     17-796
     Desince v. Sessions
                                                                                  BIA
                                                                             Renner, IJ
                                                                          A030 675 079
                                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 10th day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   YANICK DESINCE,
14                 Petitioner,
15
16                         v.                                    17-796
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Michael L. Walker, Brooklyn, NY.
24
25   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
26                                         Attorney General; Derek C. Julius,
27                                         Assistant Director; Enitan O.
28                                         Otunla, Trial Attorney, Office of
29                                         Immigration Litigation, United
1                                      States Department of Justice,
2                                      Washington, DC.
3
4           UPON DUE CONSIDERATION of this petition for review of a

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

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8           Petitioner Yanick Desince, a native and citizen of Haiti,

9    seeks review of a February 22, 2017, decision of the BIA

10   affirming an October 12, 2016, decision of an Immigration

11   Judge (“IJ”) denying Desince’s application for withholding of

12   removal    and   relief      under     the    Convention    Against    Torture

13   (“CAT”).      In re Yanick Desince, No. A 030 675 079 (B.I.A. Feb.

14   22, 2017), aff’g No. A 030 675 079 (Immig. Ct. N.Y. City Oct.

15   12, 2016).       We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17          Under the circumstances of this case, we have reviewed

18   both    the    IJ’s    and     BIA’s    decisions        “for   the   sake   of

19   completeness.”        Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

20   524,    528   (2d     Cir.    2006).         Desince’s    aggravated    felony

21   conviction limits our review to constitutional claims and

22   questions of law.            8 U.S.C. §§ 1252(a)(2)(C), (D); Ortiz-

                                             2
1    Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015).

2    Withholding of Removal

3        To    qualify   for   withholding    of     removal,    Desince   was

4    required to show that she would more likely than not be

5    persecuted.    8 U.S.C. § 1231(b)(3); INS v. Cardoza-Fonseca,

6    480 U.S. 421, 430 (1987) (“The ‘would be threatened’ language

7    . . . requires the alien to establish by objective evidence

8    that it is more likely than not that he or she will be subject

9    to persecution upon deportation.”).              She also needed to

10   establish that her race, religion, nationality, political

11   opinion, or membership in a particular social group would be

12   “one central reason” for such persecution.                 See 8 U.S.C.

13   §§ 1101(a)(42), 1158(b)(1)(B)(i); Matter of C–T–L–, 25 I. &

14   N. Dec. 341, 344–46 (BIA 2010) (extending the “one central

15   reason” standard to withholding of removal).

16       The agency’s rejection of Desince’s particular social

17   group raises a reviewable question of law.           Paloka v. Holder,

18   762 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the

19   legal    determination    of   whether     a    group   constitutes    a

20   ‘particular    social     group’   under       the   [Immigration     and

21   Nationality Act].”).       We uphold the agency’s social group
                                        3
1    determination because Desince did not show that wealthy or

2    “Americanized”         deportees      meet   the   social   distinction    or

3    particularity requirements for a particular social group.

4    See Paloka, 762 F.3d at 195-97 (discussing social distinction

5    and particularity requirements); Ucelo-Gomez v. Mukasey, 509

6    F.3d    70,    72-74     (2d   Cir.    2007)   (holding     that   “affluent

7    Guatemalans” are not a particular social group).

8           The    agency’s    factual      determination    that   Desince    was

9    unlikely to face persecution as a Seventh Day Adventist is

10   not subject to review.          See Hui Lin Huang v. Holder, 677 F.3d

11   130, 134 (2d Cir. 2012) (a determination of what will happen

12   in the future is a finding of fact).               Although the agency may

13   commit legal error if it overlooks or mischaracterizes an

14   applicant’s testimony or evidence, see Mendez v. Holder, 566

15   F.3d 316, 323 (2d Cir. 2009), it did not do so here.                      The

16   agency acknowledged Desince’s testimony that someone set fire

17   to her pastor’s house in Haiti, but discounted this testimony

18   because Desince did not know who the culprits were and could

19   not establish that her pastor was targeted because of his

20   religion.

21
                                             4
1    CAT Relief

2           To qualify for CAT relief, an applicant must show that

3    she is “more likely than not” to be tortured.                8 C.F.R.

4    § 1208.16(c)(2).         Torture is defined as “severe pain or

5    suffering . . . inflicted by or at the instigation of or with

6    the consent or acquiescence of a public official or other

7    person acting in an official capacity.”          Id. § 1208.18(a)(1).

8    Acquiescence, in turn, “requires that the public official,

9    prior to the activity constituting torture, have awareness of

10   such    activity   and    thereafter    breach   his   or   her   legal

11   responsibility to intervene to prevent such activity.”             Id.

12   § 1208.18(a)(7).

13          Desince has not identified any colorable questions of

14   law with respect to the BIA’s conclusion that she did not

15   demonstrate a likelihood of torture.          See Ortiz-Franco, 782

16   F.3d at 90-91.     She argues that the country reports “depict

17   Haiti as a lawless country infested with crime where public

18   officials may personally engage in theft and extortion or

19   turn a blind eye to such behavior,” and she is at greater

20   risk than others because of her age, perceived wealth, and

21   lack of family ties in Haiti.          Appellant Br. 9-10.    But the
                                       5
1    record    reflects    that   the   agency     considered   Desince’s

2    testimony and the country conditions and determined that this

3    evidence did not establish a likelihood of harm rising to the

4    level of torture or government acquiescence to such harm,

5    especially because Desince was not harmed when she visited

6    Haiti in 2006.       Any challenge to the agency’s weighing of

7    this evidence is the type of factual question that this Court

8    lacks jurisdiction to review.          See Ortiz-Franco, 782 F.3d at

9    91.

10         For the foregoing reasons, the petition for review is

11   DENIED.

12

13                                  FOR THE COURT:
14                                  Catherine O’Hagan Wolfe,
15                                  Clerk of Court
16




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