Coello-Mutate v. Barr

17-429 Coello-Mutate v. Barr BIA Straus, IJ A206 480 524/525 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 1st day of May, two thousand nineteen. — 5 — 6 PRESENT: 7 GERARD E. LYNCH, 8 CHRISTOPHER F. DRONEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 BETI MARLEN COELLO-MUTATE, 14 CRISTIAN NORBEY MENDEZ-COELLO, 15 Petitioners, — 16 — 17 v. 17-429 18 NAC 19 WILLIAM P. BARR, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ — 23 — 24 FOR PETITIONER: Milagros S. Cruz, Hartford, CT. — 25 — 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Stephen J. 28 Flynn, Assistant Director; Kathryn 29 M. McKinney, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. — 33 — 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioners Beti Marlen Coello-Mutate and Cristian 6 Norbey Mendez-Coello, natives and citizens of Honduras, seek 7 review of a January 26, 2017 decision of the BIA affirming a 8 March 15, 2016 decision of an Immigration Judge (“IJ”) denying 9 their applications for asylum, withholding of removal, and 10 relief under the Convention Against Torture (“CAT”). In re 11 Beti Marlen Coello-Mutate and Cristian Norbey Mendez-Coello, 12 No. A 206 480 524/525 (B.I.A. Jan. 26, 2017), aff’g No. A 206 13 480 524/525 (Immig. Ct. Hartford Mar. 15, 2016). We assume 14 the parties’ familiarity with the underlying facts and 15 procedural history in this case. 16 Under the circumstances of this case, we have reviewed 17 the IJ’s decision as modified by the BIA, i.e., minus the 18 social group and nexus determinations that the BIA did not 19 reach. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 20 520, 522 (2d Cir. 2005). We review the agency’s findings of 21 fact under the substantial evidence standard, treating such 22 findings as “conclusive unless any reasonable adjudicator — 2 — 1 would be compelled to conclude to the contrary.” Hong Fei 2 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (quoting 8 3 U.S.C. §1252 (b)(4)(B)). 4 To establish asylum eligibility, an applicant must show 5 that she has suffered past persecution, or has a well-founded 6 fear of future persecution, “on account of race, religion, 7 nationality, membership in a particular social group, or 8 political opinion.” 8 U.S.C. § 1101 (a)(42). If the 9 applicant has suffered past persecution, she is “presumed to 10 have a well-founded fear of persecution on the basis of the 11 original claim.” 8 C.F.R. § 1208.13 (b)(1). 12 Past Persecution 13 While the Immigration and Nationality Act does not define 14 persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir. 15 2009), the BIA has defined it as a “threat to the life or 16 freedom of, or the infliction of suffering or harm upon, those 17 who differ in a way regarded as offensive.” Matter of Acosta, — 18 — 19 I. & N. Dec. 211, 222 (BIA 1985), overruled in part on 19 other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); 20 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 , 21 342 (2d Cir. 2006). The harm must be sufficiently severe, 22 rising above “mere harassment.” Ivanishvili, 433 F.3d at — 3 — 1 341; see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d 2 Cir. 2011) (“We have emphasized that persecution is an extreme 3 concept that does not include every sort of treatment our 4 society regards as offensive.” (internal quotation marks 5 omitted)). 6 The agency did not err by determining that the threat 7 against Coello-Mutate did not constitute past persecution. 8 Generally, threats alone do not constitute past persecution. 9 See Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408 , 412-13 10 (2d Cir. 2006); Guan Shan Liao v. U.S. Dep’t of Justice, 293 11 F.3d 61, 70 (2d Cir. 2002) (stating that a “threat of 12 detention . . . itself . . . is not past persecution”). 13 Coello-Mutate argues that the threat rose to the level of 14 persecution because it caused her psychological harm. 15 However, in holding that harm must rise above “mere 16 harassment” in order to constitute persecution, we have noted 17 that the definition of harassment includes actions that 18 cause, inter alia, “substantial emotional distress.” 19 Ivanishvili, 433 F.3d at 341 (citation omitted). Because a 20 reasonable adjudicator would not be compelled to conclude 21 that Coello-Mutate suffered psychological harm rising to 22 persecution, the agency did not err in determining that — 4 — 1 Coello-Mutate failed to establish past persecution. 2 Future Persecution 3 Absent a finding of past persecution, an applicant may 4 establish asylum eligibility based on a fear of future 5 persecution, but the applicant must show that she 6 “subjectively fears persecution” and that her “fear is 7 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 8 169, 178 (2d Cir. 2004). A fear is objectively reasonable 9 “even if there is only a slight, though discernible, chance 10 of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 11 2000) (citing Cardoza-Fonseca, 480 U.S. at 431 ). But a fear 12 is not objectively reasonable if it lacks “solid support” in 13 the record and is merely “speculative at best.” Jian Xing 14 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). The agency 15 did not err in determining that Coello-Mutate did not have an 16 objectively reasonable fear of future persecution. 17 First, there was no substantial evidence that Elim, the 18 man who allegedly threatened Coello-Mutate in 2013, still 19 intends to harm her. Coello-Mutate did not allege any direct 20 threats to her since Elim’s release, noting only one threat 21 against her brother. See Jian Xing Huang, 421 F.3d at 129 . 22 Second, because there is evidence that Elim could have sent — 5 — 1 another person to harm Coello-Mutate while he was in prison, 2 the agency did not err in relying on the fact that Coello3 Mutate was not harmed before she left Honduras for the United 4 States in finding that her fear of future persecution was not 5 objectively reasonable. Third, Coello-Mutate’s children and 6 other family members remain unharmed in Honduras. This 7 absence of harm or threats is relevant to Coello-Mutate’s 8 claim of objective fear. See Melgar de Torres v. Reno, 191 — 9 — F.3d 307, 313 (2d Cir. 1999) (holding that a fear of 10 persecution is undermined when similarly-situated family 11 members remain unharmed in native country). Id. 12 In sum, because there is no “solid support in the record” 13 that Elim intends to harm Coello-Mutate, the agency did not 14 err in finding that she failed to establish an objectively 15 reasonable fear of future persecution. See Jian Xing Huang, — 16 — 421 F.3d at 129 . Coello-Mutate’s failure to meet her burden 17 for asylum is also dispositive of withholding of removal. 18 Ramsameachire, 357 F.3d at 183 . 19 CAT 20 Although the above analysis is equally dispositive of 21 the CAT claim, we address the claim separately because the 22 agency denied CAT relief based on Coello-Mutate’s failure to — 6 — 1 establish that the Honduran authorities would acquiesce in 2 her torture. An applicant for CAT relief must show that it 3 is “more likely than not” that she will be tortured. See 8 4 C.F.R. § 1208.16 (c)(2); Khouzam v. Ashcroft, 361 F.3d 161 , 5 168 (2d Cir. 2004). To constitute torture under the CAT, the 6 harm must be “inflicted by or at the instigation of or with 7 the consent or acquiescence of a public official or other 8 person acting in an official capacity.” 8 C.F.R. 9 § 1208.18(a)(1). “Acquiescence of a public official requires 10 that the public official, prior to the activity constituting 11 torture, have awareness of such activity and thereafter 12 breach his or her legal responsibility to intervene to prevent 13 such activity.” 8 C.F.R. § 1208.18 (a)(7). 14 The agency did not err in determining that Coello-Mutate 15 did not demonstrate that she would be tortured by or with the 16 acquiescence of a public official. See 8 C.F.R. 17 § 1208.18(a)(1). The record does not establish that Elim was 18 released after being convicted of murder because of the 19 involvement of corrupt government officials. And the fact 20 that the Honduran government cooperated with the U.S. 21 government in having Elim extradited or deported to Honduras 22 and then convicted him of murder weighs against a finding — 7 — 1 that authorities would acquiesce in any harm to Coello2 Mutate. 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 — — 8 —