21-6140 Oliveros Hernandez v. Garland BIA Vomacka, IJ A073 049 729
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of December, two thousand twenty-three.
PRESENT:
DENNY CHIN, RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
CESAR DE JESUS OLIVEROS HERNANDEZ,
Petitioner,
v. 21-6140 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________ For Petitioner: Perham Makabi, Kew Gardens, NY.
For Respondent: Brian Boynton, Acting Assistant Attorney General; Daniel E. Goldman, Senior Litigation Counsel; Mona Maria Yousif, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Cesar De Jesus Oliveros Hernandez, a native and citizen of
Guatemala, seeks review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). In re Cesar De
Jesus Oliveros Hernandez, No. A073 049 729 (B.I.A. Feb. 10, 2021), aff'g No. A073 049
729 (Immig. Ct. N.Y. City June 15, 2018). We assume the parties’ familiarity with
the underlying facts and procedural history.
“Because the BIA adopted and affirmed the IJ’s decision, we review the two
decisions in tandem.” Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Questions of law are reviewed de novo, whereas factual findings are reviewed
2 under the substantial-evidence standard and are treated as “‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Paloka
v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)).
An asylum applicant must show past “persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Oliveros Hernandez
asserts that he demonstrated past persecution because his employers and other
workers on the farms where he worked between the ages of nine and twenty
verbally and physically abused him because they perceived him to be indigenous.
Persecution may include “non-life-threatening violence and physical abuse,”
Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm must be
sufficiently severe and rise above “mere harassment,” Ivanishvili v. U.S. Dep’t of
Just., 433 F.3d 332, 341–42 (2d Cir. 2006). “[T]he degree [of harm] must be assessed
with regard to the context in which the mistreatment occurs.” Beskovic, 467 F.3d at
226 (internal quotation marks omitted). Moreover, the harm must be inflicted
either by state actors or by private individuals that “the government is unable or
unwilling to control.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).
3 Here, the agency did not err in concluding that Oliveros Hernandez’s
asserted harms did not rise to the level of persecution. To be sure, Oliveros
Herandez testified that his childhood classmates and managers at the farm where
he worked between the ages of nine and twenty hit him on multiple occasions over
the course of eleven years because they perceived him to be an indigenous person.
But the agency correctly observed that his injuries never required medical
attention, that he only sometimes sustained “bruises” “on [his] body,” and that
this alleged mistreatment resulted in no “lasting injuries.” Certified Admin.
Record at 3, 58, 128–30. Accordingly, the agency did not err in concluding that,
even considering Oliveros Hernandez’s age at the time, the alleged mistreatment
and the extent of his “physical harm” were “insufficiently severe to constitute
persecution.” Id. at 3 (citing id. at 58–59); see Jian Qiu Liu v. Holder, 632 F.3d 820,
822 (2d Cir. 2011). 1
1Oliveros Hernandez also contends that the agency did not address his allegation that “he was whipped with the reins of a horse and shot at . . . when he was only fourteen years old.” Pet. Br. at 17. His own testimony, however, reveals that the farm workers “hit [him] with the reins of the horses” and later shot at him “because [he] was working too slowly” and because he demanded to be paid for his work, not because of his perceived status as an indigenous person. CAR at 112– 13. As such, there is no evidence that his persecutors were motivated to harm him “on account of” a protected ground. 8 U.S.C. § 1101(a)(42); see also Paloka, 762 F.3d at 195 (“Whether the requisite nexus exists depends on the views and motives of the persecutor.” (internal quotation marks omitted)). While the agency did not make any explicit nexus findings with regard to these allegations of violent conduct, remand is unnecessary where “it is clear that the agency would adhere to its prior decision in the absence of error.” Lin v. U.S. Dep’t of Just., 453 F.3d 99, 107 4 Oliveros Hernandez responds that the agency applied an incorrect legal
standard by purportedly determining that there could be no past persecution
without a “lasting injury.” Certified Admin. Record at 3. We disagree. While it
is true that an applicant is not required to show “permanent or serious injury” to
establish past persecution, Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir.
2006), the agency never suggested that the absence of a “lasting injury” was
dispositive, Certified Admin. Record at 3. To the contrary, the BIA considered, in
proper context, all the factors that bore on the past-persecution inquiry before
determining that the IJ did not err in concluding that there was no past
persecution. See, e.g., id. (“[E]ven considering the above-summarized harm
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21-6140 Oliveros Hernandez v. Garland BIA Vomacka, IJ A073 049 729
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of December, two thousand twenty-three.
PRESENT:
DENNY CHIN, RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
CESAR DE JESUS OLIVEROS HERNANDEZ,
Petitioner,
v. 21-6140 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________ For Petitioner: Perham Makabi, Kew Gardens, NY.
For Respondent: Brian Boynton, Acting Assistant Attorney General; Daniel E. Goldman, Senior Litigation Counsel; Mona Maria Yousif, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Cesar De Jesus Oliveros Hernandez, a native and citizen of
Guatemala, seeks review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). In re Cesar De
Jesus Oliveros Hernandez, No. A073 049 729 (B.I.A. Feb. 10, 2021), aff'g No. A073 049
729 (Immig. Ct. N.Y. City June 15, 2018). We assume the parties’ familiarity with
the underlying facts and procedural history.
“Because the BIA adopted and affirmed the IJ’s decision, we review the two
decisions in tandem.” Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Questions of law are reviewed de novo, whereas factual findings are reviewed
2 under the substantial-evidence standard and are treated as “‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Paloka
v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)).
An asylum applicant must show past “persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Oliveros Hernandez
asserts that he demonstrated past persecution because his employers and other
workers on the farms where he worked between the ages of nine and twenty
verbally and physically abused him because they perceived him to be indigenous.
Persecution may include “non-life-threatening violence and physical abuse,”
Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm must be
sufficiently severe and rise above “mere harassment,” Ivanishvili v. U.S. Dep’t of
Just., 433 F.3d 332, 341–42 (2d Cir. 2006). “[T]he degree [of harm] must be assessed
with regard to the context in which the mistreatment occurs.” Beskovic, 467 F.3d at
226 (internal quotation marks omitted). Moreover, the harm must be inflicted
either by state actors or by private individuals that “the government is unable or
unwilling to control.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).
3 Here, the agency did not err in concluding that Oliveros Hernandez’s
asserted harms did not rise to the level of persecution. To be sure, Oliveros
Herandez testified that his childhood classmates and managers at the farm where
he worked between the ages of nine and twenty hit him on multiple occasions over
the course of eleven years because they perceived him to be an indigenous person.
But the agency correctly observed that his injuries never required medical
attention, that he only sometimes sustained “bruises” “on [his] body,” and that
this alleged mistreatment resulted in no “lasting injuries.” Certified Admin.
Record at 3, 58, 128–30. Accordingly, the agency did not err in concluding that,
even considering Oliveros Hernandez’s age at the time, the alleged mistreatment
and the extent of his “physical harm” were “insufficiently severe to constitute
persecution.” Id. at 3 (citing id. at 58–59); see Jian Qiu Liu v. Holder, 632 F.3d 820,
822 (2d Cir. 2011). 1
1Oliveros Hernandez also contends that the agency did not address his allegation that “he was whipped with the reins of a horse and shot at . . . when he was only fourteen years old.” Pet. Br. at 17. His own testimony, however, reveals that the farm workers “hit [him] with the reins of the horses” and later shot at him “because [he] was working too slowly” and because he demanded to be paid for his work, not because of his perceived status as an indigenous person. CAR at 112– 13. As such, there is no evidence that his persecutors were motivated to harm him “on account of” a protected ground. 8 U.S.C. § 1101(a)(42); see also Paloka, 762 F.3d at 195 (“Whether the requisite nexus exists depends on the views and motives of the persecutor.” (internal quotation marks omitted)). While the agency did not make any explicit nexus findings with regard to these allegations of violent conduct, remand is unnecessary where “it is clear that the agency would adhere to its prior decision in the absence of error.” Lin v. U.S. Dep’t of Just., 453 F.3d 99, 107 4 Oliveros Hernandez responds that the agency applied an incorrect legal
standard by purportedly determining that there could be no past persecution
without a “lasting injury.” Certified Admin. Record at 3. We disagree. While it
is true that an applicant is not required to show “permanent or serious injury” to
establish past persecution, Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir.
2006), the agency never suggested that the absence of a “lasting injury” was
dispositive, Certified Admin. Record at 3. To the contrary, the BIA considered, in
proper context, all the factors that bore on the past-persecution inquiry before
determining that the IJ did not err in concluding that there was no past
persecution. See, e.g., id. (“[E]ven considering the above-summarized harm
aggregately and in light of [Oliveros Hernandez’s] age at the time, the mistreatment
and physical harm, which did not result in lasting injuries, are insufficiently severe
to constitute persecution.” (emphasis added)).
Moreover, even if it could be argued that the asserted abuse rose to the level
of persecution, the agency correctly – and independently – noted that the
perpetrators were private actors, and that Oliveros Hernandez never
demonstrated that he sought help from the police or that the Guatemalan
(2d Cir. 2006) (internal quotation marks omitted).
5 “government was [otherwise] unwilling or unable to control the attackers.” Singh
v. Garland, 11 F.4th 106, 115 (2d Cir. 2021). Although Oliveros Hernandez testified
that his family “did not to say anything” to the police for fear that “they wouldn’t
. . . be protected,” Certified Admin. Record at 130–32, nothing in the record reflects
that the Guatemalan government “actually perpetrate[d] or incite[d] the
persecution, condone[d] it[,] or . . . demonstrate[d] a complete helplessness to
protect . . . victims,” Singh, 11 F.4th at 115. Absent such a showing, it cannot be
said that the agency erred in denying the application.
For the same reasons, we agree with the agency’s determination that
Oliveros Hernandez did not meet his burden of establishing eligibility for
withholding of removal or CAT relief. Given that “[t]he standard governing
entitlement to withholding of deportation is more stringent than that governing
the discretionary grant of asylum[,] . . . [a]n applicant’s failure to demonstrate
eligibility for asylum automatically leads to a denial of withholding of
deportation.” Abankwah v. I.N.S., 185 F.3d 18, 22 (2d Cir. 1999). Likewise, because
Oliveros Hernandez failed to meet his burden for showing eligibility for asylum,
he “necessarily” failed to meet the higher standard for CAT relief. See Lecaj v.
Holder, 616 F.3d 111, 119 (2d Cir. 2010).
6 For all of these reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court