Jose Abel Garcia-Carranza v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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No. 16-3553
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Jose Abel Garcia-Carranza
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 16, 2017
Filed: January 2, 2018
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.
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Jefferson B. Sessions, III has been appointed to serve as Attorney General of
the United States and is automatically substituted as respondent pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
Jose Garcia-Carranza seeks review of the denial of his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). In 2012, Garcia-Carranza entered the United States from his native El
Salvador without valid documentation. The following year, the Department of
Homeland Security initiated removal proceedings under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Garcia-Carranza conceded the charge but sought relief based
on his fear of persecution and torture if he were removed to El Salvador. He testified
that the El Salvadorian police briefly detained and later assaulted him due to his
membership in a purported social group of “El Salvadorian youth who are being
supported by family members in the United States.” According to Garcia-Carranza,
the police also attempted to extort money from him by threatening his life. The
immigration judge (“IJ”) and Board of Immigration Appeals (“BIA”) denied his
request for relief. Garcia-Carranza now petitions for review on all three grounds:
asylum, withholding of removal, and protection under CAT.
“To qualify for asylum, the applicant must establish that he or she is a refugee
as defined in the statute.” Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir. 2008). Under
the statute, a refugee is “any person who is outside any country of such person’s
nationality . . . who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that country because of 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)(A). In
concluding that Garcia-Carranza did not qualify for asylum, the BIA adopted much
of the IJ’s decision and added additional reasoning, so we review both decisions. See
Gathungu v. Holder, 725 F.3d 900, 907 (8th Cir. 2013). We review questions of law
de novo and “consider administrative findings of fact under the deferential
substantial-evidence standard.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir.
2010). “We will not overturn an agency’s decision unless the petitioner demonstrates
that the evidence not only supports a contrary conclusion, but compels it.” Id.(alterations omitted).
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Garcia-Carranza fails to satisfy that burden. He has not demonstrated, for
instance, that his purported persecution was “on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). He claims that he was targeted based on his social group of “El
Salvadorian youth who are being supported by family members in the United States.”
But being “among those who are perceived as wealthy for having lived” in the United
States does not qualify as “a recognized social group subject to protection under
asylum law.” See Tejado v. Holder, 776 F.3d 965, 970 (8th Cir. 2015) (per curiam);
see also Matul-Hernandez v. Holder, 685 F.3d 707, 712-13 (8th Cir. 2012).
Garcia-Carranza offers no reason—nor do we see any—why his purported social
group should be treated differently than those in Tejado or Matul-Hernandez. The
BIA thus did not err in concluding that Garcia-Carranza “failed to identify a particular
social group that is cognizable under the Act or any other protected ground.”
Even if Garcia-Carranza could identify a cognizable social group, he has not
established past persecution. “Persecution is an extreme concept that does not
include low-level intimidation and harassment.” Matul-Hernandez, 685 F.3d at 711
(internal quotation marks omitted). Garcia-Carranza testified to a fifteen-minute
detention and later assault, but “minor beatings or limited detentions do not usually
rise to the level of past persecution.” Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.
2006). In Garcia-Carranza’s case, he had no lasting injuries and did not seek medical
treatment. Garcia-Carranza cites Phommasoukha v. Gonzales for the proposition that
he need not show lasting physical injury and that his detention could constitute
persecution, but the petitioner there had been imprisoned for “approximately four to
six years”—far longer than the fifteen-minute detention here. See 408 F.3d 1011,
1015 (8th Cir. 2005). Garcia-Carranza also testified to the threat on his life and the
related “emotional injury.” But the evidence in the record insufficiently demonstrates
emotional injury, see Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004), and
“threats alone constitute persecution in only a small category of cases, and only when
the threats are so menacing as to cause significant actual suffering or harm,” see
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Lemus-Arita v. Sessions, 854 F.3d 476, 481-82 (8th Cir. 2017) (alteration omitted)
(collecting cases where death threats were found insufficient to establish past
persecution). Substantial evidence supports the BIA’s conclusion that Garcia-
Carranza failed to satisfy this burden. See id.Garcia-Carranza also has failed to establish a well-founded fear of future
persecution. He points to nothing in the record showing a “subjectively genuine” and
“objectively reasonable fear of particularized persecution.” Al Yatim v. Mukasey, 531
F.3d 584, 587 (8th Cir. 2008) (stating the standard for a well-founded fear in the
absence of past persecution). He emphasizes that a pattern of police corruption and
brutality exists in El Salvador, but the BIA adopted the IJ’s reasonable factual
conclusion that Garcia-Carranza would be “subjected to the same level of risk as the
general population.” Indeed, in “a poorly policed country, rich and poor are all prey
to criminals who care about nothing more than taking it for themselves.” Matul-
Hernandez, 685 F.3d at 712-713. The evidence we do have—namely, that
Garcia-Carranza’s grandfather and brother remain in the country unharmed—suggests
that Garcia-Carranza may be at even less risk than others. See Bernal-Rendon v.
Gonzales, 419 F.3d 877, 881 (8th Cir. 2005) (“An alien’s fear of persecution is
reduced when her family remains unharmed in her native country.”). Substantial
evidence thus supports the BIA’s conclusion that Garcia-Carranza failed to establish
a well-founded fear of future persecution. See Lemus-Arita, 854 F.3d at 482.
In short, Garcia-Carranza has failed to establish past persecution or a well-
founded fear of future persecution on account of a cognizable social group. He is
thus ineligible for asylum. See id. at 481-83; Tejado, 776 F.3d at 970.
Because Garcia-Carranza “did not establish the well-founded fear of
persecution required for asylum, he did not meet the more rigorous burden of
showing a clear probability of persecution” for withholding of removal. See
Matul-Hernandez, 685 F.3d at 713. And because Garcia-Carranza “does not point
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to any evidence in the record, nor have we found any, which indicates he may be
tortured for reasons unrelated to his claims for asylum and withholding of removal,”
his claim under CAT also fails. See Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir.
2008).
Accordingly, we deny the petition for review.
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