         10-5183-ag
         Ramos-Orellana v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A070 953 368
                                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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 24th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                DEBRA ANN LIVINGSTON,
10                    Circuit Judges.
11       _____________________________________
12
13       OSCAR ANIBAL RAMOS-ORELLANA, AKA
14       OSCAR RAMOS,
15                Petitioner,
16
17                           v.                                 10-5183-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Jon E. Jessen, Stamford,
25                                       Connecticut.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Jamie M. Dowd, Senior
29                                       Litigation Counsel; Jeffery R.
30                                       Leist, Attorney, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 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.

 9       Petitioner Oscar Anibal Ramos-Orellana, a native and

10   citizen of Guatemala, seeks review of a November 23, 2010,

11   order of the BIA, affirming the June 15, 2009, decision of

12   Immigration Judge (“IJ”) Michael W. Straus, which denied his

13   application for asylum, withholding of removal, relief under

14   the Convention Against Torture (“CAT”), and relief under the

15   Nicaraguan Adjustment and Central American Relief Act of

16   1997 (“NACARA”).     In re Ramos-Orellana, No. A070 953 368

17   (B.I.A. Nov. 23, 2010), aff’g No. A070 953 368 (Immig. Ct.

18   Hartford June 15, 2009).    We assume the parties’ familiarity

19   with the underlying facts and procedural history in this

20   case.

21       Under the circumstances of this case, we have reviewed

22   both the IJ’s and the BIA’s opinions “for the sake of

23   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

24   2008) (internal quotation marks omitted).    The applicable

25   standards of review are well-established.     See 8 U.S.C. §



                                     2
 1   1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

 2   Cir. 2009).

 3       As an initial matter, Ramos-Orellana challenges only

 4   the agency’s determination that he failed to show past

 5   persecution based on forced conscription into the army and

 6   that he would likely be persecuted or tortured if returned

 7   to Guatemala for his desertion from the army.   The agency’s

 8   determination that Ramos-Orellana failed to demonstrate that

 9   his forced conscription constitutes past persecution is

10   supported by substantial evidence.   See Islami v. Gonzales,

11   412 F.3d 391, 396-97 (2d Cir. 2005), overruled in part on

12   other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494

13   F.3d 296, 305 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(B).

14   While we have held that forced military service (or

15   punishment for draft evasion) may constitute persecution

16   where: (1) “an individual’s refusal to serve in the military

17   leads to disproportionately excessive penalties, inflicted

18   on him or her” on account of a protected ground; or (2) an

19   individual “is fleeing to avoid punishment for refusing to

20   join a military force condemned by the international

21   community,” Islami, 412 F.3d at 396 (internal quotation

22   marks omitted), as the agency noted, Ramos-Orellana failed

23   to present any evidence showing that he was asked to commit

                                  3
 1   human rights abuses against members of his own race,

 2   religion, nationality, or social or political group; that he

 3   objected to doing so; or that army leadership ever knew of

 4   any such objection.    Moreover, in finding that

 5   Ramos-Orellana failed to establish that he would be singled

 6   out for excessive penalties as a result of his desertion,

 7   the agency reasonably relied on his testimony that he was

 8   not treated differently than his fellow soldiers while he

 9   served, as well as the fact that 75% of all conscripted

10   soldiers deserted the Guatemalan Army during the same

11   period.   See id.

12       The agency also reasonably determined that

13   Ramos-Orellana failed to show that it is more likely than

14   not that he would be persecuted or tortured if returned to

15   Guatemala due to his desertion from the army.       See 8 U.S.C.

16   § 1252(b)(4)(B).    Although Ramos-Orellana argues that the

17   agency improperly discredited his evidence of country

18   conditions and placed excessive reliance on the U.S. State

19   Department Country Reports on Human Rights Practices in

20   Guatemala (“Country Reports”), the task of resolving

21   conflicts in the record evidence lies “largely within the

22   discretion of the agency.”    Jian Hui Shao v. Mukasey, 546

23   F.3d 138, 171 (2d Cir. 2008).       In evaluating

                                     4
 1   Ramos-Orellana’s evidence of country conditions, the agency

 2   reasonably noted that the more recent Country Reports do not

 3   indicate that former army deserters are targeted for

 4   persecution or death.   See Xiao Ji Chen v. U.S. Dep’t of

 5   Justice, 434 F.3d 144, 164 (2d Cir. 2006) (recognizing that

 6   “a report from the State Department is usually the best

 7   available source of information on country conditions”)

 8   (internal quotation marks omitted).

 9       Lastly, Ramos-Orellana’s argument that the agency erred

10   in failing to make an explicit credibility finding is

11   without merit, as the agency assumed credibility and its

12   decision does not hinge on Ramos-Orellana’s credibility.

13   See Mendez v. Holder, 566 F.3d 316, 318 (2d Cir. 2009).

14       For the foregoing reasons, the petition for review is

15   DENIED.

16

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




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