reviewing factual findings for substantial evidence and question of law and application of law to fact de novo
How later courts described this case
- reviewing factual findings for substantial evidence and question of law and application of law to fact de novo
Written by the judges who cited it.
The opinion
24-1636
Delgado Coro v. Bondi
BIA
Perl, IJ
A216 986 483/484/485/486
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.
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 21st day of August, two thousand
twenty-five.
PRESENT:
ROBERT D. SACK,
MICHAEL H. PARK,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
JOSE FRANCISCO DELGADO CORO,
MARIA LUZMILA SISA SISA, INGRID
LISBETH DELGADO SISA, ANDREUS
YOEL DELGADO SISA,
Petitioners,
v. 24-1636
NAC
PAMELA BONDI, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Reuben S. Kerben, Esq., Kerben Law Firm,
P.C., Kew Gardens, NY.
FOR RESPONDENT: Yaakov Roth, Acting Assistant Attorney
General; Benjamin Mark Moss, Senior
Litigation Counsel; Rachel L. Browning,
Senior Trial Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, DC.
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 Jose Francisco Delgado Coro, Maria Luzmila Sisa Sisa, and their
minor children, natives and citizens of Ecuador, seek review of a May 29, 2024,
order of the BIA affirming a February 8, 2023, decision of an Immigration Judge
(“IJ”) denying asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Jose Francisco Delgado Coro, et al., Nos. A216 986
483/484/485/486 (B.I.A. May 29, 2024), aff’g Nos. A216 986 483/484/485/486 (Immig.
Ct. N.Y. City Feb. 8, 2023). We assume the parties’ familiarity with the underlying
facts and procedural history.
Under the circumstances, we have reviewed the IJ’s decision as the final
agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
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The applicable standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for
substantial evidence and question of law and application of law to fact de novo).
The IJ reasonably concluded that Petitioners, who were presumed to have a well-
founded fear of persecution by members of a criminal gang on account of their
indigenous ethnicity, could safely relocate within Ecuador to avoid future
persecution.
An applicant who has suffered persecution is presumed to have a well-
founded fear and face a likelihood of future persecution. 8 C.F.R.
§§ 1208.13(b)(1), 1208.16(b)(1)(i). That presumption is rebutted if “a
preponderance of the evidence” shows that the applicant can “avoid future
persecution by relocating to another part of the applicant’s country of
nationality . . . , and under all the circumstances, it would be reasonable to expect
the applicant to do so.” Id. § 1208.13(b)(1)(i)(B), (ii); see also id.
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§ 1208.16(b)(1)(i)(B);* Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006). In concluding
that Petitioners could safely and reasonably relocate within Ecuador to avoid
future persecution, the agency reasonably relied on evidence that: the harm they
had suffered was localized; they had returned to their hometown and lived
without threat of persecution for two years; their relatives continued to live and
support themselves in their hometown; and Ecuador has functioning
administrative and judicial infrastructure and laws protecting indigenous people.
See 8 C.F.R. §§ 1208.13(b)(3), 1208.16(b)(3).
Because a preponderance of the evidence rebutted the presumption that
Petitioners have a well-founded fear of and likelihood of persecution, they were
not eligible for asylum or withholding of removal. See 8 C.F.R.
§§ 1208.13(b)(1)(i)(B), (ii), 1208.16(b)(1)(i)(B), (ii); Singh, 435 F.3d at 218–19. The
relocation finding was also dispositive of CAT relief. See 8 C.F.R. § 1208.16(c)(3)
(listing ability to relocate as a consideration in assessing likelihood of torture);
Singh v. Garland, 11 F.4th 106, 118 (2d Cir. 2021) (“[A]bility to relocate internally
means that [an applicant] cannot establish a likelihood of torture.”) Further, the
* We apply the version of the regulations applied by the agency, such that the
burden of rebuttal was on the Department of Homeland Security. Certified
Administrative Record at 41-42.
4
IJ did not err in concluding that Petitioners failed to establish their eligibility for
humanitarian asylum because the harm they suffered did not meet the required
level of severity. See 8 C.F.R. § 1208.13(b)(1)(iii)(A); Jalloh v. Gonzales, 498 F.3d
148, 151–52 (2d Cir. 2007); In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. 1998).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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