20-2271 Lopez-Perez v. Garland BIA Parchert, IJ A093 334 665
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 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 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 29th day of March, two thousand 4 twenty-three. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 BETH ROBINSON, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 MANUEL ORLANDO LOPEZ-PEREZ, 15 Petitioner, 16 17 v. 20-2271 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 1 FOR PETITIONER: Manuel Orlando Lopez-Perez, Pro Se, 2 Totowa, NJ. 3 4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 5 General; Justin Markel, Nancy E. Friedman, 6 Senior Litigation Counsel, Office of 7 Immigration Litigation, United States 8 Department of Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Manuel Orlando Lopez-Perez, a native and citizen of Guatemala,
13 seeks review of a June 19, 2020, decision of the BIA affirming a May 14, 2018,
14 decision of an Immigration Judge (“IJ”) denying his application for asylum,
15 withholding of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Manuel Orlando Lopez-Perez, No. A 093 334 665 (B.I.A. June 19,
17 2020), aff’g No. A 093 334 665 (Immig. Ct. N.Y. City May 14, 2018). We assume
18 the parties’ familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 I. Due Process Violations
22 We do not consider Lopez-Perez’s ineffective assistance of counsel claim
23 because he did not sufficiently raise it before the BIA. See Arango-Aradondo v. INS, 2 1 13 F.3d 610, 614 (2d Cir. 1994) (holding that a petitioner must raise an ineffective
2 assistance claim before the BIA in the first instance). His assertion before the BIA
3 that he was “willing to file a claim for ineffective assistance of counsel if necessary”
4 was insufficient to raise a claim for ineffective assistance of counsel. See Twum v.
5 INS, 411 F.3d 54, 59 (2d Cir. 2005); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d
6 43, 46–47 (2d Cir. 2005). Moreover, contrary to Lopez-Perez’s position, the
7 alleged ineffective assistance is not clear on the face of the record.
8 We reject Lopez-Perez’s argument that the IJ violated his due process rights
9 by failing to develop a full record at the hearing. Although the IJ has an
10 obligation to help develop the record, the burden of proof is on the applicant. See
11 8 U.S.C. §§ 1158(b)(1)(B)(i) (placing burden of proof on asylum applicant),
12 1229a(b)(1) (“The immigration judge shall administer oaths, receive evidence, and
13 interrogate, examine, and cross-examine the alien and any witnesses.”); Qun Yang
14 v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002). To establish a due process violation,
15 the noncitizen must show that the noncitizen was denied the opportunity to be
16 heard “in a meaningful manner,” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
17 2007), and that the “alleged shortcomings have prejudiced the outcome” of the
18 case, Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). Lopez-Perez has
19 not met either prong of this test because the record reflects that the IJ questioned
3 1 him throughout the hearing and he has not alleged what specific additional
2 information he could have provided if questioned further.
3 II. Asylum, Withholding of Removal, and CAT Relief
4 To qualify for asylum and withholding of removal, an applicant must
5 establish past persecution or a well-founded fear of future persecution on account
6 of “race, religion, nationality, membership in a particular social group, or political
7 opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A), 1101(a)(42). An applicant
8 who does not establish past persecution, has the burden to demonstrate an
9 “objectively reasonable” fear of future persecution. Ramsameachire v. Ashcroft, 357
10 F.3d 169, 178 (2d Cir. 2004). A fear is not objectively reasonable if it lacks “solid
11 support” in the record and is merely “speculative at best.” Jian Xing Huang v. U.S.
12 INS, 421 F.3d 125, 129 (2d Cir. 2005).
13 Lopez-Perez did not establish past persecution because he did not testify
14 that he personally suffered any past harm. “As a general principle, an asylum
15 applicant cannot claim past persecution based solely on harm that was inflicted on
16 a family member . . . . The statutory scheme unambiguously dictates that
17 applicants can become candidates for asylum relief only based on persecution that
18 they themselves have suffered or must suffer.” Tao Jiang v. Gonzales, 500 F.3d 137,
19 141 (2d Cir. 2007) (cleaned up).
4 1 Although his argument is not entirely clear, Lopez-Perez appears to assert
2 that the harm his family members suffered caused him emotional and
3 psychological harm that, because of his age at the time, constituted past
4 persecution or is relevant to his present objectively reasonable fear of future
5 persecution. There may be circumstances where harm to a family member is
6 sufficient to constitute past persecution of the applicant, but the applicant would
7 have to have been in the “zone of risk” at the time of the harm and suffered
8 continuing consequences. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.
9 2006) (remanding for consideration of fact that applicant was seven when his
10 family and neighbors were massacred by the Guatemalan army, applicant saw the
11 body of a family member, applicant’s family lost their home and land and
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20-2271 Lopez-Perez v. Garland BIA Parchert, IJ A093 334 665
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 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 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 29th day of March, two thousand 4 twenty-three. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 BETH ROBINSON, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 MANUEL ORLANDO LOPEZ-PEREZ, 15 Petitioner, 16 17 v. 20-2271 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 1 FOR PETITIONER: Manuel Orlando Lopez-Perez, Pro Se, 2 Totowa, NJ. 3 4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 5 General; Justin Markel, Nancy E. Friedman, 6 Senior Litigation Counsel, Office of 7 Immigration Litigation, United States 8 Department of Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Manuel Orlando Lopez-Perez, a native and citizen of Guatemala,
13 seeks review of a June 19, 2020, decision of the BIA affirming a May 14, 2018,
14 decision of an Immigration Judge (“IJ”) denying his application for asylum,
15 withholding of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Manuel Orlando Lopez-Perez, No. A 093 334 665 (B.I.A. June 19,
17 2020), aff’g No. A 093 334 665 (Immig. Ct. N.Y. City May 14, 2018). We assume
18 the parties’ familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 I. Due Process Violations
22 We do not consider Lopez-Perez’s ineffective assistance of counsel claim
23 because he did not sufficiently raise it before the BIA. See Arango-Aradondo v. INS, 2 1 13 F.3d 610, 614 (2d Cir. 1994) (holding that a petitioner must raise an ineffective
2 assistance claim before the BIA in the first instance). His assertion before the BIA
3 that he was “willing to file a claim for ineffective assistance of counsel if necessary”
4 was insufficient to raise a claim for ineffective assistance of counsel. See Twum v.
5 INS, 411 F.3d 54, 59 (2d Cir. 2005); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d
6 43, 46–47 (2d Cir. 2005). Moreover, contrary to Lopez-Perez’s position, the
7 alleged ineffective assistance is not clear on the face of the record.
8 We reject Lopez-Perez’s argument that the IJ violated his due process rights
9 by failing to develop a full record at the hearing. Although the IJ has an
10 obligation to help develop the record, the burden of proof is on the applicant. See
11 8 U.S.C. §§ 1158(b)(1)(B)(i) (placing burden of proof on asylum applicant),
12 1229a(b)(1) (“The immigration judge shall administer oaths, receive evidence, and
13 interrogate, examine, and cross-examine the alien and any witnesses.”); Qun Yang
14 v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002). To establish a due process violation,
15 the noncitizen must show that the noncitizen was denied the opportunity to be
16 heard “in a meaningful manner,” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
17 2007), and that the “alleged shortcomings have prejudiced the outcome” of the
18 case, Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). Lopez-Perez has
19 not met either prong of this test because the record reflects that the IJ questioned
3 1 him throughout the hearing and he has not alleged what specific additional
2 information he could have provided if questioned further.
3 II. Asylum, Withholding of Removal, and CAT Relief
4 To qualify for asylum and withholding of removal, an applicant must
5 establish past persecution or a well-founded fear of future persecution on account
6 of “race, religion, nationality, membership in a particular social group, or political
7 opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A), 1101(a)(42). An applicant
8 who does not establish past persecution, has the burden to demonstrate an
9 “objectively reasonable” fear of future persecution. Ramsameachire v. Ashcroft, 357
10 F.3d 169, 178 (2d Cir. 2004). A fear is not objectively reasonable if it lacks “solid
11 support” in the record and is merely “speculative at best.” Jian Xing Huang v. U.S.
12 INS, 421 F.3d 125, 129 (2d Cir. 2005).
13 Lopez-Perez did not establish past persecution because he did not testify
14 that he personally suffered any past harm. “As a general principle, an asylum
15 applicant cannot claim past persecution based solely on harm that was inflicted on
16 a family member . . . . The statutory scheme unambiguously dictates that
17 applicants can become candidates for asylum relief only based on persecution that
18 they themselves have suffered or must suffer.” Tao Jiang v. Gonzales, 500 F.3d 137,
19 141 (2d Cir. 2007) (cleaned up).
4 1 Although his argument is not entirely clear, Lopez-Perez appears to assert
2 that the harm his family members suffered caused him emotional and
3 psychological harm that, because of his age at the time, constituted past
4 persecution or is relevant to his present objectively reasonable fear of future
5 persecution. There may be circumstances where harm to a family member is
6 sufficient to constitute past persecution of the applicant, but the applicant would
7 have to have been in the “zone of risk” at the time of the harm and suffered
8 continuing consequences. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.
9 2006) (remanding for consideration of fact that applicant was seven when his
10 family and neighbors were massacred by the Guatemalan army, applicant saw the
11 body of a family member, applicant’s family lost their home and land and
12 struggled to survive after relocating); see also Tao Jiang, 500 F.3d at 141–42. In
13 contrast to the massacre, relocation, and financial struggle in Jorge-Tzoc, Lopez-
14 Perez’s father was shot, but survived, Lopez-Perez did not allege that he witnessed
15 the shooting or threats made against his brother a few years later, and, as to
16 continuing consequences, he states only that his parents would not let him go out
17 alone and that he came to the United States because he was tired of living in fear.
18 Lopez-Perez does not otherwise articulate a meaningful challenge to the
19 agency’s determinations that his fear of future persecution and torture was too
5 1 speculative; he simply asserts that the incidents he described gave rise to
2 emotional and psychological suffering and thus give rise to a well-founded fear of
3 persecution. Nor does he challenge the BIA’s findings that he had failed to
4 substantively address the IJ’s conclusion that his fear of future harm was too
5 speculative and that he did not show a state actor. Finally, he did not appeal the
6 IJ’s denial of CAT protection and accordingly we do not reach it. See Yueqing
7 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming applicant’s “claim
8 abandoned” where he raised an issue in “only a single conclusory sentence”).
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court