Escobar-Del Cid v. Garland

Opinion

19-730 Escobar-Del Cid v. Garland BIA

Douchy, IJ

A208 562 781

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 9th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 EDVIN MAURICIO ESCOBAR-DEL CID, 14 Petitioner, 15 16 v. 19-730 17 NAC 18 MERRICK B. GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Anne Pilsbury, Esq., Heather Y. 24 Axford, Esq., Central American 25 Legal Assistance, Brooklyn, NY. 26

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent.

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General, Leslie McKay, Greg D. 3 Mack, Senior Litigation Counsel, 4 Office of Immigration Litigation, 5 United States Department of 6 Justice, Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Edvin Mauricio Escobar-Del Cid, a native and 12 citizen of Guatemala, seeks review of a February 27, 2019 13 decision of the BIA affirming a December 11, 2017 decision of 14 an Immigration Judge (“IJ”) denying his application for 15 asylum, withholding of removal, and protection under the 16 Convention Against Torture (“CAT”). In re Edvin Mauricio 17 Escobar-Del Cid, No. A 208 562 781 (B.I.A. Feb. 27, 2019), 18 aff’g No. A 208 562 781 (Immig. Ct. N.Y.C. Dec. 11, 2017). 19 We assume the parties’ familiarity with the underlying facts 20 and procedural history. 21 We have reviewed both the IJ’s and the BIA’s decisions 22 “for the sake of completeness.” Wangchuck v. Dep’t of 23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 24 applicable standards of review are well established. See

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1 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 2 (2d Cir. 2014) (reviewing factual findings for substantial 3 evidence and questions of law de novo). An asylum applicant 4 must show that he has suffered past persecution, or has a 5 well-founded fear of future persecution, on account of “race, 6 religion, nationality, membership in a particular social 7 group, or political opinion.” 8 C.F.R. § 1208.13(b). Upon 8 review of the record, we find no error in the agency’s 9 conclusion the Escobar-Del Cid failed to meet his burden of 10 proof. 11 As an initial matter, he had no concrete evidence linking 12 the threats against him to his political support for a mayoral 13 candidate. The only evidence of a connection was that the 14 incidents followed an election, which the candidate he 15 supported lost, and a caller stated that Escobar-Del Cid had 16 “messed with the big ones.” CAR at 161. As the agency 17 pointed out, the candidate did not suffer any similar threats. 18 Based on this record, the agency did not err in finding 19 insufficient connection between the threats and political 20 activity as required for asylum and withholding of removal. 21 Even assuming a nexus to Escobar-Del Cid’s political

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1 activities, the agency did not err in finding that the past 2 events did not rise to the level of persecution. A past 3 persecution claim can be based on harm other than threats to 4 life or freedom, including non-life-threatening violence and 5 physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 6 (2d Cir. 2006), but the harm must be sufficiently severe, 7 rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of 8 Justice, 433 F.3d 332, 341 (2d Cir. 2006). Escobar-Del Cid 9 alleged that he received a death threat by telephone followed 10 by three incidents in which he was followed by unknown 11 individuals who knew where he lived and worked, brandished a 12 gun, bumped his car, and yelled threats. Threats alone 13 generally do not amount to persecution “unless fulfilled or 14 highly imminent.” Huo Qiang Chen v. Holder, 773 F.3d 396, 15 406 (2d Cir. 2014) (internal quotation marks omitted). To 16 prove that a threat was fulfilled or highly imminent, “an 17 applicant must adduce objective evidence that the threat was 18 so imminent or concrete . . . or so menacing as itself to 19 cause actual suffering or harm.” Scarlett v. Barr, 957 F.3d 20 316, 328 (2d Cir. 2020) (internal citations and quotation 21 marks omitted). While some of the threats against Escobar-

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1 Del Cid were physical, the lack of physical harm and absence 2 of attempts to harm support the agency’s conclusion that the 3 threats did not alone constitute persecution. See Mei Fun 4 Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (“We have 5 emphasized that persecution is an extreme concept that does 6 not include every sort of treatment our society regards as 7 offensive.” (internal quotation marks omitted)). 8 Absent harm rising to the level of past persecution, 9 Escobar-Del Cid had the burden to demonstrate a well-founded 10 fear of future persecution. See 8 C.F.R. § 1208.13(b)(2). 11 To establish a well-founded fear, an applicant must show that 12 he “subjectively fears persecution” and that “his fear is 13 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 14 169, 178 (2d Cir. 2004). A fear may be objectively reasonable 15 “even if there is only a slight, though discernible, chance 16 of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 17 2000). But a fear is not objectively reasonable if it lacks 18 “solid support in the record” and is merely “speculative at 19 best.” Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 20 2005). 21 The agency did not err in finding that Escobar-Del Cid

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1 failed to establish a well-founded fear of persecution. An 2 applicant must show either a reasonable possibility that he 3 would be “singled out individually for persecution” or a 4 “pattern or practice” of persecuting “a group of persons 5 similarly situated to the applicant on account of” a 6 protected ground. 8 C.F.R. § 1208.13(b)(2)(iii). Escobar- 7 Del Cid did not make either showing. He did not allege that 8 anyone continued to seek him out, there had been no threats 9 against his family, and the candidate he had supported had 10 not suffered any harm. Given the dearth of evidence, his 11 fear that he would be singled out for persecution if he 12 returned to Guatemala is too speculative. See Jian Xing 13 Huang, 421 F.3d at 129. Moreover, apart from a report of 14 election-related murders in 2015, the country conditions 15 evidence discusses widespread corruption in the Guatemalan 16 government, not political attacks. See Melgar de Torres v. 17 Reno, 191 F.3d 307, 314 (2d Cir. 1999) (“[A] well-founded 18 fear of persecution must be on account of an enumerated ground 19 set forth in the Act, and general crime conditions are not a 20 stated ground.”). The failure to show an objectively 21 reasonable fear is dispositive of asylum, withholding of

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1 removal, and CAT protection. See Lecaj v. Holder, 616 F.3d 2 111, 119–20 (2d Cir. 2010). 3 For the foregoing reasons, the petition for review is 4 DENIED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court