     17-4097(L)
     Carabal-Santos v. Barr
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A200 689 439
                              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 15th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   SAMUEL CARABAL-SANTOS, AKA
14   SAMUEL CARVAGAL, AKA SAMUEL
15   SANTOS,
16            Petitioner,
17                                                               17-4097(L),
18                      v.                                       18-1358(Con)
19                                                               NAC
20   WILLIAM P. BARR, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Robert C. Ross, West Haven, CT.
26
27   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
28                                       Attorney General; Carl McIntyre,
29                                       Assistant Director; Gregory A.
30                                       Pennington, Jr., Trial Attorney,
31                                       Office of Immigration Litigation,
32                                       United States Department of
33                                       Justice, Washington, DC.
34
1        UPON DUE CONSIDERATION of these petitions for review of

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

3    ORDERED, ADJUDGED, AND DECREED that the petitions for review

4    are DENIED.

5        Petitioner Samuel Carabal-Santos, a native and citizen

6    of Mexico, seeks review of the denials of (1) his application

7    for relief from removal under the Convention Against Torture

8    (“CAT”), see In re Samuel Carabal-Santos, No. A200 689 439

9    (B.I.A. Nov. 27, 2017), aff’g No. A200 689 439 (Immig. Ct.

10   Hartford June 8, 2017), and (2) his motion to reopen, see In

11   re Samuel Carabal-Santos, No. A200 689 439 (B.I.A. Apr. 6,

12   2018). We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14     A. Order of Removal

15       The only issues before us in this petition are the

16   agency’s denial of deferral of removal under the CAT and its

17   denial of a continuance. Under the circumstances of this case,

18   we have reviewed both the Immigration Judge’s (“IJ”) and the

19   BIA’s opinions “for the sake of completeness,”       Wangchuck v.

20   Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006),

21   examining   factual   findings   for   substantial   evidence   and


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1    questions of law de novo, see Wei Sun v. Sessions, 883 F.3d

2    23, 27 (2d Cir. 2018).

3         1. Deferral of Removal

4           An applicant seeking deferral of removal under the CAT

5    must make a preponderance showing that he would be tortured

6    upon removal. See 8 C.F.R. §§ 1208.16(c), 1208.17(a).            In

7    deciding whether an applicant has carried this burden, the

8    agency must consider all relevant evidence, including past

9    torture, ability to relocate, and human rights violations

10   within the country of removal. See 8 C.F.R. § 1208.16(c)(3).

11   “‘It is the likelihood of all necessary events coming together

12   that must more likely than not lead to torture, and a chain

13   of events cannot be more likely than its least likely link.’”

14   Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (quoting

15   In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)).

16   Thus, an alien cannot carry his burden “‘if one link in the

17   chain cannot be shown to be more likely than not to occur.’”

18   Id.

19          The applicant’s testimony may be sufficient to sustain

20   his burden, even without corroboration, but only if the trier

21   of    fact   finds   the   testimony   credible,   persuasive,   and


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1    sufficiently       factually   specific    to   demonstrate   that   the

2    applicant is a “refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii);

3    see   also   id.    § 1231(b)(3)(C);      8 C.F.R.   §§ 1208.16(c)(2),

4    1208.17(a).    “[A]n applicant may be generally credible but

5    his testimony may not be sufficient to carry the burden of

6    persuading the fact finder of the accuracy of his claim of

7    crucial facts if he fails to put forth corroboration that

8    should be readily available.”          Wei Sun, 883 F.3d at 28; see

9    also 8 U.S.C. § 1158(b)(1)(B)(ii). Applying these principles

10   here, we conclude that the agency did not err in finding that

11   Carabal-Santos failed to satisfy his burden of proving a

12   likelihood of torture.

13         Given that Carabal-Santos asserted that a drug cartel

14   last harmed or personally threatened him in Mexico sometime

15   before 2001, he had the burden of demonstrating that the

16   cartel remained interested in harming him more than 15 years

17   later.   See 8 C.F.R. § 1208.16(c)(3); see also Savchuck, 518

18   F.3d at 123.       Carabal-Santos attempted to satisfy that burden

19   with his testimony that cartel members cut his grandmother’s

20   face shortly after he left Mexico, killed two of his friends

21   in 2007 and 2010, kidnapped and tortured his brother-in-law


                                        4
1    in 2011, and recently threatened him through his sister’s

2    Facebook account.     However, the agency reasonably found that

3    Carabal-Santos failed to corroborate these crucial facts with

4    reasonably available evidence.         See Wei Sun, 883 F.3d at 28.

5        First, although he submitted letters from his grandmother

6    and brother-in-law, neither of them mentioned being harmed at

7    all or targeted by anyone as a threat to Carabal-Santos.

8    Further,   although      Carabal-Santos    testified      that     cartel

9    members killed two of his friends who helped him confront

10   cartel members in 1997, his written statement asserted that

11   the murder victims were his brother’s friends who were killed

12   for reasons unrelated to Carabal-Santos.          Also, the statement

13   Carabal-Santos’s    sister     submitted   on    his   behalf     did   not

14   corroborate his testimony that cartel members had threatened

15   him via her Facebook account.

16       The agency further reasonably considered and determined

17   that Carabal-Santos could safely relocate within Mexico.                See

18   8 C.F.R.   § 1208.16(c)(3).        Moreover,      as   the   IJ    found,

19   Carabal-Santos     did   not    provide    any   country     conditions

20   evidence showing that the cartel leader who targeted him

21   remains active. Indeed, although cartel control is fluid, a


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1    Drug Enforcement Agency map of the Mexican drug cartels shows

2    that the cartel Carabal-Santos fears is not active in many

3    parts of Mexico.

4        Accordingly,       because       Carabal-Santos       failed    to

5    corroborate his testimony regarding continued threats from

6    cartel members, and because evidence demonstrated he could

7    safely relocate within Mexico, the agency did not err in

8    finding that he failed to establish a chain of events showing

9    that he would more likely than not be tortured or killed if

10   removed to Mexico.     See Wei Sun, 883 F.3d at 28; Savchuck,

11   518 F.3d at 123.       Because that finding was dispositive of

12   deferral   of    removal    under      the    CAT,    see    8 C.F.R.

13   §§ 1208.16(c), 1208.17(a), 1208.18(a)(1), we do not reach the

14   agency’s alternative basis for denying CAT relief, see INS v.

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

16   and agencies are not required to make findings on issues the

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

18   De La Rosa v. Holder, 598 F.3d 103, 108-09 (2d Cir. 2010)

19   (recognizing that applicant’s failure to establish likelihood

20   of torture is separate dispositive basis for denying CAT

21   relief   from   the   requirement     of   establishing     government


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1    acquiescence).

2      2. Continuance

3        Carabal-Santos faults the IJ for denying him a fourth

4    continuance before denying him CAT relief. We review such a

5    denial for abuse of discretion.             See Morgan v. Gonzales, 445

6    F.3d 549, 551 (2d Cir. 2006).             An IJ “may grant a motion for

7    continuance for good cause shown,” 8 C.F.R. § 1003.29, and

8    only “abuse[s] his discretion in denying a continuance if (1)

9    his decision rests on an error of law (such as the application

10   of the wrong legal principle) or a clearly erroneous factual

11   finding,    or   (2)   his   decision—though      not    necessarily     the

12   product of a legal error or a clearly erroneous factual

13   finding—cannot be located within the range of permissible

14   decisions,” Morgan, 445 F.3d at 551-52 (quotation marks and

15   brackets omitted). That is not this case.

16       The     IJ   had    already      granted     Carabal-Santos        three

17   continuances,      thereby     providing        him     and   his     family

18   approximately 16 months to prepare and gather evidence from

19   Mexico.     Carabal-Santos’s         attorney    requested      a     fourth

20   continuance because, although Carabal-Santos’s family had

21   submitted    evidence,       their    statements      could    have     been


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1    “stronger.”    Certified    Administrative     Record     at    145.   The

2    denial of a fourth continuance in these circumstances was not

3    an abuse of discretion. See Wei Sun, 883 F.3d at 31 (“[I]t is

4    reasonable not to require that applicants receive a second

5    opportunity to present their case after the IJ identified the

6    specific evidence they need to prevail.”); see also Chuilu

7    Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien

8    bears   the   ultimate   burden   of   introducing       such   evidence

9    without prompting from the IJ.”).

10       Because the IJ had already granted numerous continuances,

11   during which Carabal-Santos managed to obtain evidence from

12   family and friends, there is no merit to his argument that

13   his due process rights were violated by the IJ denying him

14   yet another opportunity to gather evidence.              See Burger v.

15   Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a

16   violation of due process, an alien must show that she was

17   denied a full and fair opportunity to present her claims or

18   that [she was] otherwise deprived . . . of fundamental

19   fairness.” (quotation marks omitted)).

20       Accordingly,    we     identify    no   error   in   the    agency’s




                                       8
1    decision to deny Carabal-Santos CAT relief from removal.

2      B. Motion to Reopen

3           In challenging the agency’s refusal to reopen his removal

4    proceedings, Carabal-Santos bears a still heavier burden

5    because the law states that “[a] motion to reopen proceedings

6    shall not be granted unless it appears to the Board that

7    evidence    sought   to   be   offered   is    material   and   was   not

8    available and could not have been discovered or presented at

9    the former hearing.”       8 C.F.R. § 1003.2(c)(1). Moreover, we

10   review the agency’s denial of a motion to reopen for abuse of

11   discretion.     See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-

12   69 (2d Cir. 2008); Norani v. Gonzales, 451 F.3d 292, 294 (2d

13   Cir.    2006)   (“[I]n    reviewing    the    BIA’s   determination    of

14   whether previously unavailable evidence supported [a] motion

15   to reopen, we must inquire whether the evidence could have

16   been presented at the hearing before the IJ.”).

17          As the Government argues, Carabal-Santos does not

18   challenge the BIA’s dispositive finding that the evidence

19   he submitted in support of his motion to reopen was

20   previously available.       Accordingly, that finding remains a

21   valid basis for denying reopening, and we deny the petition


                                        9
1    for review.   See Yueqing Zhang v. Gonzales, 426 F.3d 540,

2    541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner

3    abandons issues and claims not raised in his brief); see

4    also 8 C.F.R. § 1003.2(c)(1).

5        In any event, the BIA’s finding was not erroneous since

6    Carabal-Santos    submitted   letters    that    described    events

7    predating   his   hearing.    See    Norani,    451   F.3d   at   294.

8    Further, the BIA did not err in its alternative dispositive

9    determination that the newly submitted letters would not

10   change the outcome of Carabal-Santos’s proceedings because

11   they did not undermine the agency’s determination that he

12   could relocate within Mexico to avoid harm.       See INS v. Abudu,

13   485 U.S. 94, 104-05 (1988) (recognizing failure to establish

14   prima facie eligibility for relief as a valid basis to deny

15   motion to reopen).

16       For the foregoing reasons, the petitions for review are

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

18   that the Court previously granted in these petitions is

19   VACATED, and any pending motion for a stay of removal in these

20   petitions is DISMISSED as moot.      Any pending request for oral

21   argument in these petitions is DENIED in accordance with


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1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

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




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