Flores Anyosa v. Whitaker

• Court: Court of Appeals for the Second Circuit
• Decided: December 17, 2018
• Docket: 16-1474
• Status: Unpublished

Opinion

16-1474 Flores Anyosa v. Whitaker

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 at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 17th day of December, two thousand eighteen. 4 5 PRESENT: 6 JON O. NEWMAN, 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 Circuit Judges. 10 _________________________________________ 11 12 CARLOS AUGUSTO FLORES ANYOSA, 13 Petitioner, 14 15 v. No. 16-1474 16 17 MATTHEW G. WHITAKER, 18 Acting Attorney General of the United States, 19 Respondent. 20 _________________________________________ 21 22 FOR PETITIONER: DAVID A. ISAACSON, Cyrus D. Mehta & 23 Partners PLLC, New York, New York. 24 25 FOR RESPONDENT: MATTHEW GEORGE, Trial Attorney 26 (Rebekah Nahas, Trial Attorney, on the 27 brief) for Chad A. Readler, Acting Assistant 28 Attorney General, Civil Division, U.S. 29 Department of Justice, Washington, DC. 30 1 UPON DUE CONSIDERATION of the decision of the Board of Immigration 2 Appeals (“BIA”) dated April 13, 2016, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the petition for review is DENIED.

4 Petitioner Carlos Augusto Flores Anyosa (“Flores”), a native and citizen of Peru, 5 seeks review of an April 13, 2016 decision of the BIA affirming a September 9, 2014 6 decision of an Immigration Judge (“IJ”) that denied Flores’s application for asylum, 7 withholding of removal, and relief under the Convention Against Torture (“CAT”). In re 8 Carlos Augusto Flores Anyosa, No. A 205 137 491 (B.I.A. Apr. 13, 2016), aff’g No. A 205 137 9 491 (Immig. Ct. N.Y. City Sept. 9, 2014). We assume the parties’ familiarity with the 10 underlying facts, procedural history, and arguments on appeal, to which we refer only as 11 necessary to explain our decision to deny the petition for review.

12 Under the circumstances of this case, we review both the IJ’s and BIA’s opinions “for 13 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). In the 14 proceedings before the IJ and the BIA, Flores bore the burden of establishing past 15 persecution or an objectively reasonable well-founded fear of future persecution. 16 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b); Paul v. Gonzales, 444 F.3d 148, 154 (2d 17 Cir. 2006). Because the IJ and the BIA found that Flores testified credibly in all respects, we 18 treat his factual claims as undisputed and review de novo the legal question whether the facts 19 alleged establish past persecution or a well-founded fear of future persecution. Mirzoyan v. 20 Gonzales, 457 F.3d 217, 220 (2d Cir. 2006). We examine the record to determine whether 21 substantial evidence supports the agency’s finding that Flores did not show the Peruvian 22 police were unwilling or unable to protect him against any threatened harm. Diallo v. I.N.S., 23 232 F.3d 279, 287 (2d Cir. 2000).

24 I.

25 Flores first challenges the IJ and BIA’s determination that he failed to demonstrate 26 that he had suffered past persecution. We have defined persecution as “the infliction of 27 suffering or harm upon those who differ on the basis of a protected statutory ground.” 28 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006). Persecution includes “non- 1 life-threatening violence and physical abuse, or non-physical forms of harm such as the 2 deliberate imposition of a substantial economic disadvantage.” Id. (internal quotation marks 3 and citation omitted). It does not, however, include “mere harassment” or “every sort of 4 treatment our society regards as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 5 2011) (internal quotation marks omitted).

6 We have held that, generally speaking, “threats of persecution, no matter how 7 credible, do not [on their own] demonstrate past persecution.” Huo Qiang Chen v. Holder, 773 8 F.3d 396, 406 (2d Cir. 2014) (holding that Chinese government’s threat to impose a fine 9 equivalent to twenty times petitioner’s income did not constitute past persecution because 10 threat was not actually fulfilled). Indeed, as the Ninth Circuit has observed, “if mere threats . 11 . . were enough to constitute past persecution, then it is not clear what would be left of the 12 [well-founded fear of future persecution] category. That is, it is not clear what conduct under 13 such a rule would ever trigger a well-founded fear without simultaneously constituting past 14 persecution itself.” Lim v. I.N.S., 224 F.3d 929, 937 (9th Cir. 2000).

15 Flores concedes that neither he nor his family members were physically harmed by 16 the Los Norteños gang, but argues that Huo Qiang Chen is distinguishable because it focused 17 on unfulfilled economic threats, not death threats, in concluding that the petitioner failed to 18 establish past persecution. But nothing in the reasoning of Huo Qiang Chen is limited to 19 threats of a nature different than death threats. Indeed, in Huo Qiang Chen we cited with 20 approval Lim, 224 F.3d at 932–33, which involved death threats. 773 F.3d at 406.

21 A narrow exception to the rule that the mere receipt of threats generally does not 22 demonstrate past persecution may exist in “certain extreme cases [where] repeated and 23 especially menacing death threats can constitute a primary part of a past persecution claim, 24 particularly where those threats are combined with confrontation or other mistreatment.” 25 Lim, 224 F.3d at 936; see also Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006) (finding 26 past persecution where persecutors held a gun and a knife to petitioner’s head and told him 27 they would kill him if they saw him again). Although the Peruvian gang’s conduct towards 28 Flores was menacing, the circumstances in Flores’s case do not place the threats made to 29 him firmly in the Chavarria category.

3 1 Flores also posits that the emotional and psychological harm he suffered 2 demonstrates that he was persecuted, contending that the agency erred by not analyzing that 3 harm cumulatively with the damage to his home, loss of his job, and confinement. But the 4 record reflects that the agency did consider Flores’s harm cumulatively: the IJ’s decision 5 considered the “cumulative nature of Los Norteños’ conduct,” and acknowledged that 6 Flores’s psychological harm must be considered in the context of the mistreatment he 7 suffered. A.R. 47–48; see also Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (“[W]hile 8 the difference between harassment and persecution is necessarily one of degree . . . the 9 degree must be assessed with regard to the context in which the mistreatment occurs.” 10 (internal quotation marks and citation omitted)). The agency expressly took note of the 11 phone calls that Flores received, as well as the threats and vandalism incident, before 12 concluding that Flores’s harm did not rise to the level of persecution. We identify no error in 13 its conclusion that Flores did not establish past persecution.

14 II.

15 Flores also contends that the agency erred in finding that he failed to show that his 16 fear of future persecution was objectively reasonable. As we have ruled in the past, such a 17 fear “may be well-founded even if there is only a slight, though discernible, chance of 18 persecution.” Yan Chen v. Gonzales, 417 F.3d 268, 270 (2d Cir. 2005) (quoting Diallo, 232 F.3d 19 at 284); cf. Celedon-Herrera v. Lynch, 627 F. App’x 6, 8 (2d Cir. 2015) (concluding that BIA’s 20 finding that petitioner did not have objectively reasonable fear of future persecution was 21 erroneous in case involving threats by gangs). As the agency acknowledged, Flores credibly 22 testified that, while he hid in a back room, members of Los Norteños attacked his home, 23 broke his windows and showered his living room with rocks, at least one of which had a 24 menacing written death threat attached. After the attack, he daily received threatening phone 25 calls that demonstrated that the gang had a specific understanding of his daily routine, 26 including the time that he traveled to and from work and at what time and where he would 27 meet his girlfriend. Flores testified that he perceived these threats to be so severe and 28 credible that he became a “prisoner in [his] own house,” confining himself there 29 continuously from November 15 (the date of the attack) to December 11, 2011 (the date

4 1 that he fled the country). A.R. 112, 119, 139. In an affidavit, Flores emphasized that he left 2 his home only once during this period, when, on November 17, he went to tender his 3 resignation to his employer.

4 The IJ found, and the BIA affirmed, that because Los Norteños had information 5 about Flores’s whereabouts and nevertheless “failed to carry out their threats” while he hid 6 in his home for several weeks, Flores’s fear of future persecution by the gang was not 7 objectively reasonable. A.R. 48. This standard is too exacting. While (as we have noted) 8 unfulfilled threats do not typically constitute past persecution, we have held that they may 9 form the basis for an objectively reasonable well-founded fear of future persecution. See Huo 10 Qiang Chen, 773 F.3d at 408–10 (rejecting as erroneous BIA’s determination that petitioner 11 failed to demonstrate a well-founded fear of future persecution, while affirming BIA’s 12 determination that the same unfulfilled economic threats were insufficient to demonstrate 13 past persecution). When death threats are involved, to rule that these threats must have been 14 “carried out” to give rise to a well-founded fear of future persecution would lead to the 15 absurd requirement that the petitioner have been killed (or at least have suffered an attempt 16 on his life) before becoming eligible for asylum on this ground.

17 Ultimately, however, we need not decide whether the BIA erred in finding that 18 Flores’s fear of future persecution was well-founded and objectively reasonable. Because 19 Flores’s fear of future persecution arose from conduct by a non-state actor, to qualify for 20 asylum he must additionally prove that the Peruvian government is unwilling or unable to 21 protect him from harm. See Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (“Private acts can 22 . . . constitute persecution if the government is unable or unwilling to control such actions.”). 23 In this case, the IJ and the BIA concluded that Flores did not sufficiently establish that the 24 Peruvian government was unwilling or unable to protect him from Los Norteños’ actions. 25 Because this is a factual determination, our review is limited to determining whether the IJ 26 and BIA’s finding is supported by substantial evidence. See Siewe v. Gonzales, 480 F.3d 160, 27 168 (2d Cir. 2007) (“So long as there is a basis in the evidence for a challenged inference, we 28 do not question whether a different inference was available or more likely.”).

5 1 In this regard, the record demonstrates that the Peruvian police took some actions in 2 response to Flores’s complaints that he was being threatened. Officers made an official 3 report on October 28, 2011, reflecting Flores’s allegations against a specific Los Norteños 4 gang member, Antony Perez. After Los Norteños vandalized his home, the police came to 5 his residence in response to his report and photographed the crime scene. The fact that the 6 police did not arrest the Los Norteños gang members during the several-week period after 7 the attack on Flores’s home, when he continued to receive intimidating calls, does not 8 sufficiently demonstrate that they were “unwilling or unable” to protect Flores. Flores’s 9 expert and Department of State reports do provide general evidence of police corruption 10 and inefficiency in Peru, but they are insufficiently particularized to Flores’s local area and 11 situation to negate the agency’s conclusion. The record is silent as to the developments in 12 any police investigation after Flores departed Peru in December 2011. While the evidence of 13 police response in Lima is hardly overwhelming, we conclude that the IJ and BIA’s finding is 14 nonetheless supported by substantial evidence. 15 Flores’s petition for review must therefore be denied. For the same reason, we 16 conclude that Flores has not met the higher standard required to succeed on his claims for 17 withholding of removal and CAT relief. See Paul, 444 F.3d at 156; Kyaw Zwar Tun v. U.S. INS, 18 445 F.3d 554, 567 (2d Cir. 2006). 19 * * * 20 We have considered Flores’s remaining arguments and conclude that they lack merit. 21 For the foregoing reasons, the petition for review is DENIED. As we have completed our 22 review, the stay of removal that the Court previously granted in this petition is VACATED.

24 FOR THE COURT: 25 Catherine O’Hagan Wolfe, Clerk of Court 26