Guaman Minchala v. Barr

18-2363 Guaman Minchala v. Barr BIA Straus, IJ A206 372 568 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 22nd day of October, two thousand nineteen. [5] 6 PRESENT: 7 JOSÉ A. CABRANES, 8 SUSAN L. CARNEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ [12] 13 STALIN GUAMAN MINCHALA, AKA 14 CESAR ARMANDO RAMOS, 15 Petitioner, [16] 17 v. 18-2363 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Glenn L. Formica, New Haven, CT. [25] 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Ilana J. Snyder, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 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 Petitioner Stalin Guaman Minchala, a native and citizen 6 of Ecuador, seeks review of a July 11, 2018, decision of the 7 BIA affirming a September 7, 2017, decision of an Immigration 8 Judge (“IJ”) denying Guaman Minchala’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Stalin Guaman 11 Minchala, No. A 206 372 568 (B.I.A. July 11, 2018), aff’g No. 12 A 206 372 568 (Immig. Ct. Hartford Sept. 7, 2017). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 As an initial matter, we grant Guaman Minchala’s motion 16 for in forma pauperis status and deny the Government’s motion 17 for summary denial because the petition for review is not 18 frivolous. See Pillay v. INS, 45 F.3d 14, 15-17 (2d Cir. 19 1995). However, because Guaman Minchala has filed his brief, 20 we treat the Government’s motion as its brief and deny the 21 petition on the merits. [2] 1 We have reviewed the IJ’s decision as supplemented by 2 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 3 Cir. 2005). The applicable standards of review are well 4 established. See 8 U.S.C. § 1252 (b)(4)(B); Paloka v. Holder, [5] 762 F.3d 191, 195 (2d Cir. 2014) (“[w]e review factual 6 findings under the substantial evidence standard” and review 7 de novo questions of law and the application of law to fact, 8 including the “determination of whether a group constitutes 9 a ‘particular social group’”). 10 Asylum and Withholding of Removal 11 To demonstrate eligibility for asylum and withholding 12 of removal, “the applicant must establish that race, 13 religion, nationality, membership in a particular social 14 group, or political opinion was or will be at least one 15 central reason for persecuting the applicant.” 8 U.S.C. 16 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); In re C- 17 T-L-, 25 I. & N. Dec. 341, 347-48 (B.I.A. 2010) (applying 18 “one central reason” standard to withholding). A 19 petitioner has the burden to show either past harm rising 20 to the level of persecution on account of a protected 21 ground or that he has a well-founded fear of future [3] 1 persecution on account of a protected ground. 8 U.S.C. 2 §§ 1101(a)(42), 1158(b)(1)(A), (B)(i). 3 The agency did not err in finding no past persecution. 4 Guaman Minchala alleged that his mother’s friends told her 5 that a local gang was abducting children. To the extent that 6 he alleged a threat, threats alone do not constitute 7 persecution. See Gui Ci Pan v. U.S. Att’y General, 449 F.3d 8 408, 412-13 (2d Cir. 2006) (recognizing that unfulfilled 9 threats alone do not constitute persecution). 10 Nor did the agency err in finding that Guaman Minchala 11 did not establish a well-founded fear of future persecution. 12 To establish asylum eligibility based on future persecution, 13 an applicant must show that he subjectively fears persecution 14 and that his fear is objectively reasonable. Ramsameachire 15 v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A fear is 16 objectively reasonable “even if there is only a slight, though 17 discernible, chance of persecution.” Diallo v. INS, 232 F.3d 18 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 19 U.S. 421 , 431 (1987)). But a fear is not objectively 20 reasonable if it lacks “solid support” in the record and is 21 merely “speculative at best.” Jian Xing Huang v. U.S. INS, [1] 421 F.3d 125, 129 (2d Cir. 2005). Guaman Minchala’s fear of 2 exploitation by La Sombra Negra lacked “solid support” in the 3 record. Id. He testified that he never had any encounters 4 with any gang members and was never threatened with future 5 harm by anyone in Ecuador. He also testified that his 6 grandmother informed him that the gang has overtaken large 7 swaths of his hometown of Guapan and is known for harvesting 8 organs, and that he would be forcibly recruited to join the 9 gang as a deportee from the United States. But his only 10 evidence of the scale of La Sombra Negra’s influence was an 11 article that addressed the gang’s ascendancy in areas of New 12 York and referenced “homicides and robberies” committed by 13 the gang in Guaman Minchala’s home region of Cañar and the 14 fact that the “gang [wa]s attracting indigenous youths” in 15 Ecuador. The agency did not err in ruling that this article 16 did not provide “solid support” for Guaman Minchala’s claim 17 that gang members would recruit him based on his youth. Id. 18 Accordingly, Guaman Minchala failed to demonstrate an 19 objectively reasonable fear of future harm. 8 U.S.C. 20 §§ 1101(a)(42), 1158(b)(1)(A), (B)(i); Ramsameachire, 357 21 F.3d at 178. Because this conclusion is dispositive, we do [5] 1 not reach the agency’s alternative ruling that, even assuming 2 an objectively reasonable fear, Guaman Minchala did not 3 demonstrate that his fear was based on his membership in a 4 cognizable social group. See INS v. Bagamasbad, 429 U.S. 24 , 5 25 (1976) (“As a general rule courts and agencies are not 6 required to make findings on issues the decision of which is 7 unnecessary to the results they reach.”). Because Guaman 8 Minchala failed to meet his burden of proof for asylum, he 9 necessarily failed to meet the higher burden associated with 10 withholding of removal. See Huo Qiang Chen v. Holder, 773 11 F.3d 396, 404 (2d Cir. 2014). 12 CAT Protection 13 An applicant for CAT relief must show that it is more 14 likely than not that he will be tortured. See 8 C.F.R. 15 § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d 16 Cir. 2004). To constitute torture under the CAT, the likely 17 harm must be “inflicted by or at the instigation of or with 18 the consent or acquiescence of a public official or other 19 person acting in an official capacity.” 8 C.F.R. 20 § 1208.18(a)(1). In assessing the likelihood of torture, 21 “all evidence relevant to the possibility of future torture [6] 1 shall be considered, including, but not limited to . . . 2 [e]vidence of past torture,” the possibility of relocation 3 within the country, “[e]vidence of gross, flagrant or mass 4 violations of human rights . . . and . . . relevant 5 information regarding conditions in the country of removal.” 6 Id. § 1208.16(c)(3). To meet his burden of proof, an 7 applicant for CAT relief must establish that someone in his 8 “particular alleged circumstances” is more likely than not to 9 be tortured in the country designated for removal. Mu-Xing 10 Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003). 11 The agency did not err in ruling that Guaman Minchala 12 failed to prove that he would more likely than not face 13 torture in Ecuador. First, his argument fails for the same 14 reason that his asylum and withholding claims were rejected: 15 he did not establish an objectively reasonable fear of future 16 harm amounting to persecution, let alone torture. See Paul 17 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Second, 18 to the extent his claim is based on additional facts, he 19 testified that his grandmother warned him that gangs were 20 harvesting children’s organs and alleged a likelihood of 21 retaliation for not joining a gang. None of his country [7] 1 conditions evidence, however, describes incidents of organ 2 harvesting in Ecuador or establishes that La Sombra Negra 3 targets children for recruitment with the acquiescence of 4 public officials. Accordingly, Guaman Minchala provided no 5 evidence that someone in his “particular alleged 6 circumstances” is more likely than not to be tortured. Mu- 7 Xing Wang, 320 F.3d at 144 . 8 For the foregoing reasons, Guaman Minchala’s motion for 9 in forma pauperis status is GRANTED and the Government’s 10 motion for summary denial is DENIED because the petition is 11 not frivolous. Having construed the Government’s motion as 12 its brief and having completed our review of the merits, 13 however, the petition is DENIED and Guaman Minchala’s motion 14 for a stay of removal is DENIED as moot. Any pending request 15 for oral argument in this petition is DENIED in accordance 16 with Federal Rule of Appellate Procedure 34(a)(2), and Second 17 Circuit Local Rule 34.1(b). 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court