Santos-Garcia v. Barr ( 2019 )

17-1560
Santos-Garcia v. Barr
BIA
Weisel, IJ
A206 793 723/724
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 14th day of August, two thousand nineteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 NORMA ELOGIA SANTOS-GARCIA,
14 SHELSON EDUARDO MELENDEZ-SANTOS,
15 Petitioners,
16
17 v. 17-1560
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25 FOR PETITIONERS: Heather Y. Axford, Central
26 American Legal Assistance,
27 Brooklyn, NY.
28
29 FOR RESPONDENT: Joseph H. Hunt, Assistant
30 Attorney General; Nelle M.
31 Seymour, Trial Attorney, Office of
32 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioners Norma Elogia Santos-Garcia and her son,
9 Shelson Eduardo Melendez-Santos, natives and citizens of
10 Honduras, seek review of an April 12, 2017, decision of the
11 BIA affirming a July 29, 2016, decision of an Immigration
12 Judge (“IJ”) denying Santos-Garcia’s application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Norma Elogia Santos-Garcia,
15 Shelson Eduardo Melendez-Santos, Nos. A 206 793 723/724
16 (B.I.A. Apr. 12, 2017), aff’g Nos. A 206 793 723/724 (Immig.
17 Ct. N.Y. City July 29, 2016). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have considered
21 the entirety of the IJ’s decision as well as the BIA’s
22 additional statement regarding social group. See Ming Xia
23 Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006); Yan Chen v.
24 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
3 2014)(reviewing factual findings for substantial evidence and
4 questions of law and application of law to fact de novo).
5 To demonstrate eligibility for asylum and withholding
6 of removal, an “applicant must establish that race, religion,
7 nationality, membership in a particular social group, or
8 political opinion was or will be at least one central reason
9 for persecuting the applicant.” 8 U.S.C.
10 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Matter of
11 C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010). An applicant
12 who has not suffered past harm must establish a well-founded
13 fear of future persecution, which is a “reasonable
14 possibility of future persecution” for asylum and a “clear
15 probability” of persecution in the withholding context.
16 Hongsheng Leng v. Mukasey, 528 F.3d 135, 140, 143 (2d Cir.
17 2008) (quoting Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 565
18 (2d Cir. 2006)).
19 Santos-Garcia asserts that the agency erred in finding
20 that she failed to establish past persecution. We can
21 identify no error in the agency’s decision because Santos-
22 Garcia was not harmed or threatened by the gang and any harm
3
1 to her husband is not past persecution of her. See Tao Jiang
2 v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a general
3 principle, an asylum applicant cannot claim past persecution
4 based solely on harm that was inflicted on a family member on
5 account of that family member’s political opinion or other
6 protected characteristic.”).
7 Absent past persecution, Santos-Garcia had the burden to
8 show an “objectively reasonable” fear that she would be harmed
9 in the future on account of a protected ground.
10 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
11 To be objectively reasonable, a fear must be more than
12 speculative. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,
13 129 (2d Cir. 2005) (“In the absence of solid support in the
14 record . . . [a] fear is speculative at best.”). As Santos-
15 Garcia argues, the IJ used the clear probability and well-
16 founded fear standards interchangeably. Although the agency
17 errs if it applies the wrong standard, the IJ’s decision as
18 a whole does not support a conclusion that the wrong standard
19 was applied: the IJ set out the well-founded fear standard
20 initially and ultimately concluded that Santos-Garcia had not
21 shown a well-founded fear of persecution. Moreover, as the
22 IJ found there was no evidence to support Santos-Garcia’s
4
1 claim as neither she nor her husband were harmed, she was not
2 directly threatened, and she did not allege that the gang
3 knew of her existence. See Guan Shan Liao v. U.S. Dep’t of
4 Justice, 293 F.3d 61, 68-69 (2d Cir. 2002) (concluding that
5 BIA did not apply a more stringent burden of proof than a
6 well-founded fear because its language that an applicant had
7 not shown “that he would be subject to persecution upon his
8 return to China . . . simply fault[ed] the applicant for
9 failing to show that any of [his] actions would even
10 potentially subject [him] to persecution upon his return to
11 China”).
12 Because these findings are dispositive of asylum and
13 withholding of removal, we do not reach the agency’s
14 alternative findings whether Santos-Garcia’s social groups
15 were cognizable or whether she could show a nexus between her
16 alleged fear and those grounds. See INS v. Bagamasbad, 429
17 U.S. 24, 25 (1976) (“As a general rule courts and agencies
18 are not required to make findings on issues the decision of
19 which is unnecessary to the results they reach.”). We note,
20 however, that that BIA’s reasoning is unclear. To the extent
21 that the BIA stated that membership in a family cannot, as a
22 matter of law, constitute a particular social group, it
5
1 misstates the law. See Vumi v. Gonzales, 502 F.3d 150, 155
2 (2d Cir. 2007); see also Matter of L-E-A-, 27 I. & N. Dec.
3 40, 42-43 (B.I.A. 2017), held pending further review by the
4 U.S. Att’y Gen., 27 I. & N. Dec. 494 (A.G. 2018).
5 Because the BIA denied CAT relief for the reasons given
6 by the IJ, we have reviewed the IJ’s decision. See Ming Xia
7 Chen, 435 F.3d at 144. An applicant for CAT relief must show
8 that “it is more likely than not that . . . she would be
9 tortured.” 8 C.F.R. § 1208.16(c)(2). Although there is no
10 protected ground requirement for CAT relief, Santos-Garcia’s
11 CAT claim fails for the same reasons as asylum and withholding
12 of removal: she did not establish the required fear of future
13 harm. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir.
14 2010) (holding that failure to show possibility of future
15 harm for asylum means applicant “necessarily fails to
16 demonstrate” the higher standard for withholding of removal
17 and CAT relief). Santos-Garcia asserts that the IJ ignored
18 country conditions evidence demonstrating that the Honduran
19 government acquiesces in torture. However, her country
20 conditions evidence did not demonstrate that an individual in
21 her “particular alleged circumstances” would more likely than
22 not be tortured, or that the government would acquiesce in
6
1 her torture. Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
2 Cir. 2003).
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
8
7