    16-3893
    Montero v. Barr
                                                                                  BIA
                                                                             Rohan, IJ
                                                                          A012 340 992

                           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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of December, two thousand nineteen.

    PRESENT:
             PIERRE N. LEVAL,
             REENA RAGGI,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    PEDRO JOSE MONTERO,
             Petitioner,

                      v.                                         No. 16-3893
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Mark S. Davies, Orrick,
                                      Herrington & Sutcliffe LLP,
                                      Washington, District of Columbia;
                                      Daniel A. Rubens, Orrick,
                                      Herrington & Sutcliffe
                                      LLP, New York, New York.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Terri J.
                                   Scadron, Assistant Director;
                                   Leslie McKay, Senior Litigation
                                   Counsel, Office of Immigration
                                   Litigation, United States
                                   Department of Justice, Washington,
                                   District of Columbia.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Pedro Jose Montero, a native and citizen of

Ecuador,     seeks    review   of        the    BIA’s    affirmance    of    an

Immigration Judge’s (“IJ”) denial of (1) his application for

deferral of removal under the Convention Against Torture

(“CAT”) and (2) his motion to remand.1                   In re Pedro Jose

Montero, No. A012 340 992 (B.I.A. Oct. 28, 2016), aff’g No.

A012 340 992 (Immig. Ct. N.Y. City Dec. 8, 2015).

    Under the circumstances of this case, we review the IJ’s

decision    as   supplemented       by    the    BIA.     See   Yan   Chen   v.

Gonzales,    417     F.3d   268,    271    (2d    Cir.    2005).      Because

Montero’s removal order is based on an aggravated felony


1 Montero also preserves for future review arguments that
Ortiz-Franco v. Holder, 782 F.3d 81 (2d Cir. 2015), and
Marin-Marin v. Sessions, 852 F.3d 192 (2d Cir. 2017), were
wrongly decided, while recognizing that this panel is bound
by those decisions. See Gelman v. Ashcroft, 372 F.3d 495,
499 (2d Cir. 2004).
                              2
conviction, our review is limited to constitutional claims

and questions of law.           See 8 U.S.C. § 1252(a)(2)(C), (D);

Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015); Durant

v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2004) (applying

§ 1252(a)(2)(C) to agency’s denial of motion to reopen).               We

review constitutional claims and questions of law de novo.

See Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).               In

so    doing,     we   assume   the   parties’   familiarity    with   the

underlying facts and procedural history of this case, which

we reference only as necessary to explain our decision to

deny the petition for review.

     I.     Deferral of Removal under CAT

          Montero argues that the agency committed legal error by

overlooking evidence that Ecuadorian authorities are likely

to deny him health care because he will be a criminal deportee

and homeless. See Mendez v. Holder, 566 F.3d 316, 323 (2d

Cir. 2009) (explaining that agency commits legal error if it

“totally       overlook[s]”    or     “seriously   mischaracterize[s]”

material       evidence).   Montero    argues   that   the   agency   also

overlooked evidence that he will become a victim of vigilante




                                      3
“social    cleansing.”      The      argument    fails    because    Montero

failed to adduce evidence of the requisite official intent.

     To establish eligibility for CAT relief, an applicant

must show that someone in his particular circumstances will

more likely than not be tortured “by or at the instigation of

or with the consent or acquiescence of a public official or

other person acting in an official capacity.”                       8 C.F.R.

§ 1208.18(a)(1); id. §§ 1208.16(c)(2), 1208.17(a); see also

Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d Cir. 2004); Mu-

Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).

     As to Montero’s claim that he will likely be denied

health     care   on   return   to    Ecuador,    the     agency    credited

Montero’s evidence that he suffered serious ailments that

could prove fatal without treatment. Nevertheless, it also

found that Montero adduced no evidence demonstrating that the

anticipated deprivation will be intentional, rather than “a

result of poverty, neglect, or incompetence.”                 Pierre, 502

F.3d at 121 (“[E]ven suffering of the utmost severity cannot

constitute torture unless it is specifically intended[.]”);

see 8 C.F.R. § 208.18(a)(5) (“In order to constitute torture,

an   act   must   be   specifically       intended   to    inflict   severe



                                      4
physical or mental pain or suffering.”). The record supports

this finding.

      Accordingly, as to his health-care based claim, Montero

has   not   demonstrated   an   error   of   law    in   the   agency’s

determination that he failed to satisfy his burden of showing

a likelihood of torture with the requisite specific intent.

Because this finding is dispositive, we do not reach his

additional argument that the agency applied a legally flawed

understanding    of    government    acquiescence.       See   INS   v.

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts

and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

      Montero argues that the agency also erred by failing to

consider    evidence   describing    vigilante     justice;    violent,

inhumane treatment of suspected criminals; police corruption;

and failure to investigate crimes. Cited evidence shows high

crime rates in Ecuador and vigilantes targeting suspected

criminals. Nevertheless, Montero offered no evidence that

vigilante groups would suspect him of crime and, accordingly,

he has not met his burden of showing that, more likely than

not, he will be tortured by them, much less tortured with the



                                 5
requisite official intent. See 8 C.F.R. §§ 1208.16(c)(2);

1208.17(a).

  II. Motion To Remand

       On appeal to the BIA, Montero unsuccessfully sought

remand for the IJ to consider various materials, notably, a

United    Nations    report      discussing       “social   cleansing”    in

Ecuador by drug trafficking groups as well as vigilante

killings.

       “A motion to remand that relies on newly available

evidence is held to the substantive requirements of a motion

to reopen.”      Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d

149,   156   (2d    Cir.    2005).     A    movant   seeking    remand   for

consideration       of     new   evidence    must    present    “material,

previously unavailable evidence.”                 Id.; see also 8 C.F.R.

§ 1003.2(c)(1). “The BIA has ‘broad discretion’ to deny a

motion to remand grounded on new evidence.” Li Young Cao, 421

F.3d at 156 (quoting INS v. Doherty, 502 U.S. 314, 323

(1992)). We will identify abuse of that discretion only “if

the    Board’s     decision      provides    no    rational    explanation,

inexplicably departs from established policies, is devoid of




                                      6
any    reasoning,    or   contains       only   summary    or   conclusory

statements[.]” Id. That is not this case.

       As the BIA observed, Montero’s evidence could have been

discovered and submitted previously because it predated his

2015 proceedings before the IJ.2 See Li Yong Cao, 421 F.3d at

156; see also Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir.

2006) (requiring agency to assess whether evidence submitted

with motion to reopen was unavailable prior to closing of

record at hearing before IJ).             Montero argues that the BIA

should have excused his failure to present this evidence

sooner because, as his attorney explained, they did not

discover it due to a “good-faith oversight.” Even crediting

this    explanation,      because    the    evidence      was   previously

available,    we    cannot   conclude      that   the     BIA   abused   its




2 The BIA mistakenly found one article to be dated 2016, the date
of its print publication, even though it was posted online in
2011. That error worked in Montero’s favor because the BIA
considered the article. Nevertheless, the BIA concluded that the
article was not material because it did not show Montero’s prima
facie eligibility for relief. See Li Yong Cao, 421 F.3d at 156
(explaining that “failure to make a prima facie case” is
permissible reason to deny motion to reopen). The conclusion was
not an abuse of discretion.

                                     7
discretion in denying Montero’s motion to remand.                    See 8

C.F.R. § 1003.2(c)(1); Li Yong Cao, 421 F.3d at 156.

     For the foregoing reasons, the petition for review is

DENIED.       As    we   have   completed    our   review,   Petitioner’s

pending motion for a stay of removal in this petition is

DISMISSED as moot.         Petitioner’s request for oral argument

is   DENIED    in    accordance    with     Federal   Rule   of   Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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