated to the applicant.’”           Kyaw Zwar Tun v. INS, 445 F.3d

9    554, 564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).

10   Private   action    constitutes        “persecution”    only   when      the

11   government is unwilling or unable to control it.                   Rizal v.

12   Gonzales, 442 F.3d 84, 92 (2d Cir. 2006).        The agency reasonably

13   concluded that Silva failed to meet his burden of proof for

14   asylum because his fear of persecution was not objectively

15   reasonable.

16         As to any persecution by Silva’s father, the agency

17   reasonably concluded that there was no evidence in the record

18   that the Angolan government would be unwilling or unable to

19   prevent Silva’s father from harming him or punishing his father

20   if he did.    See id.; Jian Xing Huang v. INS, 421 F.3d 125, 129

21   (2d Cir. 2005) (holding that “[i]n the absence of solid support

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

23   [persecuted], his fear is speculative at best”).                   The only


                                        3
1    evidence in the record supporting Silva’s allegation that his

2    father could harm him with impunity is a letter from his mother

3    stating that she was forced to flee to the Congo to avoid Silva’s

4    father.   The agency reasonably gave limited weight to this

5    letter, however, which was from an interested witness who was

6    not subject to cross-examination.      See Y.C. v. Holder, 741 F.3d

7    324, 334 (2d Cir. 2013); In re H-L-H & Z-Y-Z, 25 I. & N. Dec.

8    209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin Huang

9    v. Holder, 677 F.3d 130 (2d Cir. 2012).      Silva argues that the

10   agency failed to show that any other evidence was reasonably

11   available.    However, even if this evidence was the only

12   evidence available, the agency found it insufficient to meet

13   his burden.   Accordingly, the agency reasonably concluded that

14   Silva failed to show that the Government would allow his father

15   to harm him if removed and therefore failed to show that his

16   fear of persecution by his father was objectively reasonable.

17        The agency also reasonably concluded that Silva’s fear of

18   persecution   by   the   Angolan   population   at   large   was   not

19   objectively reasonable.     Jian Xing Huang, 421 F.3d at 129.      The

20   record contains conflicting evidence concerning the prevalence

21   of violence against gay men in Angola, and the task of resolving

22   conflicts in the record evidence is “largely within the

23   discretion of the agency.”     Jian Hui Shao v. Mukasey, 546 F.3d


                                        4
1    138, 171 (2d Cir. 2008).    The 2011 State Department Report notes

2    that   gay   men   in   Angola    report    facing   violence   and

3    discrimination, but it does not disclose the extent of that

4    violence or its frequency.        Silva submitted an additional

5    article stating that homosexuals in Angola do not reveal their

6    sexual orientation for fear of stigma and social exclusion; the

7    article also reported on one gay man who had rocks thrown at

8    him.   DHS submitted two articles, one of which states that,

9    although homosexuality is technically illegal in Angola, there

10   are no reports of any prosecutions for violating the law, and

11   that a new proposed law criminalizes discrimination based on

12   sexual orientation.     Moreover, the articles quote an HIV/AIDS

13   activist, as well as a human rights observer, to the effect that

14   violence against gay men is uncommon in Angola and that Angola

15   is ahead of other African nations with respect to the treatment

16   of LGBT individuals.       Given the conflicting evidence in the

17   record, the agency reasonably determined that Silva had not

18   shown that his fear of persecution by the Angolan population

19   was objectively reasonable.      See Jian Hui Shao, 546 F.3d at 171;

20   Jian Xing Huang, 421 F.3d at 129.

21          Silva does not advance distinct challenges to the agency’s

22   denial of withholding of removal and CAT relief in his brief

23   to his Court; his challenges to the denials of these forms of


                                       5
1    relief are entirely derivative of his challenges to the denial

2    of asylum.   Because Silva’s claims for asylum, withholding of

3    removal, and CAT relief were all based on the same factual

4    predicate—Silva’s status as a gay man—the agency did not err

5    in denying these applications for relief.   See Ramsameachire,

6    357 F.3d at 185.

7        For the foregoing reasons, the petition for review is

8    DENIED.

 9                                FOR THE COURT:
10                                Catherine O=Hagan Wolfe, Clerk




                                   6
