     16-3821
     Mercado-Leyva v. Sessions
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A200 237 705
                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 3rd day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   ROXANA MERCADO-LEYVA,
14            Petitioner,
15
16                     v.                                        16-3821
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Nicholas J. Mundy, Brooklyn, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; M. Jocelyn Lopez
27                                     Wright, Senior Litigation Counsel;
28                                     Sara J. Bayram, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of
31                                     Justice, Washington, DC.
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

4    is DENIED.

5           Petitioner Roxana Mercado-Leyva, a native and citizen

6    of Peru, seeks review of an October 14, 2016, decision of

7    the BIA affirming a December 3, 2015, decision of an

8    Immigration Judge (“IJ”) denying Mercado-Leyva’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Roxana

11   Mercado-Leyva, No. A 200 237 705 (B.I.A. Oct. 14, 2016),

12   aff’g No. A 200 237 705    (Immig. Ct. N.Y. City Dec. 3,

13   2015).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15          We have reviewed the IJ’s decision as modified by the

16   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

17   520, 522 (2d Cir. 2005).    Accordingly, we assume, as the

18   BIA did, that Mercado-Leyva established her membership in a

19   particular social group and address only whether she met

20   her burden of demonstrating that the Peruvian government

21   would be unwilling or unable to protect her from her ex-

22   husband.    Id.   An applicant for asylum, withholding of

23   removal, and CAT relief bears the burden of showing that
                                   2
1    she will be persecuted or tortured “by the government . . .

2    or at the hands of an organization or person from which the

3    government cannot or will not protect [her].”   Aliyev v.

4    Mukasey, 549 F.3d 111, 116 (2d Cir. 2008) (internal

5    quotation marks omitted) (addressing persecution); see also

6    8 C.F.R. § 1208.18(a)(1) (defining torture as “severe pain

7    or suffering . . . inflicted by or at the instigation of or

8    with the consent or acquiescence of a public official or

9    other person acting in an official capacity”). The

10   applicable standards of review are well established.    8

11   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

12   510, 513 (2d Cir. 2009).

13       The agency reasonably concluded that Mercado-Leyva did

14   not meet this burden.   Mercado-Leyva submitted court

15   records showing that a Peruvian court found that her ex-

16   husband committed domestic violence and sentenced him to

17   four months of psychological treatment, issued a protective

18   order, and ordered him to pay damages.   She testified that

19   when she filed a complaint against her ex-husband in 2010,

20   a policewoman helped her fill out all the paperwork and

21   referred her to the state attorney and forensic doctor, and

22   that she participated in a court proceeding before the

23   prosecutor that resulted in her ex-husband being sentenced
                                   3
1    to probation.   Accordingly, the agency reasonably found

2    that Mercado-Leyva failed to demonstrate that Peruvian

3    authorities could not or would not protect her.   Aliyev,

4    549 F.3d at 116.

5        Mercado-Leyva argues that the agency disregarded her

6    testimony that the Peruvian police are reluctant to enforce

7    protective orders and must be bribed to take action.

8    Mercado-Leyva testified that the first three times she

9    called the police (before 2006), they did nothing.   And she

10   alleged that when her sister asked the police to enforce

11   the protective order, she had to pay them to come to the

12   house.   In fact, the agency acknowledged these allegations,

13   but did not err in concluding that Mercado-Leyva failed to

14   corroborate them with a statement from her sister or any

15   evidence of conditions in Peru relating to the

16   effectiveness of the Peruvian authorities in combatting

17   domestic violence.   “Where the trier of fact determines

18   that the applicant should provide evidence that

19   corroborates otherwise credible testimony, such evidence

20   must be provided unless the applicant does not have the

21   evidence and cannot reasonably obtain the evidence.”   8

22   U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu v. Holder,

23   575 F.3d 193, 198 & n.5 (2d Cir. 2009).   Mercado-Leyva
                                   4
1    makes no argument that she was unable to obtain a statement

2    from her sister or that evidence of country conditions was

3    otherwise unavailable.    Given this lack of evidence to

4    corroborate the authorities’ unwillingness to help, the

5    agency reasonably relied on the court proceeding against

6    Mercado-Leyva’s ex-husband and the issuance of a protective

7    order to find that the Peruvian government at least made

8    efforts to control her ex-husband.   Our review of the

9    agency’s assessment of those competing inferences is

10   “necessarily deferential.”    Jian Hui Shao v. Mukasey, 546

11   F.3d 138, 157 (2d Cir. 2008).

12       Mercado-Leyva’s failure to meet her burden of proof is

13   dispositive of asylum, withholding of removal, and CAT

14   relief because all three forms of relief require some

15   showing of government involvement or unwillingness or

16   inability to protect.    See 8 C.F.R. § 1208.18(a)(1);

17   Aliyev, 549 F.3d at 116.

18       For the foregoing reasons, the petition for review is

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

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition

22   is DISMISSED as moot.    Any pending request for oral argument

23   in this petition is DENIED in accordance with Federal Rule of
                                   5
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                     FOR THE COURT:
4                     Catherine O’Hagan Wolfe, Clerk of Court




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