Maldonado-Luna v. Garland ( 2022 )

20-868
Maldonado-Luna v. Garland
BIA
Conroy, IJ
A088 442 871
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 16th day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 DENNIS JACOBS,
9 RAYMOND J. LOHIER, JR.,
10 BETH ROBINSON,
11 Circuit Judges.
12 _________________________________________
13
14 CANDIDO MALDONADO-LUNA,
15 Petitioner,
16
17 v. 20-868
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Michael Yurasov-Lichtenberg,
25 Havens & Lichtenberg PLLC, New
26 York, NY.
27
28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
29 Assistant Attorney General; Linda
30 S. Wernery, Assistant Director;
1 Gregory M. Kelch, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Candido Maldonado-Luna, a native and citizen
11 of Mexico, seeks review of a February 10, 2020 decision of
12 the BIA affirming a March 28, 2018 decision of an Immigration
13 Judge (“IJ”), which denied withholding of removal and relief
14 under the Convention Against Torture (“CAT”). See In re
15 Candido Maldonado-Luna, No. A088 442 871 (B.I.A. Feb. 10,
16 2020), aff’g No. A088 442 871 (Immig. Ct. N.Y.C. Mar. 28,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We review both the IJ’s and the BIA’s opinions “for the
20 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
21 448 F.3d 524, 528 (2d Cir. 2006). Because Maldonado-Luna
22 does not challenge the denial of his CAT claim in this Court,
23 we address only withholding of removal. “We review factual
24 findings under the substantial evidence standard, treating
25 5them as ‘conclusive unless any reasonable adjudicator would
2
1 be compelled to conclude to the contrary.’” Paloka v.
2 Holder, 762 F.3d 191, 195 (2d Cir. 2014) (quoting 8 U.S.C.
3 § 1252(b)(4)(B)). We review questions of law — and the
4 application of law to undisputed facts — de novo. Id.
5 An applicant for withholding of removal must establish
6 past persecution or a likelihood of future persecution on
7 account of “race, religion, nationality, membership in a
8 particular social group, or political opinion.” 8 U.S.C.
9 § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). “[P]ersecution is
10 an extreme concept that does not include every sort of
11 treatment our society regards as offensive.” Mei Fun Wong
12 v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (quotation marks
13 omitted). The persecution in question must rise above “mere
14 harassment.” Ivanishvili v. U.S. Dep’t of Just., 433 F.3d
15 332, 341 (2d Cir. 2006). For economic deprivation to
16 constitute persecution, “an asylum applicant must offer some
17 proof that he suffered a deliberate imposition of substantial
18 economic disadvantage.” Guan Shan Liao v. U.S. Dep’t of
19 Just., 293 F.3d 61, 70 (2d Cir. 2002) (quotation marks
20 omitted).
21 The agency did not err in finding that Maldonado-Luna
22 failed to establish that he suffered past persecution,
23 economic or otherwise. The only harm Maldonado-Luna alleged
3
1 he personally suffered in Mexico stemmed from verbal insults,
2 but these were “mere harassment” that did not rise to the
3 level of persecution, see Ivanishvili, 433 F.3d at 341; Mei
4 Fun Wong, 633 F.3d at 72. He also testified that, while he
5 was living in the United States, (1) a man who claimed to be
6 a government official swindled his wife out of a substantial
7 sum of money, and (2) his niece was murdered by an abusive
8 ex-boyfriend. But “an asylum applicant cannot claim past
9 persecution based solely on harm that was inflicted on []
10 family member[s].” Tao Jiang v. Gonzales, 500 F.3d 137, 141
11 (2d Cir. 2007). A successful asylum applicant must instead
12 “rely upon harm the applicant has suffered individually.”
13 Id.14 Because Maldonado-Luna failed to demonstrate past
15 persecution, he was not entitled to a statutory presumption
16 of a likelihood of future persecution and thus needed to
17 establish that he would more likely than not face persecution
18 on account of a protected ground were he forced to return to
19 Mexico. See 8 C.F.R. § 1208.16(b)(1)(i), (2). But
20 Maldonado-Luna did not establish that the destruction of his
21 home during a hurricane, the conning of his wife, or the
22 murder of his niece posed a future risk to him personally or
23 occurred on account of his ethnicity. Those incidents
4
1 therefore did not support a finding of likely persecution on
2 account of a protected ground. 1 See id.; Jian Xing Huang v.
3 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). In addition,
4 Maldonado-Luna failed to show that it was more likely than
5 not that he would be subject to economic persecution in the
6 future, both because the record showed that he had been able
7 to work in Mexico in the past and because he failed to provide
8 evidence of his family’s current economic situation. See
9 Jian Xing Huang, 421 F.3d at 129; Guan Shan Liao, 293 F.3d at
10 70. We therefore conclude that the agency did not err in
11 determining that Maldonado-Luna was ineligible for
12 withholding of removal.
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe,
18 Clerk of Court
1We decline to consider Maldonado-Luna’s argument that he
established a pattern or practice of persecution against
Mixtecs – the indigenous community in Mexico to which he
belonged – because he failed to exhaust the issue before
the agency. See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d
104, 119–22 (2d Cir. 2007).
5