14-2145
Jara v. Lynch
BIA
Straus, IJ
A200 689 312
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 26th day of April, two thousand sixteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
ELIZABETH SAENZ JARA, AKA
ELIZABETH CRISTINA SAENZ JARA,
AKA ELIZABETH SAENZ,
Petitioner,
v. 14-2145
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Robert C. Ross, West Haven, CT.
FOR RESPONDENT: Joyce R. Branda, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; W. Daniel Shieh,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Elizabeth Saenz Jara, a native and citizen of Peru,
seeks review of a May 20, 2014 decision of the BIA
affirming the January 19, 2012, decision of an Immigration
Judge (“IJ”), denying her application for asylum,
withholding of removal, and relief pursuant to the
Convention Against Torture (“CAT”). In re Elizabeth Saenz
Jara, No. A200 689 312 (B.I.A. May. 20, 2014), aff’g No.
A200 689 312 (Immig. Ct. N.Y. City Jan. 19, 2012). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the decisions of the IJ and the BIA “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). The applicable standards of
2
review are well established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Absent past persecution, to establish an independent
fear of persecution, an applicant must show that it is more
likely than not that his or her “life or freedom would be
threatened in [that] country because of [his or her] race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 C.F.R. § 1208.16(b)(1);
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
2004). An applicant is “‘not require[d] ... to provide
evidence that he or she would be singled out individually
for such persecution’” provided the applicant proves the
existence of “‘a pattern or practice of persecution of a
group of persons similarly situated to the applicant on
account of race, religion, nationality, membership in a
particular social group, or political opinion,” and the
applicant establishes her “inclusion in and identification
with such group.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 565
(2d Cir. 2006) (quoting 8 C.F.R. § 208.16(b)(2)).
The agency did not err in finding that Jara failed to
meet her burden to show that she would more likely than not
be persecuted in Peru on account of being homosexual. The
3
2010 U.S. Department of State Country Reports on Human
Rights Practices for Peru (“Human Rights Report”) stated
that homosexuals were “sometimes harassed and abused” by
government authorities, including police, and were subject
to discrimination. However, the report also described
various efforts being made to alleviate the problem. The
agency did not err in giving more weight to the Human
Rights Report—which did not show widespread mistreatment—
than various articles that gave inconsistent accounts of
the level of discrimination and incidents involving
homosexuals in Peru. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (noting that a
country report from the U.S. Department of State is
“usually the best available source of information on
country conditions” and that the weight of evidence “lies
largely” within the agency’s discretion (citations and
internal quotation marks omitted)); Siewe v. Gonzales, 480
F.3d 160, 167 (2d Cir. 2007) (“[W]here there are two
permissible views of the evidence, the fact finder’s choice
between them cannot be clearly erroneous”).
While the agency did not make an explicit credibility
determination, we may deem this requirement satisfied if a
4
credibility finding can be gleaned from the record. Zaman
v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (concluding
that “the IJ’s analysis in the present case was sufficient
to qualify as an ‘explicit credibility finding’” even
without a clear adverse credibility finding). Because
there was no indication that Jara’s testimony had been
called into question, and the agency considered her
testimony about the treatment of homosexuals in Peru, we
find the agency’s analysis sufficient to qualify as a
finding that Jara was credible. See id. There is no
indication here that the agency failed to consider Jara’s
testimony or her documentary evidence. See Xiao Ji Chen,
471 F.3d at 337 n.17 (presuming that the agency “has taken
into account all of the evidence before [it], unless the
record compellingly suggests otherwise”).
Accordingly, because Jara failed to establish her
eligibility for withholding of removal, she necessarily
could not show, to qualify for CAT relief, that she would
more likely than not be tortured, as that claim was based
5
on the same factual predicate. See Paul v. Gonzales, 444
1
F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending
motion for a stay of removal in this petition is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
Jara has not challenged the agency’s denial of her
asylum claim on timeliness and discretionary grounds.
6