Jose Nunez-Martinez v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: September 10, 2020
• Docket: 19-3633
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-3633 ______________

JOSE NOE NUNEZ-MARTINEZ, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA-1: A099-474-935) Immigration Judge: Kuyomars Q. Golparvar ______________

Submitted on September 9, 2020

BEFORE: CHAGARES, HARDIMAN, and MATEY, Circuit Judges

(Filed: September 10, 2020)

____________

OPINION* ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Jose Noe Nunez-Martinez petitions for review of the decision of the Board of

Immigration Appeals (BIA). We will deny the petition.

I

Nunez-Martinez, a Mexican citizen, entered the United States without inspection

and was subsequently removed under an expedited removal order in 2010. He illegally

reentered the United States shortly afterwards. He then married a United States citizen,

who filed an I-130 Petition for Alien Relative on his behalf. In early 2018, authorities

arrested Nunez-Martinez, reinstated his 2010 expedited removal order, and detained him.

Nunez-Martinez requested a reasonable fear interview. At the end of the interview,

an asylum officer determined Nunez-Martinez had a reasonable fear of persecution or

torture and referred his case to an Immigration Judge (IJ). Appearing before the IJ,

Nunez-Martinez testified he was afraid to return to Mexico because of the mistreatment

he would suffer as an openly gay man. As Nunez-Martinez was statutorily ineligible for

asylum, he sought only withholding of removal and protection under the Convention

Against Torture (CAT).

The IJ issued an oral decision denying relief. Although he found Nunez-Martinez

credible, and determined he was a member of a particular social group (homosexuals

from Mexico), the IJ concluded Nunez-Martinez had not suffered past persecution. The IJ

likewise concluded Nunez-Martinez failed to establish it was more likely than not he

would suffer from future persecution and that he was ineligible for protection under the

CAT.

2 Nunez-Martinez appealed to the BIA. The BIA dismissed his petition, agreeing

with the IJ that Nunez-Martinez had not suffered from past persecution or demonstrated a

clear probability that his life or freedom would be threatened if he returned to Mexico.

Nunez-Martinez timely petitioned this Court for review.

II

We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.

§ 1252(a)(1). “Where, as here, the BIA issues a written decision on the merits, we review

its decision and not the decision of the IJ,” Baptiste v. Att’y Gen., 841 F.3d 601, 605 (3d

Cir. 2016) (internal quotations omitted), and we “look to the IJ’s ruling only insofar as

the BIA defers to it,” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010) (citing

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006)). We review legal issues de

novo. Duhaney v. Att’y Gen., 621 F.3d 340, 345 (3d Cir. 2010). But questions of past

persecution, or likelihood of future persecution, are factual issues we review “under the

deferential substantial evidence standard.” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.

2001). “Substantial evidence is more than a mere scintilla and is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Senathirajah v.

INS, 157 F.3d 210, 216 (3d Cir. 1998) (internal quotation marks and citation omitted).

3 III

Nunez-Martinez argues the BIA erred in denying him withholding of removal and

protection under the CAT. We are unpersuaded.

A

Nunez-Martinez first claims we should remand his case to the BIA in light of two

recent cases, Herrera-Reyes v. Att’y Gen., 952 F.3d 101 (3d Cir. 2020) and Doe v. Att’y

Gen., 956 F.3d 135 (3d Cir. 2020). On his view, these cases “fundamentally undercut

both the IJ and the BIA’s” reasoning in denying him withholding of removal and require

remand. Nunez-Martinez Br. 24. We disagree.

“To qualify for withholding of removal, an applicant must show a ‘clear

probability’ that his . . . life or freedom would be threatened if he . . . is deported.” Toure

v. Att’y Gen., 443 F.3d 310, 317 (3d Cir. 2006) (quoting Lin v. INS, 238 F.3d 239, 244

(3d Cir. 2001)). Under that standard, the question is “whether it is more likely than not

that the alien would be subject to persecution.” Id. (quoting INS v. Stevic, 467 U.S. 407,

424 (1984)). An alien who shows past persecution establishes a rebuttable presumption of

fear of future persecution. Id.

“[P]ersecution is an extreme concept,” that “does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS,

12 F.3d 1233, 1243, 1240 (3d Cir. 1993) (internal quotation marks omitted). Rather, it

includes only grave harms such as “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Id. at 1240.

4 In Herrera-Reyes, we synthesized our approach to determining whether an alien

has a well-founded fear of future persecution. 952 F.3d at 106–09. In particular, we

“dr[ew] three lessons” from our prior case law. See id. at 106–08 (relying on Gomez-

Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008); Chavarria, 446 F.3d at 508; and

Zhen Hua Li v. Att’y Gen., 400 F.3d 157 (3d Cir. 2005)).

First, we clarified that “our threat cases are not an exception to the general rule of

cumulative analysis but simply applications of it.” Id. at 107. Second, in considering

whether a past threat qualifies as persecution, our main considerations are “whether the

threat is ‘concrete’ and ‘menacing.’” Id. at 108. In holding that our “standard going

forward [is] simply [whether the threat is] ‘concrete and menacing,’” we stepped away

from prior decisions relying on imminence. Id. Third and finally, we held that the

“concrete and menacing” standard “is not a unique persecution standard for threat cases,

but rather a term that reflects the court’s ultimate determination that the cumulative effect

of the threat and its corroboration presents a real threat to a petitioner’s life or freedom.”

Id. (internal quotation marks, alterations, and citation omitted). Threats are concrete when

they are neither abstract nor ideal and they are menacing when they show an “intention to

inflict harm.” Id. (internal quotation marks and citation omitted). Thus, we concluded, a

threat constitutes past persecution when, “considered in the context of the full record[, it]

poses a severe affront to the petitioner’s life or freedom.” Id. (internal quotation marks

omitted) (citing Gomez-Zuluaga, 527 F.3d at 341).

In Doe, we applied Herrera-Reyes to the case of a Ghanaian refugee seeking

asylum and withholding of removal. 956 F.3d at 138–39, 143–44. Although we

5 concluded the BIA and IJ erred in finding the Petitioner had not suffered past

persecution, id. at 150, we also emphasized that a failure to find past persecution does not

bar an applicant from receiving asylum, id. at 151. Rather, the applicant may

“demonstrate that he has a well-founded fear of future persecution,” by showing he

would be “individually singled out for persecution on account of a statutorily protected

ground” or that “there is a pattern or practice in his home country of persecution against a

group of which he is a member.” Id. (internal quotation marks omitted) (citing Khan v.

Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012)). Of course, “[t]he source of the persecution

must be the government or forces that the government is unwilling or unable to control.”

Id. (internal quotation marks and citation omitted).

Nunez-Martinez faults the BIA and IJ for relying on and discussing the imminence

of the threats he faced, and for relying on Chavarria, 446 F.3d at 508, and Gomez-

Zuluaga, 527 F.3d at 330, without mention of Herrera-Reyes, 952 F.3d at 101, or Doe,

965 F.3d at 135. But we cannot fault the BIA for failing to rely on Herrera-Reyes or Doe

when neither of those cases had been decided at the time of its adjudication. Regardless,

far from overruling either Chavarria or Gomez-Zuluaga, Herrera-Reyes relied heavily on

both of those cases in holding the operative question is whether past threats and their

cumulative effects on an applicant present “a real threat to [a petitioner’s] life or

freedom.” Herrera-Reyes, 952 F.3d at 108 (quotation marks, alteration, and citation

omitted).

We see no error in the BIA’s (and IJ’s) conclusion that Nunez-Martinez did not

suffer past persecution. Nunez-Martinez testified credibly that, in 2001, “after his former

6 girlfriend’s family began suspecting he was a homosexual,” her brothers began

“threaten[ing] to beat him” and “driving by his place of work.” AR 4. There was no

allegation of intent to follow through on these threats, nor did the trouble follow Nunez-

Martinez when he moved to Tijuana for four to six months around that time. And when

Nunez-Martinez returned to Mexico in 2010, “he was not harmed or mistreated while he

was there, . . . [though he] liv[ed] a closeted life.” AR 53.

Because Nunez-Martinez was unable to prove past persecution, the BIA agreed

with the IJ that he was unable to meet the “very heavy burden” of “demonstrat[ing] a

clear probability that his life or freedom would be threatened in Mexico on account of his

membership in a particular social group.” AR 4, 61; see also Doe, 956 F.3d at 151. Our

review of the record leads us to conclude that more than a “mere scintilla” of evidence

supports the BIA’s conclusion. Senathirajah, 157 F.3d at 216. Beyond the threats from

his ex-girlfriend’s brothers years ago, Nunez-Martinez testified to no other “harm[] or

mistreat[ment]” and “the police have never targeted him and he is not afraid of the

police.” AR 60.

In sum, substantial evidence supports the BIA’s conclusion that Nunez-Martinez

did not suffer past persecution and that he failed to establish that he is more likely than

not to be persecuted in the future. See Abdille, 242 F.3d at 483.1

1 Because we agree Nunez-Martinez failed to establish that he is more likely than not to suffer from future persecution, we do not address his remaining arguments challenging the BIA’s denial of withholding of removal. 7 B

Nunez-Martinez also challenges the BIA’s determination that he was not entitled

to CAT relief. In seeking relief under the CAT, an applicant “bears the burden of

establishing that it is more likely than not that he . . . would be tortured if removed to the

proposed country of removal” by or with the government’s acquiescence. Sevoian v.

Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks and citation

omitted). “Acquiescence” requires “that government officials remain willfully blind to

torturous conduct and breach their legal responsibility to prevent it.” Valdiviezo-

Galdamez v. Att’y Gen., 663 F.3d 582, 610 (3d Cir. 2011) (quotation marks and citation

Nunez-Martinez argues that the Board mischaracterized or improperly analyzed

his claims. Not so. The BIA accurately held that Nunez-Martinez was never physically

harmed—and certainly not tortured—in the past, did not suffer any harm when he

returned to Mexico in 2010, and never reported any problems to the police. Substantial

evidence in the record supports these conclusions. Finding no error in the BIA’s and IJ’s

conclusion that Nunez-Martinez failed to establish that it is more likely than not he would

be tortured if returned to Mexico, he was not entitled to protection under the CAT.

* * *

We will deny Nunez-Martinez’s petition for review for the reasons stated.