Sanchez-Juarez v. Garland

Opinion

21-6460 Sanchez-Juarez v. Garland BIA

Douchy, IJ

A208 157 972

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 20th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 REENA RAGGI, 8 JOSEPH F. BIANCO, 9 SARAH A. L. MERRIAM, 10 Circuit Judges. 11 _____________________________________ 12 13 OSCAR SANCHEZ-JUAREZ, 1 14 Petitioner, 15 16 v. 21-6460 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22

1 The Clerk of Court is directed to amend the caption as set forth above.

1 FOR PETITIONER: Anne Pilsbury, Esq., Central American Legal 2 Assistance, Brooklyn, NY. 3 4 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 5 Attorney General, Civil Division; Erica B. 6 Miles, Acting Assistant Director, Office of 7 Immigration Litigation; Erik R. Quick, Trial 8 Attorney, Office of Immigration Litigation, 9 United States Department of Justice, 10 Washington, DC.

11 UPON DUE CONSIDERATION of this petition for review of a Board of 12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 13 DECREED that the petition for review is DENIED. 14 Petitioner Oscar Sanchez-Juarez, a native and citizen of El Salvador, seeks 15 review of a July 21, 2021 decision of the BIA affirming a November 27, 2018 16 decision of an Immigration Judge (“IJ”), which denied his application for asylum, 17 withholding of removal, and relief under the Convention Against Torture 18 (“CAT”). In re Oscar Sanchez-Juarez, No. A 208 157 972 (B.I.A. July 21, 2021), aff’g 19 No. A 208 157 972 (Immigr. Ct. N.Y. City, Nov. 27, 2018). We assume the parties’ 20 familiarity with the underlying facts and procedural history. 21 We have reviewed both the IJ’s and BIA’s opinions “for the sake of 22 completeness.” Wangchuck v. Dep’t of Homeland Sec., Immigr. & Customs Enf't, 448 23 F.3d 524, 528 (2d Cir. 2006). We review factual findings for substantial evidence

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1 and questions of law and application of law to fact de novo. Yanqin Weng v. Holder, 2 562 F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of fact are 3 conclusive unless any reasonable adjudicator would be compelled to conclude to 4 the contrary.” 8 U.S.C. § 1252(b)(4)(B). We find no error in the agency’s 5 determination that Sanchez-Juarez failed to establish past persecution or a well- 6 founded fear of persecution on the basis of an imputed anti-gang political opinion 7 or as an immediate family member of a Salvadoran police officer. 8 To establish eligibility for asylum and withholding of removal, an applicant 9 must establish past persecution or a well-founded fear (asylum) or likelihood 10 (withholding of removal) of persecution and that “race, religion, nationality, 11 membership in a particular social group, or political opinion was or will be at least 12 one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see 13 also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52 14 F.4th 103, 114 (2d Cir. 2022) (holding that the “one central reason” standard applies 15 to both asylum and withholding of removal). 16 I. Past Persecution 17 The agency did not err in concluding that Sanchez-Juarez did not establish 18 past persecution. Generally, “applicants can become candidates for asylum relief

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1 only based on persecution that they themselves have suffered or must suffer.” 2 Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296, 308 (2d Cir. 2007). “[P]ersecution 3 is an extreme concept that does not include every sort of treatment our society 4 regards as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) 5 (internal quotation marks and citation omitted). 6 Sanchez-Juarez testified that his father was murdered by gang members 7 because he was a police officer, and afterwards his family received three unsigned 8 letters threatening to kill them if they did not leave. They believed the letters 9 were from gang members. After receiving the third letter, Sanchez-Juarez 10 relocated a four-hour drive away to live with his grandmother. The threats 11 stopped, but his cousin was murdered at some later time—gang members pulled 12 him off a bus, which Sanchez-Juarez also usually rode, and his body was found 13 months later. While tragic, these murders do not constitute persecution of 14 Sanchez-Juarez. See Shi Liang Lin, 494 F.3d at 308; Tao Jiang v. Gonzales, 500 F.3d 15 137, 143 (2d Cir. 2007) (denying petition where applicant personally suffered no 16 abuse and did not share the characteristic that triggered his parent’s persecution). 17 The agency did not err in concluding that the threatening letters did not rise 18 to the level of persecution. The letters were unsigned and thrown at the house

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1 rather than delivered to the family, and Sanchez-Jaurez did not provide details 2 that would link the letters to his father’s murder. Absent evidence that the threats 3 were imminent or against him personally, the agency reasonably concluded that 4 they did not rise to the level of persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449 5 F.3d 408, 412–13 (2d Cir. 2006) (per curiam) (collecting cases rejecting claim that 6 threats were sufficient to show past persecution); see also Scarlett v. Barr, 957 F.3d 7 316, 328 (2d Cir. 2020) (requiring evidence that threats were “imminent or 8 concrete” (internal quotation marks and citation omitted)). 9 II. Well-Founded Fear of Future Persecution 10 Absent past persecution, a noncitizen may establish eligibility for asylum by 11 demonstrating a “well-founded fear” of future persecution. 8 C.F.R. 12 § 1208.13(b)(2). To establish a well-founded fear of persecution, an applicant 13 must “present credible testimony that he subjectively fears persecution and 14 establish that his fear is objectively reasonable.” Ramsameachire v. Ashcroft, 357 15 F.3d 169, 178 (2d Cir. 2004). “Objective reasonableness entails a showing that a 16 reasonable person in the petitioner’s circumstances would fear persecution if 17 returned to his native country.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d 18 Cir. 2005) (per curiam). A “fear may be well-founded even if there is only a slight,

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1 though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d 2 Cir. 2000). But a fear is not objectively reasonable if it lacks “solid support” in the 3 record and is merely “speculative at best.” Jian Xing Huang, 421 F.3d at 129. In 4 addition to being well founded, the fear must be on account of “race, religion, 5 nationality, membership in a particular social group, or political opinion.” 8 6 U.S.C. § 1158(b)(1)(B)(i). The agency did not err in concluding that Sanchez- 7 Juarez failed to establish a well-founded fear of persecution on account of actual 8 or imputed political opinion or his membership in a particular social group of 9 families of police officers. 10 As the government argues, Sanchez-Juarez abandoned his challenge to the 11 denial of his political opinion claim by failing to adequately raise it in his opening 12 brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming 13 applicant’s “claim abandoned” where he raised an issue in “only a single 14 conclusory sentence”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) 15 (holding that an issue is not adequately raised when it is argued “for the first time 16 in a reply brief”). Even if we were to consider the issue, we would find no error 17 in the agency’s conclusion. Sanchez-Juarez did not provide “solid support” for 18 his claim that he would be targeted on account of his anti-gang political opinion.

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1 Jian Xing Huang, 421 F.3d at 129. “The applicant must . . . show, through direct or 2 circumstantial evidence, that the persecutor’s motive to persecute arises from the 3 applicant’s political belief,” Yueqing Zhang, 426 F.3d at 545, either “actual or 4 imputed,” Castro v. Holder, 597 F.3d 93, 103 (2d Cir. 2010). Although Sanchez- 5 Juarez was credible as to his belief that MS-13 sent the letters and that it did so 6 because gang members were arrested for his father’s murder, neither that belief 7 nor alleged retaliation for the arrests establishes that the gang members perceived 8 him as having a political opinion. “Whether the requisite nexus exists depends 9 on the views and motives of the persecutor.” Paloka v. Holder, 762 F.3d 191, 196– 10 97 (2d Cir. 2014) (internal quotation marks and citation omitted). “Fears of 11 retribution over purely personal matters or general conditions of upheaval and 12 unrest do not constitute cognizable bases for granting asylum.” Zelaya-Moreno v. 13 Wilkinson, 989 F.3d 190, 199 (2d Cir. 2021) (alterations adopted) (internal quotation 14 marks and citation omitted). 15 As to the social group claim, the agency reasonably concluded that Sanchez- 16 Juarez failed to establish a well-founded fear of persecution on account of his 17 membership in the particular social group of families of police officers. He had 18 the burden to establish that this fear was well-founded, “that the group itself was

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1 cognizable, and that the alleged persecutors targeted the applicant on account of 2 [his] membership in that group.” Paloka, 762 F.3d at 195 (internal quotation 3 marks and citation omitted). Even assuming this proposed social group was 4 cognizable, Sanchez-Juarez failed to establish an objectively reasonable fear that 5 he would be harmed because of his membership in that group. His fear of harm 6 as the immediate family member of a police officer was undercut by his own 7 testimony that none of his father’s immediate family members have been 8 approached, threatened, or harmed by gang members in El Salvador since his 9 murder. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding an 10 applicant’s fear diminished when similarly situated family members remain 11 unharmed in applicant’s native country). And there was no evidence that he was 12 the intended target in his cousin’s murder. The fact that gang members singled 13 out Sanchez-Juarez’s cousin is not evidence of mistaken identity, particularly 14 given the absence of prior or future attempts to harm Sanchez-Juarez or more 15 immediate members of his father’s family. See Jian Xing Huang, 421 F.3d at 128– 16 29 (finding no well-founded fear when applicant supported his claim with “sparse 17 and uncorroborated” testimony, and failed “to offer credible, specific, and detailed 18 evidence”). While Sanchez-Juarez argues that country conditions evidence

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1 shows that police officers’ families are targeted for violence, that evidence does 2 not compel a conclusion that he had a well-founded fear given the absence of harm 3 or attempted harm of other members of his father’s immediate family. See 4 Quintanilla-Mejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2021) (holding that when the 5 “agency’s conclusion finds support in record evidence,” a noncitizen “cannot 6 secure . . . relief by pointing to conflicting evidence that might support–but not 7 compel–a different conclusion”). 8 For the foregoing reasons, the petition for review is DENIED. All pending 9 motions and applications are DENIED and stays VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court