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BONILLA v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-06-07No. 20-1369

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Opinion

SUMMARY ORDER

Petitioner Durel Jordon Bonilla, a native and citizen of Belize, seeks review of an April 14, 2020, decision of the BIA affirming an October 17, 2019, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Durel Jordon Bonilla, No. X XXX XX7 178 (B.I.A. Apr. 14, 2020), affg No. X XXX XX7 178 (Immig. Ct. N.Y. City Oct. 17, 2019). We assume the readers familiarity with the record.

Under the circumstances of this case, we have reviewed the IJs decision as modified by the BIA. See Xue Hong Yang v. U.S. Dept of Justice, 426 F.3d 520, 522 (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 510, 513 (2d Cir. 2009).

The agency did not abuse its discretion in denying Bonilla asylum as an exercise of discretion. The agency considered the factors that favored a grant of asylum, including Bonillas sixteen years in the United States, his lawful entrance into the country, and his pursuit of permanent residency since his mothers Violence Against Women Act application, as well as the negative factors of Bonillas criminal history and failure to take responsibility for his actions. See Wu Zheng Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006) (explaining that a discretionary decision on asylum requires the agency to review the “totality of circumstances” by “balancing ․ favorable and adverse factors”). While Bonilla argues that the agency did not apply the correct standard of discretion in denying him asylum, see Doherty v. U.S. Dept of Justice, INS, 908 F.2d 1108, 1120 (2d Cir. 1990) (drawing distinction between the “ ‘discretion’ to grant ․ adjustment of status” and the “ ‘discretion’ to grant asylum”), revd on other grounds, INS v. Doherty, 502 U.S. 314, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992), both the BIA and the IJ thoroughly reviewed the applicable factors, came to reasonable conclusions, and provided a “rational explanation” for the agencys decision, see Ke Zhen Zhao v. U.S. Dept of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

Substantial evidence also supports the agencys denial of Bonillas withholding of removal and CAT claims. As to Bonillas sexual orientation, the IJ properly highlighted his concerns with Bonillas inability to recall specific details about his relationships with men as well as Bonillas failure to provide sufficient corroboration to support his identification as bisexual. The agency also properly concluded that Bonilla failed to show a pattern or practice of persecution of bisexual men in Belize; while the IJ acknowledged that Belizean law does not expressly prohibit discrimination based on sexual orientation, the agency reasonably found that the Belizean government is taking active steps to promote equality for the LGBTQ community, and that Bonillas fear of persecution based on his sexual orientation was too speculative to support his application. Because we cannot say that any reasonable adjudicator would be “compelled” to conclude the contrary, see Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008), we uphold the agencys factual determinations.

The agency also did not err in finding that “individuals in Belize who suffer visibly from disabilities or mental health problems” is not a cognizable social group for withholding of removal purposes. As the IJ explained, Bonillas proposed group is not sufficiently particular because it lacks defined boundaries and covers an overly broad swath of illness. See Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1164 (9th Cir. 2013) (finding that the petitioners proposed group of “insulin-dependent persons with mental-health problems” was not sufficiently “particular”). While Bonilla claims that the agency ignored a qualifier in Bonillas proposed social group — it only includes people who “suffer visibly” from physical or mental disabilities — nothing in the record suggests that the agency ignored or overlooked Bonillas narrower definition, or that such qualification would change the agencys decision. See Cert. Admin. Rec. at 84 (“[U]nlike ‘individuals with bipolar disorder’ who exhibit erratic behavior,” [Bonilla]’s proposed group fails on particularity because it includes large numbers of people, different conditions, and different severities of symptoms.”) (citing Temu v. Holder, 740 F.3d 887, 895 (4th Cir. 2014)).

Bonilla also argues that the agency applied a heightened government acquiescence standard by requiring Bonilla to prove “that Belizean authorities would themselves torture him” upon his return. Appellants Br. at 46 (emphasis in original). Contrary to Bonillas argument, the IJ expressly found that Bonilla was not only unlikely to “suffer harm rising to the level of torture” generally, but that Bonilla failed to show “that such harm would occur with the participation or acquiescence of the government.” Cert. Admin. Rec. at 89.

We have considered all of Bonillas remaining arguments and find them without merit. Accordingly, we DENY this petition for review. All pending motions and applications are DENIED and stays VACATED.