     19-4118
     Marte Feliz v. Barr
                                                                                 BIA
                                                                          Sagerman, IJ
                                                                         A208 910 462
                                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 20th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   PEDRO ANTONIO MARTE FELIZ,
14            Petitioner,
15
16                         v.                                  19-4118
17                                                             NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Pedro Antonio Marte Feliz, pro
24                                         se, Alvarado, TX.
25
26   FOR RESPONDENT:                       Ethan P. Davis, Acting Assistant
27                                         Attorney General; Bernard A.
28                                         Joseph, Senior Litigation Counsel;
1                                  Jaclyn E. Shea, Trial Attorney,
2                                  Office of Immigration Litigation,
3                                  United States Department of
4                                  Justice, Washington, DC.

5         UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED. 1

 9        Petitioner     Pedro   Antonio   Marte   Feliz,   a   native   and

10   citizen of the Dominican Republic, seeks review of a November

11   29, 2019, decision of the BIA affirming a June 13, 2019,

12   decision of an Immigration Judge (“IJ”) denying Marte Feliz’s

13   application for relief under the Convention Against Torture

14   (“CAT”).   In re Marte Feliz, No. A 208 910 462 (B.I.A. Nov.

15   29, 2019), aff’g No. A 208 910 462       (Immig. Ct. Napanoch June

16   13, 2019).       We assume the parties’ familiarity with the

17   underlying facts and procedural history.

18        We have reviewed the IJ’s decision as supplemented by

19   the BIA.       See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

20   Cir. 2005).      We review the agency’s legal conclusions de novo



     1
      Marte Feliz moves for leave to proceed in forma pauperis
     (“IFP”).    Because the parties have completed briefing
     notwithstanding that pending motion, we GRANT the IFP motion
     and proceed to consider the petition on the merits.
                                   2
 1   and   its      factual   findings     under    the    substantial   evidence

 2   standard.       Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

 3         To receive protection under the CAT, an applicant must

 4   “establish that it is more likely than not that he or she

 5   would be tortured if removed to the proposed country of

 6   removal.”       8 C.F.R. § 1208.16(c)(2).            “Torture is defined as

 7   any act by which severe pain or suffering, whether physical

 8   or mental, is intentionally inflicted on a person . . . by or

 9   at the instigation of or with the consent or acquiescence of

10   a public official or other person acting in an official

11   capacity.”       Id. § 1208.18(a)(1); see also Pierre v. Gonzales,

12   502     F.3d    109,     114,   118   (2d     Cir.    2007).    Government

13   acquiescence “requires . . . that government officials know

14   of or remain willfully blind to an act and thereafter breach

15   their    legal     responsibility      to     prevent   it.”    Khouzam   v.

16   Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004); see 8 C.F.R.

17   § 1208.18(a)(7).          The agency must consider “all evidence

18   relevant to the possibility of future torture,” including

19   “[e]vidence       of     past   torture,”       evidence    regarding     the

20   possibility of internal relocation, “[e]vidence of gross,

21   flagrant, or mass violations of human rights,” and “[o]ther


                                            3
 1   relevant information regarding conditions in the country of

 2   removal.”    8 C.F.R. § 1208.16(c)(3)(i)–(iv).        Substantial

 3   evidence supports the agency’s conclusion that Marte Feliz

 4   did not carry his burden to demonstrate that he was more

 5   likely than not to be tortured in the Dominican Republic.

 6   See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012)

 7   (“A determination of what will occur in the future and the

 8   degree of likelihood of the occurrence has been regularly

 9   regarded as fact-finding . . . .”).

10       The agency properly considered whether Marte Feliz had

11   previously experienced harm rising to the level of torture as

12   one of the factors relevant to the likelihood that he would

13   be tortured in the future.       See 8 C.F.R. § 1208.16(c)(3)(i)

14   (directing   the   agency   to   consider   “[e]vidence   of   past

15   torture”).   Contrary to Marte Feliz’s argument on appeal, the

16   agency did not treat this factor as dispositive, but rather

17   considered it along with other evidence in determining the

18   likelihood that Marte Feliz would be tortured in the future.

19   Marte Feliz does not argue that the beating he experienced

20   rose to the level of torture, and he did not exhaust that

21   argument before the agency.      See Lin Zhong v. U.S. Dep’t of


                                      4
 1   Justice, 480 F.3d 104, 119–20 (2d Cir. 2007) (generally

 2   limiting review to issues raised before the BIA); LoSacco v.

 3   Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (issues not

 4   raised in an appellate brief are considered abandoned and are

 5   not considered on appeal).

 6       The agency also reasonably concluded that Marte Feliz

 7   had not established that this harm was at the direction of

 8   government officials.   Marte Feliz alleged that he discovered

 9   that two government officials (Jose and Abraham Perez) were

10   engaged in a fraud in which they would order unnecessary

11   supplies from the medical supply company where he worked and

12   then resell them.   He reported this fraud to his supervisor,

13   who told him not to take any action, and he was then beaten

14   by three men who threatened him not to reveal the fraud.      He

15   did not explain why he believed that Jose and Abraham Perez,

16   rather than his supervisor or someone else at his company,

17   ordered the beating.    He also did not corroborate his claims

18   that Jose and Abraham Perez were government officials at the

19   time of his attack or show that they remained government

20   officials at the time of his hearing, and his testimony was

21   vague as to their positions.       See Chuilu Liu v. Holder, 575


                                    5
 1   F.3d 193, 196 (2d Cir. 2009) (IJ may require corroboration of

 2   even credible testimony).

 3       Even assuming that his beating was ordered by government

 4   officials, Marte Feliz did not establish that they had any

 5   continued interest in harming him, given the years that had

 6   passed since that 2011 beating, the fact that he no longer

 7   worked at the company where the alleged fraud took place, and

 8   the absence of evidence of ongoing fraud.      See Jian Xing

9    Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (fear is

10   not objectively reasonable if it lacks “solid support” in the

11   record and is merely “speculative at best”).     Marte Feliz

12   alleged that Jose and Abraham Perez had orchestrated the

13   forced retirement of his parents, who worked for the national

14   government, after he fled the Dominican Republic.   But Marte

15   Feliz did not explain how he knew that Jose and Abraham Perez

16   were involved, and he personally had no further contact with

17   them or his former employer after 2011.   Marte Feliz did not

18   claim that he would take further steps to expose their

19   wrongdoing if he returned to the Dominican Republic.

20       Finally, Marte Feliz also failed to establish that the

21   police would acquiesce to his torture.    He argues that the


                                   6
 1   agency ignored testimony that the police refused to help him,

 2   but the agency reasonably concluded that his exchange with

 3   the police, which reflected concern for Marte Feliz’s safety

 4   if he named his attackers, did not establish that the police

 5   refused to help him or would acquiesce to his torture.        Marte

 6   Feliz     also   argues   that    country   conditions      evidence

 7   corroborates his claim that corrupt government officials act

 8   with impunity in the Dominican Republic.       While the evidence

 9   reflects some instances of torture in other contexts and

10   indicates that corruption is widespread and regularly goes

11   unpunished, it does not include any instances of torture used

12   to prevent exposure of corrupt activities or show that the

13   police acquiesce to such torture.

14       For the foregoing reasons, the petition for review is

15   DENIED.    Marte Feliz’s motion for IFP status is GRANTED.      All

16   other pending motions and applications are DENIED and stays

17   VACATED.

18                                    FOR THE COURT:
19                                    Catherine O’Hagan Wolfe,
20                                    Clerk of Court




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