19-297 Chery v. Garland 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 the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 30th day of August, two thousand twenty-one. 4 5 PRESENT: 6 REENA RAGGI, 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 LYXON CHERY, 13 Petitioner, 14 15 v. 19-297 16 17 MERRICK B. GARLAND, UNITED STATES 18 ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: ROHMAH A. JAVED (Nicholas J. Phillips, on the brief), 23 Prisoners’ Legal Services of New York, Albany, NY. 24 25 FOR RESPONDENT: JENNY C. LEE (Joseph H. Hunt, Anthony P. Nicastro, on 26 the brief), Office of Immigration Litigation, Civil 27 Division, United States Department of Justice, 28 Washington, DC. 29 30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREED that the petition for review of a Board of Immigration Appeals (“BIA”) decision is 2 DENIED. 3 Petitioner Lyxon Chery, a native and citizen of Haiti, seeks review of a January 25, 2019 4 decision of the BIA affirming an August 28, 2018 decision of an immigration judge (“IJ”) denying 5 Chery’s application for deferral of removal under the Convention Against Torture (“CAT”). In 6 re Lyxon Chery, No. A200-474-160 (B.I.A. Jan. 25, 2019), aff’g No. A200-474-160 (Immigr. Ct. 7 Batavia Aug. 28, 2018). We assume the parties’ familiarity with the underlying facts and 8 procedural history. 9 We have reviewed the IJ’s decision as supplemented and modified by the BIA. See Yan 10 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “[W]e apply the substantial evidence 11 standard to questions of fact raised in . . . [the] CAT challenge[], and de novo review to all questions 12 of law, including the application of law to facts.” Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 13 (2d Cir. 2021); see Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). Under the substantial 14 evidence standard, “we must uphold agency factfinding ‘unless any reasonable adjudicator would 15 be compelled to conclude to the contrary.’” Quintanilla-Mejia, 3 F.4th at 583 (emphasis omitted) 16 (quoting 8 U.S.C. § 1252(b)(4)(B)). Where, as here, “a petitioner bears the burden of proof, his 17 failure to adduce evidence can itself constitute the ‘substantial evidence’ necessary to support …
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