09-0272-ag
Guerrero v. Holder
BIA
Owens, IJ
A097-916-220
A097-916-219
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C IT AT IO N T O A SU M M A R Y O R D E R F IL ED O N O R A F TE R
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D T H IS C O U RT ’S L O CAL
R U L E 32.1.1. W H E N C ITIN G A SU M M AR Y O RD E R IN A D O CU M E N T FILE D W IT H T H IS C O U R T , A PAR TY M U ST CITE E ITH ER TH E
F E D E R A L A P P E N D IX O R A N E L E C TR O N IC D A T AB A SE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A PAR TY C ITIN G A SU M M AR Y
O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of February, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_______________________________________
ROBERTO GUERRERO, NOHORA GUERRERO,
Petitioners,
v. 09-0272-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
______________________________________
FOR PETITIONER: Glenn L. Formica, New Haven, CT.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Stephen J.
Flynn, Assistant Director; Karen Y.
Stewart, Office of Immigration
Litigation, Civil Division, 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.
Petitioners Roberto and Nohora Guerrero, natives and
citizens of Colombia, seek review of a December 22, 2008
order of the BIA affirming the May 7, 2007 decision of
Immigration Judge (“IJ”) Robert P. Owens denying
Petitioners’ applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Guerrero, No. A 097 916 220/219 (B.I.A. Dec.
22, 2008), aff’g No. A 097 916 220/219 (Immig. Ct. Hartford,
Conn. May 7, 2007). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
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510, 513 (2d Cir. 2009).
Because petitioners do not challenge the agency’s
pretermission of their asylum applications, we address only
their challenge to the agency’s denial of their applications
for withholding of removal and CAT relief. The BIA affirmed
the IJ’s denial of petitioners’ application for withholding
of removal, finding that although they were credible, they
had not established the requisite nexus to a protected
ground. See 8 U.S.C. §§ 1101(a)(42), 1231(b)(3).
Petitioners concede that their son was not recruited by
the Revolutionary Armed Forces of Colombia (the “FARC”) for
political reasons, but nonetheless assert that the threats
and extortion that the FARC directed against them was on
account of their anti-FARC political beliefs. However, even
assuming that petitioners held a political opinion
antithetical to that of the FARC, they were required to
demonstrate that the FARC’s actions were motivated by that
political opinion, instead of continued efforts to forcibly
recruit their son. See INS v. Elias-Zacarias, 502 U.S. 478,
479-83 (1992). Given the record here, we are not compelled
to find, contrary to the agency, that they made such a
showing. See id.; Siewe v. Gonzales, 480 F.3d 160, 167 (2d
Cir. 2007) (“Where there are two permissible views of the
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evidence, the factfinder’s choice between them cannot be
clearly erroneous.” (quoting Anderson v. Bessemer City, 470
U.S. 564, 574 (1985))). Because petitioners failed to
demonstrate a nexus to a protected ground, the agency’s
denial of withholding of removal was not in error. 8 U.S.C.
§§ 1101(a)(42), 1231(b)(3).
Petitioners also argue that the agency erred in denying
their application for CAT relief, contending that they
demonstrated that they would likely be tortured by or with
the acquiescence of an individual with governmental
authority. See U.N. Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, art. 1, ¶ 1, opened for signature Dec. 10, 1984,
S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. That
argument lacks merit because petitioners testified that they
never informed the government of any of the FARC’s actions.
Having failed to seek the assistance of the government,
petitioners could not show that the government would
acquiesce in any future torture. See 8 C.F.R.
§ 1208.18(a)(7) (stating that “[a]cquiesence of a public
official requires that the public official, prior to the
activity constituting torture, have awareness of such
activity and thereafter breach his or her legal
4
responsibility to intervene to prevent such activity”
(emphasis added)); see also Khouzam v. Ashcroft, 361 F.3d
161, 171 (2d Cir. 2004). Thus, the agency did not err in
rejecting petitioners’ CAT claim.
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 DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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