14-2845
Ramirez Bayona v. Lynch
BIA
Montante, IJ
A099 320 137
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of February, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SALVADOR ALEXANDER RAMIREZ BAYONA,
14 Petitioner,
15
16 v. 14-2845
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Anthony Guidice, Fairport, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Ernesto
27 H. Molina, Jr., Assistant Director;
28 Gladys M. Steffens Guzmán, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Salvador Alexander Ramirez Bayona, a native and
6 citizen of El Salvador, seeks review of a July 23, 2014 decision
7 of the BIA affirming an October 15, 2012 decision of an
8 Immigration Judge (“IJ”) denying Bayona’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Salvador Alexander Ramirez
11 Bayona, No. A099 320 137 (B.I.A. July 23, 2014), aff’g No. A099
12 320 137 (Immig. Ct. Buffalo Oct. 15, 2012). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 We have reviewed both the IJ’s and the BIA’s opinions “for
16 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
17 (2d Cir. 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 I. Asylum and Withholding of Removal
21 The Government argues that Bayona failed to challenge
2
1 either the adverse credibility determination or the serious
2 nonpolitical crime ruling before the BIA. We “may review a
3 final order of removal only if . . . the alien has exhausted
4 all administrative remedies available to the alien as of right.”
5 8 U.S.C. § 1252(d)(1). We agree that Bayona made no argument
6 concerning the adverse credibility determination and that issue
7 is therefore unexhausted and not subject to review. See Foster
8 v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004). Because the adverse
9 credibility determination is dispositive of Bayona’s claims for
10 asylum and withholding of removal, we decline to address whether
11 Bayona exhausted any challenge to the agency’s serious
12 nonpolitical crimes finding. INS v. Bagamasbad, 429 U.S. 24,
13 25 (1976).
14 II. CAT Relief
15 Bayona argues that the IJ improperly relied on the adverse
16 credibility determination in denying CAT relief. Although the
17 agency must consider objective evidence in adjudicating CAT
18 claims, the agency may deny CAT relief based on an adverse
19 credibility determination when the CAT claim is not
20 “analytically distinct” from the claims for asylum and
3
1 withholding of removal. Xue Hong Yang v. U.S. Dep’t of Justice,
2 426 F.3d 520, 523 (2d Cir. 2005).
3 Here, Bayona’s CAT claim was not analytically distinct from
4 his asylum and withholding claims. The basis for all three
5 claims was the same: he left MS-13 without permission and would
6 therefore be killed if he returned to El Salvador. The IJ found
7 these factual allegations not credible based, in part, on
8 Bayona’s inconsistent testimony concerning whether he left
9 MS-13, what he did after he left, and why he was able to avoid
10 getting the required MS-13 tattoo even though he was forced to
11 commit rapes and murders. Under these circumstances, the
12 unchallenged adverse credibility determination is dispositive
13 of the CAT claim. Id.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is DENIED
18 in accordance with Federal Rule of Appellate Procedure
19 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
4