Jimenez-Samaniego v. Garland

20-785
Jimenez-Samaniego v. Garland
BIA
Straus, IJ
A208 205 181
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
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 1st day of June, two thousand twenty-two.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOHN M. WALKER, JR.,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 LUIS ARIOLFO JIMENEZ-SAMANIEGO,
14 Petitioner,
15
16 v. 20-785
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Glenn L. Formica, Formica, P.C.,
24 New Haven, CT.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Song
28 Park, Acting Assistant Director;
1 Sarah L. Martin, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Luis Ariolfo Jimenez-Samaniego, a native and
10 citizen of Ecuador, seeks review of a February 10, 2020
11 decision of the BIA affirming a March 28, 2018 decision of an
12 Immigration Judge (“IJ”) denying Jimenez-Samaniego’s asylum
13 application. 1 In re Luis Ariolfo Jimenez-Samaniego, No. A208
14 205 181 (B.I.A. Feb. 10, 2020), aff’g No. A208 205 181 (Immig.
15 Ct. Hartford Mar. 28, 2018). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 We have reviewed the decision of the IJ as modified and
18 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
1 Jimenez-Samaniego does not challenge the denial of withholding
of removal and relief under the Convention Against Torture.
2
1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary . . . .”); Yanqin Weng
3 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual
4 findings for substantial evidence and questions of law and
5 application of law to facts de novo).
6 An asylum applicant has the burden to establish either
7 past persecution or a well-founded fear of future persecution
8 and that “race, religion, nationality, membership in a
9 particular social group, or political opinion was or will be
10 at least one central reason for persecuting the applicant.”
11 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. § 1208.13(b).
12 We find no error in the agency’s conclusion that Jimenez-
13 Samaniego failed to meet this burden. The BIA has defined
14 persecution as a “threat to the life or freedom of, or the
15 infliction of suffering or harm upon, those who differ in a
16 way regarded as offensive.” Matter of Acosta, 19 I. & N.
17 Dec. 211, 222 (B.I.A. 1985), overruled in part on other
18 grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
19 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
20 Cir. 2006). The harm must be sufficiently severe, rising
21 above “mere harassment.” Ivanishvili, 433 F.3d at 341.
22 Absent past persecution, an applicant can demonstrate a well-
3
1 founded fear of persecution by establishing that he “would be
2 singled out” for persecution or that the country of removal
3 has a “pattern or practice” of persecuting a group of
4 similarly situated individuals and he is included in and
5 identifies with that group. 8 C.F.R. § 1208.13(b)(2)(iii).
6 The applicant’s fear must be “objectively reasonable.”
7 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
8 Jimenez-Samaniego alleged that the government closed
9 down his restaurant and members of an opposing party
10 threatened him, made disparaging comments about him on the
11 radio, and interfered with a delivery of livestock to his
12 community because he was a council member in his parish and
13 a member of an opposition party. Even taken together, this
14 past harm does not rise to the level of persecution under our
15 precedent because Jimenez-Samaniego did not show the economic
16 impact of the restaurant closure and did not suffer any
17 physical harm. See Huo Qiang Chen v. Holder, 773 F.3d 396,
18 405–07 (2d Cir. 2014) (holding that unfulfilled threats are
19 generally insufficient to establish past persecution and
20 economic harm rises to the level of persecution only if it
21 “deprives the victim of . . . essentials of life, or
22 . . . reduce[s] an applicant to an impoverished existence”
4
1 (cleaned up)); Manzur v. U.S. Dep’t of Homeland Sec., 494
2 F.3d 281, 290 (2d Cir. 2007) (“The cumulative effect of the
3 applicant’s experience must be taken into account.”
4 (quotation marks omitted)); Ivanishvili, 433 F.3d at 341
5 (persecution requires more than “mere harassment”).
6 We likewise conclude that the record supports the
7 agency’s finding that Jimenez-Samaniego failed to demonstrate
8 the requisite possibility of future persecution on account of
9 his political opinion. See Hui Lin Huang v. Holder, 677 F.3d
10 130, 134 (2d Cir. 2012) (“A determination of what will occur
11 in the future and the degree of likelihood of the occurrence
12 has been regularly regarded as fact-finding subject to only
13 clear error review.”); Edimo-Doualla v. Gonzales, 464 F.3d
14 276, 281–83 (2d Cir. 2006) (applying substantial evidence
15 standard to nexus determination). Jimenez-Samaniego
16 testified that the threatening calls stopped a year before
17 his hearing. In addition, there was no claim that anyone
18 tried to locate him or expressed an interest in him after he
19 left Ecuador, nor was he physically harmed while in Ecuador.
20 Moreover, he testified that he did not know for certain who
21 slashed the tires on the truck carrying livestock or made the
22 threatening calls, and he conceded that his political
5
1 activity was not referenced when he was directed to close his
2 restaurant. Accordingly, the record does not compel a
3 conclusion that anyone would pursue him if he returned or
4 that such harm would be on account of his political opinion.
5 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
6 (“In the absence of solid support in the record . . . [an
7 applicant’s] fear is speculative at best.”); see also Jian
8 Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008)
9 (“[W]hen a petitioner bears the burden of proof, his failure
10 to adduce evidence can itself constitute the ‘substantial
11 evidence’ necessary to support the agency’s challenged
12 decision.”). Jimenez-Samaniego does not challenge the
13 agency’s additional finding that he did not demonstrate a
14 pattern or practice of persecution.
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6