Dekom v. New York

583 F. App'x 15

2d Cir.

2014

Check Treatment

Docket

Martin DEKOM, Kenneth Jacoby, Carol Pendleton, on behalf of the Estate of Robert Pendleton, Plaintiffs-Appellants, v. State of NEW YORK; Andrew Cuomo, Governor; Eric T. Schneiderman, Attorney General; New York State Board of Elections; James Walsh, Commissioner; Evelyn Aquilla, Commissioner; Douglas Kellner, Commissioner; Gregory P. Peterson, Commissioner; Nassau County Board of Elections; Louis Savinetti, Republican Commissioner; William Biamonte, Democratic Commissioner; Defendants-Appellees.

No. 13-2773-cv.

United States Court of Appeals, Second Circuit.

Nov. 20, 2014.

reyra did not rise to the level of persecution. Ivanishvili v. U.S. Dep‘t of Justice, 433 F.3d 332, 341 (2d Cir.2006). Second, Cruz-Ferreyra‘s family has remained in Peru unharmed. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). Finally, Cruz-Ferreyra failed to establish that the Peruvian government was unwilling or unable to protect him. He testified that he did not attempt to notify police or other government officials when he witnessed corruption. Although Cruz-Ferreyra stated that he believed reporting the corruption would be futile, the country conditions evidence indicates that the government is working to combat corruption in the police force. See Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir.2006) (reiterating that persecution is harm inflicted by a governmental actor or independent actors who the government is unwilling or unable to control). While Cruz-Ferreyra asserts that the agency applied an overly rigorous standard and that his testimony alone established his entitlement to relief, there is absolutely no support for his contention that credible testimony alone is sufficient as a matter of law to demonstrate entitlement to relief. 8 U.S.C. § 1158(b)(1)(B)(ii); see Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir.2008) (while “credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear“). Under these circumstances, the agency had substantial evidence to support its finding that Cruz-Ferreyra failed to establish a well-founded fear of persecution. See Jian Xing Huang, 421 F.3d at 129; Melgar de Torres, 191 F.3d at 313.

Cruz-Ferreyra has abandoned any challenge to the BIA‘s denial of withholding of removal and CAT relief by failing to sufficiently address those forms of relief in his brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005). Even if raised, such a challenge would necessarily fail for the reasons given above. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir.2010) (“Withholding of removal and CAT relief entail a greater likelihood of future persecution than that required for the grant of asylum.“).

For the foregoing reasons, the petition for review is DENIED.

Martin Dekom, Manhasset, NY, pro se.

Kenneth Jacoby, Oceanside, NY, pro se.

Carol Pendleton, Merrick, NY, pro se.

Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, Karen W. Lin, Assistant Solicitor General for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for State of New York, Andrew Cuomo, Governor, Eric T. Schneiderman, Attorney General, New York State Board of Elections, James Walsh, Commissioner, Evelyn Aquilla, Commissioner, Douglas Kellner, Commissioner, Gregory P. Peterson, Commissioner.

Gerald R. Podlesak, Deputy County Attorney for Carnell T. Foskey, Nassau County Attorney, Mineola, NY, for Nassau County Board of Elections, Louis Savinetti, Republican Commissioner, William Biamonte, Democratic Commissioner.

PRESENT: AMALYA L. KEARSE, CHESTER J. STRAUB, REENA RAGGI, Circuit Judges.

SUMMARY ORDER

In this pro se challenge to provisions of New York State Election Law relating to the designation of candidates for political office, plaintiffs Martin Dekom, Kenneth Jacoby, and Carol Pendleton (on behalf of the Estate of Robert Pendleton) appeal the dismissal of their action for lack of jurisdiction and failure to state a claim, see Fed.R.Civ.P. 12(b)(1), (6), as well as the denial of their motions for recusal of the district judge, and for the referral of their suit to a three-judge panel. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm largely for the reasons stated by the district court.

We review de novo the dismissal of a complaint for failure to state a claim, construing the complaint liberally, accepting all factual allegations therein as true, and drawing all reasonable inferences in plaintiffs’ favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Nevertheless, a complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to admit a “reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and pleadings that “are no more than conclusions are not entitled to the assumption of truth.” Id. at 678, 679. Dismissals for lack of jurisdiction are likewise re- viewed de novo. See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir.2012).

Although this court has not explicitly identified the standard of review for denial of a motion for reassignment to a three-judge panel under 42 U.S.C. § 1973aa-2, we have recognized a similar three-judge panel requirement as jurisdictional, see Kalson v. Paterson, 542 F.3d 281, 287 (2d Cir.2008), thus triggering de novo review.

We review the denial of a recusal motion for abuse of discretion. See United States v. Carlton, 534 F.3d 97, 100 (2d Cir.2008). Title 28 U.S.C. § 455 states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” or “[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1). Under § 455, the relevant inquiry is “whether an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal, or alternatively, whether a reasonable person, knowing all the facts, would question the judge‘s impartiality.” United States v. Yousef, 327 F.3d 56, 169 (2d Cir.2003) (alteration in original) (internal quotation marks omitted).

Applying these principles to the record here, we conclude for the reasons stated by the district court in its well-reasoned and thorough decision that (1) the amended complaint was properly dismissed for lack of jurisdiction and failure to state a claim, (2) the three-judge panel requirement under § 1973aa-2 was inapplicable, and (3) there is no basis for reasonably questioning the impartiality of the district judge so as to require recusal.

We have considered all of plaintiffs’ remaining arguments and conclude that they are also without merit. Accordingly, we AFFIRM the judgment of the district court.

* The Clerk of Court is directed to amend the official caption as shown above.

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