MONTERO v. BARR (2019)

SUMMARY ORDER

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 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 “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 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, 97 S.Ct. 200, 50 L.Ed.2d 190 (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 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 Yong Cao, 421 F.3d at 156 (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (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 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 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).

FOOTNOTES

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.   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.